1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 61 of 2002 Decided on June 23, 2011 ________________________________________________________________ State of H.P. …Appellant. Versus Dhan Dev ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. ¹Whether approved for reporting? No. For the appellant: Mr.R.K.Sharma, Senior Addl.Advocate General. For the respondent: Mr. Lovneesh Kanwar and Abhishek Dogra, Advocates. Justice Sanjay Karol,J. (oral) For an offence which is alleged to have been committed from 18.6.1990, accused was put to trial. In terms of judgment dated 24.9.2001 passed by Judicial Magistrate, 1st Class, Court No.2, Mandi, in Case No. 254- i/99/94 titled as State of H.P. vs. Dhan Dev, accused stands acquitted of the charged offences. 2. It is the case of the prosecution that accused Dhan Dev was posted as a cashier at the Depot of HRTC, Mandi. In the course of discharge of his duties on or before 17.6.1990, he received cash of `1,88,176.15. On 18.6.1990, in the morning accused met Sh.Brij Lal Lohia 2 (PW.3), Regional Manager of the Depot and informed him that he had lost the key of the almirah where the cash was kept. In this regard accused also lodged a complaint (Ex.PW.3/A) with the police very same day. He asked Sh.Roshan Lal (PW.2), Carpenter to open the lock of the almirah. The same was opened in the presence of Krishan Lal (PW.6) and the accused. It was found that currency notes were scattered in the almirah and a sum of `1,72,973.15 missing. Police was called who commenced investigation. PW.3, who had left in the morning for Sunder Nagar, on his return, was informed by the accused about the incident. During investigation, Maan Singh, Chowkidar and Bhagirath, were arrested by the police but were released on bail. Investigation continued for over a period of 3 years and on 15.7.1993, S.I. Jai Chand (PW.32), took over the same. Till that time, no headway was made with regard to the person who had committed the crime. However, further investigation revealed that it was the accused who had misappropriated the missing amount and with the completion of investigation, against the accused challan was presented in the Court for trial. 3. The accused was charged for having committed offence punishable under Section 409 IPC, to which he did 3 not plead guilty and claimed trial. 4. In order to prove its case, prosecution examined 32 witnesses and statement of the accused under Section 313 Cr.P.C. was also recorded in which he pleaded innocence and false implication. However, he admitted having received the amount in question during the course of discharge of his official duties. 5. The trial court acquitted the accused, hence the present appeal. 6. Out of 32 prosecution witnesses, testimonies of Sh.Roshan Lal (PW.2), Sh.Brij Lal Lohia (PW.3), Sh.Krishan Lal (PW.6) and Sh. Man Singh (PW.10), are relevant from the point of entrustment of the amount in question which fact already stands admitted by the accused. 7. In order to prove the charged offence, prosecution has to prove that essential ingredients so as to constitute an offence under Section 409 IPC stand proved by leading clear, cogent, convincing and reliable evidence, beyond reasonable doubt. Prosecution has to prove that accused misappropriated the amount entrusted to him and also with dishonest intention converted the same to his own use. In a case under Section 409 IPC dishonest intention is sign qua non. Simple breach of trust or 4 dereliction of duty is not an offence. A public servant might have failed intentionally or unintentionally to discharge his duties, but however that fact by itself would not tantamount to, in every case, a dishonest intention on his part to commit criminal breach of trust. 8. From the testimony of Sh.Brij Lal Lohia (PW.3) it is evident, the fact that key to the almirah was lost was brought to his notice by the accused himself in the morning of 18.6.1990. Hence according to this witness, the accused was found to have misappropriated the amount in question. Except for his bald statement in this regard, he does not state as to in what manner the same was misappropriated. He also does not state as to how he informed the fact that accused had dishonest intention to do so. Now this witness, being the Regional Manager of the Depot, was duty bound to have taken action, having learnt that the key of the almirah where cash was kept was missing or subsequently learning about the theft, at the earliest possible time but however even during the course of entire investigation, no complaint was ever lodged by him expressing his apprehension that it was the accused alone who had misappropriated the amount in question. 5 9. Further, it has come on record that Sh.Roshan Lal (PW.2) had opened the lock of almirah in the presence of Sh.Krishan Lal (PW.6) and the accused. If the accused had any intention of misappropriating the amount, he would have not reported the matter to his superior officer or got the almirah opened in the presence of PW.6. Sh.Maan Singh (PW.10), who himself was a suspect, in no uncertain terms, has deposed that on the previous night i.e. 17.6.1990 he did not see the accused carry any bag while leaving the office. It has come on record that the amount of cash received by the accused was in currency notes of smaller denominations. Accused could have carried the missing amount only in a bag or in a manner so as to make it evident and apparent that something was being carried by him on his person. 10. The prosecution case is also belied by the testimony of PW.6, according to whom the almirah, and not the chest, where the cash was kept, was in fact being opened by persons other than the accused. According to this witness, there were also other persons sitting in the room. The possibility of theft having been committed by a person other than the accused, thus cannot be ruled out. 6 11. It is stated by Sh.R.K.Sharma, learned Senior Additional Advocate General, that disciplinary proceedings were initiated against the accused in which he has not only deposited the missing amount, but also stands compulsorily retired. This fact itself would not prove the dishonest intention of the accused or presumption of his complicity to the charged offence. In a criminal trial, burden is on the prosecution to prove the dishonest intention on the part of the accused who has misappropriated the Government money and used the same for his own purpose. The Investigating Agency have failed to investigate and establish this essential ingredient in the instant case. 12. Undisputedly, investigation did not make any headway for 3 years till PW.32 came into the picture. He did not carry out any further or other investigation. There was no additional material before the police to arrive at the conclusion, about the complicity of the accused in the crime. If during major period of investigation police could not arrive at the conclusion as to who had committed the theft, therefore simply because the accused was incharge of the case then criminal liability could not have been fastened upon him. 7 13. Thus, we find that the prosecution case cannot be said to have been established / proved, beyond reasonable doubt, by leading clear, cogent, convincing and reliable evidence. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the person has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (R.B. Misra) Judge June 23, 2011 (Sanjay Karol) (Purohit) Judge