IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.197 of 2003 Date of decision : March 17, 2011 State of H.P. ….Appellant. Versus Tek Chand …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. P.M. Negi, Deputy Advocate General and Mr. Ramesh Thakur, Assistant Advocate General. For the Respondent : Ms Ranjana Parmar, Advocate. Surjit Singh, Judge(Oral) State has challenged, by means of the present appeal, judgment dated 14th January, 2003 of learned Special Judge (Forests), Shimla, whereby respondent Tek Chand, who was working as Junior Engineer, at the time of the commission of the alleged offence, has been acquitted. 2. Respondent was charged with and tried for offences, under Sections 409 of the Indian Penal Code, 5(2) of the Prevention of Corruption Act, 1947, read with Section 13(2) of the Prevention of Corruption Act, 1988, on police report, under Section 173 of the Code of Criminal Procedure. Whether reporters of the local papers may be allowed to see the judgment? …2… 3. Accusation, which led to charging and trial of the respondent, may be summed up thus. Respondent was working as Junior Engineer, under Executive Engineer, PWD Division No.1, Shimla-9. He had been assigned the job of store-keeper. The store was known as Mehli Store. It appears that in the year 1983, he was shifted to Rampur from Mehli Store. Though the order of transfer is not available on record, there is one order dated 2nd August, 1983, copy Ex. PW-5/B, which suggests that he had not handed over the charge. Respondent, while functioning as Incharge of Mehli Store, was supposed to keep account of all the store items received and issued by him, by making entries in bin cards Ex. P-1 to Ex. P-127. Soon after his transfer, it came to light that stock in hand did not tally with the entries in the bin cards. Correspondence, with regard to non-conciliation of stock entered in the bin cards, started during the year 1983. In the year 1987, respondent submitted, vide letter dated 16th September, 1987, Ex. PW-8/D, 27 indents, in respect of store items worth `14,93,238.45 and claimed that those indents remained unentered in the bin cards. In 1994, some audit was conducted. It was pointed out in the audit report that there was shortage of store items worth `14,93,000/- and odds. …3… 4. In view of the audit report, enquiry was conducted, by a team set up by the superior authorities of the Department. That team was headed by PW-2 Jagdish Chand Gupta, Executive Engineer, who submitted one sentence report Ex. PW-8/B that there was shortage of store worth `10,50,472/-, as indicated in Mark D (Ex. PW- 8/A). On the basis of this report, case was registered against the respondent, at the instance of PWD authorities. During investigation, bin cards were taken into possession. Bin cards showed shortage of stores worth `10,50,472/-, after making adjustment of some indents submitted by the respondent, which remained un- entered in the bin cards. 5. Respondent was challaned, on completion of investigation. Trial Court, after complying with the requirement of Section 207 of the Code of Criminal Procedure and hearing learned Public Prosecutor and the defence counsel, found a prima facie case against the respondent and charged him, under Section 409 of the Indian Penal Code, Section 5(2) of the Prevention of Corruption Act, 1947, read with Section 13(2) of the Prevention of Corruption Act, 1988. Respondent denied that he had misappropriated any item of store and pleaded that there were un-entered indents available with him, at the time of his transfer, which he submitted to the …4… Department, but the Department did not take all those indents into account, while making adjustments. 6. We have heard learned Assistant Advocate General for the appellant as also learned counsel for the respondent and perused the evidence. 7. Bin cards Ex. P-1 to Ex. P-127 show that no entries were made therein, after March-April 1983. It is not believable that after March-April 1983 no stores were issued from the store, under the charge of the respondent. It is also not the case of the prosecution that no stores were issued between March and April, 1983 and the date of respondent’s transfer in the year 1983. As a matter of fact, it has come on record that the respondent submitted 27 indents, in duplicate, alongwith detailed reasons, vide his handwritten letter Ex. PW-8/D, in the year 1987, to account for the difference between the quantity of various stores items, as shown in the bin cards and those actually available in the store. There is a reference to these indents, submitted by the respondent, in a letter, written by the Superintending Engineer to the Engineer-in-Chief on 28th January, 1995, copy Ex. PW-8/F, also. As per this letter, respondent had submitted indents and claimed that the total amount of the stores issued against those indents was found to be `14,93,238.45, but on actual calculation the amount of indents was found to …5… be `14,26,239/-. A reading of this letter Ex. PW-8/F shows that the respondent had submitted 27 indents, vide his aforesaid letter Ex. PW-8/D, 8. Another letter Ex. PW-8/G written by Executive Engineer to the Superintending Engineer shows that he had taken into consideration only 19 indents and it appears that he had worked out the total amount of the store articles, issued against those indents at `14,36,239/-, instead of `14,93,238.45, as claimed by the respondent in his letter Ex. PW-8/D. Letter Ex. PW-8/G further shows that the respondent had been given allowance for six indents only, the value of the stores included wherein was `6,60,436.95. They did not give any allowance for 12 indents, which were stated to be for store items worth `7,63,933.00, saying that those indents were not in order. In respect of one more indent, pertaining to a store items worth `75,673.80, the letter records that it had been sent to the Executive Engineer, IPH Division No.1, Shimla-9, but the same had not been received back and so no discount had been given for that indent also. 9. Reasons for branding 12 indents as ‘not in order’ are stated to have already been conveyed, vide letter No.9330 dated 6th January, 1995, by the Executive Engineer to the Superintending Engineer, as per mention …6… in Ex. PW-8/G. This letter dated 6th January, 1985 has been withheld by the prosecution. Unless the said letter was produced and proved or some other evidence was adduced to convince the Court that 12 indents, which were not taken into account, on the ground of their being not in order, were actually and factually not in order, the Court would not record a finding in favour of the prosecution that those indents were, in fact, not in order. Rather withholding of the said letter, dated 6th January, 1995, makes the prosecution liable to adverse inference that either in the said letter dated 6th January, 1995 there are no reasons for not taking into account the said 12 indents or the reasons given are not justifiable. Also, it could not have been a reason for not giving discount for another indent worth `75,673.80, because it was not available with the Executive Engineer, PW-2 Jagdish Chand Gupta, when he addressed letter Ex. PW-8/G to the Superintending Engineer. 10. Abovestated position apart, letters Ex. PW-8/F and Ex. PW-8/G speak of only 19 indents, though as per communication Ex. PW-8/D, written by the respondent to the Executive Engineer, as long back as in the year 1987, or say about seven years prior to audit and eight years prior to the registration of the case against him, he had submitted 27 indents, report of Executive Engineer, PW-2 …7… Jagdish Chand Gupta and his communications Ex. PW-8/F and Ex.PW-8/G speak of only nineteen indents and are silent about the remaining eight. In view of the abovestated position, we see no reason to interfere with the judgment of acquittal passed by the trial Court. Hence, the appeal is dismissed. ( Surjit Singh ), J March 17, 2011(sd) ( Kuldip Singh ), J.