IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.557 of 1996 Date of decision: 21.4.2010 State of H.P. ... Appellant Versus Rajinder Kumar … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No For the appellant: Mr.Rajesh Mandhotra, Dy.A.G. For the respondents: Mr.Vinay Thakur, Advocate. ____________________________________________________________ Deepak Gupta, J. (oral) This appeal by the State is directed against the judgment dated 29.1.1996 passed by the learned Sessions Judge, Kinnaur Sessions Division at Rampur whereby he allowed the appeal filed by the accused and set-aside the judgment of the Judicial Magistrate, Kinnaur in case No.148/2 of 1993/91 dated 28.6.1994 whereby the accused was convicted of having committed an offence punishable under Section 409 IPC and sentenced to undergo rigorous imprisonment for a period of 3 years and to pay fine of Rs.2000/- and in default of payment of fine to undergo simple imprisonment for a period of six months. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 The undisputed facts are that the accused, at the relevant time, was posted as Junior Engineer in the Irrigation and Public Health Sub Division at Nichar. It is not disputed that he was the in-charge of the store. It is also not disputed that he was entrusted with 295 bags of cement as against the supply order of 300 bags. This cement was to be used by him for the execution of works in various schemes. The prosecution case is that when PW-1 Surinder Singh checked the store on 23.12.1989 he found only 129 bags of cement whereas there should have been 160 bags of cement in the store. Therefore, 31 bags of cement were found less and on this basis a complaint was filed and present case was registered against the accused. In a case under Section 409 IPC, it is the bounden duty of the prosecution to prove the entrustment of the property. It has been proved on record and not denied that 295 bags were handed over to the accused. Admittedly, these bags were to be used over a period of time for construction works. Therefore, it was the duty of the prosecution to produce all the record to show how many bags had been issued for various works and what 3 should be the remaining stock in the store at the relevant time. This the prosecution has failed to do. No record regarding the consumption or issuance of the cement bags has been proved on record. It appears that the figure of 160 bags was arrived at on the basis of the previous checking done by PW-12 Dinesh Kumar Negi, SDO concerned on 17.12.1989. He, while conducting the checking, was of the opinion that there should be 160 bags of cement but actually found 130 bags lying in the store. As far as remaining bags were concerned, 22 bags were shown to have been supplied to W.S.S. Baro and 8 bags were issued to W.S.S. Nichar. Thus taking into consideration the 130 bags lying in store and 30 bags issued the figure of 160 was arrived at. It has also come in evidence that one day prior to 23.12.1989 a heated discussion took place between the complainant and the accused in the presence of PW-3 and PW-5. It would also be pertinent to mention that all the relevant witnesses in this regard have admitted that there are two stores in which the cement is kept. PW-1 only checked one of the stores and did not care to check the other store. It was the duty of the prosecution to have collected all documents relating to the 295 bags of 4 cement issued to the accused. They should have proved how many bags had been issued for various works and after deducting the same should have arrived at the figure of bags of cement which should have been available in the store. This has not been done and the second store has not been checked. The possibility of the accused being falsely implicated, especially when there was a quarrel between the complainant and the accused, cannot be ruled out. In view of the above discussion, the learned lower appellate Court was fully justified in acquitting the accused and setting aside the judgment of the learned trial Court. We find no merit in the appeal which is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ), J. April 21, 2010 ( Rajiv Sharma ), J. PV