Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.351 of 2003. Judgment reserved on : 27.8.2010. Date of Decision: September 14th, 2010. ------------------------------------------------------------------------------------------------- State of H.P. ……. Appellant Versus Bihari Lal. ……..Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the Appellant : Mr. J.S. Rana, Assistant Advocate General. For the Respondent : Mr.Ban Bhushan, Advocate, vice Mr. Ajay Sharma, Advocate. Surinder Singh, J : This appeal has been filed by the State feeling aggrieved and dissatisfied by the acquittal of the respondent, who was a Salesman of ‘The Pidhartta Cooperative Lift Irrigation Society Limited’, Hamirpur, for an offence punishable under Section 408 of Indian Penal Code for the alleged embezzlement of Rs.56,443.17 paise. 2. PW3 Prem Lal, Auditor of the Society had audited the records of the Society w.e.f. 1.7.1990 to - 2 - 30.6.1991 and found the misappropriation to the tune of Rs.56,443.17 paise as per his report Ex.PW3/A dated 30.6.1991. Despite notice by PW3 aforesaid, the respondent did not turn up during the audit to count for it. Further the shortages of the wheat stock by 6 quintal 40 Kgs was also detected as per the audit report Ex.PW3/A. On the basis of the audit report, PW1 Dalip Singh had filed the complaint Ex.PW1/C on 1.12.1991 against the respondent which culminated into FIR Ex.PW12/A. The police took into possession stock register Ex.P1 and other documents and the copy of appointment letter dated 2.2.1990 of the respondent vide Resolution Ex.PW1/D of the Society. The police also taken into possession seven stock registers pertaining to the different commodities (Ex.PW15/E to K) vide memo Ex.PW8/A. The notebook of the respondent was also taken into possession vide memo Ex.PW11/A. 3. During the investigation of the case, it also came to light that the physical verification was also conducted on 6.1.1990 with respect to the details of the items vide List Ext.PB and also on - 3 - 30.6.1990 vide list Ex.PC, Ex.PW15/D and Ex.PD, the voucher with respect to the purchases of different articles by the Society Ex.PW15/C cash memo Ex.PW10/G were also taken into possession. 4. The first Inspection Report Ex.PW15/D carried out by the Society in respect of the retail shop was also taken into possession. 5. Further application Ex.PW5/B was also taken into possession vide which the respondent had also made a request for appointing him on monthly basis instead of commission basis, but his work was not allegedly found proper and as such he was advised to improve his work, vide letter Ex.PW5/D. Further Police took into possession letters Ex.PW16-77 written by the complainant Secretary to the respondent to deposit the deficient amount with interest. 6. During the investigation of the case, the respondent was produced before the learned Chief Judicial Magistrate, Hamirpur and obtained his specimen signatures and writings Ex.PW9/1-23, which were sent to the Government Examiner of - 4 - the Questioned Documents for its comparison, with the disputed entries. 7. Shri B.A.Vaid, Handwriting Expert on examining the documents gave his opinion Ex.PX alongwith the reasons. 8. After the completion of the challan, it was presented in the court for the trial of the respondent. 9. Finding a prima-facie case for the offence aforesaid, the learned trial Court charge- sheeted the respondent to which he pleaded not guilty and claimed trial. 10. To prove its case, prosecution examined its witnesses. Respondent was also examined under Section 313 of the Code of Criminal Procedure. He denied the fact that he was appointed as a Salesman of the Society on 7.2.1990 but admitted having lodged the FIR against him, but denied his involvement in the case. He took up the defence that PW1 Dalip Singh was the Secretary and Salesmen of the Society and the respondent owned his shop besides the Society’s sales-depot. - 5 - Dalip Singh sought help from him many times. He denied art and part in the instant case. 11. The respondent did not lead any defence evidence. At the end of trial, he was acquitted by the learned trial Court as there were material contradictions in the evidence on record and the recovery proceedings were going on against PW1 Dalip Singh with respect to misappropriation of Rs.56,443.17 paise, for which the respondent was charge-sheeted. It was also observed by the learned trial Court that PW3 Prem Lal, Audit Inspector had mainly indicted PW4 Hem Raj, President of the Society, Dalip Singh Secretary and the Managing Committee and held them responsible for the misappropriation of the funds of the Society, due to their negligence and also having failed to take security bond from the Salesman as required under the rules. The learned trial Court further observed that the said Auditor had recommended the matter to be investigated against them. Thus, to escape the liability against them, the case was foisted upon the respondent. - 6 - 12. Heard the learned counsel for the parties and have critically examined the evidence on record. 13. Before I venture to appreciate the evidence, I would like to say that the prosecution is under obligation to prove the following ingredients of the charge framed against the respondents:- (i) The accused must be a clerk or servant; (ii) He must have been entrusted with property, or with dominion over property; and (iii) He must have committed criminal breach of trust in respect of such property. 14. Amongst other ingredients aforesaid, the burden of proof of entrustment is sine quo non without which the offence stands not proved. Mere entries in books of account without any supportable oral evidence as to the nature of business and the mode of keeping account is not sufficient to prove entrustment and also its misappropriation. - 7 - 15. PW6 Pritam Chand had conducted the audit for the year 1989-90 and according to him no embezzlement was detected, but no such audit report has been placed on record. PW3 Prem Lal is the Auditor, who had conducted the audit for the period w.e.f. 1.7.1990 to 30.6.1991. The report of audit is Ex.PW3/A. The said report is dated 30.6.1991. He admitted to have indicted the President for embezzlement, but categorically stated that neither any physical verification was done by him nor by anybody else. He also admitted that he did not see the appointment letter of Bihari Lal. He further stated that before he conducted the audit, Bihari Lal stood already removed. 16. PW7 Bansi Ram is Sub Inspector of the Society. Although stated that he had conducted the physical verification of the store of the Society for the year 1990-91, when respondent was the Salesman, but he could not tell its specific date. He deposed that stock was found less to the tune of Rs.56,000/- and reported the matter to the Department. Pertinently, he stated that there was dispute between the Secretary Dalip Singh (PW1) - 8 - and Salesman of the Society, as both of them were imputing allegations for the shortages on each other. He also categorically stated in his cross- examination, the case was registered by him against the Secretary of the Society with respect to this embezzlement. 17. PW4 Hem Raj was the President of the Society w.e.f. 1989 to 1991, admittedly at that time PW1 Dalip Singh was the Secretary. He stated that Bihari Lal was appointed as a Salesman subject to the condition that he would furnish a bond to the tune of Rs.50,000/-, which was not furnished by him. He also stated that an application Ex.PW4/B dated 18.12.90 was moved to him by respondent to keep him on salary instead of 50% commission of the total sale. A perusal of the said document shows that it was proposed to be placed before the Society in its meeting vide Resolution Ex.PW4/D dated 16.11.90, it was resolved that the respondent was not cooperating with the President of the Society (PW4) and he sought the verification of this store be conducted. Further he admitted his signatures on audit report Ex.PW3/A, which means - 9 - he was aware of the contents of the report. The perusal thereof shows that the affairs of the Society were not being managed properly by the President (PW4), Secretary (PW1) and the Managing Committee of the Society and for the shortage of the amount to the tune of Rs.58,000/- they were held responsible. PW4 specifically pointed that w.e.f. 8.1.91 to 11.1.1991, the amount of Rs.56,443.17 paise for which the respondent is accused of misappropriation for that Managing Committee and Secretary (PW1) were responsible. 18. Further Hem Raj PW4 also stated that the respondent was removed from the Society and he had taken away the registers with him. He was unaware of the fact who wrote documents Ex.PA to PD regarding the store items of the consumable etc. of the Society. He stated that the charge of the store was taken by Dalip Singh PW1 prior to the appointment of respondent as Salesman. 19. PW8 Brij Lal member of the Society expressed his ignorance about the respondent - 10 - having committed misappropriation of the stock by him. Thus the very ingredient of entrustment is not proved in this case beyond doubt, therefore, the question of mis-appropriation does not arise. 20. Further, above position apart the specimen signatures of the respondents were taken before PW9 Shri J.L. Gupta, the then Chief Judicial Magistrate, Hamirpur, which were sent for comparison with the entries/ signatures in the stock register etc. to link the respondent with the documents Ext.PA to PD and other entries. A note book of the respondent was also obtained and sent for comparison of his writings and signatures. Though he owned the note book, but he did not say that either it was written by him or signed it any where. Thus, taking it an admitted writing is also fallacious. Further the learned Chief Judicial Magistrate at the relevant time was neither holding an enquiry nor conducting the trial, when the specimen writings of the respondent were taken by him during the investigation of the case. Therefore, in view of the judgment passed by the apex Court in Sukhwinder Singh and others vs. State of Punjab [1994 SCC (Cri.) 1376] the report of the handwriting - 11 - expert on such comparison is of no consequence, to connect the accused with the crime. (Also see Rakesh Kumar vs. State of H.P. [2001 (3) Shi.L.C. 154] ). Therefore, the report of handing expert Ex.PX is of no use to the prosecution. Further, it is also on records that vide Rapat No.389 Ex.D1 the property of PW1 Dalip Singh was attached pursuant to the recovery proceedings initiated against him with respect to the alleged misappropriation for which respondent faced trial. 21. In the aforesaid circumstances, the entrustment and misappropriation as alleged against the respondent stands not proved beyond a reasonable doubt. PW4 Hem Raj President, PW1 Dalip Singh Secretary and the Managing Committee of the Society appear to have made the respondent a scape goat to divert their liability. Therefore, in these circumstances, I do not find it a case of conversion of the acquittal into conviction, on the strength of the aforesaid evidence. Thus, the acquittal of the respondent cannot be interfered with’. As such the appeal lacks merit hence dismissed. - 12 - 22. The respondent is discharged of his bail bonds furnished by him at any time during the proceedings of this case. 23. The appeal stands accordingly disposed of. Send down the records. September 14, 2010. (Surinder Singh) (Pds) Judge.