IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.468 of 2004. Judgment reserved on 22nd July, 2011. Date of Decision: 25th July, 2011. ____________________________________________________ H.P. Financial Corporation ….Appellant. Versus M/S. Bindu Tyre Retreading andVulcanazing Works through its Prop. Ashwani Bhatti …..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. M.L. Sharma, Advocate. For the respondent : Mr. Subhash Sharma, Advocate. ____________________________________________________ SURINDER SINGH, J. The learned trial Court in Complaint No.88-II-98, decided on 28.5.2004, acquitted Ashwani Bhatti allegedly sole Proprietor of the respondent-firm for the offence punishable under Section 406 of the Indian Penal Code, hence the present appeal by the Corporation. 2. Heard and gone through the record. 3. The complainant Himachal Pradesh Financial Corporation (HPFC) filed a complaint in the Court under Sections 406 and 420 of the Indian Penal Code; through its authorized Officer on the allegations that Ashwani Bhatti had set up an Whether reporters of the Local papers are allowed to see the judgment? - 2 - industrial unit for retreading of tyres at Tabba (Jalgran) District Una under the head and style of the respondent-firm. He approached complainant for the grant of loan. The Corporation sanctioned a loan on 7.5.1986 to the tune of `94,500/-. To secure loan, an agreement Ext.PW1/B, hypothecation deed Ext.PW1/C and a trust-deed Ext.PW1/E were executed, besides executing the guarantee deed by his guarantor. Trust-deed aforesaid ensured the safe custody of the hypothecated assets and in case of misappropriation, sale/transfer etc., respondent would be liable for the misappropriate/ breach of trust. It is alleged that the respondent did not make the payment of the loan, as such notice was issued to take over the possession of the hypothecated assets, but at the time of taking its possession the articles so mortgaged/hypothecated were found missing. Thus having failed to comply with the terms and conditions of the trust-receipt the respondent is alleged to have committed the offences aforesaid. 4. After recording preliminary evidence, the learned trial Court prima facie found the offence punishable under Section 406 of the Indian Penal Code against the respondent. He was summoned - 3 - and accordingly charged-sheeted, but having denied the above allegations, he was put on trial. 5. The complainant examined its witnesses and the respondent was also examined under Section 313 of the Code of Criminal Procedure. He denied the execution of the hypothecated deed. No evidence in defence was led by him. 6. The learned trial Court, on consideration of the evidence acquitted the respondent. 7. As is evident from the record, all the documents including the hypothecation and trust-deed were executed on 1.9.1986. Pertinently, the execution of hypothecation deed has been denied by the respondent and no attempt was made by the complainant to prove it in accordance with law. Merely placing on record the photocopy thereof, which was stated to be correct as per original, produced by him during the evidence will not ipso- facto prove the document unless the person in whose presence it was executed is examined and its contents and signatures got proved. Further, the allegations create only a civil liability and the complainant could have filed a suit for the recovery - 4 - of the outstanding amount, but in my opinion, no criminal liability could be attributed to him. 8. Otherwise also, the respondent remained himself to be owner of the property alleged to have been hypothecated. At no point of time its custody was transferred to the Corporation and the Corporation did not entrust the hypothecated items to the respondent. The complainant has miserably failed to prove this essential ingredient by leading cogent evidence. Therefore, in these circumstances, the complainant has failed to prove the offence charged against the respondent which only creates a civil liability. Therefore, the acquittal of the respondent cannot be interfered with. Appeal sans merit and is accordingly dismissed. 9. The respondent is discharged of his bail bonds entered upon by him at any stage during the proceedings of this case. 10. Send down the records forthwith. July 25, 2011. (Surinder Singh), (rc) Judge.