IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 56 of 2001 Date of decision: 30.5.2008 Chhaju Ram Petitioner. Versus State of H.P. Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. N.K.Thakur, Advocate. For the respondent. Mr. Vivek Thakur, Addl.Advocate General For the Complainant.: Mr. Ajay Sharma, Advocate. Deepak Gupta, J. This criminal revision is directed against the judgement dated 11.4.2001 of the learned Additional Sessions Judge (I), Kangra at Dharamshala, camp at Una, whereby he has dismissed the appeal filed by the appellant-accused and upheld the judgement of the Judicial Magistrate Ist Class, Court No.II, Amb, whereby the accused has been convicted of having committed an offence punishable under Section 408 IPC and has been sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.500/-. The prosecution case, in brief, is that accused Chhaju Ram while working as Secretary of the Katohar 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. Khurd Cooperative Society, embezzled and misappropriated the funds of the Society, amounting to Rs.40,979/- during the period 1.7.1985 to 21.6.1986. It was alleged that when various members of the society deposited money with the accused he would take the money and give them receipts but would not make entries in the cash book. He also withdrew these amounts from time to time. The learned trial Court convicted the accused and the appeal filed by the accused has been rejected. I am constrained to observe that neither the trial Court nor the lower appellate Court dealt with the case in the manner it was required to be dealt with. From a bare perusal of the judgement of the learned lower appellate Court it appears that the learned Judge did not even care to read the evidence and just convicted the accused on the basis of the order of the trial Court. In a case of a criminal misappropriation it was incumbent upon the prosecution to have proved that the petitioner functioned as Secretary of the Katohar Khurd Cooperative Society from the period 1.7.1985 to 21.6.1986. Thereafter, it was required to be proved that amount deposited by the members of the society were misappropriated by the accused. As far as the first issue with regard to the employment of the petitioner-accused is concerned, PW-1 Shri Mohinder Singh, Inspector Cooperative Societies, stated that the accused remained Secretary of the Society from 1.7.1985 to September, 1985. He has proved some documents which are purported to have been prepared by Chhaju Ram. Bidhi Chand is the person who succeeded the accused as Secretary of the Society. He was examined as PW-2. He states that before him Chhaju Ram was the Secretary of the Society but he does not give any date. He also produced the resolution Ext.PW- 2/B. Ext.PW-2/B is a resolution dated 13.8.1980 which shows that the accused, Assistant Secretary-cum- Salesman Shri Chhaju Ram, was appointed as Secretary. The prosecution has also proved on record a resolution dated 31.8.1986 Ext.PW-2/C, according to which the duty of maintaining the records of the amount received were transferred from Treasurer/Cashier to the Secretary. It is thus apparent that prior to 31.8.1986 it was the Treasurer/Cashier who was to maintain the accounts. It was only thereafter that the duty of maintaining the accounts and cash was given to the Secretary. The offence is alleged to have been committed between 1.7.1985 to 21.6.1986. No resolution has been brought on record to show that the Secretary was required to maintain the accounts or to deal with cash during this period. Bidhi Chand also stated that in 1986 he was the Secretary of the Society. He also states that even in the year 1984 he had worked as Secretary. He admits that Cashier also used to be appointed in the Society. He also admits that according to the resolution dated 25.5.1984 Treasurer/Cashier was to maintain the Cash. It is thus apparent that the prosecution has even failed to prove the fact that during which the alleged embezzlement took place the accused was Secretary of the Society. The prosecution has measurably failed to prove that accused Chhaju Ram was Secretary of the Society during the period from 1.7.1985 to 21.6.1986. No doubt, Chhaju Ram was appointed as Secretary in the year 1980 but according to PW-2 Bidhi Chand, he worked as Secretary in the year 1984 and also in the year 1986. In these circumstances, it was for the prosecution to prove the particular period during which the accused had worked as Secretary. Furthermore, the prosecution has failed to prove that the Secretary was liable to maintain accounts or that the Secretary at the relevant time was duty bound to handle the cash. The prosecution, therefore, failed to prove the very basic ingredients of the offence. They have failed to prove any entrustment of property with the accused. As per the bye-laws prior to 31.8.1986 cash transaction was required to be maintained by the cashier. It was only thereafter that cash was to be handled by the Secretary. As already pointed above, it is also not proved that Chhaju Ram was even Secretary during the period in question. The learned Courts below have totally misread the evidence in respect of the alleged refusal of the accused to give his specimen signatures. The signatures of Chhaju Ram on the documents have not been proved at all. A lot of the entries on the basis of which the offence have been committed are in the handwriting of Bidhi Chand. Some of the witnesses have in fact clearly stated that the entries in the pass book were made by Bidhi Chand. The learned lower appellate Court on this basis has come to the conclusion that the amount embezzled is less than what the prosecution alleges. When admittedly there are entries in the hand of some other person, which entries have been found to be false, the liability for those entries could not be fastened upon the appellant. Both the Courts below totally erred in relying upon the statement of Bidhi Chand. They also misread the statement of Bidhi Chand. The learned appellate Court has stated that Bidhi Chand has not been cross-examined to the effect that the accused did not remain Secretary of the Society from 1.7.1985 to 1.9.1985. This fact is incorrect. Even if it be assumed that petitioner was Secretary from 1.7.1985 to 1.9.1985 how could he be convicted for embezzlement which is stated to have been committed between 2.9.1985 to 21.6.1986. In that event, the person who was handling the accounts after 1.9.1985 should have also been made an accused. This person was none else but Bidhi Chand. Therefore, no reliance could have been placed on his statement. Keeping in view the aforesaid facts and circumstances, I am of the considered opinion that the prosecution has miserably failed to prove the very basic ingredients of the offence and have failed to show that the accused was Secretary during the period when embezzlement took place or that he was required under law to handle the cash and accounts. In fact, it appears that it was Bidhi Chand who handled most of the accounts during this period but unfortunately was not made an accused in the case. In view of the above discussion, I allow the revision petition and set-aside both the judgements of the Courts below and acquit the accused. Bail bonds furnished by the accused stand discharged. 30th May, 2008 (Deepak Gupta), J. ™