IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 214 of 1997. Decided on: 16.8.2010. ___________________________________________________________ State of H.P. … Appellant. Versus Rajinder Kumar. … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Rajinder Dogra, Addl. A.G.. For the respondent : Mr. Rakesh Jaswal, Advocate. ___________________________________________________________ R.B. Misra, J. (Oral). The present criminal appeal has come up for consideration after leave to appeal has been granted, under Section 378 (3) Cr.P.C., in reference to the impugned judgment, dated 29.6.1996, passed by the learned Judicial Magistrate Ist Class, Court No. II, Amb, District Una, H.P., in Case No. 40-1 of 92, acquitting the respondent-accused for the alleged offence, under Sections 408, 468, 471, 477-A IPC, in reference to FIR No. 6/86. 2. The prosecution story is that the accused was working as Secretary, Ado Patehar Co-operative Agriculture Service Society during the period from 1.1.1982 to 31.12.1982. Being a Secretary, he was entrusted with receipt and payment of society money on behalf of the society, but accused misappropriated the amount received from the 1 Whether reporters of the local papers may be allowed to see the judgment? 2 account holders and to do so, he prepared forged documents and made false entries in the accounts as well as pass books of various persons. He also withdrew money from the accounts of various account holders. In all, he committed embezzlement of Rs. 272.07 during the aforesaid period. The embezzlement of misappropriation, fraud and cheating on the part of the accused came in the light at the time of audit inspection of the society in the year 1986. Accordingly, case was registered against the accused under sections 409,467,468, 471 IPC. 3. In order to prove its case, prosecution has examined as many as 7 witnesses, whereas in statement under Section 313 Cr.P.C., the accused has denied the prosecution case. 4. The prosecution case is that the alleged misappropriation and fraud was noticed during audit inspection of the society conducted in the year 1986 by the then inspection (audit) Co-operative Societies, Una, namely Shri Achhar Singh and at that time the accused was the Secretary of the society in question. So the entire case of the prosecution is based on the audit report of which Shri Achhar Singh was the author. But unfortunately the prosecution could not examine him as witness as he is no more in this world. Though the prosecution has examined PW1 Shri Tilak Raj to prove the audit report in question, but in his cross- examination, he has clearly stated that he knows nothing 3 about this case. Meaning thereby his statement is not relevant to rely upon the audit report in question. There are certain material facts in this report upon which only its author could throw light. Due to his death various important aspects of the case remained unexplained which has certainly caused prejudice to the accused. The prosecution has not even led sufficient evidence on record to prove that the accused was serving as Secretary in the society in question, at the time of alleged occurrence. To prove this fact, it was necessary to prove the entrustment of cash to the accused. 5. The prosecution has tried to establish that being Secretary, the accused was also authorised to receive cash or to deal with cash transactions. But resolution of the society has come on record to prove this fact. Rather from the evidence on record, it can be inferred that the society is having a Cashier, who deals in cash transactions. The prosecution has tried to establish that account holders had handed over money to the accused for depositing the same and made false entries in the pass books of the account holders. To prove the fact that whether the amount was deposited in the account or not, cash books were the most important books. But no such entry in cash book by the accused has been proved by the prosecution on the record. Much reliance has been placed by the prosecution on the entries in pass book. There is no evidence on the record to prove that the alleged entries have been made by the 4 accused. The prosecution has also tried to establish that the accused had cheated various persons by withdrawing money from their accounts, but the evidence led by the prosecution in this regard is of no help as one of the prosecution witnesses has deposed that the accused had withdrawn money from their accounts. 6. In the similar facts and circumstances of this case while adjudicating upon Criminal Appeal No. 46 of 1997, titled State of H.P. versus Rajinder Kumar, this Court has also found that the trial Court has rightly given benefit of doubt to the respondent-accused as the prosecution has failed to bring home the guilt to the accused. Here also, we do not find any occasion to interfere in the impugned judgment of the trial Court. 7. In view of the aforesaid facts and circumstances, the present criminal appeal being devoid of any merit is dismissed. The bail bonds furnished by the accused are discharged. (R.B. Misra) Judge. (V.K. Sharma) Judge. August 16, 2010. (cr)