IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. A No. No.173 of 1995 Date of decision: 23.6.2009 State of H.P. ... Appellant Versus M.L. Raina … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 No For the appellant: Mr.R.M. Bisht, Deputy Advocate General. For the respondent: Mr.R.P. Singh, Advocate. ____________________________________________________________ Deepak Gupta, J (Oral). This appeal is directed against the judgment of the learned Special Judge, Shimla dated 24.9.1994 delivered in Criminal Case No.22-S/7 of 1993/1990 whereby the respondent has been acquitted of having committed offences punishable under Section 409 of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act. 1Whether reporters of Local Papers may be allowed to see the judgment? yes 2 Briefly stated the prosecution case is that in the year 1973-74 the accused was posted as Junior Engineer, In charge of the HPPWD Store at Tutu. He was managing stores being in charge thereof. He was transferred from the said place vide order dated 23.4.1974 and one Sh.Vijay Kumar was posted in his place. The accused started the process of handing over the charge to Sh.Vijay Kumar but before the entire charge could be handed over he absconded and was not traceable for a couple of months. Thereafter, PW-1 who was at that time the Executive Engineer directed the Assistant Engineer to handover the articles lying in the stores to Sh.V.K. Sharma the new Junior Engineer after forming a Committee. A Committee was formed consisting of Sh.D.D. Gautam, Assistant Engineer and some other employees i.e. Ganga Ram, Clerk and two Chowkidars Tulsi Ram and Dalip Singh, PWs 6 and 7 respectively. It is pertinent to mention that though Sh.Vijay Kumar and two aforesaid Chowkidars have been examined in Court and they have all stated that physical verification was done in the year 1974 and written lists of missing items were prepared but these written lists which showed the shortages have not been produced or proved in Court. 3 These lists were the primary evidence to show that actually there were shortages in the store. These lists never saw light of the day. Another important fact is that though the shortages are stated to have been discovered in April/May, 1974 the FIR Ext.PW-13/A was lodged only in the year 1985 i.e. 11 years after the incident had taken place. Even after the FIR was lodged no action took place and a fresh Committee was constituted in the year 1990 to work out the price of the alleged shortages. There is no explanation for the delay in lodging the FIR. The prosecution has mainly relied upon the list prepared in the year 1990. This is not the list according to which the shortages were recovered but as per these documents only valuation of the shortages which were already discovered in the year 1974 has been made. The prosecution has led no evidence whatsoever to show what were the goods entrusted to the accused and what were the goods which were finally found missing in the year 1974. It was incumbent upon the prosecution to prove the entrustment of the property and the mis- appropriation thereof. Neither the entrustment of the 4 property nor the mis-appropriation thereof has been proved. In view of the above discussion, we find no merit in this appeal which is accordingly rejected. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ), J. June 23, 2009 ( Surinder Singh ), J. PV