HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 66 of 1997 Decided on: 28.5.2010 State of Himachal Pradesh ……… Appellant. Versus Rajinder Kumar ………Respondent. Coram: The Hon’ble Mr.Justice R.B. Misra, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? For the Appellant: Mr.Rajinder Dogra, Additional Advocate General, & Mr.Vikas Rathore, Deputy Advocate General. For the respondent: Mr.Rakesh Jaswal, Advocate. R.B. Misra, J.(Oral): Heard Mr.Rajinder Dogra, Additional Advocate General, for the appellant/State and Mr.Rakesh Jaswal, learned counsel for the respondent. 2. The present criminal appeal has arisen consequent upon granting leave to appeal under Section 378(3) of the Code of Criminal Procedure, in reference to the judgment dated 29.6.1996, passed by learned Judicial Magistrate Ist Class, Court No.II, Amb, District Una, H.P., vide which the accused has been acquitted of the offence under Sections 409, 467, 468 and 471 of the IPC. ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? - 2 - 3. The prosecution case in brief is that the accused was working as Secretary, Ado Patehar Co-operative Agricultural Service Society Ltd. during the period from 1.1.1985 to 31.12.1985. Being the Secretary, he was entrusted with receipt and payment of Society money on behalf of the Society. The accused misappropriated the amount received from different account holders and for doing that, he prepared forged documents and made false entries in the accounts as well as in the pass books of various account holders. In all, the accused embezzled a sum of Rs.1,42,070.37 during the aforesaid period. This misappropriation, fraud and cheating on the part of the accused came in the light at the time of audit inspection of the Society in the year 1986. Accordingly, a case was registered and the accused was charged for offence under Sections 409, 467, 468 and 471 of the IPC. 4. In order to prove its case, the prosecution has examined as many as 27 witnesses, whereas the accused has shown his innocence and has denied the prosecution version and also examined one witness in defence. 5. PW-1 Tilak Raj, Inspector of the Cooperative Society, has deposed that he had been working as Inspector since 1992. According to PW-1, prior to him, Achhar Singh was the Inspector. As per PW-1 Tilak Raj, abstract of report Ext.PW-1/A, special report Ext.PW-1/B and details of amount Ext.PW-1/C were in the hand of Achhar Singh, which have been signed by him. 6. PW-2 Pushpa Devi has deposed that about 12-13 years ago, she opened her account in the Society and had - 3 - handed over Rs.50/- to the accused. Later on, she enquired as to whether the said amount was credited to her account or not, when she came to know that the amount was not credited to her account. PW-3 Sheela Devi has also deposed that she had taken a loan of Rs.1,500/- from the Society in question in the year 1985 and she handed over Rs.180/- and Rs.200/- to the accused for the purpose of depositing the same in her account. Later on, she was told by the Inspector that the amount in question was not deposited. PW-4 Gian Chand has stated that he had taken a loan from the Society in question on 1.7.1985 and had deposited Rs.1042/- as principal amount and interest i.e. Rs.84/- with the accused. Later on, he came to know that the amount in question was not deposited. PW-5 Ram Kishan has stated that Rs.150 paid by him to the accused was not deposited in his account. PW-6 Madan Lal has stated that he had deposited Rs.200/- with the accused about which he later on came to know that the said amount was not deposited in the Society. PW-7 Maya Devi has turned hostile to the case of the prosecution. She has not deposed anything against the accused. PW-8 S.K. Vadhwa has been examined by the prosecution to prove the statement of account Ext.PW-8/A as well as original withdrawal Ext.PW-8/B and withdrawal letter Ext.PW-8/C. PW-9 Tilak Raj, PW-10 Gurdial, PW-11 Rattan Chand, PW-12 Shakuntla Devi, are the witnesses of the same facts, as deposed by PWs No.2 to 7. PW-14 has been examined by the prosecution to prove bills Exts.PW-14/A and B regarding purchase of fertilizer from Marketing Consumer Federation Una. PW-15 Balwant Singh is the witness of recovery. He is the present Secretary of the Society in - 4 - question. He had produced relevant record to the police. PW-16 Parmodh Singh, PW-17 Mehar Chand, PW-19 Kamlesh Kumar, PW-20 Ranjna Kumar, PW-21 Garibo Devi, PW-22 Asha Rani and PW-23 Kaushalya Devi have not deposed anything against the accused, though they are witnesses to the fact that they had deposited the money in their account through the accused. PW-18 is the I.O. who had partly investigated the case. PW- 24 and PW-25 are the witnesses who had attested the thumb impression and finger prints of various persons produced before him by the police. PW-26 is the police official who took certain documents to the office of Finger Prints Expert for the purpose of investigation. PW-27 is the police official who had taken finger prints which were attested by PWs-24 and 25. 7. The defence witness Dev Raj examined by the accused as DW-1 has deposed the he is a member of the Society in question. As per him, cash of the Society is being handled by the cashier who receives the money and makes payment. He has further deposed that for selling Khad, Society has a salesman. Price of the Khad is deposited with the cashier. With this transaction, Secretary has no concern. He has also deposed that whenever any person applies for loan from the Society, Society passes resolution to this effect. Thereafter loan is given by the cashier. The duty of the Secretary is only to record proceedings of the resolution. He has further deposed that meeting of general body was never called nor it was re-audited. As per him, the present Secretary of the Society Balwant Singh took into - 5 - possession record of the Society by breaking open the lock and thereafter changed the entries in the record. 8. We have perused the entire prosecution witnesses and material on record and after perusing, we notice that misappropriation and fraud was noticed during the audit inspection of the Society in question conducted in the year 1986 by the then Auditor of the Societies, namely, Shri Achhar Singh and at that time, the accused was the Secretary of the Society in question. As such, the entire case of the prosecution is based on the audit report of which Shri Achhar Singh was the author, but unfortunately, the prosecution could not examined him as a witness as he was not alive. Though the prosecution has examined PW-1 to prove the audit report, but in cross examination, he has clearly and emphatically stated that he knows nothing about this case, meaning thereby that his statement is not relevant to rely upon the audit report in question. It is pertinent to mention here that there may be many material facts in the audit report upon which only its author could throw light. However, in absence of Achhar Singh, author of the said audit report, many important aspects of the case remained unexplained. We also notice that in order to prove the guilt of the accused, it was incumbent upon the prosecution to prove that the accused was entrusted with cash. The prosecution has tried to establish that being the Secretary of the Society, the accused was also authorized to receive cash or to deal with cash transaction. However, no resolution to that effect was shown or proved on behalf of the prosecution. We also notice that there was a separate - 6 - cashier deployed at that relevant time in the Society in question, who was dealing in cash transactions. The prosecution has also failed to prove that the wrong entries were made in the cash books of the account holders and actually the money, as claimed by the account holders, was received by the accused and the alleged false entries, if any, made by the accused were in the writing of the accused himself. The prosecution has tried to establish that the accused has cheated various persons by withdrawing money from the accounts, but the evidence led by the prosecution in this regard is of no help. The prosecution has not been able to indicate through the testimonies of prosecution witnesses that the accused had withdrawn money from the accounts of the holder of accounts. The prosecution has also not been able to prove by way of proper evidence that the Society had ever handed over money to the accused for the purchase of fertilizer. 9. After going through the statements of the prosecution witnesses, material on record and the impugned judgment, we notice that the learned trial Court has rightly arrived at the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. There appeal, being devoid of any merit, is accordingly dismissed. Bail bond furnished by the respondent is hereby discharged. (R.B. Misra), Judge. May 28, 2010. (V.K. Ahuja), (TILAK) Judge