1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 26 of 2002. Date of Decision: 24-2-2009. ____________________________________________________________ State of H.P. Appellant. Versus Krishan Lal. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the appellant : Mr. J.S. Guleria, Assistant Advocate General. For the respondent : Mr. J.L. Bhardwaj, Advocate. ______________________________________________________________ SURINDER SINGH, J(oral). Respondent was working as salesman of “Devthal Multi-purpose Cooperative Society” Kunhar, Tehsil Arki District Solan. It was alleged that in such a capacity, he was entrusted with some articles of the Society for sale. During the period w.e.f. 31-3-1995 to 31-5-1995, he was alleged to have sold and mis-appropriated an amount of rupees 28, 076.04 paise which was detected by the then Cooperative Inspector Shri O.P. Bhardwaj during the audit inspection. As such, complaint Exhibit PW10/A was filed in Police Station, Arki. After recording the F.I.R., the Police conducted the investigation and came to the conclusion that the respondent had committed an offence punishable under Section 408 of the Indian Penal Code. The challan was presented against him. He was charge-sheeted for the aforesaid offence and after the trial in Criminal Case No. 81/2 of 1995, he was acquitted by a detailed judgment passed by learned trial Court on Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 28-5-2001 which has been assailed in this appeal being based on incorrect conclusions. I have heard learned counsel for the parties and have carefully gone through the evidence on record and reappraised the evidence. PW12 Shri O.P. Bhardwaj, the then Inspector of the Cooperative Society deposed that during the audit inspection along with the another Inspector Lachhi Ram (PW9) they found the shortage to the tune of rupees 81,000/-. The meeting of the Sabha was called and it came to the notice that the respondent-accused had sold the articles worth Rs. 28000/- only on credit to different persons. Therefore, he was required to deposit the said amount within a week along with interest which was deposited in cash by the respondent. This fact has been substantiated by PW2 Smt. Nirmal who is also alleged to have issued the receipt Exhibit PW2/A to this effect and also by PW3 Shyam Lal Pradhan of the Panchayat. The audit report was incomplete. However, his cross-examination is worth noticing. He admitted that the complete record of the Society was not available at the time of audit, as such, the audit report Exhibit PW5/A could not be completed. He categorically admitted that the respondent did not keep unto himself or mis-appropriated any amount. It has also been admitted by him during his examination that a commission of 1% is also paid to the salesman for boosting the sale in the village Society and there is a provision to sell the goods on credit and this provision was made to boost the sale. Further, the Pradhan of the Society Shri Beli Ram (PW1) expressed his ignorance as to why the F.I.R. was lodged against the respondent although he stated that there was a shortage of rupees 28,000/- during the audit inspection which was conducted in his presence but out of this amount, articles worth rupees 17000/- were lying in the store at Piplu Ghat which was not checked by the audit inspector. 3 PW5 Nikka Ram, the Secretary of the Society has also corroborated the aforesaid version that the audit party had only checked the record and not the stock. PW6 Gorkhu Ram stated that on 8.6.1995, amount of rupees 9267/- was deposited by the respondent vide receipt Exhibit PW6/A. Reason for depositing the said amount has not been spelt out by him. He specifically denied the misappropriation of the amount by the respondent. He even has gone to the extent of saying that Shri O.P. Bhardwaj had made a false complaint against the respondent. On culling the above evidence, it is apparent that the respondent had sold some of the articles of the Society to various persons on credit to boost the sale on being pointed out by the Committee, its amount was deposited by him in the Society. Further, it has also come in the evidence that the audit party had only checked up the record and not the store articles which were lying at Piplu Ghat. Therefore, in these circumstances, mensrea on the part of the respondent to commit the breach of trust or to mis-appropriate the amount of the Society is absent. The evidence of the prosecution is also dilatory and self-contradictory which does not constitute the ingredients of the offence for which the respondent was charged. Thus from the evidence on record, I find that the judgment of acquittal passed by learned trial Court is not perverse. Accordingly the appeal is dismissed. (Surinder Singh) Judge. February 24,2009. (bm)