RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL GOVERNMENT APPEAL NO. 306 Of 2001 (Old No. 1133/1995) State ……… Appellant Versus Arvind Kumar ……… Respondent June 15, 2010 Mr. Prabhakar Joshi, Brief Holder for the State/appellant. Mr. LK Tiwari, Advocate for the respondent. HON’BLE 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 22.3.1995 passed by the Munsif Magistrate, Rishikesh, District Dehradun in Case No. 865/88, State v. Arvind Kumar, whereby the respondent has been acquitted of the charges punishable under Section 409, 467, 468 of Indian Penal Code, 1860 (for short, IPC). 2. Briefly stated facts of the case are that on 12.2.1987 at 10.05 am, a case was registered against the respondent Arvind Kumar, Clerk in the Sales Tax Department, Rishikesh and co-accused Dharam Veer, Collection Amin on the basis of the report Ex. Ka-22 lodged by Mr. T. George Joseph, Commissioner of Sales Tax, Lucknow, U.P. wherein it was averred that the respondent and the co-accused Dharam Veer in the year 80-81 and 81-82 misappropriated an amount worth Rs. 23,524.06 which was entrusted to them and they had also tampered with the records. On the basis of this FIR, chick FIR Ex. Ka-20 was prepared and necessary entries 2 were made in the GD. Investigation of this case was entrusted to PW5 SI Rajendra Singh Tomar. During the course of investigation, the I.O. recorded the statements of the witnesses and after completing the investigation, he filed the chargesheet Ex. Ka-19 only against the respondent Arvind Kumar. Co-accused Dharam Veer was not chargesheeted. 3. On 29.11.1988, learned Munsif Magistrate, Rishikesh framed the charges against the respondent for the offence punishable under Section 409, 467, 468 IPC. The charges was read over and explained to him, who pleaded not guilty and claimed to be tried. 4. To prove its case, the prosecution has examined PW1 Shivnandan Kumar; PW2 Ishwar Dayal; PW3 Ram Asre Prasad; PW4 Premchand; PW5 Rajendra Singh Tomar, the I.O. of the case; PW6 Tejpal Singh and PW7 Hari Singh. 5. Thereafter statement of the respondent was recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him. However, in defence, he did not produce any documentary or oral evidence. 6. After appreciating the evidence and after hearing learned Counsel for the parties, learned Munsif Magistrate, Rishikesh vide his judgment and order dated 22.3.1995 acquitted the respondent of the charges levelled against him as discussed above. Against the aforesaid judgment and order dated 22.3.1995, the State has preferred the present appeal. 3 7. Learned Brief Holder for the State argued that the case against the respondent is proved beyond reasonable doubt but the trial court has not properly appreciated the evidence adduced on record and has acquitted the respondent. I do not find any force in the argument of learned Brief Holder for the State for the following reasons: (i) That PW1 Shivnandan Kumar has not identified the respondent in the trial court and hence this witness was declared hostile. Thus, he has not supported the prosecution case which creates doubt on the prosecution story. (ii) That PW2 Ishwar Dayal has stated that respondent Arvind Kumar was posted along with him on the post of Clerk at Rishikesh. He has further stated that entries in the register of 80-81 were not legible as ink had fallen over it. He has also stated that recovery was made by the employees of Tehsil and no employee of his department was required to go for the recovery. If the money is recovered, the challan thereof come to his department from the Treasury Officer and thereafter the concerned Clerk used to make the entry of the same on the basis of said challan. Thus, it reveals from the statement of this witness that respondent Arvind Kumar, Clerk in the Sales Tax Department was not authorized to recover the money and only the Collection Amin of the Tehsil was empowered to recover the money. Hence, there was no occasion for the respondent to recover the money. Respondent was only supposed to make the necessary entries in the concerned register on the basis of challan after the same is received from the Treasury Office after the recovery. 4 (iii) That PW3 Ram Asre Prasad has stated that respondent Arvind Kumar was a Clerk in the Sales Tax Department at Rishikesh. In his cross- examination, this witness has admitted that no cash transaction used to take place in his office. Timely payments were required to be made through cheques and the recovery of dues was done by Tehsil and thereafter Amin used to send the Recovery Certificate after the recovery of the dues and the recovery amount was used to be deposited by him in the Treasury and the Amin also had to issue the receipt of recovered amount on the spot and a copy thereof was sent to the Sales Tax Department and entry thereof was made in the register. He has further stated that no employee of his department was deputed at the time when the Amin used to go for the recovery. (iv) That PW7 Hari Singh has stated that on 25.11.1981, respondent Arvind Kumar was on casual leave and thereafter he went on medical leave. 8. The respondent Arvind Kumar, Clerk, Sales Tax Department, Rishikesh was charged with the allegation that in the year 1981 and 82, he had embezzled Rs. 23524.00 after its recovery by him from the businessmen/firms and had also tampered with the Daily Receipt Register. But from the evidence discussed above, it is very much clear that no cash transaction used to take place in the Sales Tax Department. Timely payments were required to be made through cheques in the Sales Tax Department and the cheques were used to be sent to the Treasury. But when the dues were not paid in time, the Tehsil was directed to recover the dues. Thereafter employees of the Tehsil office used to recover the amount 5 and no employee of Sales Tax Department used to go with them for the recovery. After the recovery, the money was deposited by the Tehsil office in the Treasury and the Treasury Challan was sent to the Sales Tax Department. Thereafter the concerned Clerk used to make entries in the relevant register on the basis of the said challan. The employees of Tehsil were also required to issue the receipt after the recovery on the spot and a copy thereof was also sent to the Sales Tax Department and entry of the said receipt was also made in the relevant register. Thus, the process enumerated for the recovery clear indicates that the respondent who was a Clerk in the Sales Tax Department was not authorized to make any recovery. He was only supposed to make the necessary entries in the relevant registers on the basis of Treasury Challans and receipt issued on the spot after the recovery. Thus, the respondent was never entrusted with any money and in these circumstances, there does not arise any question of embezzlement of money by the respondent. Since the entrustment of money itself could not be established by the prosecution, hence charge of embezzlement stands not proved against the respondent. 9. Learned Counsel for the respondent lastly argued that where two views are possible and one of the possible views has been taken by the trial court, then the appellate court shall not ordinarily interfere with the judgment of acquittal. Reliance has been placed on paras 7 and 8 of the judgment rendered by the Hon’ble Apex Court in the case of Kalyan Singh v. State of M.P. reported in (2007) 3 SCC (Cri.) 173, which are reproduced as under: - “7. The High Court while dealing with the matter, in our considered opinion, failed 6 to apply the proper 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.” 10. On the basis of the evidence and legal proposition discussed above, I am of the considered opinion that 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. Therefore, there is no reason to disagree with the view taken by the trial court on the basis of the evidence discussed above and, as such, the prosecution has not been able to prove its 7 case against the accused respondent beyond reasonable doubt. 11. In view of my above discussion and conclusion, it is held that the prosecution has failed to prove its case against the respondent beyond reasonable doubt for the offence punishable under Section 409, 467, 468 IPC. I am in total agreement with the views and findings recorded by the trial court and, therefore, impugned judgment and order dated 22.3.1995 passed by the trial court is correct and justified and it does not warrant any interference by this Court. 12. In the result, the appeal being devoid of merit is hereby dismissed. The judgment and order dated 22.3.1995 passed by the Munsif Magistrate, Rishikesh District Dehradun in Case No. 865/88, State v. Arvind Kumar, whereby the respondent has been acquitted of the charges punishable under Section 409, 467, 468 IPC is hereby upheld. Let the lower court record be sent back. PRABODH (Dharam Veer, J.) 15.6.2010