IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 101 of 1996 Date of Decision : February 25, 2010 State of Himachal Pradesh Appellant Versus Ram Nath Respondent Coram: Hon’ble Mr. Justice Deepak Gupta, Judge Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Mr. Vivek Thakur, Addl. Advocate General with Mr. R. M. Bisht, Dy. Advocate General for the appellant. For the respondent : None for the respondent. Deepak Gupta, J. (Oral) This appeal is directed against the judgment passed by the learned Judicial Magistrate Ist Class, Court No. II, Nurpur (Kangra), dated 31.5.1994 in Police Challan No. 137-2/90 whereby he acquitted the accused of having committed offences punishable under Sections 409, 408 read with Section 420 of the Indian Penal Code. Facts in brief are that the accused Ram Nath was the President of Gram Panchayat, Manoh Sihal for the year 1981. According to the prosecution on 10.11.1981 the Primary Education Officer, Fatehpur released a sum of Rs. 2500/- in favour of the accused for the construction 1 Whether reports of Local Papers may be allowed to see the judgment? 2 of additional accommodation for the primary school at Manoh. According to the prosecution the accused did not construct the additional accommodation and retained the amount and thereby committed an offence of criminal breach of trust. The matter was reported to the police by the S.D.M. Shri A. N. Jain on 9.6.1987 almost six years after the entrustment for registration of the F.I.R. at Police Station, Nurpur. The investigation was done by the Investigating Officer who seized various records relevant for the case. It is not necessary to refer to all the documents in detail because even the accused has not seriously denied the receipt of the sum of Rs. 2500/-. The defence taken by the accused is that the construction of the school building was done up to the plinth level and this sum of Rs. 2500/- was spent for the construction of the building up to this level. The accused also led evidence in his favour. After trial the accused has been acquitted and hence the present appeal. Three main issues arise for consideration in this case. The first is the delay in lodging the F.I.R. Admittedly the funds were released on 10.11.1981. The building was to be constructed soon thereafter. The F.I.R. was lodged on 9.6.1987 vide Ext. PW 4/A. There is no reasonable explanation for this inordinate delay in lodging the F.I.R. Even as per the evidence brought on record it is apparent that there was some dispute between two groups of villagers as to where this school is to be located. In fact the cheque of Rs. 2500/- was drawn on 4.4.1981 for release of the amount. However, this amount of Rs. 2500/- was not released till 9.11.1981 when the resolution Ext. DW-3/C was passed wherein the villagers decided where the school was to be constructed. Thereafter receipt was issued for a sum of Rs. 2500/- by the accused vide Ext. PW1/C. Though the accused initially denied his 3 signatures but according to the opinion of the Examiner of questioned documents Sh. R. K. Jain (PW-10) the signatures on the receipt are of the accused. From the facts on record it is apparent that in fact originally a sum of Rs. 10,000/- was sanctioned for the construction of the school vide Ext. DW1/A. This is a letter sent by the Sub Divisional Officer (C), Nurpur to the Deputy Commissioner, Kangra. According to this letter, the spot inspection was conducted on 22.4.1981, and it was found that there is an old school building at Manoh. The middle school building had been constructed across the khud five-six years ago prior to the issuance of this letter. The primary school classes were shifted there. Thereafter when the funds were released from the Pong Dam Oustees Fund for the construction of the building the Construction Committee started construction of the new building in the premises of the old primary school. However, a group of villagers objected to this and wanted the new primary school building to be constructed near the Middle School. After taking into consideration all the facts and after considering the version of the estate holders the SDO (C) recommended that as already decided by the Pong Dam Advisory Committee, the construction committee shall consist of the Block Primary Education Officer, Pradhan of the Panchayat and the Headmaster of the Primary School who will carry out construction and the money will be released to the Pradhan. He also recommended that the school building should be constructed at a site where there is open space and provision of a play ground etc. and suggested that the school be constructed near the Middle School campus. Sh. Rajan Sushant the then Member of the Legislative Assembly from Nurpur constituency raised a starred assembly question in the H.P. 4 Legislative Assembly asking about the utilization of the funds for Primary School, Manoh Sihal. The Director of Primary Education gave the detailed information to the Deputy Commissioner, Kangra vide letter dated 6.2.1987 which is Ext. DW 1/C. This letter shows that in fact Rs. 10,000/- was provided by the Pong Dam Oustees Fund for construction of the school in question out of this Rs. 2500/- was withdrawn by Sh. Uttam Chand, Block Primary Education Officer, Fatehpur on 1.4.1981 which amount as already mentioned above was handed over to the Pradhan on 10.11.1981. Another sum of Rs. 7500/- was released to Sh. Uttam Chand, Block Primary Education Officer, Fatehpur on 20.3.1982. In this letter itself it is stated that out of the amount of Rs. 10,000/-, Rs. 2500/- was utilised for the construction upto plinth level. This is a document issued by the Director of Primary Education and sent to the Deputy Commissioner, Kangra. This clearly shows that Rs. 2500/- was used by the Pradhan to construct the first building up to the plinth level. Therefore there has been no dishonest use of the funds. The dispute has mainly arisen because of shifting of the site from Primary School building to the Middle School building. It is not a case of dishonest intention where the accused has pocketed funds made available to him. It is in fact surprising to note that in this very letter it is mentioned that Sh. Uttam Chand never released the remaining fund of Rs. 7500/- to anybody and in fact when inquiry was conducted remitted the amount to S.D.O (C) on 12.3.1986. No action was taken against Sh. Uttam Chand who may have been guilty of embezzlement but action has been taken against the Pradhan even though the amount released to him was used for the construction of the building up to the plinth level. The learned trial Court was therefore justified in holding that the accused was not guilty. 5 In the present case admittedly the Pradhan was a public officer within the meaning of Section 197 of the Code of Criminal Procedure. Sanction should have been taken before prosecuting him. This is another ground which vitiates the prosecution case. In view of the above discussions we are of the view that there is no merit in the present appeal and the same is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. (Deepak Gupta), Judge. (Sanjay Karol), Judge. February 25, 2010 (PK)