IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.519 of 2004. Decided on: April 7, 2011. ____________________________________________________________ State of H.P. ……..Appellant. Versus Partap Singh. ……..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. Vikas Rathore, Dy. Advocate General. For the respondent : Mr. Shrawan Dogra, Advocate. _________________________________________________________ SURINDER SINGH,J (oral) : The acquittal of the respondent Partap Singh, a Salesman of the ‘Neri Cooperative Marketing-cum- Processing Society Limited’ who later became its President, has been challenged in this appeal by the State for the offence punishable under Section 408 of the Indian Penal Code, allegedly for misappropriating an amount of `20,223.85 paise. 2. I have heard the learned counsel for the parties and have carefully reappraised the evidence on record. Whether reporters of the Local papers are allowed to see the judgment? - 2 - 3. The factual matrix of the case can be stated thus. On 23.7.1992, the police received a complaint mark-‘X’ through Shri Krishan Gopal, Inspector of the Cooperative Society, Theog for registration of the FIR, which contained the allegation that the cash amount of ‘Neri Marketing-cum-Processing Society Limited’, Theog was misappropriated. Thus, the Assistant Registrar of the Cooperative Societies vide his letter dated 6.5.1992 directed to get the FIR registered against the respondent and three others i.e. Ex- Salesman Ram Singh, Truck Operator Partap Singh Chauhan and Karam Singh. 4. After registration of the case, police investigated the matter and took into possession stock register and other relevant registers from Het Ram Salesman. Kedar Singh was the Secretary of the Society. He produced the proceedings register of the said Society w.e.f. 27.3.1988 to 26.6.1992, Ex.PW4/F, Cash Book w.e.f. 1.6.90 to 14.8.92 and Audit report w.e.f. 1.7.1988 to 30.6.1992 Ex.PW1/A. 5. During the investigation, police came to the conclusion that the respondent Partap Singh was the Salesman of the said Society w.e.f. the year 1988 to - 3 - 2.7.1989 and later remained as its President. It is alleged that during the period he remained as Salesman. He had acknowledged the receipt of `20,223.85 paise to at page-158 of the Cash Book Ex.PW4/E under his signatures, to which he failed to count for hence, misappropriated/ embezzled the said amount. 6. Police obtained the specimen signatures and handwritings of the respondent and sent to the Government Examiner of Questions Documents for his opinion. On the receipt of the report and completion of the challan against the respondent, it was presented in the Court for his trial, for the offence aforesaid, to which he pleaded not guilty and claimed trial. 7. To prove its case, prosecution examined PW1 Bansi Lal Sharma, Auditor. According to him, the audit was conducted on the basis of available record, which had shown that the accused being Salesman of the Society during the relevant period was shown the above amount outstanding against him, which finds mentioned at page-158 of the Cash Book signed by him and this amount was with him in his capacity as a Salesman of the Society and was not accounted for by him and there is a mention in his audit report Ex.PW1/A, - 4 - but I do not find any reference in his statement whether the respondent was also associated during the audit, which was conducted after more than two years when the respondent was no more a Salesmen or the President of the Society. 8. PW2 Sant Ram Sharma only stated to have produced the photo copy of the letter dated 6.5.92 of Assistant Registrar, which was taken into possession vide memo Ex.PW2/A. 9. PW3 Tej Ram Sharma is another Auditor and stated for the aforesaid amount on verification of record, on the basis of the entry in the Cash Book remained unexplained by the accused. Significantly, he admitted that the stock register of the Society w.e.f. 11.11.88 to 2.7.89 so long the respondent remained as the Salesman of the Society was not available. 10. PW4 Kedar Singh is the Secretary of the Society, who handed over the register aforesaid alongwith ledger to the police. The other witnesses viz. PW5 Het Ram, PW6 Chet Ram are the witnesses of the recovery of the aforesaid documents and PW7 Kirpal Singh was the Executive Magistrate in whose presence, specimen signatures of the respondent were taken. These are the - 5 - only material witnesses, on whose testimonies, the entire case hinges. However, the respondent denied having embezzled the said amount. 11. The scrutiny of the entire evidence shows that the complaint of alleged embezzlement was not only against the respondent, but also against three more persons stated above who were entrusted with the management of the Society during the relevant period. The record reveals that separate challans were presented against each of them. 12. The regrettable features of this case are that there is no original FIR on the file against the respondent nor the original of mark-‘X’ which was alleged to have been presented before the police by Krishan Gopal, Inspector of the Cooperative Society has found the light of the day. Even Krishan Gopal aforesaid was with-held by the police and not examined during the trial of the case. Not only this, the prosecution seeks to prove the case on the basis of the alleged signatures at page-158 of the Cash Book Ex.PW4/E to that of the respondent, but even those signatures are not proved to be that of the respondent. Further, there is only a photocopy of the report of the - 6 - Handwriting Expert, but neither its original is on record nor Handwriting Expert was examined. The respondent denied his signatures on the Cash Book and these stand not proved. 13. Further the Audit report Ex.PW1/A holding the respondent responsible on the basis of the entry made in the Cash Book as aforesaid is not proved nor the stock registers were either taken into possession or produced during the trial of the case to show entrustment. 14. Though, Section 34 of the Indian Evidence Act says that the entry in the books of accounts regularly kept in the course of business are relevant, but such statement shall not be alone sufficient to charge any person with liability in absence of any supportive evidence. 15. In the instant case, prosecution did not examine anyone even to show that the books of accounts which also include the Cash book were regularly kept in the course of business nor indeed any attempt was made to lead the evidence apart from the production of the aforesaid documents. In the vague state of record, it seems to me impossible to - 7 - dismiss the explanation of the accused as unreasonable that no amount was entrusted to him, rather, the perusal of the proceeding register Ex.PW4/F reveals that when the respondent remained as Salesman, he was supposed to be checked in regular meetings by the office bearers of the Society every month, during the period he remained Salesman. But, the proceeding register does not reveal that any such embezzlement was ever detected. Pertinently, the audit inspection of the Society was made in the year 1992 by PW1 Bansi Lal Sharma and PW3 Tej Ram Sharma Inspectors. They also banked upon the entries made in the cash book to come to the conclusion that the said amount was embezzled by the respondent, but when it stands not proved having kept in accordance with Section 34 of the Indian Evidence Act and no direct and supportive evidence has been produced as to who had maintained this cash book, the liability of this amount cannot be fastened upon the respondent, merely on the ground of his signatures, which also stands not proved. 16. Thus, on the scrutiny of the evidence aforesaid, there is neither direct nor circumstantial evidence of - 8 - entrustment against the respondent. It is also not known as to who had maintained the Cash Book at the relevant time and had made the entry in the name of the respondent. It is also not supported by any oral evidence. 17. The prosecution is obliged to stand at its own legs by leading cogent and reliable evidence, but in my considered opinion, no such evidence worth the name has been produced to fasten the guilt of the respondent, as such, no interference is called for in the reasonable findings of acquittal of the learned trial Court which are borne out from the record. The appeal sans merits, accordingly dismissed. 18. The matter stands disposed of. Send down the record. April 7, 2011. (Surinder Singh), (Pds) Judge.