IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 136 of 1995. alongwith Cr.Appeals No.245, 257 and 269 of 1995. Judgment reserved on:30.6.2009 Date of decision: 7.7.2009 ________________________________________________________ Cr.Appeal No.136 of 1995 State of H.P. …. Petitioner Versus Krishan Kumar ….. Respondent Cr.Appeal No.245 of 1995 State of H.P. …. Petitioner Versus Krishan Kumar ….. Respondent Cr.Appeal No.257 of 1995 State of H.P. …. Petitioner Versus Krishan Kumar ….. Respondent Cr.Appeal No.269 of 1995 State of H.P. …. Petitioner Versus Krishan Kumar ….. Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice Surinder Singh, J. Whether approved for reporting ? No For the petitioner: S/Sh.R.M.Bhisht and Rajesh Mandhotra, Dy.Advocate General. For the respondent: Sh.Ajay Sharma, Advocate. 2 Deepak Gupta, J. This judgment shall dispose of the aforesaid four appeals since common questions of law and facts are involved in these cases. The admitted facts are that the accused Krishan Kumar was appointed as a Clerk in the Ichhi Co- operative Marketing and Consumers’ Society Limited, Ichhi (Society) on 12.4.1980. On 19.5.1980 he was appointed as salesman on salary-cum-commission basis. The accused used to receive consumable articles through bills on credit basis and after selling the same was required to deposit the amount of sale proceeds in the account of the Ichhi Co-operative Society in the Kangra Central Co-operative Bank at Kangra. According to the prosecution, during the year 1980-1981, the accused received consumable articles of the value of Rs.5,05,184.21 paise. As against this he only deposited an amount of Rs.4,21,388-01 paise in the bank and, therefore, he has not accounted for goods of the value of Rs.83,796.20 paise. In this regard criminal case No.178-II/87 was filed. The accused was acquitted and criminal appeal No.257 of 1995 arises out of this case. 3 Criminal case No.179-II/87 out of which criminal appeal No.269 of 1995 arises relates to the period 1.7.1981 to 30.6.1982. In regard to this period, the prosecution version is that the accused received articles of the value of Rs.3,80,962.21 paise and deposited a sum of Rs.3,13,873.91 paise only in the bank and as such has mis-appropriated an amount/goods of the value of Rs.65,088.30 paise. Criminal Case No.180-II/87 was filed in the Trial Court in respect of the period 2.7.1982 to 30.6.1983 out of which criminal appeal No.245 of 1995 arises. The prosecution case is that during this period, the accused received goods worth Rs.2,22,448.40 paise whereas he deposited an amount of Rs.1,66,049.48 paise only in the bank and, therefore, failed to give any account for consumable articles worth Rs.56,398.92 paise. The last case, i.e., criminal case No.181-II/87 giving rise to the criminal appeal No. 136 of 1995 relates to the period 5.7.1983 to 4.8.1983. During this period, the accused is alleged to have received consumable articles worth Rs.46,485.08 paise. Against this he only deposited a sum of Rs.37,017.70 paise in the bank. According to the prosecution, the accused has failed to give any account 4 of the remaining articles of the value of Rs.9667.38 paise and has mis-appropriated this amount/goods of this value. In all the cases the accused has been acquitted of having committed offences punishable under Sections 406, 409, 420 and 467 of the Indian Penal Code and hence the appeals by the State. The accused has not denied the fact that he received consumable articles of the amount as alleged by the prosecution. He has also not denied the correctness of the amounts allegedly deposited by him in the account of the Society. However, according to him, he has not mis-appropriated any amount or property of the Society. The case of the prosecution in which it is common to all the four cases is that the audit of the Society was done and then this mis-appropriation was discovered. Though the prosecution case is entirely dependent on the report of the Auditor, the said report itself has not been proved in two of the cases, i.e.. criminal case No.180-II/87 relating to the period 2.7.1982 to 30.6.1983 and in criminal case No.181-II/87 relating to the period 5.7.1983 to 4.8.1983. It was incumbent upon the 5 prosecution to have proved the audit report. The auditors as well as the Investigating Officer have admitted that such audit report was prepared but the same was not proved. This was the primary evidence available with the prosecution and if the said primary audit report was withheld from the Court, adverse influence has to be drawn against the prosecution. No doubt entrustment in this case is proved but it was for the prosecution to prove the mis-appropriation of the property. In two cases, as mentioned above, the prosecution did not even care to produce or prove the audit report which was the mainstay of its case. Even more damaging to the prosecution case is the fact that in all the four cases, the auditors have clearly admitted that they conducted physical verification of the stocks of the Society. It is also admitted that on physical verification, written report regarding the goods available with the Society were prepared. In none of these cases the said report of physical verification of the goods has been placed or proved on record. The accused admitted the receipt of the goods. He also admitted that what he has paid is not the full value of the goods. This would mean that either some 6 goods are still lying unsold in the stocks of the Society or the goods/value of the goods has been mis- appropriated. It was for the prosecution to prove in each year what was the value of the goods lying in the stores at the start of the financial period, what were the goods purchased/received by the accused during this period, what was the value of the goods sold and what was physically found in the stores at the end of the year. If the value of the goods found in the store is equivalent to the differences between the value of the goods received and the amount deposited then obviously there is no mis- appropriation. The prosecution miserably failed to prove the value of the goods lying in the Society at the start of the financial year or at the end of the period when the alleged mis-appropriation took place. In the absence of such evidence, it is impossible to convict the accused. In view of the above discussion, we are clearly of the view that the learned Trial Court rightly found that the accused was not guilty of any offence and acquitted him of the charges under Sections 406, 409, 420 and 467, IPC. The appeal being without merit is accordingly 7 dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge July 7, 2009 (Surinder Singh) (m) Judge