HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 196 of 2003 Reserved on: 29.11.2011. Decided on: 1.12.2011. State of Himachal Pradesh ……… Appellant. Versus Ali Mohammad ………Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.Rajesh Mandhotra, Deputy Advocate General. For the respondent: Mr.N.K. Thakur, Advocate. Justice V.K. Ahuja, J.: This is an appeal filed by State of Himachal Pradesh under Section 378 of the Cr.P.C. against the judgment of the court of learned Sessions Judge, Una, dated 22.1.2003, vide which he acquitted the respondent of the conviction imposed upon the respondent by the learned trial Court under Section 409 IPC. 2. Briefly stated, the facts of the case are that the respondent was posted as Sub Post Master, Post Office, Gagret at the relevant time. On 4.11.1994 at about 9.00 a.m., the respondent sent a telephonic message to PW-7 Y.S. Rathour, Inspector of Post Offices, Amb to the effect that a sum of `1,84,615/- had been stolen from the Post Office. The amount was stated to be lying in the cash chest kept at the Post Office. The cash was allegedly kept by Cashier Manohar Lal on 2.11.1994 and since he proceeded on leave, he gave his own key as well as the other key to the respondent. On this __________________________________________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - information, PW-7 Y.S. Rathour proceeded to the Post Office and informed the Senior Superintendent, Post Offices, Hamirpur. The respondent is stated to have informed that theft of cash has taken place and the police was also informed. PW-7 Y.S. Rathour found that the lock of the outer gate of the Post Office was intact. However, both the locks of the safe were missing and the money was, therefore, found missing. The lock of the inside room of the Post office was also found to be open. However, PW-7 Y.S. Rathour noticed that there were no dents or damage caused on the safe of the Post Office from where the cash was missing. Meanwhile, the police also reached there. 3. A preliminary inquiry was conducted by PW-7 Y.S. Rathour, who came to the conclusion that no theft of the amount has taken place from the safe and it appears to have been embezzled by the respondent. He made statement to the SHO PW-17 Sita Ram, who forwarded the same to the Police Station on the basis of which the case was registered. The case was investigated by PW-17 SHO Sita Ram and after investigation, the challan was filed before the learned Additional Chief Judicial Magistrate, Amb, who tried the respondent under Section 409 IPC and after holding the respondent guilty of the charge, sentenced him to undergo RI for a period of one year and to pay a fine of `1,000/-. In default of payment of fine, the respondent was to undergo SI for a further period of three months. On appeal by the respondent, those findings were set aside and the respondent was acquitted. 4. We have heard Mr.Rajesh Mandhotra, learned Deputy Advocate General for the appellant-State and Mr.N.K. - 3 - Thakur, Advocate, for the respondent, and have gone through the record of the case. 5. It is clear from a perusal of the statement of PW-7 Y.S. Rathour, Inspector of Post Offices, that a sum of `1,84,615/- was found missing from the safe. This fact can be said to have been established by the prosecution and was also not disputed by the respondent. The only question left for consideration was as to whether the amount had been stolen from the safe as claimed by the respondent or it was misappropriated by the respondent as per the opinion formed by PW-7 Y.S. Rathour on the basis of the preliminary inquiry. A perusal of the statement of PW-7 Y.S. Rathour, Inspector, shows that he informed the police and proceeded to the spot. He observed that the locks of the safe were missing and one lock of the inner room was also missing. He saw the keys which were with the respondent and he formed an opinion and sent the report Ext.PW-7/A to the police. 6. The investigation in the case was conducted by PW-17 SHO Sita Ram. He stated that during investigation, he prepared spot map Ext.PW-17/A, took into possession the documents, recorded the statements of the witnesses and completed the investigation. There is no statement made by PW-17 SHO Sita Ram that he conducted the investigation on the lines that it was a case of theft as reported by the respondent who was posted as Sub Post Master at the relevant time. He should have inspected the spot, got the spot inspected from an expert and should have concluded on the basis of some facts that it was not a case of theft, as claimed by the respondent. The facts leading to the inference that it was not a case of theft or it was a case of theft - 4 - should have been brought on record, which is not so in the present case. It was rightly observed by the learned Sessions Judge that the offence of theft is substantially different from the offence of criminal breach of trust. The version of the respondent regarding theft of the amount was rejected by the Department and by the police also without any investigation, which appears to have weighed with the learned Sessions in holding that the guilt of the respondent was not established. It was another case that the respondent was guilty of misappropriation for which he was proceeded against departmentally, but to hold that the theft was committed by the respondent, there has to be some evidence which was missing in the case and no investigation was conducted on those lines. Keeping in view the findings recorded by the learned Sessions Judge that the charge of theft was not proved as against the respondent, we are of the opinion that those findings are not perverse and are based upon correct appreciation of evidence and law and do not call for an interference by this Court. 7. In view of the above discussion, we accordingly hold that there is no merit in the appeal filed by the appellant, which stands dismissed. Bail bonds furnished by the respondents shall stand discharged. (Deepak Gupta), Judge. December , 2011 (V.K. Ahuja), (tilak) Judge.