1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 418 of 1999 Decided on September 14, 2010 __________________________________________________________ State of H.P. …Appellant. Versus Narinder Kumar & Others ...Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr. R.K. Sharma, Senior Additional Advocate General, with Mr.Rajinder Dogra, Additional Advocate General. For respondents: Mr. Himmat Negi, vice counsel. No. 1 and 2. _________________________________________________________ Justice R.B. Misra,J. (Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure has been granted in reference to judgment dated 1.3.1999, passed by Learned Additional Chief Judicial Magistrate, Nurpur, District Kangra, H.P., in Criminal Case No. 49-II/1994, under Sections 408, 420, 467 and 120-B of the Indian Penal Code, acquitting the alleged accused/respondents. 2. The prosecution case is that on 28.5.1990, accused Narinder Kumar was posted as an Accountant in Nakodar Talab, 'Sehkari Krishi Sewa Sabha, Ltd.', Nakodar. Sh. Gorkhu Ram and Baldev Singh audited the account of Nakodar Talab 'Sehkari Krishi Sewa Sabha Ltd.', it was found that accused, Narinder 2 Kumar made a payment of Rs.20,000/- to the Kehrian Sehkari Sabha, Kehrian, but no receipt was found on the record to prove that the said payment was made to the Kehrian Sehkari Sabha, Kehrian, whereas, in the cash book, an amount of Rs.20,000/- was shown to be withdrawn from the Central Bank Raja-Ka- Talab on 28.5.1990 and on the said record, it was shown that the payment was made to Kehrian Rail Head Agency, whereas, no receipt was available. On enquiry, it was found that no payment was made, as such, accused Narinder Kumar misappropriated a sum of Rs.20,000/-. The matter was reported to the police. 3. After investigation, the accused was arrested and charged for the aforesaid offences. In order to prove its case, the prosecution has examined as many as 14 prosecution witnesses, whereas, the accused through his statement under Section 313 of Cr.P.C., has denied the prosecution case. 4. The prosecution examined PW.1 Gorkhu Ram, PW.2 Sh.R.S. Thakur, PW.3 Satish Kumar, PW.4 Baldev Singh Mankotia, PW.5 Ranbir Singh, PW.6 S.I. Ashwani Kumar, PW.7 Sudershan Kumar Constable, PW.8 Kuldeep Singh, PW.9 Kuldeep Chand Sharma, PW.10 Raj Pal Singh, PW.11 Surinder Kumar Constable, PW.12 Karam Singh, PW.13 Mohinder Singh Assistant Government Examiner and PW.14 Sukhdev Singh. 5. PW.1 Gorkhu Ram and PW.4 Baldev Singh Mankotia have audited the account of Nakodar Talab Agricultural Co- operative Society and prepared report Ex.PA and Ex.PB. As per report, on 28.5.1990 payment of Rs.20,000/- was said to have been paid in favour of Kehrian Co-operative Society, but no 3 receipt was available on the record. In cross-examination, they have reiterated the version as made in the examination-in-chief. 6. PW.2 R.S. Thakur, S.D.J.M., Joginder Nagar, has stated that in his presence on 9.9.1992, on the request of Karam Singh S.I. Enforcement, specimen signatures of Narinder Kumar in three sheets were taken as Ex.PW.3/A, Ex.PW.3/B and Ex.PW.3/C and on 29.1.1993, on the request of S.I. specimen hand writing of Narinder Kumar was also taken in eight sheets as Ex.PW.2/D to Ex.PW.2/K. Similarly, on 19.9.1991, specimen signatures of accused Rania Ram were also taken as Ex.P-1 to Ex.P-6. 7. PW.5 Ranbir Singh has stated that Kehrian Society did not receive any amount of Rs.20,000/- on 28.5.1990. PW.6 Ashwani Kumar has reported the matter to the police on the report of the Audit Inspector. PW.7 Sudershan Kumar has stated that in his presence one document was taken into possession by the police from accused Narinder Kumar vide seizure memo Ex.PW.7/A. PW.8 Kuldeep Singh has stated that on 16.9.1991, Bank Manager, Kuldeep Kumar produced a cheque of Rs.20,000/- which was taken into possession by the police vide seizure memo Ex.PW.8/A. 8. PW.10 Raj Pal has stated that on 9.9.1991, Ashwani Kumar, made a statement under Section 154 of Cr.P.C., Ex.PW.10/A and he recorded the statement of some other witnesses. PW.11 Surinder Kumar has stated that I.O. deposited the record with him in the Malkhana. PW.12 Karam Singh has stated that the investigation was done by him. 4 9. On analysis of the prosecution witnesses and materials on record, it is apparent that as per prosecution case, accused Narinder Kumar, was working as Accountant of Nakodar Talab Co-operative Society, was allegedly misappropriated a sum of Rs.20,000/-, however, in support of the allegations, the prosecution did not bring any evidence and materials on record to prove that Rs.20,000/- were entrusted to the accused-respondent and how in what way the accused- respondent misappropriated the said amount with an intention to wrongful gain to himself and wrongful gain to other. 10. PW.1 Gorkhu Ram and PW.4 Baldev Singh were said to have audited the record of Nakodar Talab Co-operative Society, which was involved in doing the work of procurement of wheat. PW.1 and PW.4 have stated that they audited the said account but no document is placed on record in order to prove that a sum of Rs.20,000/- was not utilized for the procurement of wheat by the accused, as the accused has taken the specific plea that the said amount was utilized for the procurement of wheat. Even there is no mention of this fact in the audit report Ex.PA and Ex.PB. PW.1 and PW.4 have specifically mentioned that a separate register is being maintained by the society with respect to the proceedings of the wheat, but no such record has been taken into possession by the Investigating Officer. The prosecution, however, has not been able to prove its case that the said money was misappropriated intentionally by the accused and was not utilized for the procurement purpose. 5 11. On the basis of the prosecution witnesses and materials on record, we find that the learned Trial Court has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt to the accused and there is no scope of interference in the findings given by learned Trial Court. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 12. The bail bonds furnished by the accused/respondents are hereby discharged. (R.B. Misra) Judge September 14, 2010 (V.K. Sharma) (Purohit) Judge