IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. : 544 of 1996 Decided on : 25.06.2010. ___________________________________________________________ State of Himachal Pradesh … Appellant. Versus Surya Kant … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Anil Jaswal Dy. Advocate General. General. For the respondent : Mr. N.S. Chandel and Mr. Rakesh Jaswal, Advocates. R.B. Misra, Judge (oral). The present appeal has come up for consideration after leave to appeal has been granted under Section 378 (3) Cr. P.C in reference to the impugned judgment dated 31.01.1996, passed by the learned Special Judge, Mandi, in Corruption Case No. 3 of 1991/5 of 1993, acquitting the accused for the offences under Section 5(2) of the Prevention of Corruption Act, as well as under Section 409 IPC. 2. In order to adjudicate the present appeal, it is necessary to give the factual background of the case. The case of the prosecution was that the Anti Corruption Unit of District Mandi (H.P.), filed a case under Section 5 (2) of the Prevention of Corruption Act and under Section 409 IPC, alleging that an 1 Whether reporters of the local papers may be allowed to see the judgment? 2 inquiry was made against the alleged accused-respondent that while he was posted as Agriculture Inspector at Ballichowki, during the period 1.1.1982 to 31.12.1982, different agricultural items like maize seed, wheat seed, paddy seed, mash seed and peas seed were said to have been entrusted to the accused- respondent for sale/distribution to the farmers, either directly or through Gram Sewaks etc. and thereafter sale proceeds were required to be deposited in the Government treasury after realizing the same from the farmers. The accused-respondent not deposit the sale proceeds to the tune of Rs. 12,000/- in respect of the above items immediately and were deposited at belated stage on the pretext that as and when sale proceeds were received from Block Development office, the same were deposited. 3. The accused-respondent was served with charge-sheet and three cases were registered against him for different periods. In respect of those allegations the accused-respondent was charged for temporary as well as permanent embezzlement for alleged mis-appropriation of money at different places and was tried for the offence under Section 5(2) of the Prevention of Corruption Act and Section 409 IPC. It is pertinent to mention here that the trial court has acquitted the accused-respondent in all the three cases and no appeal against acquittal was filed by the State except the present one. 3 4. In order to prove the case, the prosecution has examined as many as 13 witnesses. The accused-respondent in his statement under Section 313 Cr.P.C has denied the prosecution case and had shown his innocence. The points for determination were framed and dealt with. 5. We have heard the learned Dy. Advocate General and the learned counsel for the accused and perused the record. 6. The role of the prosecution witnesses and exhibits have been narrated in paragraph three of the judgment of the learned trial Court in detail. As such, these are not repeated for the sake of brevity. 7. PW-1 Mr. Kuldip Chand Sharma, Superintendent, office of the Deputy Director, Agriculture, Kullu, has stated that he handed over audit note along with copies of annexures to the Investigating Officer, which were exhibited by him. PW-1 in his cross examination has stated that he received letters with full signatures from the accused-respondent and he has been working in the Agriculture Department since 1966. Further stated that for sometime the seeds and fertilizers were used to be distributed to the farmers by entrusting the same to the Block Development Officers. Initially, the seeds and fertilizers were used to be entrusted to the Block Development Officers and thereafter to the Gram Sewaks for further distribution to the farmers on credit basis and sale proceeds were used to be deposited in the Govt. Treasury or in the office of Superintendent 4 attached with the Dy. Director Agriculture only after realization from farmers. According to PW-1, later on instructions were issued from the high ups that sale of fertilizers and seeds on credit basis be stopped, however, such instructions could not be implemented in letter and spirit because there were few purchasers of fertilizers and seeds on cash basis. According to this witness, the Government used to fix targets regarding distribution of seeds and fertilizers among the farmers and it was some what obligatory for the field staff to achieve those targets. 8. In the light of such practice of depositing the sale proceeds, we have analyzed the statements of prosecution witnesses and noticed that the audit was conducted and on the basis of report in para 13 of audit note, the Agriculture Department proceeded against the accused-respondent without affording him an opportunity to file response or examine the record and no procedure appears to have been followed in this regard. 9. A perusal of statement of PW-1 Mr. Kuldip Chand Sharma, coupled with entries in the Register of Sales Ex.PB, would go to show that the contention of the prosecution that the accused-respondent did not deposit the sale proceeds with the Govt. Treasury as per instructions of Agriculture Department, cannot be said to have been fully proved. PW-7 Mr. R.R. Bharti, Senior Assistant in the office of Directorate of Agriculture, H.P. Shimla, has stated that in terms of communication dated 10.10.1969, Ex.PK, instructions were 5 issued to the District Agriculture Officers that seeds and fertilizers should not be sold to the cultivators on credit. In cross examination, PW-7 has stated that letter Ex.PK has not been circulated to the Agriculture inspectors and field staff. It is observed that non-circulation of letter Ex.PK to the Agriculture Inspectors and field staff has weakened the prosecution case. We also notice that specimen handwritings/signatures of the accused-respondent Suryakant were taken and sent for examination to the Govt. Examiner of Questioned Documents. PW-12 Shri Subhashis Dey, Asstt. Govt. Examiner of Questioned Documents vide report Ex.PO found the material insufficient to come to a definite conclusion, as such specimen handwritings/signatures sent for examination were not proved to be of the accused-respondent Suryakant and thus he was entitled for benefit of doubt. 10. On careful consideration of material on record, learned trial court has rightly arrived at the conclusion that the prosecution has failed to prove its case against the accused- respondent beyond reasonable doubt. The accused has deposited the sale proceeds though at belated stage under the garb of mode of realization and deposit of sale proceeds. We have also taken note of the fact that in two other similar matters the accused was acquitted by the learned trial court, but no appeal was preferred by the State. In the present case also 6 we do not find any scope for interference in the impugned judgment. The appeal being devoid of any merit is dismissed. (R.B. Misra) Judge. (V.K. Sharma) Judge. June 25, 2010. (lsp)