IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.339 of 1996 alongwith Cr.Appeal No.349 of 1996 Decided on: 6th May, 2010 State of H.P …..Appellant. (In both the appeals) VERSUS Prittam Singh. …..Respondent. (In both the appeals) Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Rajiv Sharma, Judge. Whether approved for reporting?1No For the Appellant: Mr.Rajesh Mandhotra, Deputy Advocate General. For the Respondent: Shri Ashok Chaudhary, Advocate. Deepak Gupta,Judge (Oral) The aforesaid two appeals are being disposed of by a common judgment since common questions of law and facts are involved in the same. 2. The undisputed facts are that the accused Prittam Singh was working as Secretary of the Thehar Co-operative Agricultural Service Society, P.O 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… Harchakian at the relevant time. PW/1, Jagdish Kumar Gupta, auditor conducted the audit of the accounts of the society for the period 1.7.1977 to 31.10.1979. It was alleged that during the year 1974- 75, the accused had misappropriated a sum of Rs.1000/- out of the fund of the Society. The case of the prosecution was that one Ghuya Ram had deposited Rs.5000/- and had only withdrawn Rs.4000/- but the accused by forging the signatures of Ghuya Ram had misappropriated the balance amount of Rs.1000/- during the year 1974-75. These allegations gave rise to criminal case No.79-II/93 out of which Criminal Appeal No.349 of 1996 arises. 3. In the other criminal case No.67-II/91- 87/92-II/87, the allegations were that as on 29.11.1979 when the audit was conducted, as per the books of accounts of the society, the cash in hand was Rs.56500.14 paisa. Further according to the prosecution, the accused had received a sum of Rs.19973.25 from the members of the society on account of amount for recovery of shares, deposits, repayments of loan and interest on various dates. Entries in this regard were made in the personal …3… ledgers of the members of the society but were not reflected in the cash book of the society nor deposited with the cashier. It was further alleged that the accused had also received another sum of Rs.3925.01 paisa from the members of the society but this amount was also not deposited with the cashier. It was also alleged that during the year 1978-79, the accused misappropriated another sum of Rs.4118.25 paisa. He had misappropriated Rs.1483.25 paisa from the amount received from one Sh.Jhandu, Rs.550/- received from Munshi Ram, Rs.200/- out of the amount received from Smt.Krishna Devi, Rs.500/- received from Shakuntla Devi, Rs.800/- received from Ram Singh, Rs.500/- from Rehlo Devi and Rs.85/- from Smt.Asha Devi. Thus in all, it was alleged that he had embezzled Rs.80,394.26 paisa. 4. As far as the Criminal Appeal No.349 of 1996 is concerned, Ghuya Ram was not examined in the Court. Without recording his evidence, it cannot be held that he had not received a sum of Rs.1000/-. The prosecution has miserably failed to prove the specific entries in the pass book vide which the amount was received by the accused from Ghuya …4… Ram. Therefore, the learned Trial Court was justified in drawing an adverse inference against the prosecution. 5. Though the auditor has been examined, the audit report has not been proved on record and the specific entries in the record have also not been proved. Even the Investigating Officer was not examined. Therefore, the accused was rightly acquitted in the said case. Appeal No.349 of 1996 is dismissed on this short ground. 6. As far as Criminal Appeal No.339 of 1996 is concerned, at the outset, we may deal with the allegation that the accused had misappropriated various sums given to him by the members of the society. It was incumbent upon the prosecution to have examined all the members of the society whose amounts were allegedly embezzled by the accused. The prosecution however, did not examine Jhandu Ram, Munshi Ram, Rehlo Devi and Asha Devi. Therefore, an adverse inference was rightly drawn by the learned Trial Court that no amount had been misappropriated by the accused from their accounts. …5… 7. The case of the prosecution in respect of Krishna Devi, PW/12 was that she had deposited Rs.500/- with the accused out of which only Rs.200/- was withdrawn by her and the remaining amount had been misappropriated. When this witness appeared in the witness box, she deposed that she had never visited the society office nor got the entries made. As per the pass book placed on record, she deposited Rs.400/- on 6.1.1979 and received back Rs.200/- on 1.7.1979. Therefore, the misappropriation now alleged is Rs.200/- and not Rs.300/-. This theory is inconsistent with the case previously set up. In fact, it has not been proved on record that the amount of Rs.200/- was actually misappropriated by the accused because Krishna Devi was totally silent in her statement in this regard. 8. As far as PW/13 Shakuntla Devi’s case is concerned, her statement shows that she deposited Rs.1300/- with the accused and had withdrawn Rs.800/-. According to the prosecution, Rs.500/- was still lying in the society and she was also not paid the interest. The prosecution has failed to prove any material to show that Rs.800/- had been drawn in the …6… name of Shakuntla Devi by the accused and Rs.500/- is still shown as being payable to Shakuntla Devi in the records of the society. Therefore, this amount cannot be said to have been misappropriated. 9. Coming to the case of Ram Chand, PW/14. According to the case of the prosecution, he had paid Rs.1000/- as loan to the accused in the year 1950 and had received Rs.200/- from him. He clearly stated that he never deposited any amount in the society but had deposited the same with the accused. This does not amount to misappropriating the funds of the society. 10. Coming to the main allegations. The prosecution has totally relied upon the statement of PW/1 Jagdish Kumar Gupta who conducted the audit of the society. The fact that the accused was the Secretary of the aforesaid society has not been denied by him. However, it has not proved on record what were the duties of the secretary and what were the duties of the cashier. Admittedly, there was cashier in the society. This cashier was neither made an accused nor a witness in the case. The whole case of the prosecution rests on the audit report …7… conducted by Sh.Jagdish Kumar Gupta. This report has not been proved. This goes to the very root of the matter. Without proving the audit report and the entries in the cash books which were also not produced, the accused cannot be convicted. Conviction of the accused for embezzlement could have only been made by not only proving the audit report but also the entries in the cash book because only the entries could have reflected what was the actual amount deposited in the society or paid by the society. Without proof of these basic documents, the accused must be acquitted. Therefore, the learned Trial Court was justified in acquitting the accused. We find no merit in the appeal which is accordingly rejected. 11. In view of the above discussion, both the appeals are dismissed. Bail bonds, if any furnished, by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. 6th May, 2010 (Rajiv Sharma) (m) Judge …8…