IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.628 of 2001 Date of decision : October 14, 2008 Nikka Ram …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. Rakesh Jaswal, Advocate. For the Respondent : Mr. P.M. Negi, Deputy Advocate General. Surjit Singh, Judge( Oral ) Appellant Nikka Ram has appealed against the judgment, dated 18th October, 2001, of learned Special Judge, Kangra at Dharamshala, whereby he has been convicted of offence, under Section 5(2) of the Prevention of Corruption Act, 1947, and sentenced to undergo simple imprisonment for two months and to pay fine of Rs.1,000/-, in default of payment of fine to undergo simple imprisonment for a further period of one month. 2. Prosecution case, as per evidence on record, may be summed up thus. Appellant Nikka Ram, hereinafter called accused, was employed as Head Clerk in the Office of Block Development Officer, Bhawarna, District Kangra, in the years 1981 and 1982. One of his duties was to collect money, on account of sale proceeds of agricultural implements sold by the Whether reporters of the local papers may be allowed to see the judgment? …2… Panchayat Smiti. On 28th May, 1981, a sum of Rs.2,689.68p was deposited with him by PW-1 Uchhal Singh, Incharge, Workshop at Dehan, on account of sale proceeds of furniture and agricultural implements, sold at the aforesaid workshop. Accused furnished receipt Ex. PW-1/A to said PW-1 Uchhal Singh. He allegedly did not account for that money for about one year. It was only on 5th May, 1982 that he made an entry in the cash book and took into account the said amount of money. 3. Matter was reported to the Vigilance Cell. Investigation was conducted and it was found that the accused had committed temporary embezzlement of the aforesaid amount of Rs.2,689.68p for the period from 28th May, 1981 to 5th May, 1982. Sanction from the appointing authority of the accused was obtained and thereafter he was challaned. 4. Learned Special Judge charged the accused with offences, under Sections 13(1)(c) of the Prevention of Corruption Act, 1988, and 409 of the Indian Penal Code. Accused pleaded not guilty to the charge. Prosecution examined eight witnesses to prove the charge. 5. Accused admitted having received the money from PW-1 Uchhal Singh against receipt Ex. PW-1/A, on 28th May, 1981. He also admitted that he made the entry with regard to the aforesaid amount of money in the cash book on 5th May, 1982. However, he pleaded that at the relevant time he had been looking after the work of so many officials, i.e. Head Cashier, Head Clerk, Accountant, etc. and had been maintaining six cash books and because of the heavy load of work, he forgot …3… to enter the aforesaid amount of Rs.2,689.68p in the cash book. He stated that the money remained in the official cash chest throughout the alleged period of temporary embezzlement. 6. Learned Special Judge did not believe accused’s plea, holding that the evidence on record did not probabilize it and convicted and sentenced him, as aforesaid. 7. I have heard the learned counsel for the accused- appellant as also the learned Deputy Advocate General and gone through the entire evidence. 8. As already noticed, while summarizing the prosecution case, accused does not deny the factum of entrustment of the amount of Rs.2,689.68p to him on 28th May, 1981, by PW-1 Uchhal Singh nor does he deny having furnished the receipt for the aforesaid amount of money, which is Ex. PW- 1/A to said Uchhal Singh. His plea is that he had kept the money in the cash chest, but forgot to make an entry in the cash book, because of his being over-burdened with various kinds of assignments, as he had been looking after the work of Head Clerk, Accountant, Head Cashier, etc., and had been maintaining six cash books. It has been admitted by PW-1 Uchhal Singh that at the relevant time accused had been looking after the work of Head Clerk, Accountant, Head Cashier, etc., and that only two newly appointed Clerks had been deputed to assist him. It has also been admitted by PW-1 Uchhal Singh and PW-6 K.D. Prabhakar, the then Block Development Officer, that the accused had been performing multifarious duties at the relevant time and …4… that there used to remain in the official cash chest huge amounts of money. 9. From the evidence on record, it appears that the accused made the entry in the cash book and thereby took the money into account, without anybody having detected that the aforesaid amount of Rs.2,689.68p, received by him from PW-1 Uchhal Singh, had not been accounted for. From the report Ex. PW-3/A regarding, preliminary inquiry conducted by Shri B.K. Sharma (PW-3), it appears that audit in respect of the accounts, in question, was conducted much after the accused had entered the aforesaid amount of money in the cash book, vide entry, copy Ex. PW-6/B. Report Ex. PW-3/A even though does not specifically mention the date(s) on which audit was conducted, yet it is clear from this report that the period included in the audit was upto September 1982, meaning thereby, that the audit was conducted after September 1982. That means, the accused accounted for the money in the cash book long before the audit was conducted. Preliminary inquiry by PW-3 B.K. Sharma, was conducted in September-October, 1983. As already noticed, there is no evidence indicating that the accused accounted for the money in the cash book, after it was detected by someone that the said money had not been accounted for. Under these circumstances, there cannot be any escape from the finding that the pea taken by the accused is quite probable. Consequently, the appeal is accepted, judgment of the learned Special Judge convicting and sentencing the accused of the …5… offence, under Section 5(2) of the Prevention of Corruption Act, 1947, is set aside and the accused-appellant is acquitted. Appeal stands disposed of. October 14, 2008(sd) ( Surjit Singh ), J