IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No.20 of 2001 Date of Decision : December 8, 2010 State of H.P. …Appellant. Versus: Sohan Singh …Respondent. Coram: The Hon’ble Mr. Justice R. B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. R. K. Sharma, Sr. Addl. A. G. For the respondents: M/s. R. S. Kanwar and Vinay Thakur, Advocates Sanjay Karol, J. (Oral) It is the case of the prosecution that on 20.6.1991 Sh. Rajeev Sharma (PW-12) made a written complaint (Ext.PW-12/A) to the SHO, Police Station, Renuka Ji for registration of a case against accused Sohan Singh. Accused was working as a Bhandar Incharge, Himfed Godown, Nohra Dhar Depot. He was posted in the manure godown. He was authorised to receive the sale proceeds of the fertilizer sold to the farmers from the Bhandar and was duty bound to deposit the same within time. He defaulted in discharging his duties and even on earlier occasions 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 was verbally asked to deposit the sale proceeds within time. Regretfully accused failed to do so. He was transferred from the place of his posting and on stock checking it was found that he had mis-appropriated an amount of `.88,050.25 and there was also shortage of material to the tune of `.9,030/-. Thus the accused embezzled a total sum of `.97,080.25. On the basis of the complaint F.I.R. 65/91 dated 20.6.1991 (Mark ‘F’) was registered at Police Station, Renuka Ji, under Section 409 IPC. Police took on record statement of sale remittance (Ext.PW-12/B), cash book, ledger and stock register vide seizure memo Ext.PW-1/A. Accused admitted his guilt and agreed for deduction of `.1,000/- per month out of his salary vide letter (Ext.PW-12/D). Same was also taken into possession by the police. Matter was thoroughly investigated and statements of the relevant witnesses recorded. Police found that case for trial was made out and consequently filed the challan in the Court. 2. Accused was charged for having committed an offence punishable under Section 409 IPC, to which he did not plead guilty and claimed trial. 3. In order to prove its case prosecution examined 12 witnesses and statement of the accused under Section 313 Cr.PC was also recorded, in which he took the following defence: 3 “I had implicated in the present case at the instance of Rajeev Sharma the then Area Manager Himfed. Rajeev Sharma himself was terminated from the service on the allegations of embezzlement. I am not misappropriated any amount as alleged and has been implicated in a false case.” 4. Vide judgment dated 23.6.1998 passed by Addl. Chief Judicial Magistrate, Sirmaur District at Nahan in Cr. Case No. 11/2 of 94/93, accused was held guilty and convicted for the charged offence and sentenced to undergo rigorous imprisonment for a period of two years and pay fine of `.5,000/- and in default thereof to further undergo rigorous imprisonment for a period of six months. 5. The aforesaid judgment and findings passed by the trial Court stand set-aside by the lower Appellate Court and in terms of judgment dated 18.9.2000 passed by learned Addl. Sessions Judge, Sirmaur District at Nahan, in Criminal Appeal No.41-N/10 of 1998, accused stands acquitted of the charged offence, hence the present appeal. 6. Star witness of the prosecution is Rajeev Sharma (PW-12). He filed complaint (Ext.PW-12/A) annexing the sale and remittance statements of Nohra Dhar Depot for the period 1.4.1990 to 31.3.1991. It is this statement which is heavily relied upon by the prosecution to prove the charged offence against the 4 accused. We may point out that letter (Ext.PW-12/D) whereby accused has allegedly agreed for deduction of `.1,000/- per month from his salary is denied to have been signed by him. Prosecution has not led any evidence to prove the alleged signature of the accused on this letter. Mere exhibiting the documents does not make it admissible in law. Hence this letter is of no use to the prosecution. 7. Further, to our mind, statement (Ext.PW-12/B) is also of not much use to the prosecution. According to PW-12 same was prepared on the basis of record maintained by the employer. However, regretfully prosecution has not linked the evidence in the statement with the relevant entries made in the cash book, ledger and stock register. Entries therein have also not been explained by the prosecution. Relevant entries in the record have not been linked or correlated with the statement (Ext.PW-12/B). In the absence of same, it is not possible to come to the conclusion that accused had actually embezzled the amount in question and committed the charged offence. 8. Not only that none has come forward to prove the actual receipt of the goods in question by the accused. Who handed over the same to the accused has also not been explained. Thus entrustment, if any, which is an essential ingredient required to prove the charged offence does not stand proved by the 5 prosecution. Statement of the relevant witness is not corroborated and substantiated by any documentary evidence. Thus, to our mind, no case for interference is made out. 9. The accused has had the advantage of having been acquitted by the lower Appellate Court. Keeping in view the principles laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Lower Appellate Court has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. ( R. B. Misra ) Judge. ( Sanjay Karol ), Judge. December 8, 2010. (rana)