IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 198 of 2001 (Old No. 2857 of 1998) State of U.P. (Now State of Uttarakhand) ...…………. Appellant Versus 1. Jai Bhagwan (since deceased) 2. Chatur Narain S/o Sri Ram Narain R/o Vikas Colony, Opposite Jamana Palace, P.S. Haridwar, District Haridwar. ...…………. Respondents Mr. M.A. Khan, Brief Holder, present for the State / appellant. Mr. Sanjeev Singh, Advocate, present for respondent No. 2. Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.) is directed against the judgment and order dated 30th of May 1998, passed by Chief Judicial Magistrate, Haridwar, in Criminal Case No. 185 of 1997, whereby said court has acquitted the respondents Jai Bhagwan and Chatur Narain, of the charge of offence punishable under Section 409 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.). 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that respondent No. 1 Jai Bhagwan was Cashier, since 1972, with Municipal Board, Haridwar. Respondent No. 2 Chatur Narain was Asstt. Cashier with him. One Ramakant (P.W. 3) was the Misc. Demand Clerk in the establishment. In November 1983, from the report of the Accountant, it was revealed that on comparison of recovery shown in Demand Register with the Cashbook, it was found that an amount of Rs. 31,652.65, which was collected by the Municipal Board, was not deposited in the Municipal Board’s account. This suggested misappropriation of said amount by the Cashier (Jai Bhagwan). On this, an enquiry was ordered by Bijendra Singh, the then Executive Officer, and on enquiry it was found that since 1972 till 1982, a total sum of Rs. 2,94,741.72 which was collected, was not found deposited. Said amount was shown to have been recovered by Ramakant (P.W. 3), who purported to have deposited the same with the Cashier Jai Bhagwan, who in his turn failed to deposit the money in the account of the Municipal Board. A first information report (Ext. A – 4) was lodged by the Executive Officer, Municipal Board, Haridwar, on 15.10.1984, against accused / respondents Jai Bhagwan (since deceased) and Ramakant (P.W. 3) in respect of offence punishable under Section 409 of I.P.C. After investigation, police submitted charge sheet against accused / respondents Jai Bhagwan and Chatur Narain, for their trail in respect of offence punishable under Section 409 of I.P.C. (Accused Ramakant was enlisted as a witness, as no offence is said to have been made out against him). 4) The Magistrate, on receipt of the charge sheet, provided necessary copies to the accused, as required under Section 207 of Cr.P.C., and framed charge of offence punishable under Section 409 of I.P.C. against both the accused / respondents. After hearing the parties, the trial court (Judicial Magistrate, Haridwar) on 10.07.1992, framed two separate charges – one against Jai Bhagwan Sharma for criminal misappropriation of public money, punishable under Section 409 of I.P.C., and against another accused / respondent Chatur Narain, for embezzlement of an amount of Rs. 26,624.07, punishable under Section 409 of I.P.C. Both of them pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Shiv Kumar Gupta, Accounts Clerk; P.W. 2 Jai Prakash Jain, Accountant; P.W. 3 Ramakant, Misc. Demand Clerk; P.W. 4 Radhey Shyam Gupta, Asstt. Accountant and P.W. 5 D.P. Juyal, Executive Officer of the Municipal Board. The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they alleged that they have been falsely implicated in the crime due to enmity. In defence D.W. 1 Banu Ram, a clerk of Municipal Board, Haridwar, and D.W. 2 Satpal Singh, another clerk of Municipal Board, Haridwar, were got examined. After hearing the parties, the trial court found that the prosecution has failed to prove the charge against either of the two accused, and acquitted them of the charge of offence punishable under Section 409 of I.P.C. Hence, this appeal was filed by the State before the Allahabad High Court seeking leave to appeal in the year 1998. The appeal was received by this Court under Section 35 of the U.P. Reorganization Act, 2000, (Central Act No. 29 of 2000), for its disposal. The leave was granted, and appeal was admitted by this Court, on 11.05.2007. Meanwhile, respondent No. 1 Jai Bhagwan expired, and appeal as against him stood abated vide order dated 15.04.2010. The appeal proceeded as against respondent No. 2 Chatur Narain. 5) Before further discussion, it is pertinent to mention here, that the amount which is said to have been misappropriated by Jai Bhagwan (since deceased) was Rs. 2,94,741.72. As against the accused / respondent No. 2 Chatur Narain, only Rs. 26,624.03 was said to have been misappropriated. On perusal of the statements of P.W. 1 Shiv Kumar Gupta, P.W. 2 Jai Prakash Jain, P.W. 3 Ramakant, P.W. 4 Radhey Shyam Gupta and P.W. 5 D.P. Juyal, this Court finds that none of the witnesses has specifically stated that what was the amount regarding which it was found that Chatur Narain received the sum and from whom did he received. The question of misappropriation on the part of respondent No. 2 arises only after proving that the amount was entrusted to the accused / respondent No. 2. Since, the prosecution has not proved the fact that said amount of Rs. 26,624.03 was entrusted to accused / respondent No. 2 Chatur Narain, as such, it cannot be said that he had misappropriated the same. It is pertinent to mention here that the trial court has taken note of the fact that in the departmental enquiry also, accused / respondent no. 2 Chatur Narain was found not guilty. He was reinstated in service with all back wages. It is also apparent from the record that after enquiry, the Executive Officer lodged first information report only as against Jai Bhagwan and Ramakant, not against accused / respondent Chatur Narain. P.W. 3 Ramakant in his cross-examination admits that all the entries in the cash register were made by Jai Bhagwan. He has further stated that he cannot say whether any amount was misappropriated by Chatur Narain, or not. 6) In the above circumstances, this Court is of the view that the trial court has committed no illegality in holding that the charge of offence punishable under Section 409 of I.P.C. as against accused / respondent Chatur Narain is not proved beyond reasonable doubt. That being so, the acquittal recorded by the trial court against respondent No. 2 Chatur Narain needs no interference by this Court. 7) Accordingly, the appeal is dismissed. Lower court record be sent back. (Prafulla C. Pant, J.) [[ Dt. July 28, 2010. H. Negi