IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.455 of 2000 Decided on : October 27, 2010 State of H.P. …Appellant. Versus Chander Kant …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the Appellant : Mr. Mr. R.K. Sharma, Senior Additional Advocate General, and Mr. Rajinder Dogra, Additional Advocate General. For the Respondent : Mr. Anoop Chitkara, Advocate, vice Mr. N.K. Gupta, Advocate. Surjit Singh, J (Oral) Present appeal, by the State, is directed against the judgment dated 11th April, 2000 of learned Judicial Magistrate 1st Class, Shimla, whereby respondent Chander Kant, who was tried for an offence, under Section 409 of the Indian Penal Code, has been acquitted. 2. Respondent was employed as Salesman in Super Bazaar, Chapslee Branch Shimla, during the period 1st October, 1992 to 12th February, 1993. He had been entrusted saleable stock worth `2,44,629.18. He deposited sale proceeds to the tune of `2,04,009.25, during the aforesaid period. Thus, there was supposed to be stock Whether reporters of the local papers may be allowed to see the judgment? …2… worth `40,619.93 in the store. He did not attend his duty after 31st January, 1993. He was required to hand over key of the Depot and also charge of the stock supposed to be available with him. He, in fact, absconded. Case was got registered with the police. In the presence of Investigating Officer, lock of the Depot was broken open. List of the stock articles, found therein, was prepared, which is Ex. PW-2/A. As per this list, total value of the stock articles was `26,799.37, though as per stock register, stock worth `40,619.93 was supposed to be there. Thus, there was shortage of stock articles worth `13,820.56. Respondent did not offer any explanation for the shortage. 3. Case was filed in the Court, on completion of investigation, in the year 1995. Respondent was charged with offence, under Section 409 of the Indian Penal Code. He pleaded not guilty. Therefore, prosecution was called upon to adduce evidence. 4. Despite several opportunities, including three last opportunities, having been granted to it, over a period of about four years, prosecution could not produce all its witnesses. It examined only six witnesses. Trial Court, therefore, closed the evidence of the prosecution by its order and after recording statement of the respondent, under Section 313 of the Code of Criminal Procedure, passed the impugned order of acquittal. …3… 5. We have heard the learned Senior Additional Advocate General as also the learned counsel appearing for the respondent and gone through the record. 6. Learned Senior Additional Advocate General has not been able to explain why the prosecution failed to produce its entire evidence, despite a number of opportunities, stretched over a period of four years, having been granted to it. We find no evidence, indicating that stock worth `2,44,629.18 had been entrusted to the respondent. Not only this even this much has not been proved that the respondent alone was supposed to be in custody of the entire stock and nobody else had any access to the Depot, even lawfully, that is to say in the discharge of duties as an employee of the Super Bazaar. Since entrustment has not been proved, it cannot be said that any criminal misappropriation of stock has been committed. Hence, the appeal is dismissed. ( Surjit Singh ), J October 27, 2010(sd) ( Rajiv Sharma ), J