Cri.apl.445/2006 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 445/2006 The State of Maharashtra, through P.S.O. Navapur, District Dhule/Nandurbar. ...Appellant. Versus 1 Shri Jagdish Bhikaji Kamble, Age : 35 years, Occu. Service, R/o Shstrinagar, Navapur, Taluka Navapur, Dist. Nandurbar. 2 Shri Gorji Chhoptya Vasave, Age : 60 years, Occu. Pensioner, ICDS Officer, R/o Navapur Dist. Nandurbar. ...Respondents. Mr. S.N. Kendre, A.P.P. for appellant. Mr. S.U. Choudhari, Advocate for respondents. CORAM : A.V. NIRGUDE, J. Date : 7th December, 2010. ORAL JUDGMENT :- 1 The State of Maharashtra has filed this appeal against the judgment and order passed by the learned Chief Judicial Magistrate, Dhule dated 14/11/2005 in Regular Criminal Case No. 15/1997 acquitting the respondents from the offence punishable under Section 408, 468, 477-A of Indian Penal Code. 2 The prosecution case in nutshell was as under. While the respondents were working as cashier and B.D.O. along with the deceased accused, they mis-appropriated the funds belonging to the Government which were ear marked for certain project of the Government. When internal audit took place, the auditor made a report against the respondents and the third accused and on the basis of such report, the prosecution witness No.1 filed the Cri.apl.445/2006 2 complaint. 3 The prosecution examined as many as seven witnesses but despite of the same, the learned judge held that the prosecution had failed to prove its case. The learned A.P.P. asserted that the learned Chief Judicial Magistrate, erred in appreciating the evidence that was brought before the Court. In order to appreciate his submission, one should examine the substantive evidence that has come on record. 4 The prosecution witness No.1, the original complainant stated that in 1991 he was working as Child Development Project Officer at village Navapur. He said, at that time the respondent No.1 Jagdish was working as Jr. Clerk of the Project and the respondent No.2 Goraji was working as the Assistant Commissioner for the Child Development Scheme at Navapur. He mentioned that the third accused Bhalerao was also working on the project at the relevant time. He said, prior to 1991, one S.A. Hiwale who was the Chief Accountant of the Zilla Parishad, came for audit of the accounts of the project. He said, Shri Hiwale found mis-appropriation of Rs. 1,10,000/-. He said, Hiwale then made a report to the Chief Executive Officer of the Zilla Parishad and also to the Child Development officer of Zilla Parishad. He said, thereafter the Child Development Officer asked him to lodge a complaint with Police against the present respondents and the third accused Bhalerao. Accordingly, he lodged the complaint. In the cross examination, he admitted that Hiwale had audited the accounts of the Project internally and he should have given an opportunity to the respondents and others to explain the anamolies. He admitted that no such opportunity was given to the respondents and others. Cri.apl.445/2006 3 5 The prosecution thereafter examined Savita, Ushabai, Kusum and Sumanbai as prosecution witnesses No. 3, 4, 5 and 7. All these witnesses simply stated that as the Anganwadi supervisor they collected contribution from the members of Public for the Child Development Project. They stated that they handed over the cash amount to the respondent No.1. They however, pleaded ignorance as to what the respondents had done to the amount. The prosecution declared them hostile and cross examined them. 6 The prosecution witness No.6 was one Kushal who said that he was working as driver in the Child Development Scheme’s office. However, this witness turned hostile to the prosecution case and was cross examined by the A.P.P.. Prosecution witness No.2 was a formal as he was the panch when the police seized the project record, cash book etc.. 7 Surprisingly, the Auditor Shri Hiwale never came before the Court as a prosecution witness. It was he who could have explained as to how the misappropriation had taken place and how false entries were taken by the Cashier. In absence of his deposition, obviously the learned judge of the trial Court could not record the finding in favour of the prosecution. I am also convinced that there is practically no evidence against the respondents and to the appeal should fail. ORDER The appeal stands dismissed. The bail bonds of the respondents if any, stand cancelled. (A.V. NIRGUDE, J.) ts k/ok Cri.apl.445/2006 4