HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No.: 550 of 1999 Decided on: 31.12.2008. State of Himachal Pradesh ………Appellant. Versus Prem Chand ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Ms.Shubh Mahajan, Deputy Advocate General. For the respondent: Mr.M.S. Thakur, Advocate. V.K. Ahuja, J: This is an appeal filed by the State of H.P. under Section 378 of the Code of Criminal Procedure against the judgment of the court of learned Sub Divisional Judicial Magistrate, Rampur Bushahr, dated 23.7.1999, vide which the respondent was acquitted of the charge framed against him under Section 408 of the Indian Penal Code. Briefly stated the facts of the case are that the audit of Laxmi Narain Cooperative Society, Kinnu for the period 1981 to 1985 was conducted. It was alleged that the respondent was posted as Secretary-cum-Salesman of this Society and on audit, it was found that cash-in-hand with respondent as on 30.6.1983 was Rs.34,159.02, which was admitted by the respondent, who also appended his signatures in the cash book, but the said amount was not deposited by the respondent, who had misappropriated the same. Therefore, a case was registered and after investigation, the challan was filed as against the ______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - respondent who was tried by the learned trial Court under Section 408 of the IPC for committing mis-appropriation for a sum of Rs.19,391.06 and on conclusion of the trial, the respondent was acquitted of the charge framed against him. I have heard the learned counsel for the parties and have gone through the record of the case. On appraisal of the impugned judgment passed by the learned trial Court, it is clear that the learned trial Court had taken one of the grounds for disbelieving the prosecution story that though the audit was conducted on 29.5.1982 and the report had been lodged with the police on 20.6.1991 after six years. It was also observed that since the audit was conducted on 29.5.1982 and the report had been lodged on 20.6.1991, after a gap of more than six years, therefore, the delay in question has not been satisfactorily explained. In coming to this conclusion, the learned trial Court has also relied upon the decision in Thulia Kali versus State of Tamil Nadu, AIR 1973 Supreme Court 501, often referred to while considering the delay in lodging the FIR. However, the learned trial Court had not observed as to what was the result of the delay and how it has affected the case since the observations made were that this delay is used for procuring false evidence or introduction of false witnesses in that case and the observations were made in the case under Section 302 of the IPC. In the present case, the case was in regard to misappropriation of the amount by the respondent during his employment as Salesman-cum-Secretary and the basis of the case was the audit report submitted by the Auditor. The case should have been got registered immediately after the receipt of the report, but for the reasons best known to the prosecution, they may have taken time in getting the sanction or proceeding with the case and the report was lodged after more than six years. However, this delay in lodging the FIR in a case of misappropriation - 3 - cannot be said to be fatal and it only sounds a note of caution for the court to be more careful while appreciating the evidence. A perusal of the record shows that the auditor conducted the audit and found that the respondent has misappropriated a sum of more than Rs.19,000/- and his signatures were also taken on the cash book Ext.PW-3/B. The conclusions were drawn on the basis of the audit conducted by the Auditor in so far as the amount in question is concerned. During the hearing, it was brought to the knowledge of this court that the amount in question has been deposited in full by the respondent during the pendency of the case, which statement was made by the learned Deputy Advocate General appearing for the State/appellant. A perusal of the judgment passed by the learned trial Court also shows that the learned trial Court had mainly taken the ground for acquittal of the respondent as that there is no proof on record that the auditor was authorized by the Registrar, Cooperative Societies to audit the accounts and since there is no documentary evidence on record that the auditor was authorized by a general or special order to conduct the order, therefore, it was held that the mandatory provisions of Section 61 of the H.P. Cooperative Societies Act, 1968 have not been complied with, which resulted in the acquittal of the respondent. A reference may be made to Section 61(1) of the aforesaid Act: “(1) The accounts of every society shall, at least once in each co- operative year and by such date as may be prescribed be audited by the Registrar or any person authorized by him in this behalf by general or special order in writing. (2) ………………… ……………………. ………………. (3) ………………… ……………………. ………………. (4) ………………… ……………………. ………………. Every registered co-operative society is required to be audited every year, by the Registrar or a person authorized by him in this behalf, who shall have easy access to the books, records, property etc. of the society for the purpose. In case the account books are found incomplete the Registrar or the person authorized by him shall have the power to get these completed at the expense - 4 - of the society. For audit of accounts the society has to make payment of fees to the Government as per scale laid down from time to time.” It is, therefore, clear that an audit of a Society every year has to be carried by the order of the Registrar or a person authorized by him in this behalf by a general or special order in writing. The fact that no such general or special order was placed on record by the prosecution stands established since this finding of the learned trial Court has not been disputed by the learned Deputy Advocate General to be incorrect. Until and unless some order passed by the Registrar of the Cooperative Societies was placed on record, by any general or special order, authorizing the auditor to conduct the audit, he cannot be said to be authorized auditor to conduct the audit and submit his report in regard to a particular Society. The learned Deputy Advocate General has not disputed that these provisions are mandatory and this non-compliance leads to the inference that the report of the auditor relied upon by the prosecution cannot be the basis of conviction to hold the respondent guilty of the charge framed against him. No infirmity could be pointed out by the learned Deputy Advocate General in this behalf during the course of arguments and as such the final findings recorded by the learned trial Court cannot be said to be perverse calling for an interference by this Court. However, the State is at liberty to initiate action departmentally as against the respondent if it deems it proper. The matter shall be placed before the Head of the Department who shall consider the case and pass appropriate orders in this behalf. In view of the above discussion, there is no merit in the appeal filed by the appellant and the same is dismissed accordingly. The Bail bonds furnished by the respondent shall stand discharged. December 31, 2008. (V.K. Ahuja), (TILAK) Judge.