IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 744 of 1996 Date of decision: 18.05.2010 State of H.P. ...…. Appellant Vs. Lal Singh …... Respondent Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice V.K. Sharma, J. Whether approved for reporting?1 For the appellant-State: Mr. Rajinder Dogra, Additional Advocate General with Mr. Anil Jaswal, Deputy Advocate General For the respondent: Mr. Rakesh Jaswal, Advocate. R.B. Misra, J.(oral) The present appeal has come 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 30th January, 1996, delivered by the learned Sessions Judge, Bilaspur, in Criminal Appeal No. 17 of 1991, whereby the accused have been acquitted of having committed an offence punishable under Sections 409 and 420 of the Indian Penal Code. 2. The alleged accused-respondent was charge sheeted for the offences under Sections 409 and 420 of the 1 Whether the reporters of the local papers may be allowed to see the Judgment. 2 Indian Penal Code and was tried by the learned Sessions Judge, Bilaspur, Himachal Pradesh in Criminal case No. 66/1 of 1990/87 and the alleged accused was convicted for the offences under Sections 409 and 420 IPC whereby the accused was sentenced to undergo simple imprisonment under Section 420 I.P.C. for one year and to pay a fine of Rs.500/-, in default of which the accused shall further undergo simple imprisonment for 3 months. The accused shall also undergo simple imprisonment for one year under Section 409 I.P.C. and shall also to pay a fine of Rs.500/-, in default of which he shall further undergo simple imprisonment for three months. However, both the sentences shall run concurrently. It was further directed that the fine imposed if realized an amount of Rs.500/- be paid to Shri Budhi Singh and similarly an amount of Rs. 445/- be paid to the second complainant Shri Jagdish. 3. In order to adjudicate the criminal appeal, it is necessary to give the factual background of the case. 4. The prosecution story is that Jagdish Ram and Budhi Singh, complainants moved two separate applications Ext. PW-2/A and Ext. PW-3/A, respectively, before the Sub- Divisional Magistrate, Ghumarwin, complaining against the accused alleging that he had received a sum of Rs.445/- from complainant, Jagdish Ram and a sum of Rs.250.25/- paise from complainant, Budhi Singh, it was further alleged that accused, Lal Singh, induced Jagdish Ram complainant, 3 dishonestly to part with Rs.445/- on the pretext that he has been sanctioned Nautor land and an amount of Rs.450/- is required to be deposited as ‘Nazrana’ and costs of the trees standing on the Nautor land by Shri Jagdish Ram, but, in fact, no Nautor land had been sanctioned, in favour of Jagdish Ram as his case of Nautor land had already been filed by the competent authority but believing the statement of accused to be true complainant Jagdish Ram parted with an amount of Rs.445/-, but the accused did not account for this money nor he had issued any receipt to the complainant in token of the receipt of the said amount. 3. Budhi Singh, the other complainant alleged that a piece of Nautor land was sanctioned in his favour on 23.3.1985 and he had visited the office of Tehsildar, Ghumarwin on 24.1.1996 and appeared before Shri J.B. Negi, Tehsildar, who directed him to deposit an amount of Rs.250- 25 paise, for which he was issued a notice by the office to deposit the ‘Nazrana’ and costs of the trees in respect of the land sanctioned in his favour. The complainant handed over an amount of Rs.250-50 paise to accused Lal Singh, who promised to issue a receipt of the said amount within 2/3 days and also to issue ‘Patta’ and orders for possession, but despite receiving the sad amount from complainant Budhi Singh, he did not deposit the amount in Government Treasury nor issued any receipt in favour of the complainant, 4 as a result, after some time the land allotted in favour of the complainant was cancelled. 5. Sub-Divisional Magistrate, Ghumarwin, after receipt of the above two complaints, forwarded the same for inquiry to Shri S.B. Rawal, Tehsildar, Ghumarwin on 29.11.1996 vide his letter Ext. PW-9/C. Shri Rawal conduced the preliminary inquiry and after recording the statement of the witnesses sent his detailed report Ext. PW-9/B to Sub- Divisional Magistrate, who after going through the matter to the police. Accordingly, a detailed report was sent to S.H.O. Police Station, Ghumarwin by the Tehsildar Ext. PW-14/G alongwith all the relevant record for registration of the case against the accused. On the basis of which, a formal F.I.R. Ext.W-17/A was recorded against the accused under Sections 406,409 and 420 I.P.C. 6. Nautor files of the complainants were taken into possession vide recovery memo Ext.PW-1/A and PW-10/A respectively and after completion of the investigation, the accused was forwarded for trial before the learned Chief Judicial Magistrate, Bilaspur, who after appreciation of evidence and recording of persecution witnesses and after taking into consideration the testimony of alleged accused/respondent under Section 313 Cr. P.C., the learned Chief Judicial Magistrate, Bilaspur, vide its order dated 29.7.1991 convicted the accused for the aforementioned offences. 5 7. Being aggrieved the alleged accused filed a Criminal Appeal which was registered as Criminal Appeal No. 17/91 before the learned Sessions Judge, Bilaspur. On appreciation of prosecution witnesses and material on record, the learned Sessions Judge, Bilaspur, has given much weightage that the Investigating Officer has not been examined and PW-4 (Amer Nath) was declared hostile. PW-4 (Amer Nath) has denied the case of the prosecution, therefore, the Investigating Officer who is required to be produced to prove the statement of PW-4 as he was declared hostile and for the said purpose Investigating Officer was to be called upon by the Court to prove the testimony of hostile witness and as such non-examination of Investigating Officer in the present case has indicated that adverse inference was derived by the persecution. It has also been noted by the learned Sessions Judge that Tehsildar was in the knowledge that the money had been paid and as such it was the duty to ensure that the amount has been deposited. As per the analysis of the prosecution witnesses and material on record, the learned Sessions Judge has rightly arrived at the finings that the payment of giving money to the alleged accused was not stand proved. 8. We have carefully gone through the impugned order and the contents of the prosecution and material on record, we are of the considered view that the prosecution has failed to prove its case beyond reasonable doubt. The 6 judgment dated 30.01.1996, passed by the learned Sessions Judge, Bilaspur, require no interference. There is no merit in the present appeal and the same is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. (R.B. Misra) Judge (V.K.Sharma) Judge May 18, 2010 *brb*