Criminal Appeal No. 826-DBA of 1997 -1- *** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 826-DBA of 1997 Date of decision : 7.5.2008 State of Punjab .....Appellant Versus Maghar Singh ...Respondent **** CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. D.S. Brar, Deputy Advocate General, Punjab for the appellant. S. D. ANAND, J. Inspite of notice, none has put in appearance on behalf of the respondent/accused. However, in view of the fact that leave to appeal in this case had been granted by a Coordinate Bench as early as on 12.12.1997, we opted to examine the record. The Police of Police Station, Verowal launched prosecution under Section 409 IPC against the respondent/accused ( in case FIR No. 5 dated 4.1.1990 under Section 409 IPC registered at Police Station, Verowal) on a charge that he had committed embezzlement in respect of stock entrusted to him in his capacity as Sub Inspector of Khadur Sahib centre of PUNSUP. The respondent/accused held that posting as an employee of the Punjab State Civil Supplies Corporation and was clothed with the authority of public servant. The value of embezzled stock was quantified at Rs. 2,85,198.80 paise. Criminal Appeal No. 826-DBA of 1997 -2- *** As apparent from the record, a domestic enquiry into this very charge had been held against the respondent/accused and the Enquiry Officer (vide report Ex. DX) dated 6.3.1990 “accepted the version of the respondent/accused that it was not possible to control living infrustation and Khapra in the godown which coupled with the facts that the stocks were not timely disposed of an remained in stores for long, led to the deterioration and ultimately shortage and that the reasons advanced by Maghar Singh in defence appeared to be genuine.” As noticed by learned Trial Judge, “the case sought to be proved in the departmental proceedings was of negligence of the accused in handling, storing and preserving the stocks of wheat.” The fact that punishing authority “differed with the conclusion of innocence of the accused drawn by the Inquiry Officer, held the accused guilty of negligence, imposed penalty of the recovery of the value of shortage besides stoppage of three increments of the accused” would not affect inference that the only charge pleaded and proved against the respondent/accused was of negligence. Obviously, the connotation of 'embezzlement' and 'negligence' is entirely different. A public servant might well be guilty of negligence but he may not necessarily be guilty of embezzlement on that very charge. The prosecution allegation that respondent/accused issued wheat to a private party in December 1984 and on 7.1.985 “without informing or taking permission from the Committee constituted for the purpose” was held to be irrelevant for the purpose of charge framed against the respondent/accused because “the factual allegations in the FIR are that the shortage relates to the years 1981-82 and Criminal Appeal No. 826-DBA of 1997 -3- *** 1982-83 only.” We are in complete agreement with the view obtained by the learned Trial Judge which is based upon the prosecution evidence available on the file. We do not find any perversity in the fact based appreciation of evidence by the learned Trial Judge. In the light of the foregoing discussion, we are clear in our mind that the finding of exoneration recorded by the learned Trial Judge and also the reasoning noticed in support thereof, is in order and does not call for any interference. We have examined the impugned finding on the touch stone of the parameters laid down by the Apex Court in Ramesh Babulal Vs. State of Gurarat, AIR 1996 SC 2035, Jaswant Singh Vs. State of Haryana AIR 2000 SC 1833 and Main Pal Vs. State of Haryana AIR 2004 SC 2158 for adjudication of a such like controversy. In the light of the foregoing discussion, we have no hesitation in holding that the present plea must be invalidated and we so order accordingly. ( S. D. ANAND ) JUDGE May 07, 2008 (ADARSH KUMAR GOEL) Pka JUDGE