IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 459 of 2000 Reserved on: 25.2.2008 Date of decision: 27.2.2008 State of Himachal Pradesh ... Appellant Versus Chanan Singh … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. J.S. Guleria, Law Officer. For the respondent: Mr. G.D. Verma, Senior Advocate, with Mr. Romesh Verma, Advocate, for the respondent. V.K. Ahuja , J.: This is an appeal filed by the appellant/State of H.P. against the judgment of the Court of learned Sub Divisional Judicial Magistrate, Rampur Bushahr, dated 29.2.2000 acquitting the respondent of the charge framed against him under Section 408 I.P.C. Briefly stated the facts of the case are that on receipt of an application from the Inspector of Co-operative Society, Rampur that respondent during the year 1984-85 has embezzled Rs.18,412/- which he was having as cash in hand while working as an employee of Co-operative Society, Manjholi, a case was registered against him resulting in the 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 filing of challan as against the respondent under Section 408 I.P.C. The respondent was tried by the learned trial Court resulting in acquittal. Heard. The submissions made by the learned Law Officer on behalf of the appellant were that apart from the other evidence on record there was an admission made by the respondent to deposit the amount in question for which he was charge-sheeted. But inspite of the admission having been proved, the learned trial Court wrongly acquitted the respondent which findings were termed as perverse and as such, it was submitted that they are liable to be reversed. On the other hand, learned counsel for the respondent had submitted that the respondent was never appointed as a Salesman of the Co-operative Society on regular basis, but he was appointed as a Salesman on commission basis and, therefore, he was not an employee of the society nor any money was entrusted to him. In regard to the admission made by him, it was submitted that the said admission cannot make the respondent criminally liable but the civil remedy was available to the appellant by invoking arbitration clause or filing a suit for recovery of the amount and the findings of the trial Court cannot be said to be perverse calling for an interference from this Court. It was submitted that if two views are possible from the evidence led by the prosecution and one view is taken by the trial Court, those findings cannot be said to be perverse. On perusal of the record of the case including impugned judgment, it is clear that the learned trial Court has taken the view that 3 the accused was not employed as servant of the society but he was appointed as a Salesman on commission basis. Some of the observations made by the learned trial Court to my mind cannot be said to be correct since it was observed that no commission was paid to the accused and during the period the society was under loss upto Rs.1495.50, whereas the accused is alleged to have misappropriated Rs.18,712/-. The learned trial Court also observed that nothing was paid to him during his appointment as a Salesman and an audit was conducted in the society after six months and matter was not reported at the earliest. To my mind these observations cannot be said to be correct. The question relevant was as to whether the respondent was entrusted with some money or he received some money during his employment as a Salesman or not. It is the terms and conditions of the employment whether he is paid a regular salary or he was appointed as a Salesman on commission basis. The fact remains that he was a Salesman and as per the evidence was also maintaining the cash book which showed that Rs.18,712/- was not deposited by the respondent. On an audit this amount was also found due from the respondent and once the amount has been received during the course of his appointment, there can be said to be entrustment of the said amount and it is immaterial if the respondent was a Salesman on commission basis. Moreover, if no money has been paid to him as salary during the period in question, he has no right to retain the money while working as a Salesman. There was no requirement of law that the audit should be conducted within six months and or that the matter was not reported immediately cannot be said to be correct. The audit has to take 4 place as per the rules after the period as prescribed and there is no requirement of law that it cannot be conducted after six months. The evidence led by the prosecution shows that the amount was shown as per the cash book and the audit was also conducted and the respondent had agreed as per the evidence to deposit the amount. But the learned trial Court did not discuss the evidence in regard to the admission made by him whether it was admissible in evidence in the criminal case or not. However, keeping in view the fact that time has elapsed, I do not think it proper to remand the case to the trial Court for considering the evidence afresh particularly in regard to the admission, but in view of the fact that the cash book showed balance which was confirmed on audit, I am of the opinion that the respondent cannot escape from the civil liability to deposit the amount. Therefore, the State is competent to initiate proceedings before the Civil Court for recovery of the amount in question taking cause of action from the date of judgment or seeking arbitration remedy if permitted by law and if not availed already. The respondent is at liberty to take the plea that he was not paid the commission to which he was entitled. However, on the basis of the evidence it cannot be said that the findings are so perverse in the criminal case calling an interference from this Court in an appeal filed by the State against acquittal. Since the jurisdiction of this Court is limited only to consider the question if the findings are perverse but if two views are possible the judgment cannot be interfered with. Therefore, the appeal filed by the State is dismissed with the observations made above in regard to the filing of proceedings for recovery of the amount in an appropriate Forum. 5 The appeal filed by the appellant/State is dismissed accordingly. Bail bonds furnished by the respondent are discharged. ( V.K. Ahuja ), February 27,2007 Judge (BSS)