d“? HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench Hon’ble Shri Rajeshwar Lal Jhanwar, J. Criminal Appeal No. 1875/1997 The State of Madhya Pradesh (now Chhattisgarh) Versus Vishnu Narayan JUDGMENT ~ Post for pronouncement of Judgment [¢(-03-2010‘ Sd/- R.L. Jhanr " wa Judge @ , HIGH COURT OF CHHATTISGARH: BILASPUR SINGLE BENCH: HON’BLE SHRI RAJESHWAR LAL JHANWAR, J. Criminal Agpeal No. 1875[ 1997 Apiaellant : The State of Madhya PradeSh (now Chhattisgarh) Respondent Vishnu Narayan, S/o Beragi Satpati, aged 28 years, R/o Pusore, Police Station — Pusore, District — Raigarh (M.P. now C.G.) APPLICATION FOR LEAVE TO APPEAL UIS 378 {3l ‘OF THE CODE OF CRIMINAL PROCEDUREIAPPEAL UIS 378 [1l OF THE CR.P.C. Present:- Shri Arvind Shukla, PL for the State. Shri Varunendra Mishra, counsel for the respondent. Versus 4 f'ar JUDGMENT (Delivered on m /03/2010) ».The State has preferred this appeal against the judgment dated 27.02.1997 passed by the Additional Chief Judicial Magistrate, Jashpurnagarin Criminal Case N0. 904 of 1982 by Z which the learned lower Court has acquitted the respondent under Section 409 of the I.P.C. 2. Brief facts of the prosecution case are that on 14.10.1975 the respondent/accused was in the capacity of ‘Samiti Sevak’ in Raigarh Sahakari Kendriya Bank Maryadit (Raigarh Co-operative Central Bank Limited) (henceforth ‘the Bank’), Branch Jashpurnagar. Thereafter, the respondent was employed at Village Lodam in recovering the amounts from the farmers who have taken loan from the said Bank. The respondent recovered total sum of Rs.7776.30 and out of which he deposited in the Bank only a sum of Rs.739/- and rest of the amount i.e. Rs.7037.30 has not been deposited -by him. While receiving amounts, the-respondent had also issued ‘Kachhi’ receipts to some persons and in some pass books he made entries and also issued receipts only on demand by some persons. It is alleged that the respondent misappropriated the recovered amount, therefore, he did not deposit which led to lodging of written'report by K.P.Nishad, Supervisor in the police station, Jashpumagar and on the basis of which F.I.R. was lodged at Jashpurnagar. After recording statements of the witnesses under Section 161 of the Cr.P.C. and after completion of investigation, challan under Section 409, 468 and 420 of the I.P.C. was filed but the learned lower Court only framed charge under Section 409 I.P.C. against the respondent/accused. The charge was read over and explained to the respondent/accused, who abjured the guilt and pleaded innocence and false implication and led no evidence in defence. 3. After affording an opportunity to the. parties and after hearing the learned counsel for respective parties, the learned lower Court has acquitted the respondent/ accused of charge under Section 409 of the I.P.C. Against the said judgment, the State has preferred this appeal. 4. Learned Panel Lawyer or the State/appellant argued that there was ample evidence available on record against the respondent and despite that the learned lower Court has acquitted him of the charge under Section 409 disbelieving the evidence adduced on behalf of the prosecution. On the other hand, learned counsel for the respondent argued in support of the judgment impugned. 5. I have heard learned counsel for the parties and perused the record of the court below icluding the judgment impugned. 6. Prosecution has filed this case against the respondent under Sections 409, 420 and 468 of the I.P.C. On perusal of the report, it is clear that respondent/accused Vishnu Narayan Satpati was working as Sarniti Sevak at relevant time at village Lodam and after recovering money from the persons who have taken loan from the Bank, he did not deposit the same in the Bank. It is also clear that the total amount cf Rs. Rs.7776.30 was recovered from the "0 r, g w ' l l L n farmers and out of which he deposited in the Bank only a sum of Rs.739/- and rest of the amount i.e. Rs.7037.30 has not been deposited by him, which he ought to have deposited and not depositing the same amount, he has embezzled that amount. “For this, the prosecution adduced evidence of Jabbar Khan P.W. 1, who has stated that he has given Rs’150/— and for that he obtained a receipt from the respondent. P’W.2 Lawrence Xalxo has also deposed that at once he had given Rs.573/— to the respondent and receipt thereof was obtained. But according to these witnesses, the Bank did not ask them to repay the amount again, which shows that the amount received by the respondent was deposited. P.W.3 ‘Somra has stated that he has given Rs.50/— to respondent but he denied that police has recorded his statement. Jethu P.W.4 has also stated that he has given a sum of Rs.40/- and the Bank has also not asked him again about repayment. P.W.5 Chuiyaram, P.W.6 Sohanram and P.W;7 Bandhanram have not stated anything against the respondent/aecused. Madrus P.W.9, Kishunsingh P.W.lO, Tetruram P.W. 12, Pote P.W. 13 and Johanram P.W. 14 have stated that they have paid money and receipts thereof were obtained. P.W.8 Rakkhan has deposed that he has deposited Rs.IOO/— with respondent and he obtained only "Kachhi’ receipt. He also did not state anything about the respondent. P.W.ll Maheshwar has stated nothing against the respondent. yaW“ 7, In that view of the matter, it is clear from the statement of P.W.l Jabbar Khan, P.W.2 Lawrence Xalxo, P.W.3 Somra, P.W.4 Jethu, P.W.S Chuiyaram, P.W.6 Sohanram, P.W.7 Bandhanram P.W.8 Rakkhan, P.W.9 Madrus, P.W.lO Kishunsingh, P.W.12 Tetruram, P.W.l3 Pote and P.W.14 Johanram have deposited money and obtained receipts and thereafter they were not aware as to whether the recovered money was deposited or not. It is also clear that written report was lodged by K.P’Nishad‘ on 18.06.1979 F.I.R. was lodged and necessary seizures were made but the prosecution has not adduced the evidence of K.P.Nishad that afte recoverybf amount, the respondent has not deposited the same in the Bank and receipts issued by the respondent have not been c «my ., A a; r “M 0 A g proved. This apart, no Bank account books have been produced and proved before the Court below to show that embezzlement has been done by the respondent. 8. Having thus considered the above evidence, I am of the View that the prosecution has not been able to prove that the respondent after collecting money from the above witnesses did not deposit that money in the Bank. Therefore, the learned lower Court after perusal of evidence adduced on behalf of the prosecution did not err in acquitting the respondent/accused of the charge under Section 409 of the I.P.C. A duty was cast on the prosecution to prove its case beyond reasonable doubt but the prosecution has not even adduce evidence against the respondent to show that he has committed misappropriation. Thus, there is no perverse or illegality in the impugned judgment. 9. In the facts and circumstances of the case and after considering the material available on record as well as the elaborate judgment impugned passed by the Court below, I am of the View that in an appeal against acquittal if two views on the prosecution evidence are possible and the trial Court has taken one View favourable to the accused persons, then it will not be permissible for the appellate Court to reverse the finding of acquittal by taking the other possible View on the prosecution evidence‘ Thus, the judgment of the learned lower Court is not perverse or illegal} ‘i 10. In the result, the appeal filed by the appellant/ State against the acquittal of respondent/accused person is liable to be and is accordingly dismissed. Sd/- R.L. Jhanwar g Judge {V