IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. : 193 of 1997 Decided on : 16.08.2010. ___________________________________________________________ State of Himachal Pradesh … Appellant. Versus Roshan Lal … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Rajinder Dogra Addl. Advocate General. For the respondent : Mr. N.K. Thakur, Advocate. _________________________________________________________________ R.B. Misra, Judge (oral). The present appeal has come up for consideration after leave to appeal has been granted under Section 378 (3) Cr. P.C in reference to the impugned judgment dated 22.06.1996, passed by the learned Judicial Magistrate 1st Class, Bilaspur, H.P, in Case No. 32/2 of 1993, acquitting the accused-respondent for the offence under Section 409 IPC. 2. The prosecution case is that in the year 1990, the accused Roshan Lal was posted as Postal Assistant in Sub Post Office Kutchery Bilaspur. In the said capacity he used to work as Banker between 13.10.90 to 17.10.90 and different persons namely Braham Dass, D.R. Paul, Damodar Dass and Ashwani Kumar Sharma, deposited the money with the accused and said 1 Whether reporters of the local papers may be allowed to see the judgment? 2 deposits were shown by the accused in the relevant Pass Books, but subsequently, the above said amount to the tune of Rs. 3184.20 was not shown by the accused in the daily account chart. It was the allegation against the accused that he had mis- appropriated the above said account. The preliminary inquiry was conducted by the Assistant Superintendent Post Office and thereafter the complaint was referred to the police upon which relevant FIR was registered against the accused. During investigation police took into possession the pass books of the depositors and all the relevant documents. The specimen handwriting of the accused was obtained by the police and sent for comparison purpose to the expert. The expert report was obtained which revealed that it was accused who had received the amount in question. After the completion of the investigation challan under Section 409 IPC was produced to face the trial. 3. In order to prove its case the prosecution has examined as many as 12 witnesses. 4. PW-6 Dr. A.K. Sharma, PW-8 D.R. Paul, PW-10 Damodar Dass and PW-12 Braham Dass, have categorically deposed that they were account holders of the pass books Ex.P-A to Ex.P-E and on 13.10.90, 16.10.90 and 17.10.90, either they themselves or anybody else on their behalf had deposited the amount in the accounts of above said pass books. To prove the mis- appropriation on the part of the accused, the learned A.P.P had made reliance on the statement of PW-5 Shri Mansha Ram 3 Chawdhari, Assistant Superintendent of Post office, who deposed that he had conducted the preliminary inquiry. He also recorded the statements of all the above said account holders. He had further deposed that in the daily account record Ex.PW- 5/E and Ex.PG, the accused had not shown the deposits. Therefore, learned A.P.P had argued that the above said unaccounted deposits were nothing but were mis-appropriation on the part of the accused. He had also made reliance on the statements of other witnesses examined by the prosecution. 6. On analysis of prosecution witnesses and material on record, we notice that none of the complainants have categorically asserted that they have ever deposited any amount with the accused-respondent. On analysis of the prosecution evidences and other material on record learned trial court in para 10 of the impugned judgment has observed which is extracted as below:- “The learned defence counsel further argued that PW-5 has made clear that procedure of the depositing of amount in the post office. As per PW-5 every depositor has to fulfil pay-in-slip and the counter foil of said slip is kept by the depositor. But in this case the prosecution could not produce in evidence the pay-in-slips duly filled by all the four depositors PW-6, PW-8, PW-10 and PW-12. The learned defence counsel further argued that even above said depositors did not specifically state that they had entrusted the money with the accused. PW-6 A.K. Sharma stated that he had no idea that he had filled the pay-in- slip. He also stated that he also had not any idea whether 4 on 17.10.90 he himself had deposited the money or he had sent any body else. It was also admitted by him that he did not remember that to whom the money was deposited on 17.10.90. PW-8 D.R. Paul admitted in his cross-examination that he never went personally to deposit the amount. PW- 10 Damodar Dass also could not produce the counter foil of pay-in-slip. And PW-12 Braham Dass deposed that he used to deposit money through some other person. Consequently, learned defence counsel argued that in the light of above said specific statements by all the depositors it was established that above said depositors never entrusted money with the accused. Therefore, he further argued that in the absence of any entrustment accused could not be held liable.” 7. After perusal of the impugned order we also notice that none of the complainants have ever entrusted any money to the accused. In such situation, question of mis-appropriation of money under Section 409 IPC does not arise. 8. On analysis of the prosecution evidence and material on record, we do not find any scope for interference with the impugned judgment of acquittal. Accordingly, the appeal is dismissed being without any merit. (R.B. Misra) Judge. (V.K. Sharma) Judge. August 16, 2010. (lsp)