GOVT. APPEAL (SJ) No.11 OF 1991 (Against the order and judgment dated 20.12.1990 passed by Sri Dinesh Nr. Pathak, Ist Addl. Sessions Judge, Bettiah in Criminal Appeal No. 28/86/, 29/86 and 30/86) The State of Bihar ………………………………..Appellant Versus Jatashankar Prasad & Ors. ……………………………(Respondents) For the appellant : Mr. S.N.Prasad, A.P.P. Fore the respondent no. 2 : Mr. Awanish Kumar Pandey, Adv. Mr. Ajay Dubey, Adv. Mr. Anjani Parashar P R E S E N T THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL Kishore K. Mandal, J The appellant State has filed the present appeal being aggrieved by the judgment and order of acquittal dated 20.12.1990 passed in Cr. Appeal No. 28, 29 and 30 of 1986. Respondent no. 1 (Jatashankar Prasad), preferred Cr. Appeal No. 28/86, respondent no. 2 (Jamuna Prasad) preferred Cr. Appeal No. 30/86 where as respondent no. 3 ( Bhikham Prasad) preferred Cr. Appeal No. 29/86. being aggrieved by the judgment and order of conviction dated 3.4.1986 passed by the learned Trial Court in Tr. No. 717/86 (State Versus Jamuna Prasad & Ors) whereby the said respondents were convicted under various sections of I.P.C. and sentenced thereunder. In order to put the record straight, it is to be recorded that during the pendency of this appeal,, respondent no. 1 Jatashankar and respondent no. 3 ( Bhikham Prasad) are reported to be dead( vide report at Flag-„B‟). There is no application for substitution filed on their behalf. In that view of the matter, the present Government appeal so far as respondent nos 1 and 3 are concerned, stands abated. Now, the present appeal survives only in respect of respondent no. 2 Jamuna Prasad who was convicted by the 2 Learned Trial Court under section 409 I.P.C. and sentenced to undergo rigorous imprisonment for two years, the said respondent further found guilty and convicted under section 120B of the I.P.C. and sentenced to undergo rigorous imprisonment of one year. The sentences were directed to run concurrently. The prosecution case, in short, is that the respondent no. 2 Jamuna Prasad (hereinafter to be referred as „sole respondent‟) was appointed as government stockist of cement by S.D.O., Motihari sometimes in February, 1964 and he executed an agreement on 10..3.1964, deposited security in the form of National saving certificate(s) (8.3.1964) and thereafter started functioning as such for Mainatand block. It is further the prosecution case that the sole respondent took delivery of 26,958 bags of cement between April 1964 to February, 1968 and stored them in the godown located in Laxmipur village. The prosecution case further is that on permission/permits, the sole respondent supplied 7677 bags of cement between April, 1964 to September, 1968 and the balance of cement (19281 bags) remained in the custody/godown of aforesaid stockist (sole respondent). It has further been alleged that as there was no need of the remaining cement, the aforesaid balance stock was auctioned on 11.6.1969 and co-accused Jatashankar Prasad became the highest bidder but subsequently he defaulted in depositing the bid amount and to take delivery. It is further alleged that when the highest bidder namely Jatashankar Prasad did not deposit the bid amount, the remaining stock of cement was again auctioned on 26.7.1970 and one Harishankar Prasad this time became the highest bidder followed by accused Bikham Prasad who was adjudged the second highest bidder. This time also the highest bidder failed to deposit the money which was/is indicative of the fact that these highest bidders had also hands in gloves with the sole respondent. It is further the prosecution case in the F.I.R. that one consignment of 1968 bags of cement was received by co-accused Bhikham Prasad on behalf of the sole respondent sometimes in February, 1968 and as such 3 the sole respondent has also become liable for safe custody of the said stock/consignment. It is further alleged that Harishankar Prasad apprehending verification, deposited a sum of Rs. 15,000/- on 12.8. 1971 and also prayed for extension of time for deposit of rest of money but the same was ultimately not deposited. On these facts, it has been alleged that the sole respondent being the duly appointed stockist has misappropriated government stock of cement so entrusted to him along with other accused(s).This was concluded on the basis of stock verification allegedly made on 20.8.1971, in absence of the sole respondent, by the authorities in which only 676 bags were found in the said godown which were handed over to one Nand Prasad on Jimmanama. On these facts, it has been alleged that the sole respondent and other co-accused conspired and misappropriated 18605 bags of cement worth Rs. 1,58,142.50 paise and as such they are liable to be punished. The learned Trial Court in order to come to a conclusion that the sole respondent was stockist duly appointed by the government has mainly relied upon Ext.-G which is National saving Certificate allegedly deposited by the sole respondent as also the oral evidence of P.Ws.-1, 2, 3 and 4 although these witnesses were declared hostile by the prosecution. In order to bring home the charges, the prosecution got examined as many as 10 witnesses namely P.W. 1(Md. Arif), P.W.-2( Md. Mofiz), P.W.-3 (Suraj Prasad), P.W.-4 (Khush Mohammad), P.W.-5 (Narendra Prasad Mishra), P.W.-6( Rameshwar Dubey), P.W.-7(Bindeshwari Prasad Singh), P.W.-8(Yogendra Prasad), P.W.-9( Lal Babu Singh and P.W.-10(Sharda Kant Saran) besides exhibiting a series of documents in order to demonstrate the entrustment of the cement and the alleged shortage found during physical verification of the godown belonging to the sole respondent. On consideration of the evidence on record, the learned Trial Court namely Sri, D.N Pandey, the then Judicial Magistrate, Ist Class Bettiah has found and held that the evidence of P.W. 5 and the documents such as Ext.-1 (notice given to the stockist), Ext.-3 (the verification report dated 4 23.2.1971), and Ext. 3/B (report of Sri Jagdish Chaudhary on sale register dated 23.2.1971) and Exts. 3/C and 3/D read with oral evidence of P.W. 5 Narendra Prasad Mishra, Land Acquisition Officer, go to demonstrate that the sole respondent was the stockist appointed by the authority and there was physical verification made in the godown of the sole respondent and shortage of cement was found and as such the sole respondent was guilty of misappropriating the cement as alleged in F.I.R. The learned Trial Court has further relied upon Ext.2 (credit note book) in order to come to a conclusion that 26,958 bags of cement during the period from May, 1964 to February, 1968 were entrusted to the sole respondent. The learned Trial Court has also referred to and relied upon the issue register in order to come to a conclusion that 7677 bags of cement was issued by the stockist (sole respondent) during the said period to different consumers on the basis of permits issued by the Block Office and on physical verification on 20.8.1971, it was found that only 676 bags of cement was left in the godown of the sole respondent. On consideration of these evidence, the sole respondent was held guilty under section 409 of I.P.C. and sentenced to undergo rigorous imprisonment for two years, He was also found guilty under section 120B and sentenced to undergo rigorous imprisonment for one year. The sole respondent being aggrieved by the said judgment and order of conviction preferred Cr. Appeal no. 30/86 which was heard along with analogous appeals preferred by the other co-accused persons and under order dated 20.12.1990 passed in the said batch of appeals , the impugned order of acquittal has been recorded by the learned Lower Appellate Court. The State has called in question the said judgment by filing the present government appeal. The sole respondent has been found guilty under section 409 of the Indian Penal Code. It is to be noted that for convicting a person under the said section, it is incumbent upon the prosecution to first demonstrate/prove to the satisfaction of the Court by cogent evidence that certain 5 articles/properties was/were entrusted to the accused and/or he was put dominion over the said property in his capacity of a public servant and secondly, that he misappropriated or converted to his own use that property. Considering the profile of this case, the prosecution is/was duty bound to first demonstrate that the sole respondent was appointed as a government cement stockist for the period in question. In the F.I.R., it has been specifically alleged that the sole respondent was appointed as government stockist under an agreement duly executed by and between the sole respondent and the government. The said agreement has not been brought on record in order to prove beyond cavil that the sole respondent was government stockist for the block in question. The prosecution has relied upon Ext.-G (the N.S.C.). It is to be noted here that the sole respondent has denied his signature on the papers which is/are said to have been filed along with the said National Savings Certificate. The learned lower Appellate Court has taken a view that if the accused (sole respondent) has denied signature on the papers, it was necessary for the prosecution to get the handwriting expert examined in this case in order to prove that these were documents filed by the sole respondent for the purpose of becoming stockist. Learned lower Appellate Court has also considered the evidence of P.W. 5 (at para 6) wherein he has very fairly admitted that for becoming a government stockist, a person has to execute an agreement containing the terms and conditions as also the place of godown where the stocks are to be kept. Learned Appellate Court has also considered in this regard, the evidence of P.W. 6 who has admitted in course of his deposition that he is not able to say what were the terms and conditions of the agreement between the government and accused (sole appellant). Learned lower Appellate Court has further taken into account the evidence of P.W. 10 who was posted during the relevant time in the office of D.D.O., Motihari from where the sole respondent was allegedly appointed as government stockist (as incorporated in paragraph no. 1 of his 6 deposition) wherein he has flatly denied to even name the present respondent as stockist. However, subsequently this witness has deposed that on recommendation of the S.D.O., Bettiah, the sole respondent was appointed as stockist but there was no agreement on record. On consideration of the evidence on record, learned Lower Appellate Court has come to a conclusion that the prosecution has failed to demonstrate by cogent evidence either oral or documentary that the sole respondent was assigned the job of a government cement stockist of Mainatand block. This conclusion was also supported by a reasoning that although the prosecution case as disclosed in the F.I.R. is that there was an agreement by and between the parties but the same was neither disclosed in course of evidence nor brought on record and as such an adverse inference can reasonably be drawn under section 144 of the Indian Evidence Act. Now the second question to be considered is whether there was any misappropriation/shortage of the cement at the instance of the sole respondent. The prosecution in this regard has relied upon the oral evidence of P.W. 5. It appears from the evidence of P.W. 5 that a seizure list was prepared at the time of making physical verification of the stock of cement allegedly in the godown of the sole respondent in presence of the P.E.O. of Mainatand and S.D.O. of the concerned sub-division. Unfortunately, the seizure list has not been exhibited in this case. The official witnesses namely P.E.O. of Mainatand and S.D.O., under whose presence such verification was made, have not been examined in this case. It appears that the evidence of P.Ws 3 & 4 was relied upon by the prosecution to demonstrate that physical verification of the godown belonging to the sole respondent was made. From the evidence of P.Ws. 3 and 4, it is apparent that the they have flatly denied that no verification of the stock of the godown of the sole respondent was made in their presence. The prosecution has, therefore, declared them hostile. The cumulative effect of these evidence discussed above definitely go to show that the prosecution has not been able to prove beyond shades of doubt that the 7 godown, allegedly belonging to the sole respondent, was ever checked/verified in which the shortage of cement, as alleged by them, was found and detected. The learned Lower Appellate Court has also come to the same finding when it has found as under: “Thus in view of absence of seizure list and the same being not supported by P.W. 3 and 4, I find that the prosecution has not been able to prove with reliable evidence about the search of the godown and its physical verification.” This court also holds the view that on the basis of singular evidence of P.W. 5, it cannot be inferred that the physical verification was made of the godown belonging to the sole respondent in which the shortage of cement as alleged was found. This Court is conscious of the legal principle that the order of acquittal should not generally be interfered with because the presumption of innocence of the accused is further strengthened by the order of acquittal recorded in his favour. This Court is also conscious of the fact that this does not by itself creates an absolute bar. The Court can interfere with the judgment of acquittal if there are compelling circumstances and substantial reasons for doing so. If the impugned judgment of acquittal is manifestly unreasonable, relevant and convincing materials have been unjustifiably eliminated from the process of consideration, the Court shall interfere with the order of acquittal. However, if on the basis of the evidence brought on record, two views can possibly and reasonably be taken and the Court below has taken a view which cannot be shown to be manifestly unjust and/or perverse then this Court shall be justified in refusing to interfere with the order of acquittal. Reference in this regard be made to the judgment in the case of V.N. Ratheesh Vrs. State of Kerala reported in 2006 Vol. 10 S.C.C. 617. Learned counsel for the appellant submits that there is some evidence in the shape of Ext- 2 (stock position register) and the oral evidence of P.W. 1 to 4 to show that the sole respondent was government stockist and quantity of cement as alleged was entrusted to the sole 8 respondent. This Court, at this stage, once again reiterates that the evidence of P.W. 1 to 4 has not been found convincing at all by the Learned Lower Appellate Court as they have been declared hostile. Ext.-2 by itself is not able to demonstrate that the quantity of cement as alleged by the prosecution was entrusted to the sole respondent being the government stockist. Thus on consideration of the evidence on record, this Court, agreeing with the findings of the Lower Appellate Court, finds that the prosecution has not been able to first prove that the sole respondent was ever appointed government stockist under any order/agreement and entrusted the stock of cement. Learned counsel for the appellant submits that there is some evidence on record to indicate that physical verification of the godown of the sole respondent was made by the authorities and as such a notice was issued in the name of the sole respondent by the block office which has been brought on record though the evidence of P.W., 6 (Rameshwar Dubey). This notice is Ext.1.. The said submission is fit to be rejected in view of the fact that Ext. 1 although addressed to the sole respondent but was never received by the sole respondent. Thus the prosecution has also failed to prove that any physical verification in the godown was made in which shortage of cement was found. Having considered the materials on record from all aspects, this Court is convinced that no compelling or justifiable reason has been made out by the State enabling this Court to interfere with the order of acquittal rendered by the lower Appellate Court which appears to be just and proper and founded on legal appraisal of the evidence on record. For the reasons aforesaid, the present appeal at the instance of the State fails and the same is hereby dismissed. ( Kishore K. Mandal, J ) The Patna High Court, Dated, 18th April, 2008 NAFR/ (pkj)