HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A.No.: 262 of 1994 Reserved on: 24.9.2008 Decided on: 22.10.2008 State of Himachal Pradesh ………Appellant. Versus Om Parkash ………Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.R.M. Bisht, Deputy Advocate General. For the respondent: Mr.Romesh Verma, Advocate. Per V.K. Ahuja, J: This is an appeal filed by the State of H.P. against the judgment passed by the learned Additional Chief Judicial Magistrate, Shimla, dated 5.6.1993, vide which the respondent was acquitted of the charge framed against him under Sections 409, 465, 467 and 468 of the Indian Penal Code. Briefly stated the facts of the case are that the respondent was posted as Sub Post Master at Post Office Jathia Devi during the year 1981 to 1983. During the period 14.10.1982 to 14.9.1983, the respondent was alleged to have committed breach of trust in respect of a sum of Rs.2208/- received by him from various account holders, namely, Rs.700/- from Lekh Ram, Rs.135 from Med Ram, Rs.900/- from Kamla Devi, Rs.75 from Sahi Ram, Rs.83 from Gian Chand, Rs.100/- of Nika Ram and Rs.125/- from Shanti Devi, in all amounting to Rs.2208, which amount was received by the respondent who made entries in the ______________________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. pass books of these persons but did not account for the money in the accounts of the post office. On investigation, it was found that the respondent has misappropriated these amounts, made forged entries in the pass books of various persons and accordingly after investigation, the challan was filed as against the respondent, who was tried by the learned trial Court for the various offences mentioned above leading to his acquittal. We have heard the learned counsel for the parties and have gone through the record of the case. The first thing required to be proved by the prosecution was that the respondent was posted as Sub Post Master i.e. a public servant during the period from 14.10.1982 to 14.9.1983 and he was entrusted with a sum of Rs.2208/- belonging to these persons. The fact that the respondent was posted as Sub Post Master during this period and was entrusted with the work of receiving cash for deposit from the account holders stands established and was not disputed by the respondent in his statement under Section 313 Cr.P.C. However, he denied having received the money or forged the entries in the pass books, which facts were required to be proved by the prosecution to prove the charge as against the respondent. Out of the seven persons, who allegedly entrusted the amount of Rs.2208/- in all to the respondent, the prosecution had examined some of the these depositors. PW-9 Lekh Ram has stated that he had opened an account in the post office and deposited Rs.800/- with the respondent, who after making the relevant forms and pass book, issued him receipt of Rs.800/- and has proved the pass book as Ext.PS. The case of the prosecution was that out of Rs.800/- deposited by him, a sum of Rs.100/- was shown as having been deposited while the remaining amount of Rs.700/- was allegedly misappropriated by the respondent. However, this witness has nowhere stated that the receipt for the whole amount of Rs.800/- was not issued or that it was issued for Rs.100/- only. In cross examination also he has stated that he was given the receipt of Rs.800/- by the accused when he deposited this amount and he was given the correct receipt of Rs.800/-. He was declared as hostile and did not support the prosecution story. The second depositor Med Ram has been examined as PW-3, who stated that there were no wrong entries in his pass book. He was declared as hostile and in cross examination, he stated that he is not aware in case in the post office register his amount was not correctly shown. The next depositor examined is PW-8 Kamla Devi who has stated that she had deposited Rs.1000/- and was given the pass book but when she went to withdraw the amount, Rs.100/- was only mentioned. She stated that she was given the pass book in which Rs.1,000/- was mentioned. Her statement was helpful to the prosecution only in case they had proved the ledger entries of the date of the deposit of this witness and it was proved from the entries that a sum of Rs.1,000/- was not shown to have been deposited by this witness on that date. Her oral statement is of no help since she has neither proved the pass book nor she could state if the amount was not entered in the books of account of the Post Office. The next depositor examined is PW-1 Gian Chand who has not stated as to how much amount was deposited by him on which date and it was not shown by the respondent in the account books. His statement is very vague that there was a balance of Rs.420/- in his account but then there was some misappropriation and his oral statement is of no help to the prosecution. The next depositor is PW-2 Sahi Ram who stated that he does not remember how much money was in his account in the year 1982. He further stated that his pass book showed the current entries but he is not aware of the entries in the Post Office account. He was declared as hostile and was allowed to be cross examined. In cross examination he has stated that there was no shortfall in his account. The remaining two depositors, namely, Nika Ram and Shanti Devi were not examined by the prosecution. From the above discussion, it is clear that the pass books of these persons were not produced in evidence in their statement and they have not stated about the details of the amount deposited by them or that it was incorrectly shown and their oral testimonies are of no help to the prosecution until and unless the ledger account of the Post Office was produced to show that there is a difference in the deposit of the amounts by these persons and their pass books show differently which could have been proved in case the less amount was shown to have been deposited by the respondent in the accounts of the Post Office. The prosecution had produced daily account Ext.PW-17/B about the deposit of various amounts from 10.11.1982 to 18.2.1983 but the mere production of this daily account or saving bank ledger card Ext.PW-10/A does not prove that these amounts deposited by the depositors were shown in their pass books but were not shown in the ledger account maintained by the Post Office. The learned trial Court had observed that the prosecution had not produced the original record of the ledger card and list of transaction, but even if the certified copy or duly attested copy attested by an officer of the Post Office was produced, it could have been read in evidence which could have proved about the deposit of the amount by the various account holders which were not accounted for by the respondent. Coming to the report of the hand writing expert, PW-18 N.C. Sood, Deputy Examiner of Questioned Documents, has stated that the entries in the pass books were in the hand of the person who wrote admitted writings from S-1 to S-12. However, the prosecution did not examine the concerned Naib Tehsildar in whose presence the specimen of the hand writing Ext.PW-18/1 to Ext.PW-18/6 were obtained by the prosecution. The prosecution had examined PW-16 M.C. Joshi, an officer of the Cantonment Board, who stated that no such writings were obtained in his presence from the accused. This witness was declared as hostile and his statement was not sufficient to prove that the admitted hand writings which were compared with the entries in the pass books were in the hand of the accused and in the absence of such evidence, the report of the expert cannot be linked with the accused. From the above discussion, if follows that the prosecution had miserably failed to prove their case and the findings recorded by the learned trial Court holding that the prosecution has failed to prove their case calls for no interference by this Court and as such there is no merit in the appeal filed by the State of H.P. which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged. (Deepak Gupta), Judge. October 22, 2008. (V.K. Ahuja), (TILAK) Judge.