IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 571 of 2003 Date of decision: 06.09.2010 State of H.P. ... Appellant Versus Kundan Lal alias Ramesh … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. J.S. Guleria, Assistant Advocate General. For the respondent: Mr. B.M. Chauhan, Advocate. V.K. Ahuja , J. (Oral): This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of learned Judicial Magistrate 1st Class, Court No. 3, Shimla, dated 26.8.2003, vide which the respondent was acquitted of the charge framed against him under Sections 419 and 420 I.P.C. 2. Briefly stated, the facts of the case are that a complaint was lodged with the police by complainant Amit Lamba that one person had presented himself as an employee of Indian Gas Oil Company and had told the complainant Amit Lamba that gas connections are going to be stopped from being issued for 5 years and if the complainant wants to purchase gas connection, respondent can provide him the same. The price of the gas connection i.e. for 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 one cylinder, one gas stove and regulator was told at Rs.3890/-. The complainant agreed to make payment of gas connection to the accused on 24.12.2000 and the accused assured that he will provide the gas connection to him on the said date. The complainant made a telephonic call to the office of Indian Gas Oil Company as to whether the accused was sent by them. On getting the reply in negative, the complainant talked to the accused who visited the house at 5.30 P.M. alongwith one gas stove and regulator. The sons of the owner of Himalyan Gas Agency visited the house of the complainant and asked the accused who deputed him to be their employee. He gave his name wrongly and the sons of the owner of Himalyan Gas Company told that the accused was not their employee and was collecting money by cheating. On this basis, a report was lodged with the police and the accused was also handed over to the police. On registration of the case, investigation was carried out by the police and on completion of the investigation, the challan was filed before the learned trial Court, who tried the respondent, leading to his acquittal. 3. I have heard learned counsel for the parties and have gone through the record of the case. 4. On appraisal of the evidence led by the prosecution, it is clear that the prosecution has examined 11 witnesses to substantiate its case. The fact that the accused visited the house of the complainant stands established from the statement of complainant PW-6 Amit Lamba and he has also stated that the accused had told him that gas connection will be given to him for Rs.3800/-. This fact stands established that the accused visited the house of the complainant and 3 was apprehended by the complainant and two sons of the owner of Gas Agency and was later on handed over to the police. The fact that the accused had visited the house of the complainant also stands established from the suggestions put up to PW-4 Raghu Nandan Chaudhary son of one of the owners that they have given beatings and they have lodged a false complaint. Thus this fact stands established that the accused had visited the house of the complainant. 5. It has also come up in the statement of PW-8 Surender Chaudhary, one of the owners, that there is a settlement with him and his brother and they run the company for six months alternatively. There is nothing on record to show that as to when he was running the gas agency or as to when his brother was running the gas agency. He also admits that they also employ their own employees for running the gas agency, but the record of his company or his brother has not been placed on record to show if the name of the accused also finds mention in the list of employees maintained by him and employed by him or his brother. The accused has not taken any specific defence that he was employed by the brother of PW-8 Surender Chaudhary, who was also one of the owners and there is oral statement of PW-8 Surender Chaudhary that he had not employed the accused as an employee. The record in regard to the employees was relevant in view of the dispute between the two owners and the fact that they were running the company alternatively for six months and were also having their own employees. In the cross-examination, this plea was not taken specifically by the accused through his counsel 4 and the plea of denial has only been taken in the examination of witnesses or in the statement under Section 313 Cr.P.C. 6. Apart from the above, two sons of PW-8 Surender Chaudhary, one of the owners, has been examined, who were called by the complainant by a telephonic message and both of them appeared in the witness box as PW-4 Raghu Nandan Chaudhary and PW-7 Pankaj Chaudhary. Both the sons are of one of the owners Surender Chaudhary, had been deputed by their father to visit the house of the complainant and they apprehended the accused at that time. However, the prosecution has not examined the other owner, the alleged brother of Surender Chaudhary, who was running the company for six months and had a separate list of employees. No specific plea was taken by the accused that he was employed by the brother of Surender Chaudhary, one of the co-owners. However, the mere fact that the accused had not taken this specific defence is not sufficient to hold that that the prosecution case stands proved particularly when in cross-examination of PW-4 Raghu Nandan Chauhary, it has specifically come up that the search of the accused was conducted and security vouchers etc. were recovered, which pertained to Himalyan Gas Agency. He denied his knowledge in whose name these were issued, but he admitted that these were issued in the name of Himalyan Company. PW-8 Surender Chaudhary, one of the owners, has admitted that the gas connections which were sold allegedly by the accused have been duly entered in the record of the Company and he rather volunteers to add that these entries were made at the instance of the accused. This clearly shows that there was a proper record in regard to the gas connections issued in the name of the 5 Company and the admission made by the witness that these were entered at the instance of the accused. Either the accused was employee of the company or was the representative of the company, who may have been deployed by the company. No specific plea was taken in this regard, but his statement cannot be ignored that these entries have been made at the instance of the accused which proves his connection with the Firm in one form or the other. In view of the admission made by one of the co-owners, this fact cannot be said to have been established that the accused was misrepresenting the company. Moreover, the complainant in his statement as PW-6 Amit Lamba, has admitted that the accused was to visit him after some time. As per the prosecution case, the accused was to visit the house of the complainant again after 4-5 days after his first visit on 12.12.2000. However, the accused had appeared on the same day, may be on the telephonic message, but he had brought the gas connection i.e. gas stove, cylinder etc. alolngwith him, which proves that he had not cheated the complainant since he was present with these articles and there is nothing on record to show that he issued the receipt for the less amount, though he charged more amount on behalf of the company. Thus, the prosecution has failed to establish its case beyond any reasonable doubt. In view of the statement made by one of the owners, it cannot be said that the accused had cheated the complainant and ingredients of offences under Sections 419 and 420 I.P.C. cannot be said to have been substantiated by the evidence led by the prosecution. I do not find any infirmity in the findings record by the learned trial Court holding 6 that the prosecution had failed to prove its case beyond any reasonable doubt. 7. I appreciate the efforts made by Mr. B.M. Chauhan, Advocate Legal Aid, in assisting this Court to come to a correct conclusion. 8. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged. ( V.K. Ahuja ), September 06, 2010 Judge (BSS) 7