RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL GOVERNMENT APPEAL NO.70 OF 2001 (OLD NO.822 of 1997) The State ……… Appellant Versus 1. Kishori Lal 2. Jhabru Lal ……… Respondents Dated: May 21, 2010 Mr. Prabhakar Joshi, learned Brief Holder for the State/appellant Mr. Anil Dabral, learned amicus curiae on behalf of the respondent HON. DHARAM VEER, J. This appeal, preferred by the State/appellant under Section 378 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 8.11.1996 passed by Chief Judicial Magistrate, Pauri Garhwal in Criminal Case No.1569/1989, State Vs. Kishori Lal and another, whereby the learned Chief Judicial Magistrate acquitted the respondents under Sections 467/420/471 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.). 2. Heard learned counsel for the parties and perused the entire material on record. 3. In brief, the prosecution case is that on 11.9.1987 Rudrashekhar Mishra lodged a report at Police Station Pauri stating therein that on 29.8.1987 Rs.1,90,000/- approx. has been given to the employees of District Magistrate Office, Pauri and Treasury Office by Treasury, Pauri for house repair work without obtaining 2 the sanction from Commissioner, Garhwal Division. He also alleged that no such order of house building advance has been granted by the Office of Commissioner, Garhwal Division, Pauri. With the same averments, PW1 Rudrashekhar Mishra lodged the FIR on 11.9.1987 at 11:35 AM at P.S. Pauri, i.e. Ext. Ka-1. On the basis of this FIR, Chik FIR of the case was prepared by Head Constable Roopchand Tyagi, i.e. Ext.Ka-21. The investigation of this case was entrusted to Sub Inspector Sita Ram, who during the course of investigation, recorded the statement of witnesses and on completion of investigation, filed the charge sheet against the respondents/accused Kishori Lal (now dead) and Jhabru Lal. That charge sheet is Ext.Ka-22. 4. On 26.11.1990, learned Chief Judicial Magistrate, Pauri Garhwal framed the charge of offence punishable under Sections 420, 467 and 471 of IPC against the respondents/accused. The charge was read over and explained to the respondents/accused who pleaded not guilty and claimed to be tried. 5. In order to prove its case, the prosecution has examined PW1 Rudhrashekher Mishra, complainant, PW2 Sohan Lal and PW3 Balbeer Chandra. 6. Thereafter the statement of the respondents/accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who denied the allegations made against each of them. However, they have not filed any oral or documentary evidence in defence. 7. After the prosecution witnesses were examined and the statement u/s 313 was recorded, Constable 3 Dinesh Prasad and Ashwani Kumar were examined as C.W.1 and C.W.2, respectively. 8. After appreciating the entire evidence on record and hearing learned counsel for the parties, learned C.J.M, Pauri Garhwal vide his judgment and order dated 8.11.1996 acquitted the respondents/accused as mentioned above. Against the said judgment and order dated 8.11.1996, the State has preferred this appeal. 9. To prove its case further, the prosecution examined PW1 Rudrashekhar Mishra, who has stated that on 11.9.1987 he was posted as Additional Commissioner, Garhwal Mandal. He had lodged the report Ext.Ka-1 on the written order of Commissioner dated 9.9.1987. In the cross-examination he stated that he had not enquired the matter, he had only lodged the report as per the order of Commissioner. 10. PW2 Sohan Lal stated that in the year 1987 he was posted as Revenue Assistant at Collectorate Office. On 20.8.1987, Kishori Lal, who was posted at Commissioner Office, Pauri came and told to him and Ramesh Dobhal, Raj Vilochan, Yashwant Gusain that the budget of House Building Advance has come from U.P. Hill Development Department and he deals with the same. Respondent Kishori Lal also told them that if they want House Building Advance, they can give their applications. He asked Kishori Lal that he has no proforma of the application on which Kishori Lal told that he will come to Collectrate Office tomorrow and will bring profroma with him. Next day, the respondent brought the proforma and got prepared the copies of proforma from the typist. He filled the proforma for the advance of Rs.20,000/- and told that he will send the application after forwarding it from the officers on which Kishori Lal told that the Commissioner is Head of Department and 4 there is no need of forwarding the application. The respondent Kishori Lal also told him that if anyone would ask from him regarding forwarding the application then he will tell that he is Senior Assistant and he deals with the same. Thereafter he and others gave their applications to the respondent Kishori Lal in good faith. On 28.8.1987, Kishori Lal came. On that day, Administrative Officer was on leave, therefore, he was officiating as Administrative Officer. The respondent came to his seat and gave copies of sanction orders for advance payment to nine persons. On that order, there was signature of Additional Commissioner (Administration) and stamp was also affixed. Thereafter, in the capacity of Office Superintendent he forwarded the same orders to In-charge Officer (Bills) for his information and order. The same were sent to Bill Clerk Rajvilochan Adhikari by I/c Officer. Rajvilochan Adhikari asked him to prepare the bills due to work load and gave him the bill register. He prepared the bills and by enclosing the copies of order send the same to Rajvilochan Adhikari, who after obtaining the signatures of I/c Officer (Bills), send the same to Treasury Office. He further stated that he does not know when the said bills got passed. On 29.8.1987, he and others received the money from the Treasury Office. After one to two days, he came to know that something wrong has happened. Thereafter, on the order of District Magistrate, all those persons refunded the money. He proved the bill Ext.Ka-2 which was prepared by him on which there were signatures of the then Officer In-charge Gaya Prasad and at the end of bill, there were signatures of Ram Vilochan. He also proved the sanction orders related to eighteen persons, which are Ext.Ka-3 to Ka-20. He also proved the payment receipt Ext.Ka-21 by which nine employees received the money. He identified his signature at fourth number in the same receipt. 5 11. PW3 Balbir Stated that in the year 1987 he was posted as Bill Clerk at Commissioner Officer, Pauri Garhwal. Respondent Kishori Lal was also posted as Senior Assistant in the same office. The respondent was not entrusted with the work of House Building Advance. He stated that the sanction orders (Ext.Ka-3 to Ka-20) were neither prepared by him nor he had put the same before the Commissioner and nor the applications were received by him or in his office. 12. Thereafter the statement of the respondents/accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who denied the allegations made against each of them. In reply, respondent no.2 Jhabru Lal stated that he had given a loan application form. He has not done any embezzlement. When he came to know that the loan is fake then he had refunded Rs.20,000/-. However, they have not filed any oral or documentary evidence in defence. 13. The prosecution further examined Dinesh Prasad as C.W.1 and Ashwani Kumar as C.W.2. 14. C.W.1 Dinesh Prasad stated that he was posted with H.C. Roopchand Tyagi and S.I. Sitaram and he is familiar with their hand writing. He proved the Chik FIR Ext.Ka-21 prepared by H.C. Roopchand Tyagi and the charge sheet Ext.Ka-22 filed by S.I. Sitaram. 15. C.W.2 Ashwani Kumar stated that in August 1987 he was posted at Tehsil Pauri. Respondent Kishori Lal is well known to him. On 20.8.1987, respondent Kishori Lal came to him and told that budget of Rs.2 Lacs 6 regarding house building advance has come in the Commissioner Office and if he has need of the same then he can get it. He moved the application for advance payment of Rs.30,000/-, which he received from the treasury office on 29.8.1987. After two-three days, he came to know that no such permission of advance payment was granted. Thereafter all the persons who had received payment moved application to S.D.M. and deposited the entire amount back. 16. During the pendency of this appeal, respondent no.1 Kishori Lal was reported to be died. Accordingly, the appeal preferred by the State against Kishori Lal stood abated vide order of this High Court dated 22.5.2009. 17. Sri Prabhakar Joshi, learned brief holder for the State/appellant argued that the impugned judgment and order passed by court below is not correct as per the evidence produced by the prosecution. Per contra, Sri Anil Dabral, learned amicus curiae on behalf of the respondent no.2 Jhabru Lal, supporting the judgment and order passed by the trial court argued that the prosecution has not proved its case beyond reasonable doubt against the respondent-accused. I find force in the argument advanced by learned amicus curiae for the reason that inasmuch as three witnesses viz. R.S. Mishra, Sohan Lal and Balbir Chandra were examined as prosecution witness and two witnesses viz. Constable Dinesh Prasad and Ashwini Kumar were examined as Court Witness in the trial court. Out of aforementioned witnesses, P.W.1 R.S. Mishra has only lodged the report. He stated that he had not enquired the matter and had only lodged the report as per the order of Commissioner, Garhwal Division, Pauri. C.W.1 Constable Dinesh Prasad 7 is formal witness and he has only proved the Chik FIR and the charge sheet. Now remains the evidence of P.W.2 Sohal Lal, P.W.3 Balbir Chandra and C.W.3 Ashwini Kumar. None of these witnesses has uttered a single word about the respondent no.2 Jhabru Lal. Whatever the allegations has been made, that are against respondent no.1 Kishori Lal, who has been died and the appeal preferred against him has also been abated. Further, the role of respondent no.2 Jhabru Lal was same as that of P.W.2 Sohan Lal and C.W.2 Ashiwini Kumar. P.W.2 Sohan Lal and C.W.2 Ashwini Kumar had taken House Building Advance of Rs.20,000/- and Rs.30,000/-, respectively. Like them, respondent no.2 Jhabru Lal had also taken house building advance of Rs.20,000/- but when they came to know about the fact that the money paid to them was without any sanction of the competent authority, these persons along with others, including the respondent no.2 Jhabru Lal, deposited the entire amount back. Thus, it is clear that the case of respondent no.2 Jhabru Lal is same as that of other eight persons who had taken the advance payment. But no action was taken against them, only respondent no.2 Jhabru Lal was implicated in the aforesaid case without any reason. 18. Besides the above, it is settled law that where two views are possible and one of the views is possible which was taken by the trial court, then the appellate court shall not ordinarily interfere with the judgment of acquittal. Reliance is placed on paras 7 and 8 of a judgment rendered by Hon’ble Supreme Court in the case of Kalyan Singh v. State of M.P. reported in (2007) 3 SCC (Cri.) 173, which read as under: - 7. The High Court while dealing with the matter, in our considered opinion, failed to apply the proper 8 tests in deciding a case where a judgment of acquittal has been recorded. The views of the learned trial judge cannot be said to be wholly unsustainable. It is now well known that if two views are possible, the appellate court shall not ordinarily interfere with the judgment of acquittal. We do not, however, mean to lay down the law that the High Court, in a case where a judgment of acquittal is in question, would not go into the evidence brought on record by the prosecution or by the State but we would like to point out that even if the High Court reversed the judgment of acquittal recorded by the trial court, it is incumbent on the High Court to arrive at the conclusion that no two views are possible. 8. We, therefore, having regard to the fact situation of the instance case, are of the opinion that as two views are possible, the High Court should not have interfered with the judgment of acquittal passed by learned Sessions Judge. We, therefore, set aside the impugned judgment and allow this appeal. The appellant is in jail, he is directed to be released forthwith if not required in connection with any other case. 19. On the basis of the evidence discussed above, I am of the considered view that the prosecution has been miserably failed to prove its case against the respondent no.2 Jhabru Lal beyond reasonable doubt. Further, when one view is also possible which was taken by the trial court, then as per the aforesaid judgment of Kalyan Singh (Supra), the interference with the judgment of the trial court at this stage is not warranted. 20. For the reasons as discussed above, I am of the view that the trial court was correct and justified in acquitting the respondent Jhabru Lal for the offences 9 punishable under Section 467/420/471 IPC and I also concur the view taken by the trial court. 21. Resultantly, the appeal preferred by the State being devoid of any merits is hereby dismissed. The judgment and order dated 8.11.1996 passed by Chief Judicial Magistrate, Pauri Garhwal in Criminal Case No.1569/1989, State Vs. Kishori Lal and another, in acquitting the respondent no.2 Jhabru Lal, needs no interference by this Court and is hereby made affirmed. (So far as the appeal preferred against respondent no.1 Kishori Lal is concerned, it has already been abated due to his death during the pendency of appeal). 22. Let the lower court record be sent back. (Dharam Veer, J.) May 21, 2010 RG