1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 151 of 2003 Date of Decision: 12.12.2011 State of Himachal Pradesh. Appellant. Vs. Surinder Kumar S/O Girdhari Lal Chaudhary, R/O Puranan Kangra at Present AVPO Khaniyara. Accused/Respondent. Petition under Section 378(3) of the Code of Criminal Procedure for the grant of leave to appeal against the impugned judgment of acquittal dated 13.9.2002, passed by the ld. Judicial Magistrate Ist Class(I), Dharamshala, H.P. in Cr. Case No. 56-II/98, Under Section 409 of IPC. Coram: The Hon’ble Mr. Justice R.B Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. R.K Sharma, Sr. Addl.A.G For the Respondents: Mr. M.L Sharma, Advocate. Sanjay Karol, J. (Oral). It is the case of prosecution that accused Surinder Kumar was posted as Secretary Gram Panchayat, Ghaniyara. The 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Audit party conducted audit of the Gram Panchayat and found that between the period 2.6.1992 to 6.4.1995, Gram Panchayat Ghaniyara was entrusted with various public funds and accused mis-appropriated a sum of ` 58,925/-. An independent inquiry was got conducted by the higher authorities which revealed that cash book was not maintained properly and certain portion of the same were left blank. Shri. Naveen Kumar(PW-7) the then Block Development Officer filed written complaint Ex. PW-7/A, on the basis of which FIR No. 358/95 (Ex. PW-6/A) under Section 409 of Indian Penal Code was registered at Police Station Dharamshala. ASI Girdhari Lal (PW-10) investigated the matter. He seized cash book (Ex. PW-4/B) vide memo (Ex. PW-8/A). Audit report (Ex. PW-9/A) was taken on record. Specimen handwriting and signatures of the accused were obtained by the police and sent for comparison to the handwriting expert, whose opinion (Ex. PW-4/E and PW-4/F) was taken on 3 record. Statement of relevant witnesses were recorded and with the completion of investigation, challan was presented in the Court for trial. 2. The accused was charged for having committed an offence punishable under Section 409 of the Indian Penal Code to which he did not plead guilty and claimed trial. 3. In order to prove its case, in all, prosecution examined eleven witnesses and statement of accused under Section 313 of Code of Criminal procedure was also recorded in which he took up a plea of false implication. 4. Trial Court acquitted the accused of the charged offences. Hence, the present appeal. 5. In order to prove the charge, prosecution has to establish that accused being a public servant was entrusted with a sum of ` 58,925/-, which he did not account for and thus committed criminal breach of 4 trust. This has to be established, beyond reasonable doubt, by leading clear, cogent, convincing, reliable and trustworthy evidence. 6. In the instant case, it is not in dispute that accused is a public servant. Action against the accused was initiated only on the basis of audit report (Ex. PW- 9/A). 7. Prosecution case primarily rests upon the testimonies of Naveen Kumar(PW-7) Block Development Officer and Dharamveer (PW-9) District Panchayat Officer who conducted the audit. Now significantly in the testimony of both these witnesses, it has come on record that accused was never entrusted with the money which is alleged to have been embezzled by him. In fact, he had no independent control over the finances of the Gram Panchayat. He had no right to handle the same either. Money was received from various sources, schemes including Jawahar Rojgar Yojna, by and in the name of 5 Gram Panchayat. Naveen Kumar(PW-7) specifically admits that accused was merely a custodian of the record of the Panchayat and financial aid is directly received by the Gram Panchayat. Accused was not even authorized by the Panchayat to receive the same. He admits that he did not make any independent inquiry with regard to the affairs of the Panchayat or the alleged embezzlement of the funds. 8. Testimony of PW-9 is also to this effect. In fact he clarifies that while auditing books of account he did not find that any amount was paid by the Panchayat to the accused or accused had withdrawn any amount for and on behalf of the Panchayat in his own name. 9. Now members of the Panchyat have not been arrayed as co-accused. In fact no action has been taken against them. Malfeasance, nonfeasance or misfeasance, if any, is on part of officials who have been allowed to go escort free. Hence, it cannot 6 be said that prosecution has been able to prove the essential ingredients so as to constitute an offence of criminal breach of trust or misappropriation of any amount. 10. Accused has had the advantage of having been acquitted by the Court below. Keeping in view the principles laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (R.B. Misra), Judge 12 th December,2011 (Sanjay Karol), (priti) Judge.