1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT State of Rajasthan vs. Brijendra Singh S.B. Criminal Appeal No.338/1989 u/s 378 (i) Cr.P.C. against the judgment dated 28.04.89 passed by the Addl.Chief Judicial Magistrate No.2, Jodhpur in Cr. Case No.538/1983. Date of Judgment : 02nd May , 2008. PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr.O.P.Rathi, Public Prosecutor, for the State. Mr.Doongar Singh for the respondent. BY THE COURT: Being aggrieved and dissatisfied with the judgment and order dated 28th of April, 1989, passed by the Addl.Judicial Magistrare No.2, Jodhpur in 2 criminal case No.538/1983, whereby the learned court acquitted the accused respondent Brijendra Singh in the offence under section 409 of Indian Penal Code, the State has preferred this appeal. The facts giving rise to the prosecution case briefly are as under : It is alleged that the accused appellant was posted as LDC in Home Guard Section in March 1971 and was discharging the functions of a cashier in the absence of regularly posted cashier. It is further alleged that the entry of FVC Bill No. 88 dated 04th of March 1971 for Rs.522/- and FVC Bill No. 52 dated 14th of November 1970 for Rs.122.50 were entered in the bill Register showing their date of dispatch to Treasury. These bills were found to have been encashed by the accused Brijendra Singh but the payment of these bills is not found to have been made to Shafi Mohammed, Shamsher Singh , Somnath and Vijayamal. In this connection the Addl.S.P., Rural, Jodhpur, got the relevant record pertaining to these 3 bills examined , with the help of the Accountant , S.P.Office, Jodhpur, who found that the total amount of Rs.644.50 had been embezzled by Brijendra Singh. Having found the evidence of embezzlement of Rs.644.50 by the accused Brijendra Singh , Addl.S.P. Rural, Jodhpur submitted a report Ex.P/24 to S.P., District, Jodhpur for the Registration of the case. The police registered the case and commenced investigation. After usual investigation the challan was filed in the court and on trial the court of Addl.Chief Judicial Magistrate No.2, Jodhpur did not find him guilty and acquitted him of the charge of the offence under section 409 of IPC , as aforesaid. I have heard the arguments of Mr.O.P.Rathi, Public Prosecutor appearing for the State, as also Mr.Doongar Singh, advocate, appearing on behalf of the accused respondents and perused the impugned judgment, along the the relevant material available on record. 4 The learned counsel has argued that the evidence of prosecution witnesses, has not been appreciated by the court in its right perspective albeit- the alleged offence is proved beyond doubt. It is also proved that the accused misappropriated the amount of stipend. It is also proved from the evidence that the amount of stipend relating to Shafi Mohammed , Shamsher Singh , Somnath and Vijayamal were raised by the accused but the same was not paid to them. He has further argued that the names of the persons drawing the amount from Bank has been entered in the columns of the Register by the accused himself. Yet the evidence of the prosecution witnesses, with regard to these facts, has not been relied by the trial court. The learned Public Prosecutor submits that the judgment of the lower court is resting on surmises and conjectures , as such it deserves to be set aside. Per contra Mr.Doongar Singh, learned counsel appearing for the accused respondent, has duly 5 supported the judgment of the lower court and has contended that there is no scope of any intervention , as the judgment of acquittal is well merited and based on evidence, as is available on record. Having considered the submissions made at the Bar and scanned the judgment of the lower court, it is found that the prosecution has utterly failed to prove that it is the accused, who has drawn the money from the Bank and misappropriated the same. The learned lower court has observed that the best possible witness in this case could be of treasury Department, where the bill was passed and Bank, where the money was released. On behalf of the Treasury office one PW/6 Kishan Lal Mahur has appeared in the court and has deposed that FVC bill Ex.P/27, P/28, P/29 and P/30 were passed by the Treasury Department. He has also stated that the entries in these bills were not made by him. He has also not stated that the accused came to him and got these FVC bills in question passed from 6 him. Similarly, no evidence is found on record with regard to drawing the money from Bank by the accused respondent. PW/7 Mr.Om Prakash, who is the investigating officer of this case, has admitted in the cross-examination that there is no record of Bank available in the file, which could reveal that the money was drawn by the accused. In fact, the original Bank record had not been collected by the investigating officer during investigation. The learned lower court, having minutely examined the record and properly appreciated the evidence of the prosecution witnesses, has arrived at the conclusion that it was not proved beyond reasonable doubt that the accused Brijendra Singh embezzled an amount of Rs.644.50 pertaining to FVC bill No.52 dated 14th of November, 1970 and FVC bill No.88 dated 04th of March, 1971. The ground assigned by the lower court for acquittal in the judgment are found to be cogent, convincing and well founded. I 7 agree with the observations made by the learned lower court and find that the judgment of the lower court does not call for any interference. The criminal appeal is found to be devoid of merit and the same deserves to be dismissed. In view of above, the criminal appeal filed by the State stands dismissed. (MAHESH BHAGWATI), J. l.george