IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 44 of 1997. Decided on : 21.05.2010 State of Himachal Pradesh ..…Appellant. Versus Rajinder Kumar …..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, Additional Advocate General and Mr. Anil Jaswal, Dy. Advocate General. For the respondent : Mr. Dinesh Thakur, Advocate vice Mr. Rakesh Jaswal, Advocate. R.B. Misra, Judge (oral). The present appeal has arisen after leave to appeal has been granted under Section 378 (3) Cr. P.C in reference to the impugned judgment dated 29.6.1996, passed by the learned Judicial Magistrate 1st Class (II), Amb, District Una, in Case No. 42-I/92 / 24-II/94, acquitting the alleged accused from the offences under Sections 409, 467, 468 and 471 IPC 2. In order to adjudicate the present appeal, it is necessary to give the factual background of the case. The case of the prosecution is that the accused was working as Secretary, Ado- Patehar Co-Operative Agricultural Service Society Ltd. during the period from 1.1.1985 to 31.12.1985. Being Secretary, he was 1 Whether reporters of the local papers may be allowed to see the judgment? 2 entrusted with receipt and payment of society money on behalf of the society, but the accused misappropriated an amount received from the account holders and to do so he prepared forged documents and made false entries in the accounts as well as pass books of various persons. He also withdrew money from the accounts of various account holders. In all he committed embezzlement of Rs. 16,375.29 paise during the aforesaid period. This misappropriation, fraud and cheating on the part of the accused came to light at the time of audit inspection of the society in the year 1986. Accordingly, case was registered against the accused and after investigation he was sent up to stand trial before the court of JMIC (II), Amb, District Una, under Sections 409, 467, 468 and 471 IPC. 3. After investigation challan was presented before the trial court for the aforesaid offences in question. In order to prove the case, the prosecution has examined as many as nineteen witnesses. Whereas, the alleged accused in his statement under Section 313 Cr.P.C, has denied the prosecution case. 4. PW-1 Tilak Raj, is the Inspector of the Co-Operative Society, who deposed that he was working as Inspector of Co-Operative Society , Una, since 1992. Prior to him Achhar Singh was the Secretary and he is conversant with the handwriting and signatures of Achhar Singh. According to him, abstract of report Ex.PW1/A, special report Ex.PW1/B and details of amount Ex.PW1/C, are in the hand of Achhar Singh and also signed by him. PW-2 Om Parkash had been examined by the prosecution to prove that he had deposited Rs. 2000/- with the 3 accused, but, later on after audit he was told by the Inspector that money was not deposited in his account. He has identified his pass book Ex,PW2/A. PW-3 Sita Ram had denied his signatures in the register of society vide which loan of Rs. 600/- had been entered in his name. PW-4 had deposed that he had taken loan from the society, but he had adjusted the entire loan amount by making payment of Rs. 144-63 paise to the accused. Later on he came to know that money in question was not deposited in his account. PW-5 had been examined by the prosecution to prove statement of account and withdrawal forms. PWs 6 to 12, 16 and 17 were the witnesses of the same facts as deposed by PWs-2 to 4. PWs 13, 14, 18 and 19 were the witnesses in whose presence finger prints and specimen of hand writing of various persons were taken by the police for the purpose of comparison with the thumb impression and hand writing in the record of the society. PW-15 was the Investigating Officer. 5. The defence witness examined by the accused had deposed that he is a member of the society in question, and according to the defence the cash of the society was being handled by the cashier who received the money and made payment. He had further deposed that for selling khad (fertilizer) society has the salesman. Price of the khad is deposited with the cashier. With this transaction, Secretary has no concern. He had also deposed that whenever any person applies for loan from the society, society passes resolution to that effect. Thereafter loan is being given by the cashier. The duty 4 of the secretary was only to record proceedings of the resolution. He had further deposed that meeting of general body was never called nor it was re-audited and the present secretary of the society Balwant Singh took into possession record of the society by breaking open the lock and thereafter changed the entries in the record. 6. On analysis of prosecution witnesses and material on record, it has been noticed by the learned trial court that one Achhar Singh, who is stated to be the author of audit report, on which the prosecution case is based, could not be examined by the prosecution as by that time he had expired. The Prosecution examined PW-1 Tilak Raj to prove the audit report in question, who in his testimony has manifestly stated that he knows nothing about this case, meaning thereby that this witness is of no help for the prosecution case. It has also been noticed that the prosecution has not been able to lead sufficient evidence to prove that the accused at the relevant time was serving as Secretary of the Society in question. In order to prove the prosecution case, it was necessary to prove that at the relevant time when occurrence took place, the alleged accused was responsible and accountable for the money in question. Whereas, a cashier was appointed in the society, who was dealing with cash transactions. It has also been divulged that money in question was handed over to the cashier. It has also been noticed that many allegations were made against the accused that the money in question was with him, who misappropriated the same and made false entries in the pass 5 books of the account holders. However, the prosecution has not been able to prove that entries in the cash books were made by the accused as there is no evidence to this effect. The prosecution witnesses are not sufficient to make a chain and co-relate the accused with the commission of offences. 7. On analysis of prosecution witnesses and material on record, the learned Judicial Magistrate 1st Cass (II), Amb, Distt. Una, had rightly arrived at the conclusion acquitting the alleged accused of the offences under Sections 409, 567, 468 and 471 IPC, as the prosecution has failed to prove its case beyond reasonable doubt. In our considered view, there is no illegality in the impugned judgment dated 29.6.1996. The appeal being devoid of any merit is dismissed. (R.B. Misra) Judge. (V.K. Sharma) Judge. May 21, 2010. (lsp)