IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 288 of 2005. Decided on April 8, 2011. Yash Paul Singh Jaswal …Appellant Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the appellant Mr. Anup Chitkara, Advocate. For the respondents Mr. Ramesh Thakur, Asstt. AG. Surjit Singh, Judge (oral) Appellant Yash Paul Singh has appealed against the judgment dated 7.6.2005, of learned Special Judge, Shimla, whereby he has been convicted of offences, under Sections 409, 201 IPC and Section 13(2) of the Prevention of Corruption Act, 1988, for allegedly misappropriating an amount of `1919/-, drawn from Account No.10748, with State Bank of India and another sum of `1680/-, received on account of return of Money Order, sent to seven pensioners, during the year 1992 to 1994, when he was working as Tehsil Welfare Officer at Kotkhai. 2. Appellant, while working as Tehsil Welfare Officer at Kotkhai, during the aforesaid period from 1992 to 1994, was entrusted, amongst others, with the duty of Whet her report ers o f t he l ocal papers may be al l owed t o see t he j udgment ? - 2 - disbursement of pension to various persons, under different schemes of the government. Money used to be remitted to him from the Welfare Department, by means of bank draft. That money was kept in deposit with the State Bank of India and H.P. State Cooperative Bank. There was one account with State Bank of India. Its number was 10748. Money used to be withdrawn from the account from time to time for remission to the pensioners, through post offices, by means of money orders. Interest, accruing in the account, used to be withdrawn and deposited with the Treasury Officer. 3. Case of the prosecution is that in the year 1994, out of the pension sent to various pensioners, pension in the name of seven persons, aggregating to `1680/- had remained undelivered, on account of death of persons to whom the said amount was sent. Those persons were Muni Devi, Mangat Ram, Thankal Ram, D.C.Arjun Singh, Karam Singh, Kanku Devi and Sanku Devi. Appellant allegedly received the aforesaid amount of `1680/- from the post office, but did not account for the same, nor did he make any entry of this amount in the cash book, which he himself used to maintain. Another allegation against the appellant is that he withdrew an amount of `1919/- on account of interest, which accrued in the account with State Bank of India, Kotkhai against cheque, copy Ex.PW-3/A, but did not account for the same. The money was not entered in the cash book, nor was it deposited with the treasury. - 3 - 4. Appellant proceeded on leave with effect from 6.8.1994, for a period of about 40 days. On the very next working day, cash book was found missing. It is alleged that appellant destroyed that cash book, with a view to making it difficult to detect the embezzlement of the aforesaid amounts of money by him. 5. Prosecution examined 18 witnesses, besides proving certain documents, to bring the charge home to the appellant. Appellant denied that he had embezzled either of the two amounts or had destroyed the cash book. He pleaded that he had handed over the charge of his seat on 23.6.1994 to PW-8 Devinder Parkash, a clerk in his office, because earlier he had applied for proceeding on leave from that date, but on account of sanction having not been received, he did not proceed on leave. He pleaded that the amount of `1919/-, on account of interest, had been withdrawn by part time Peon, PW-5 Chuni Lal, working in his office and that he did not deliver the money to him. With regard to the amount of `1680/-, his plea was that the money had not been returned to him, but to PW-5 Chuni Lal, part time Peon or clerk PW-8 Devinder Parkash, as per prevailing practice, and it were they, who were accountable for the said amount of money. 6. Defence plea did not find favour with learned trial Court. Evidence of the prosecution was held to be sufficient to prove the charge. Consequently, appellant was - 4 - convicted, as aforesaid, and sentenced to varying terms of imprisonment and fine. 7. I have heard learned counsel for the appellant, as also learned Assistant Advocate General and gone through the record. 8. Appellant does not deny that he was working as Tehsil Social Welfare Officer at Kotkhai, at the relevant time. Also, it is not denied by him that it was his duty to operate the account with State Bank of India and the money in that account was used for disbursement as pension to various persons, under different welfare schemes of the State Government. He also does not deny that the interest, accruing in that account, was required to be withdrawn and deposited with the Treasury Officer. However, his plea is that he had not received the amount of `1919/- against cheque, copy Ex. PW-3/A, nor was the money returned by the post office, received by him. According to him, amount of cheque was collected by PW-5 Chuni Lal, Peon and the amounts of pension of different persons, totaling `1680/- returned by the post office, had also been received by PW-5 Chuni Lal and / or Devinder Parkash, Clerk, and it were they, who made entries with respect to the said amounts, in the ledger accounts of the concerned pensioners. 9. Admittedly, cheque for `1919/-, copy Ex.PW-3/A, was issued in the name of PW-5 Chuni Lal. It was PW-5 Chuni Lal, who collected the amount of cheque from the bank. PW-5 Chuni Lal, though did testify that he had - 5 - handed over the money to the appellant after encashing the cheque, but his bare statement, without corroboration by any entry or receipt, cannot be taken to be sufficient evidence, to hold that he had in fact handed over the money to the appellant. As per practice, money was required to be deposited with the Treasury Officer by filling in challan forms. If that is so, PW-5 Chuni Lal, after withdrawing the money, was not supposed to have delivered it to the appellant, but to have deposited in the treasury, after filling in the challan form and getting the same signed from the appellant, who was incharge of the office. It stands proved on record that the money had not been deposited in the treasury. Reference, in this behalf, may be made to the testimony of PW-17 Ram Lal Chauhan, Treasury Officer, Kotkhai. 10. Also, there is no positive evidence that amount of `1680/-, on account of non disbursement to the pensioners, to whom it was sent through money orders, had been paid to the appellant by the post office. Record from the post office has not been produced. Post Master has also not been examined. Only one postman, namely PW-2 Joginder Singh was examined by the prosecution, who made a general type of statement, that smaller amounts of money, on account of return of money order amounts, used to be paid to the clerks in the office of the appellant and the larger amounts used to be collected by the appellant himself. There is nothing on record showing that - 6 - aggregated amount of `1680/-, representing pension of seven persons, was returned as a single transaction or it was returned pensioner-wise, or say the amount of every pensioner was returned as one transaction. Even if it is assumed that the amount was returned as one transaction, still the amount cannot be said to be large, because PW-5 Chuni Lal, in his deposition, admitted that he had been collecting huge amounts of cheques from the bank. PW-2 Joginder Singh, postman has not said that the amount of `1680/- or the broken amounts, representing pension of seven persons, were handed over to the appellant. 11. Returned amounts of pension, aggregating `1680/-, are entered in the ledger accounts of the concerned seven pensioners. Entries are admitted by PW-5 Chuni Lal to be in his hands. The fact that entries, in the ledger book in the accounts of the pensioners, are in the hands of PW-5 Chuni Lal, gives the impression that the returned undelivered amounts of pension, were received by him. 12. As regards the loss of cash book, prosecution evidence is no better. PW-8 Devinder Prakash, clerk stated that charge of cash book had been given to him. However, he stated that he was never allowed to make entries in the cash book and that it used to remain in the personal custody of the appellant. His statement cannot be believed, because as per Charge Report, copy Ex.PW-1/F-7, which is part of Charge List, consisting of 11 sheets Exts. PW-1/F-1 to - 7 - PW-1/F-11, charge of cash book along with several other registers, files, records and stock items, had been handed over to him by the appellant on 23.6.1994. 13. Learned trial Court has not acted upon this document with the observation that the document does not in fact suggest whether the cash book, which was handed over to PW-8 Devinder Parkash, was the original one or its duplicate. The observation is contrary to the evidence on record. Duplicate cash book was prepared only after the appellant proceeded on leave with effect from 8.8.1994 and in his absence it was found that the cash book was missing. 14. In view of the above stated position, I am of the view that the case against the appellant does not stand established. Hence he is acquitted. April 8, 2011 (PC) (Surjit Singh), J.