HIGH COURT OF CHHATTISGARH AT BILASPUR ct. Apy. No.999/ 1999 SB: Hon’ble Shri Justice R.L. Jhanwa: dh APPELLANT State of Maya Pmdesh Versus RESPONDENT Indmbali JUDGMENT Post for judgment on 29 06.2009 Sdl- R.L. Jhanwar Judge gk .6.2009 \ HKHICOURT(”FCHHAETEKME&IATEWUN§HW£ Cr. Apy. No. 999] 1999 SB: Hon’ble Shri Justice R.L. Jhanwar APPELLANT State of Madhya Pradesh Vetsus RESPONDENT Indrabali, son of Lal Bahadur Singh, aged 60 years, Resident ofAmrauna, Dishict JaunpuxfUtter Pradesh). Appearance: Shn' D.K.Gwa1re, Government Advocate for the State] appellant. Shri Sushobhit Singh, Advocate appears on behalf of Shri Prabhakar Singh Chandel, counsel for the respondent. JUDGMENT (Delivered on2l1.06.2009) R.L.Jhanwar, J. The State] appellant has preferred this appeal against the order dated 29.7. 1998, passed by the Judicial Magistrate 13‘ Class, Durg in Criminal Case No. 3253/ 1995, whereby the learned Judicial Magistrate, acquitted the respondent of the charge under Section 409 of the IPC. The brief facts are that the respondent was posted as a Head Constable in the 1 1'11 Battalion at Bhilai and thus, he was a public servant at the relevant time. He was in charge of the Grain—shop- from 18.7. 1966 to 21.10. 1971. The respondent was transferred in the month of October, 1971, but he did not obey the order of transfer and locked the shop and went away. Thereafter, lock of the grain shop was broken on 21.10.1971 in the presence of some witnesses. Key of the Safe was found kept below the pillow used by the respondent inside the grain—shop, an amount of RS227] - was found inside the Safe and cash book was showing balance in sum of Rs. 1859.47. Thereafter, audit was conducted. The Audit report revealed that during the period from 5.1.1967 to 16.11.1967 and 17.11.1967 to 2.5.1972, there was embezzlement of Rs.4553.21. lt was also found that during 2. 1. 1968 to 14.12. 1968, the respondent has misappropriated an amount of Rs.426.90. The case was registered and matter was investigated. After completion of the investigation, charge sheet was filed in the Court ofJudicial Mag'strate lat Class, Durg, who framed the charge under Section 409 of the IPC against the respondent and explained to him. The respondent abjured the guilt and submitted that he is innocent and has been falsely implicated in the case. The learned Judicial Magistrate after evaluating the evidence available on record and hearing the counsel for respective parties acquitted the respondent of the charge under Section 409 of the IPC. The prosecution has examined three witnesses i.e. PW-l- Bhagwat Prasad, PW-2— Manmohan Bhargav, who did not support the prosecution version. PW—3, Shaukat Ali, audited the Accounts (EXP/23) for the period from 5.1.1967 to 16.11.1967 and found embezzlement of Rs. 1,748.72. He deposed that the respondent was in charge of the grain-shop from 18.7.1966 to 21. 10.1971 and has embezzled an amount of Rs.426.90 during the period from 2. 1. 1968 to 14.12.1968. Prosecution did not prove the Audit report (EX.P/ 23). Although the report, said to be the audit report, has not been proved by any of the witnesses in accordance with law, was old and in torn condition and Was not legible, therefore, the prosecution was directed to submit a legible copy of the audit report, but prosecution failed to produce it. In spite of granb‘ng many chances, prosecution failed to produce the audit report and no other incriminating evidence was produced. The learned trial Court, for want of audit report, acquitted the respondent. Therefom, considering the above facts, I am of the opinion that the Earned trial Court has not committed any error of law in recording the mdmg and passing the order of acquittal of th respondent. In the mault, the appeal deserves to be dismissed. Accordingly, the order of acquittal passed by the trial Judge is / sunita "\ e