IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 480 of 2000. Date of decision: 23.11.2010. State of H.P. ….. Appellant. Vs. Bihari Lal …. Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 For the appellant : Mr R. K. Sharma, Senior Addl. Advocate General. For the respondent : Mr. Neeraj K. Sharma, vice Mr. Y. P. Sood, Advocate R.B. Misra, J. (Oral). The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment dated 30.11.1999, passed by the learned Sub Divisional Judicial Magistrate, Rampur Bushahr in Case No. 226-2 of 96, acquitting the alleged accused for the offence under Section 409 IPC. 2. The prosecution case is that on 9.8.1994 Inspector, Postal Department made complaint that accused Bihari Lal appointed as Branch Post Master in village Labana had mis-appropriated a sum of `.2600/-. Whether the reporters of the local papers may be allowed to see the Judgment? 2 As per allegations in Pass Book No. 235802 of Raghu Dass Ext.P1, the entry of `.1000/- has been shown on 22.6.1993, which is not entered in daily account register Ext.P-3. Similarly entry has not been made in daily branch account register Ext.P4. Complaint further indicated that in Pass Book No.235749 Ext.P6 of Bima Ram, `.100/- is deposited and the same has not been entered in daily account register Ext.P-3 and same has also not been entered in Ext.P5 daily account register of branch post office, whereas it should have been entered in the same. Further in Pass Book No. 234879 Ext.PA of Shiv Ram, the entry of `.500/- made in Ext.P9 on 22.12.1993 was not entered in daily account register Ext.P11, whereas,it should have been entered in Ext.P11 and Ext.P4 daily account register and as such `.1600/- were misappropriated. Further allegation was that the accused had deposited `.200/- vide receipt No. 59 and `.3280/- vide receipt No.55. On completion of investigation the challan was presented in the Court and the accused was charged with the commission of offence punishable under Section 409 IPC. In order to prove its case, prosecution examined as many as seven witnesses, whereas, accused-respondent, through his statement under Section 313 Cr.P.C. denied the prosecution case. 3. PW-1 P. C. Dogra, Inspector, Postal Department stated that at the time of inspection in the saving 3 bank account and in RDs of Labana Branch Post Office and after comparing the pass books of some account holders, the entries in saving and RDs in general were not entered in the daily branch account register and on investigation it was found that `.1600/- have been misappropriated and in that respect complaint Ext.PW- 1/A was lodged. Similarly `.1000/- which was stated to be deposited on 22.6.1993 in Pass Book Ext.P2, was not entered in the daily account register Ext.P3. `.100/- shown to have been deposited on 22.6.1993 by Bhima Ram and `.500/- by Sewa Ram was also not entered in the respective daily account registers. Thus, in the year 1993, the accused has misappropriated `.1600/- and the accused has also placed on record receipt Ext.DA No. 59 dated 2.3.1994 and receipt No.55, vide which he has deposited `.200/- and `.3280/-. PW-2 Jagdish Chand Sharma in support of the prosecution case has taken into possession pass books and daily account register Ext.P3, Ext.P6, Ext.P11 and daily account register Ext.PW-1/C and pass book vide memo Ext.PW-1/B. PW-3 Chander Pal, Executive Magistrate in whose presence the specimen signatures and hand writing of accused Bihari Lal were obtained as Ext.PW-3/1 to Ext.PW-3/16 and Ext.PW-3/17 to Ext.PW-3/38. PW-4 Bhima Ram has deposed that `.100/- was deposited, however, he could not tell on which date he deposited this amount. PW-4 has further deposed that earlier the entries were made 4 according to deposit and he could not tell how much amount he has deposited in the pass book. Similarly, PW-5 Sewa Ram alleged to have deposited `.500/- which was entered in the pass book has however not been entered in the record of post office. PW-5 was not able to indicate on which date he deposited `.500/- as the same has not been entered in the post office record and daily account register. PW-6 Raghu Dass deposed that he has deposited `.1000/- but the same is not entered in his account but he has not deposed that on which date he has deposited `.1000/-. PW-7 ASI Udai Chand had taken into possession the pass books and other record of the post office vide seizure memo Ext.PW-3/A. PW-8 HC Prem Singh obtained the specimen signatures and hand writing of accused Ext.PW-3/1 to Ext.PW-3/38 in the presence of Executive Magistrate. 4. On scrutiny of the statements of the prosecution witnesses and materials on record, PW-4, PW-5 & PW-6 have consistently alleged that though money was deposited but the same have not been entered into their accounts. But they are unable to disclose and prove that when and how they had deposited the said amount in their account and how collectively over all `.1600/- was misappropriated. Entrustment of such amount by the customers was not, therefore, proved. 5. On analysis of the materials on record and the prosecution witnesses, learned Trial Court has rightly 5 arrived at its finding that the prosecution has failed to prove its case beyond reasonable doubt against the accused. In our considered view, money said to have been deposited by the customers has not been proved on record, especially indicating the date, mode and the manner of deposit. In these circumstances, the prosecution has failed to bring home the guilt against the accused/respondent. Criminal appeal being devoid of merit is, therefore, dismissed. 6. Bail bonds furnished by the accused are discharged. (R.B. Misra) Judge (Sanjay Karol) Judge November 23, 2010 (rana)