1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 152/2001 Decided on January 5, 2010 State of H.P. …Appellant. VERSUS Ram Chand ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge Whether approved for reporting?1 For the Appellant: Mr.R.K. Sharma, Sr. Addl. AG For the respondent: Mr. R.K.Gautam, Sr. Advocate with Mr. Vikrant Chandel, Advocate. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure, in reference to judgment dated 7.8.2000 passed by learned Judicial Magistrate, 1st Class, Court No.II, Amb, District Una, HP. thereby acquitting the respondent / accused for the offence under Sections 408, 409, 467, 471, 420 IPC. 2. The prosecution case is that Additional Deputy Commissioner, Una filed a complaint Ex PW-1/A along with documents Ex PW-1/B to K to the Superintendent of Police, Una, District Una, HP and accordingly the same was forwarded to the Police Station and case was registered against the Whether the reporters of the local papers maybe allowed to see the judgment? 2 respondent/accused for the aforesaid offence. After investigation, case was tried by learned Judicial Magistrate. 3. In order to prove its case, prosecution has examined as many as 18 prosecution witnesses, whereas, through his statement under Section 313 Cr.P.C, accused/ respondent denied the prosecution case. 4. In order to see the legality of the impugned judgment we have to go through the prosecution witnesses and materials on record. 5. (PW-1) M.L. Sharma, Joint Secretary, Welfare has stated that at the relevant time in the year 1991, he was posted as ADM, Una, on 27.12.90 wrote letter (Ex PW-1/A supporting with other supporting documents), to S.P. Una about the embezzlement committed by the accused/respondent for the purpose of enquiry, whereas, the letter written by accused to D.C. Una is Ex PW-1/D and Ex PW-1/C is the inquiry report prepared by Project Officer. Letter written by PW-1 to the Project Officer is Ex PW-1/E and certificate which was given by the accused is Ex PW-1/F and the detailed report of the amount which was invested is Ex PW1/G and receipt is Ex PW-1/H. However, PW-1 M.L. Sharma has not conducted inquiry as has been admitted in the cross examination. 6. (PW-2) Kehar Singh has deposed that he was Pradhan of Gram Panchayat, Dharamshala Mahanta from 1972 to 1990 and in the year 1989-90 accused was Up Pradhan of that Panchayat. As per the testimony of PW-2, he came to know from the villagers that the amount of Rs. 8000/- was entrusted to the accused/respondent by the D.C.Una and amount was received by 3 the accused/respondent. After some time, PW-2 received letter from Deputy Commissioner, Una inquiring about the expenditure of Rs. 8000/-. Accordingly, he informed that there is nothing mentioned in the register about such amount. As per testimony of PW-2, accused/respondent misutilized the said amount, however, muster roll was also prepared by the accused/respondent. No such record was made available to that effect in the Panchaya. The Project Officer has also made enquiry about it. PW-2 has, however, stated in the cross examination that he is not aware about the receipt of such amount. 7. (PW-3) Parveen Kumar has stated that during his deployment as mason in the year 1989 for the construction of Primary School at Dharamshala Mahanta, he had received 350/- as wages for the work done. PW-3, as such, was declared hostile. However, PW-3 has further stated that at Sr. No.3 of muster roll, 10 attendance were recorded in front of him. He denied the signatures upon muster roll Ex PW-3/A made in English. (PW-4) Urmila Gian Bharti has stated that she was posted as Project Officer from 1988 to 1993 and was entrusted to make inquiry about the construction of Primary School, Dharamshala, Mahanta and on inquiry, she came to know that building of the school was constructed through ‘Shramdan’. As per testimony of this witness, the amount was received by Pradhan from District Office without any receipt in Panchayat register and in cash book there is no such entry and record of the aforesaid amount. PW-4 has, however, submitted his report Ex PW-1/C to the ADM Una. 4 However, nothing is emanating positive from the testimony of PW-4. 8. (PW-5) Ram Pal has stated that he was engaged as labourer in the construction of Primary School, Dharamshala Mahanta and received Rs. 320/- as wages of the work done. The said witness was declared hostile as the said amount was received without putting signature in the register. (PW-6) Dhani Ram, engaged as labourer, received Rs. 320/- as wages, was declared hostile. However, his signature acknowledging receipt was not found true. (PW-7) S.K. Prashar has stated that he was posted as Naib Tehsildar-cum-Executive Magistrate, Una in the year 1993, before whom an application by the police was filed for obtaining specimen signature of Parveen Kumar (PW-3) and he attested the specimen signature of Parveen Kumar, whereas (PW-8) Lekh Raj, Chowkidar of village Dharamshala Mahanta, recognized the Panchayat Secretary, Bal Krishan, has stated that neither police came to the village nor has taken anything from the possession of Panchayat Secretary. PW-8 has not, however, supported the prosecution case. (PW-9) B.L. Soni, Addl. CJM has stated that he was posted as Judicial magistrate 1st Class, Amb from 1991 to January, 1994 and specimen signatures of Ram Chand accused Ex P-1 to P-5 and specimen hand writing of accused Ex P-6 to P- 19 were identified by Madan Thakur, Advocate, 9. (PW-10) N.C. Sood Deputy Government Examiner has stated that after careful examination, he came to the conclusion that the person who wrote the blue enclosed signatures stamped and marked S-21 to S-26 did not write the red enclosed 5 signatures. The specimen signatures of Parveen Kumar were marked as S-33 to S-38on Ex PW-7/A to Ex PW-7/F, whereas in view of the testimony of PW-10 the person who wrote the blue enclosed signatures stamped and marked S-33 to S-38 did not write the red enclosed signatures. PW-10 has recorded his opinion Ex PW-10/4 and identified the signatures of Parveen Kumar. (PW- 11) Bal Krishan has stated that from1992 to 1994 he was posted as Secretary , Gram Panchayat, Dharamshala Mahanta, who admitted the writing of accused Ex PW-10/1 to 3 to the police under red circle of which signatures of accused appears and the police has taken into possession aforesaid documents vide memo Ex PW-8/A. (PW-12) ASI Hari Pal, (PW-13) SI Bonki Ram, (PW- 14) SI K.S. Guleria, (PW-15) ASI Prithiv Raj, (PW-16) ASI Dharam Singh, (PW-17) Sukh Ram and (PW-18) Sadhu Ram SI has endeavoured to support the prosecution case to the extent role assigned to them, but, nothing concrete could be derived from their testimonies in support of the prosecution case. 10. On analysis of the prosecution witnesses and materials on record, we notice that in view of the testimony of (PW-4) Urmila Gian Bharti, the amount which was given to the accused, belongs to small saving scheme. However, PW-4 did not receive any written statement. As has been gathered by PW-4, the amount was received by the accused without any receipt. PW-2 Pradhan of Gram Panchayat, Dharamshala Mahanta, at relevant time had declined any knowledge about receipt of the money in question in the village. However, on the basis of hearsay and information gathered, PW-2 has stated that Rs. 8,000/- was 6 received from D.C. Una However, in reference to the letter given by accused Ram Chand to Deputy Commissioner, Una, Ex PW- 1/D, it has been inferred that Rs. 8000/- has been received for the construction of Primary School at Dharamshal, Mahanta. However none of the prosecution witnesses have clarified that when the said amount was received by the accused/respondent. It is very surprising how public money in the name of small saving was disbursed by the office of D.C.Una, more so, without any receipt. As such, on analysis of the prosecution witnesses and materials on record, it is not indicated that the said money in question was entrusted to the accused/respondent. As such, it is doubtful that the accused was liable for the offence under Section 409 IPC. If entrustment of the money was not proved by the prosecution, then question of misappropriation does not arise. We also notice that PW-3 Parveen Kumar has acknowledged receiving of Rs. 350/- as wages for doing 10 days work. PW-5 Ram Pal likewise said to have received Rs. 320/- from the accused and similary PW-6 Dhani Ram has admitted that he has received Rs. 320/- from the accused as his wages. None of the labourers have stated that they have not received their wages from the accused/respondent. 11. Prosecution has not been able to prove that any loss to the government has occurred because of the conduct of the accused/respondent as recipients-labourers have acknowledged the money having received by them. Unless it is proved that amount in question was received by the accused by forging documents or he has converted that amount for his personal interest or transferred to any valuable security or had delivered 7 the same to any one, accused cannot be held liable for the offence under Section 467 IPC. None of the prosecution witnesses has indicated that the money, mentioned in muster roll in the names of labourers, have been mis-appropriated by the accused in his own favour and he has obtained signatures of the labourers falsely on the muster rolls, whereas, a few labourers, namely, PWs 3,5 and 6, examined in the Court, have consistently indicated that they have received amount from the accused Ram Chand as their wages. 12 In the facts and circumstances as revealed from the testimonies of the prosecution witnesses and materials on record, learned Judicial Magistrate has rightly arrived at finding that the prosecution has failed to prove the accused/respondent liable for the offence in question and prosecution has also failed to prove that the money was entrusted to the accused and he misappropriated the money. Thus, we find no scope for interference in the impugned judgment of the trial court. The criminal appeal, being devoid of merit, is accordingly dismissed. 13. Bail bonds, furnished by the accused/respondent, are hereby discharged. ( R.B.Misra ), J. 5th January, 2011 (Sanjay Karol),J (sl)