IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.289 of 2005 Date of decision : April 8, 2011 Yash Paul Singh Jaswal …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Anoop Chitkara, Advocate. For the Respondent : Mr. Ramesh Thakur Assistant Advocate General. Surjit Singh, Judge(Oral) Appellant Yash Paul Singh Jaswal is aggrieved by the judgment dated 7th June, 2005 of learned Special Judge, whereby he has been convicted of offences, under Sections 409, 420, 465 & 477-A of the Indian Penal Code and Section 13(2) of the Prevention of Corruption Act, 1988, and sentenced to varying terms of imprisonment and also fine. 2. Appellant, while working as Tehsil Welfare Officer at Kotkhai, during the period from January 1992 to 1994, was entrusted, amongst others, with the duty of disbursement of pension to various persons, under different schemes of the Government. Money used to be remitted to him from the Welfare Department, by means of bank draft. That money was kept in deposit with the State Whether reporters of the local papers may be allowed to see the judgment? …2… Bank of India and H.P. State Cooperative Bank. Money used to be withdrawn from the aforesaid banks, from time to time, for remission to the pensioners, through Post Offices. 3. Case of the prosecution is that appellant withdrew an amount of `2,880/-, payable to one Jhinta Ram, on account of his pension, for the period from January, 1989 to December, 1992, twice, once against Cheque dated 19th January, 1993 and second time against Cheque dated 15th June, 1994. Jhinta Ram was paid the amount of only one Cheque. The amount of second Cheque had been misappropriated by the appellant, as per prosecution allegation. Appellant is also alleged to have misappropriated a sum of `720/-, which was remitted, through four Money Orders, to four different persons, namely Bhadru, Sumnu, Shankri Devi and Phader Ram, but was returned unclaimed, on account of death of the aforesaid persons, by the Postal Authorities. 4. Case was registered against the appellant, on the basis of Audit Report Ex.PW-4/A. Investigation of the case revealed that appellant was responsible for issuing two Cheques, in respect of pension of Jhinta Ram, for the same period, and it was he who had withdrawn the money against the said two Cheques, but had disbursed the amount to Jhinta Ram only once. Also, it was found that the unclaimed amount of `720/-, on account of pensions of …3… Bhadru, Sumnu, Shankri Devi and Phader Ram, had been misappropriated by the appellant, as he did not account for the same, after having received it from the Postal Authorities. 5. Appellant was charged with the aforesaid offences, by the trial Court and on his pleading not guilty, was put on trial. 6. Prosecution examined 16 witnesses, besides proving various documents to bring the charge home to the appellant. At the end of the trial, appellant was convicted and sentenced. 7. I have heard learned counsel for the appellant as also learned Assistant Advocate General and gone through the record. 8. Evidence adduced by the prosecution proves that two Cheques, i.e. Ex. PW-4/D dated 19th January, 1993 and Ex. PW-3/A dated 15th June, 1994, had been issued by the appellant. Amount of Cheque Ex. PW-4/D was collected from the Bank by the appellant himself, as it is he whose signature appears on the reverse of the Cheque, as the recipient of the contents of the Cheque. Also, the Cheque is not in the name of any other person, which implies that it was a Cheque for payment of money to the account holder or say a ‘self-payee’ cheque. Second Cheque Ex. PW-3/A was issued in the name of Chuni Lal (PW-5), who was working as a part-time Peon in the Office …4… of the appellant, and also assisting him in doing clerical job. 9. Prosecution’s case is that amount of only one Cheque was disbursed to Jhinta Ram, for disbursement of whose pension these two Cheques were issued. It is not in dispute that only a sum of `2,880/- was payable to Jhinta Ram and, therefore, money was required to be withdrawn form the Bank only once. However, there are two receipts purporting to have been issued by Jhinta Ram. Amount of money in each of the two receipts is `2,880/-. One receipt is Ex. PW-9/C. As per this receipt, Jhinta Ram had received an amount of `2,880/-, in cash, and this amount had been drawn against Cheque No.AN461815 or say Ex. PW-4/D. The amount of this Cheque had been withdrawn by the appellant, as aforesaid. Receipt Ex. PW-9/C has been proved to be in the hand of PW-5 Chuni Lal, part-time Peon, in the Office of the appellant. This receipt has been attested by the appellant. 10. Now, when the receipt Ex. PW-9/C is written by PW-5 Chuni Lal, it can legitimately be presumed that it was he who disbursed the money to Jhinta Ram. It is nobody’s case that thumb impression on this receipt purporting to be of Jhinta Ram is not genuine. 11. Amount of second Cheque Ex. PW-3/A, which is dated 15th June, 1994, and which was collected from the Bank by PW-5 Chuni Lal, is shown to have been disbursed …5… to Jhinta Ram against receipt Ex. PW-9/D, which is written in the hand of Devinder Prakash (PW-9), a Clerk in the Office of the appellant. PW-9 Devinder Prakash stated that the money had been disbursed to Jhinta Ram by the appellant. The receipt is attested by DW-1 Hari Kishan. He (Hari Kishan) testified that money had been paid to Jhinta Ram. In the case of this receipt also, prosecution does not allege that it is not thumb impressed by Jhinta Ram. 12. Now, if both the receipts are thumb impressed by Jhinta Ram, because the prosecution does not say that they are not thumb impressed by him, presumption should be that the money withdrawn against both the Cheques had been paid to Jhinta Ram. If that is so, this is a case of double payment of pension to Jhinta Ram and not a case of misappropriation of one of the two amounts by the appellant or any other person, working in his office. 13. As regards allegation that unclaimed pensions of Bhadru, Sumnu, Shankri Devi and Phader Ram had been entrusted to the appellant and he did not account for the same, nobody has testified that the money was returned to the appellant. PW-2 Joginder Singh, Postman, made a general type of statement that smaller unclaimed amounts used to be returned to the Clerks in the Office of the appellant and larger amounts were collected by the appellant himself, from the Post Office. …6… 14. There is no evidence that the appellant had collected unclaimed amount of `720/-, in respect of the aforesaid four pensioners, whose pensions remained unclaimed, because of their having died. Entries, regarding return of the unclaimed pensions of these persons, are there in the ledger register, per testimony of PW-9 Devinder Prakash. These entries are in the hand of Devinder Prakash, as testified by him. Now, if the entries in the ledger accounts are in the hand of PW-9 Devinder Prakash, it is quite likely that it was he to whom unclaimed pensions of the above-named four persons were returned by the Postal Authorities and, therefore, it is he who is primarily accountable for the same. As a result of the above discussion, I am of the considered view that the case of the prosecution does not stand established, beyond reasonable doubt. Consequently, appeal is accepted, judgment of the trial Court, convicting and sentencing the appellant, is set aside and he is acquitted of the charge. April 8, 2011(sd) ( Surjit Singh ), J