1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 680 of 2002 Decided on December 21, 2010 __________________________________________________________ State of H.P. …Appellant. Versus Chanan Singh ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. ¹Whether approved for reporting? No. For the appellant: Mr. R.K.Sharma, Senior Addl. Advocate General, with Mr.Rajinder Dogra, Addl. Advocate General. For the respondent: Mr. Ajay Sharma, Advocate. Justice Sanjay Karol,J (oral) . For an offence, which is alleged to have been committed between August 1994 and 31st March, 1995, accused was put to trial. In terms of judgment dated 3.7.2002 passed by Special Judge, Una, District Una, H.P., in Sessions Case No.4 of 2000, titled as State of H.P. vs. Chanan Singh, accused stands acquitted of the charged offences. 2. It is the case of the prosecution that accused was posted as Senior Clerk in the Book Depot established by the Himachal Pradesh Board of School Education at Una. He was posted vide orders dated 28.8.1986 (Ex.PB/1), 26.10.1993 (Ex.PB/2) and 2 25.3.1995 (Ex.PB/3). Accused was entrusted with the duty of selling books from the Depot for classes between 9th class and plus two. Accused took over charge from Kulvir Singh (PW.16). Since January 1995 accused started occasionally absented and w.e.f. 25.3.1995, continuously remained absent. Sh.Dhani Ram (PW.25) reported this fact to the Head Office and vide telegram dated 10.3.1995, and letter dated 25.3.1995 (Ex.PZ/1) accused was asked to immediately report on duty. On 30.3.1995, Jagdish Puri (PW.24) Assistant Secretary of the Board, came to Una and constituted a Committee comprising of himself, Sh.S.K.Parashar (PW.18) and Sh.Dhani Ram (PW.25). Purpose was to break open the locks of the room where the books were stored by the accused. Locks were broken and stock pertaining to the books and answer sheets was checked, verified and inventory (Ex.PF) prepared by members of the Committee. Physical verification of the stock took place between 31.3.1995 upto 7.4.1995. It was found that there were shortage of Books and Answer Sheets to the tune of `3,23,323.50. List (Ex.PX/1 to Ex.PX/4) was prepared. Vide registered letter dated 21.4.1995 (Ex.PZ/2), accused was asked to make good the short fall. Since accused did not comply with the same, complaint (Ex.PA) was made by Sh.R.S. Negi (PW.1) with the police. Formal FIR No.21/96 dated 29.1.1996 3 (Ex.PB) was registered with Police Station A.C. Zone, Una, under Section 379, 420 and 409 of the Indian Penal Code and Section 13(2) of the Prevention of Corruption Act, 1988. During investigation carried out by Inspector Pritam Singh, (PW.26), Smt. Satvinder Kaur (PW.4), who in absentia took over charge from the accused, produced copy of the attendance register (Ex.PE), copy of charge list (Ex.PF) and list of registered book sellers (Ex.PG). Sh.Inder Singh (PW.3) Sr.Assistant, Sale Book Depot, produced stock register (Ex.PH/1, Ex.PH/2) and cash memo books (Ex.PH/3 to Ex.PH/6). Sh.Narinder Kumar Sehgal (PW.6) proprietor New Art Press, Jallandhar, on receipt of supply order from the Secretary of the Board, supplied books to the accused vide receipts (Ex.PJ/9/A, PJ/9/B and PJ/9/C). Sh.Rakesh Kumar (PW.7), proprietor M/S Bir Bhoomi Printing Press, Jallandhar, supplied books to the accused vide receipts (Ex.PJ/8/A to PJ/8/D, Ex.PJ/9/D and PJ/7/A). Sh.Vijay Kumar (PW.8), proprietor M/S P.K. Printiners, Jallandhar, supplied books vide receipt (Ex.PJ/9/E) dated 18.7.1994. Sh.Ramesh Dhiman (PW.8) prepared transfer voucher (Ex.PK) and handed over the same to Ashok Kumar of Book Sales Depot, Una. Sh.Ram Labhaya (PW.9), proprietor, M/S Neptune Printers, Jallandhar, supplied books vide receipts (Ex.PJ/9/E to PJ/9/E to PJ/9/G, PJ/7/A, PJ/8/E to PJ/8/G). Sh. Shashi Khanna (PW.10), 4 proprietor, M/S Swan Printing Press, Jallandhar, supplied books vide receipts (Ex.PJ/9/H and PJ/9/J). Sh.Rajnesh Sehgal (PW.11), Prop.Sehgal Printers and Packers, Solan, on receipt of supply order from the Board, supplied 10 bundles of answer-sheets of 8th class, 90 bundles of answer-sheets of 10th class and 25 bundles of answer-sheets for +2 class and continuation sheets for all classes in 50 bundles vide receipt (Ex.PL) dated 3.2.1994, which was signed by the Depot Incharge. Sh.Rakesh Kumar (PW.12) Prop.Tenu Printers and Packers, Parwanoo, supplied answer-sheets vide receipts (Ex.PM, Ex.PN , Ex.PO) and books vide receipt (Ex.PP). Sh.Manpreet (PW.14) Prop.Guru Impression Boxes, Parwanoo, supplied books vide receipts (Ex.PQ, Ex.PR, Ex.PS, Ex.PT and Ex.PU). Investigation further revealed that supply orders were issued directly from Head Office and payments thereof released from there. With the completion of investigation, challan was presented in the Court for trial. 3. Accused was charged of having committed offences punishable under Sections 409 of IPC and 13(2) of the Prevention of Corruption Act, 1988, to which he did not plead guilty and claimed trial. 4. In order to prove its case, prosecution examined 26 witnesses and statement of the accused under Section 313 Cr.P.C. was also recorded, in which 5 he took the following defence:- “During the above said period, I was suffering from singrani disease. My leave application was not sanctioned. The keys of my rooms were with the District Manager and during my absence other officials used to work on my seat. The whole story of the prosecution is concocted one and has been manipulated to implicate me in a false case and to save the other official responsible for the shortage. Further, the damaged books etc. were not counted for while preparing the inventory and deficiency report. I am innocent after my regaining health I joined the duty and my leave was also sanctioned as medical leave and still I am in service of the Board.” 5. Court below acquitted the accused of the charged offences, hence the present appeal. 6. There is no dispute that accused was posted at the sale depot set up by the Himachal Pradesh Board of School Education, at Una. There is also no dispute that accused absented himself for at-least three months prior to the lodging of the complaint with the police. 7. According to the prosecution, Sh.Kulvir Singh (PW.16) handed over charge to accused Chanan, vide list (Ex.PW) consisting of 7 leaves. Through statement of various suppliers Prosecution has tried to prove receipt of books/Answer Sheets supplied by various suppliers. On this point, deposition of Sh.Narinder Kumar Sehgal (PW.6), Sh.Vijay Kumar (PW.7), Sh.Ramesh Dhiman (PW.8), Sh.Ramesh Dhiman (PW.9), Sh.Shashi Khanna (PW.10), Sh.Rajnesh Sehgal (PW.11), Sh.Rakesh Kumar 6 (PW.12) and Sh.Manpreet gains significance. Now according to these witnesses books were actually not delivered by them. Receipts are also not proved to have been signed by the accused. Witnesses specifically do not state that accused himself took delivery of the books/material. In fact, Sh.Shashi Khanna (PW.10) admits that at that time there is shortage of books in the bundles supplied to the Department. Thus, it could not be specifically proved that books, in question, were actually received by the accused as per orders placed by the Board from the head quarter. 8. Undisputedly, stock checking / verification was got done in the absence of the accused. According to Sh.S.K.Parashar (PW.18) there was only one lock on the main door which was broken. Now this version of his stands contradicted by the report (Ex.DA) prepared by members of the Committee, wherein it is specifically mentioned that on the doors of the Depot five locks were found and were broken open by them. Contradiction gains significance for the reason that stock checking took place for more than 7 days and members of the Committee did not physically check the entire stock themselves. Therefore, possibility of the statement not being correctly prepared or stocks being taken away in their absence cannot be ruled out. This also renders the presence of the witnesses during the entire stock 7 verification process to be doubtful. 9. Further, in Court none has come forward to prove the exact number of books for which orders were placed from the Head Office and the number of Books which were actually delivered and received at the depot at Una and more particularly by the accused. This fact gains significance in the backdrop of statement made by Smt.Satvinder Kaur (PW.4) who took over the charge of the Depot on 31.3.1995. According to her, books were received in bundles from the publishers and physical verification of the number of books in each bundle was not done even by her. There was shortage of time and staff. She admits that at times there is shortage of books and short fall is made good by the recipient of the supply. She admits that recovery of money from persons working in the Sales Depot is being effected in a routine manner. Thus, as per the prevalent practice in the Department, books less in number are routinely received from the suppliers authorized to do so. This totally rules out the criminal intent on the part of accused to embezzle and cause loss to the State. 10. It is not in dispute that when accused was on leave, Depot was also managed by other officials. Sh.Dhani Ram (PW.25) and Sh.Raj Kumar (PW.19) admit this fact. In fact according to PW.19, in the absence of the accused he also issued bills for supply of books. 8 Thus, possibility of books actually being sold out and not accounted for by other officials cannot be ruled out. 11. Importantly, according to Dhani Ram (PW.25), District Manager, Una, the depot in question is located in an area which is prone to dampness. He also admits that books damaged due to dampness and white ants were also found at the time of verification. Significantly, in the statement (Ex.PX/1 to Ex.PX-4) prepared by the Committee, there is no reference of such books. The fact, that such damaged books were found is not in dispute. They have not been accounted for. No separate damage report is prepared. This also renders the prosecution case to be doubtful. 12. Further, we find that prosecution has placed on record i.e. cash books, receipts etc. But however, none has come forward to link the entries in question with the record entries from the list are not related with the corresponding entries in the books seized by the police. 13. For all the aforesaid reasons, it cannot be said that prosecution has been able to prove its case, beyond reasonable doubt. 14. Accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, 9 Hyderabad, (2010) 1 SCC 94, it cannot be said that Court below has not correctly appreciated the evidence on record or that acquittal of the person has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (R.B. Misra) Judge December 21, 2010 (Sanjay Karol) (Purohit) Judge