IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE SIXTEENTH DAY OF DECEMBER TWO THOUSAND AND NINE HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Appeal No.1545 of 2005 Between: Manjula Rani .. Appellant/complainant AND 1. M. Nagaraja (accused) 2. The State of A.P. rep. by P.P. High Court of A.P.,Hyderabad .. Respondents Appeal against the judgment in C.C. No.19 of 2001 on the file of the II Additional Judicial Magistrate of First Class, Madanapalle, dated 28-06-2005. The appeal coming on for hearing, upon perusing the grounds filed in support thereof and upon hearing the arguments of Sri C. Praveen Kumar, learned counsel for the appellant, Sri D. Kodandarami Reddy, learned counsel for the 1st respondent and of the Public Prosecutor for the 2nd respondent, the Court made the following JUDGMENT: The acquittal of the 1st accused in C.C. No.19 of 2001 on the file of the II Additional Judicial Magistrate of First Class, Madanapalle in respect of the offences punishable under Sections 406, 409 and 417 of the Indian Penal Code by the judgment, dated 28-06-2005, led the complainant to file the present appeal. The complainant/appellant filed the complaint against the 1st respondent herein and another alleging that she is the proprietrix of M/s. Manjula Super Bazar/Departmental Stores, Madanapalle with the registration certificate of Assistant Commercial Tax Officer in her name and the Income Tax assessment also in her name. The business originally started in 1991 was shifted to Nehru Bazar and her husband Sri M. Satyanarayana hospitalized during an incident earlier, was undergoing treatment at Bangalore for about two months. During that period, the complainant claimed to have taken the assistance of both the accused working as employees in her shop and both the accused received several amounts through cheques and cash for supply of commodities to the Backward Class Boys Welfare Hostel, Spinning mills, Arogyavaram hospital hostels, etc., and the accused misappropriated the said amounts to a tune of Rs.2,28,062-80 ps. They failed to account for the said monies and hence, the complaint. The police referred the case as false when it was sent to them by the Magistrate for investigation and report and thereafter the Magistrate recorded the sworn statement of the complainant to take cognizance of the alleged offences. After the accused entered appearance, they were supplied with copies of documents and when they were examined and charges under Sections 406, 409 and 417 of the Indian Penal Code were framed against them, they pleaded not guilty. The complainant examined P.Ws.1 to 13 and marked Exs.P.1 to P.28 during trial and in the meanwhile the 2nd accused died and the case against him was recorded as abated. The 1st accused denied the incriminating circumstances appearing in the evidence against him and had no defence evidence. The trial Court rendered the impugned judgment referring to the evidence of P.W.1, which itself contained an admission that the business belonged to the entire family and her husband only used to manage the accounts and other records of the business. The trial Court referred to the further admission that both the accused also used to participate in the said business and hence, came to the conclusion that the accused were as much entitled to look after the business as P.W.1 and her husband. While noting that P.W.2 is no other than the husband of P.W.1 and P.Ws.3 to 13 were speaking about the payment of amounts through cash and cheques to the accused, the trial Court was of the opinion that the business of the trading family run by all the members of the joint family was under a registration certificate obtained by P.W.1, but her being shown as proprietrix of M/s. Manjula Super Bazar will not detract from the character of business being joint family business. Consequently, the trial Court repelled the contention that the accused were only workers in the business and even the alleged period of hospitalization of P.W.2 and the alleged period of misappropriation were noted to be not tallying, the non-filing of the account books by the complainant was taken adverse notice of and the income tax return standing in P.W.1’s name was considered to be of no consequence. Therefore, the trial Court concluded the 1st accused also to be not guilty and acquitted him. The complainant challenges the said judgment in this appeal contending that the evidence of P.Ws.1 to 13 and Exs.P.1 to P.28 clinchingly establish the alleged misappropriation of the amount as alleged by the appellant. The temporary absence of the complainant’s husband was taken advantage as proved by the evidence and the 1st accused should have been convicted. Sri C. Praveen Kumar, learned counsel for the appellant, Sri D. Kodandarami Reddy, learned counsel for the 1st respondent/1st accused and Sri K. Venkateswara Rao, learned counsel representing the learned Public Prosecutor, are heard. The point for consideration is whether the complainant proved beyond reasonable doubt the guilt of the 1st accused for the offences punishable under Sections 406, 409 and 417 of the Indian Penal Code ? Point: The complainant as P.W.1 claimed to be the proprietrix of M/s. Manjula Super Bazar/Departmental Stores, which was attempted to be repeated by P.W.2, her husband. However, P.W.2 admits that the complaint when referred to the police was referred by them as of civil nature and P.W.2 had to admit that both the accused participated in selling their stock, which was kept in the shop of P.Ws.1 and 2. He further admitted that the 1st accused was carrying on business under the name of Balaji Departmental Stores and they cannot differentiate the stock of Balaji Departmental Stores and that of Manjula Super Bazar. He further admitted about selling the stock of both the business concerns under credit bills in the name of Manjula Super Bazar only and the allegation that the accused were workers under P.W.1 or P.W.2 was admittedly not informed to the Labour Department nor did P.Ws.1 and 2 claim that they maintained any prescribed registers in respect of such workers. Though P.Ws.1 and 2 expressed no objection for filing their documents and accounts into Court, no such documents were filed into Court. The complainant as P.W.1 had submitted that P.W.2 was looking after the entire family affairs of the joint family of P.W.2 and his three brothers with whom their mother was also living jointly. She was positive that the business of Balaji Departmental Stores belonged to the entire family and that P.W.2 was only managing the accounts and other records while both the accused were participating in the business. The obtaining of registration certificates in the names of P.W.1 or P.W.2 was obviously for the purposes of convenience as disclosed from the evidence of P.W.1 and P.W.1 also admitted that the family arrangements concerning the business were never reduced into writing. She also admitted the business in the name of Balaji Departmental Stores to be run by the 1st accused and in the absence of documents and books relating to the business before the Court and in the face of the admissions about the interest of both the accused in the businesses and their stocks also being sold under credit bills in the name of the business run in the name of the complainant, the alleged offences cannot be considered to have been even remotely established by the complainant against the 1st accused. The complainant, who does not even know the details of stocks involved or the specific amounts misappropriated under each of the transactions, cannot be heard to contend that she proved the guilt of the 1st accused beyond reasonable doubt. The well considered judgment of the trial Court in this regard, therefore, does not appear to be open to interference on merits and the appeal has to therefore, fail. In the result, the appeal is dismissed. Any observations of the trial Court and this Court in the impugned judgment or this judgment are confined to the allegations of committal of any offences by the 1st accused on merits and shall not influence the determination of civil disputes between the parties concerning the businesses. _____________________ G. BHAVANI PRASAD, J Date: 16-12-2009 Svv