IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No.48 of 2003. Date of Decision: 15th March, 2010. State of Himachal Pradesh .. Appellant. Versus Bidhi Chand .. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 For the appellant: Mr. J.S. Rana, Assistant Advocate General. For the respondent: Mr. Anuj Nag, Advocate. Surinder Singh, J (oral) . The acquittal of the respondent passed in Criminal Case No.49-II of 1998, on 25th June, 2002, under Sections 406, 420 of the Indian Penal Code, has been challenged in this appeal by the State on the ground that the learned trial Court did not appreciate the evidence of the prosecution in the right perspective. In short, the prosecution case is that in the year 1997 husband of the complainant Neelam Kumari died in the motor vehicular accident and she filed a claim petition No.67 of 1997, titled as Neelam Kumari and another versus Sudershna and others before the Motor Accident Claims Tribunal (I), Kangra at Dharamshala. She engaged the respondent, a practicing lawyer at Dharamshala through her father-in-law Baintu Ram to prosecute the said petition. Ultimately, the petition 1 Whether the reporters of Local Papers may be allowed to see the judgment? - 2 - succeeded, an award of Rs.1,09,200/- was passed on 14th May, 1997 and out of that an amount of Rs.50,000/- was ordered to be released in favour of complainant Neelam Kumari and Baintu Ram aforesaid in equal shares. Since the awarded amount was deposited in the Punjab National Bank, Dharamshala, thus Baintu Ram pressed the service of the respondent, Advocate for the release of the amount. He identified Baintu Ram as well as Neelam Kumari in the bank, thereafter the bank released the aforesaid amount of Rs.50,000/-. It is alleged that out of Rs.50,000/-, an amount of Rs.40,000/- was retained by the respondent on the pretext that in case it is handed over to the complainant or her father-in-law, there could be possibility of being stolen by someone. Therefore, they could collect this amount from him later. After sometime the complainant visited the Court complex at Dharamshala and met the respondent, she demanded the balance amount, but respondent refused to pay. Thereafter she moved an application Ext.PW-1/A to the Presiding Officer of Motor Accident Claims Tribunal (I), Kangra at Dharamshala duly supported by her affidavit Ext.PW-1/B. The statement of the complainant was also recorded by the Motor Accident Claims Tribunal and vide order dated 3rd November, 1997, Ext.PW-6/A, the matter was sent to the Station House Officer, Police Station, Shahpur for registering FIR. During the investigation the police collected the relevant documents from the bank and also taken the specimen hand writing and signatures of the complainant and the respondent and sent these documents to the hand-writing expert PW-7. The report is Ext.PW-7/A. After completing the investigation, the case was presented against the respondent under Sections 406, 420 of the Indian Penal Code for his trial. The respondent was charge-sheeted. He did not plead guilty and claimed trial. - 3 - To prove its case, the prosecution examined its witnesses. Respondent was also examined under Section 313 of the Code of Criminal Procedure. He admitted the fact of passing the award to the tune of Rs.1,09,200/- by the Motor Accident Claims Tribunal-I, Kangra as alleged and release of Rs.50,000/- in equal shares to them on his identification, but denied that he retained the amount of Rs.40,000/- and paid only Rs.10,000/- to the complainant. At the end of the trial, the respondent was acquitted by giving him benefit of doubt on the ground that Baintu Ram, the father-in-law of the complainant, was not examined and there were material contradictions in the statement of the complainant Neelam Kumari and these findings have been challenged in this appeal. Heard and gone through the record. In her application Ext.PW-1/A, the complainant had mentioned that the amount of Rs.40,000/- was retained by the respondent and told that she should not disclose this fact to any one and also out of the relief fund of Rs.25,000/- released by the S.D.M., the respondent paid only Rs.1400/- to her and rest of the amount was misappropriated by him. She had also averred that it was the respondent who had approached them to pursue their claim petition on charging the fee at the rate of 10% out of the amount ultimately to be awarded by the Tribunal. But these allegations were not supported by her when examined in the Court. Significantly, she did not make any reference in her application about the retaining of money on the pretext that it may be looted from them and he would later return it. When she was confronted with the application, Ext.PW-1/A, moved before the Tribunal, she expressed her ignorance as to what these documents contain. She further stated that at that time when the amount of Rs.40,000/- - 4 - was received by the respondent her father-in-law Baintu Ram was also with her. PW-2 Lachho Devi is the mother of the complainant. She stated that when the amount was released from the bank, she left the place for house of her brother. She did not say anything about the fact of taking Rs.40,000/- as aforesaid. Except this, there is no other evidence on record. It is pertinent to note that Baintu Ram, father-in-law of the complainant, was not examined to corroborate the version of the complainant. If the allegations of keeping the above amount by the respondent as alleged were correct which also contained the share of her father-in-law, then why he did not step into the witness box to support her version. There could have been the possibility that Baintu Ram had agreed to part with some amount as fee to the respondent and rest he kept it for himself without the knowledge of the complainant. Therefore, his examination in the Court to corroborate her version was imperative. Further, there are also material contradictions in her statement given by her in the Court and averment made in the application Ext.PW-1/A and her statement recorded before the Tribunal. Therefore, in these circumstances, the learned trial Court had rightly given the benefit of doubt to the respondent. For the reasons aforesaid, I do not find any ground for converting the acquittal into conviction, as such, the appeal is dismissed. The respondent is discharged from the bail bonds entered upon by him at any time during the proceedings of this case. Records of the Court below be sent back forthwith. March 15, 2010. (Surinder Singh), (rc) Judge.