IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 606 of 2002 Date of Decision: 28.10.2011. State of H.P. …Appellant. Versus. Sita Ram …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol , Judge. Whether approved for Reporting? No. For the Appellant: Mr. Vivek Thakur, Addl. A.G. For the Respondent: Mr. Virender Singh Rathour, Advocate alongwith accused Sita Ram. Per Deepak Gupta, J.(Oral) 1. This appeal by the State is directed against the judgement dated 15.5.2002 passed by the learned Judicial Magistrate 1st Class, Court No.(2), Rohru whereby he acquitted the accused of having committed an offence punishable under Section 409 of the Indian Penal Code. 2. The admitted facts are that the accused is a conductor employed with the Himachal Road Transport Corporation (HRTC). The system being followed by the Corporation is that tickets are issued to the conductors and noted down in a way-bill. The case of the prosecution is that various tickets of various 2 denominations of different States and Union Territories i.e. Himachal Pradesh, Haryana and Chandigarh were issued to the accused. After return from the trip when the accused deposited the amount, on checking it was found that the amount was short by Rs.7453/-. On this basis F.I.R. was registered against the accused. The accused was charged with having committed an offence punishable under Section 409 IPC. The learned trial Court acquitted the accused mainly on the ground that entrustment of the tickets had not been established. The learned trial Court was of the view that the prosecution had failed to prove the entrustment of tickets of various denominations valuing Rs.20,498/- since the way-bills did not bear the signatures of the accused and only the photocopies had been produced on record. 3. The main witness in the case was PW-2, who prepared the way-bills. According to Shri Sanam Ram he was in-charge of the tickets of the HRTC at Rohru at the relevant time and used to issue tickets to the conductors and make entries in the way-bills. He has clearly stated that he had issued tickets of various denominations of different areas to the accused. He has given details of the tickets issued in his statement and has clearly stated that the signatures of the 3 conductors to whom the tickets are issued are not obtained on the way-bills. He has not been cross- examined on this aspect of the matter and therefore, the learned trial Court was not justified in coming to the conclusion that the way-bills could not be relied upon since the signatures of the accused were not appended on the same. 4. The learned trial Court also held that the original way-bills had not been produced but the first line of the cross-examination of this witness shows that a suggestion was put to this witness on behalf of the accused that he had made the statement on the basis of the original way-bills after seeing the original way- bills which obviously means that the way-bills were there in Court. In fact, in his statement this witness has stated that he had brought the original record and the photocopies of the way-bills were compared with the original. Therefore, entrustment stood proved and there is no cross-examination worth the name with regard to the value of tickets. Therefore, entrustment stands proved and the shortage also stands proved beyond reasonable doubt. 5. It also, however, stands proved that the accused had deposited the amount much earlier and may be even before the lodging of the F.I.R. However, this 4 would only make it a case of temporary embezzlement because no employee can retain the amount with him. Therefore, we are of the considered view that the learned trial Court was not justified in acquitting the accused and we accordingly allow the appeal and convict the accused of having committed an offence punishable under Section 409 IPC. 6. Coming to the question of sentence, we find that the accused is now 57 years old and has a family to support. He has already lost his job as his services were terminated by the HRTC. The incident is more than 14 years old and we are of the considered view that no purpose will be served if we sentence the accused to undergo substantive sentence in jail. We, therefore, direct the accused who is present in Court to pay a fine of Rs.1000/- and to undergo imprisonment till the rising of the Court. Fine be deposited within eight weeks before the learned trial Court failing which the accused shall have to undergo simple imprisonment for a period of 15 days. ( Deepak Gupta ) Judge. 28th October, 2011 ( Sanjay Karol ) ™ Judge.