IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Appeal No .515 of 2001 Decided on : 28.07.2008 State of H.P. Appellant Versus Tek Chand Respondent Coram: The Hon’ble Mr.Justice Surinder Singh.J. Whether approved for reporting ?1.yes. For the appellant : Shri J.S.Guleria, Law Officer. For the Respondent : Shri N.S.Shandil, Advocate. Surinder Singh, J. The respondent was tried and acquitted for the offences under sections 408 of the Indian Penal Code in case No. 71 / 2 of 94 decided on 16th June, 2001 by the trial court, which has been assailed in this appeal. In brief, the allegations on which the respondent was put on trial are that the accused being incharge of the sale depot of Himachal Pradesh State Civil Supplies Corporation Limited, at the retail shop, Mandhol w.e.f. 12.7.1984 to 10.04.1986 and subsequently at the retail shop,Kasumpati w.e.f. 11.04.1986 to 26.12.1987 misappropriated the amount of Rs.86,032-13 paise, out of which 1 Whether the reporters of Local Papers may be allowed to see the judgment ? yes 2 Rs.42,101-45 paise have been recovered and balance was still recoverable. The aforesaid alleged embezzlement was detected during the audit. The Area Manager reported the matter to the police and FIR Ex.PW12/B was registered. During the investigation of the case, police took into possession the day book Ex.P1 regarding vegetable, day book parchoon Ex.P2, stock register for the year 1987-88 Ex.P3, stock register Ex.P4 for the year 1987-88, documents regarding appointment and posting of the respondent were also taken into possession by the police. The audit report Ex.P-7 prepared by Suresh Chopra (PW3) was also taken into possession by the police. During the investigation of the case, specimen writing and signatures of the respondent were also taken before the Executive Magistrate and sent for comparison to the handwriting expert. Statement of the witnesses were recorded and after completing the investigation, challan was presented in the court for trial. Respondent pleaded not guilty to the charge and claimed trial. To prove its case, the prosecution examined its witnesses and the respondent was also examined under section 313 of the Code of Criminal Procedure. He denied the circumstances put to him and alleged false implication but no evidence was led in defence. Shri J.S.Guleria, learned Law officer has relied upon the statements of Suresh Chopra (PW3) Audit Inspector and Dr.B.R.Sharma, (PW10) Questioned Document Expert. 3 Shri N.S.Shandil, learned counsel for the respondent has supported the impugned judgment of acquittal and argued that neither PW3 Suresh Chopra nor PW10 B.R.Sahrma, could prove the ingredients of offence against the respondent. I have given my thoughtful consideration to the rival contentions of the learned counsel for the parties and carefully gone through the evidence on record. PW3 Suresh Chopra had conducted the audit of the retail shop, Kasumpati and proved the audit report Ex.P7 on record. He had handed over the record of the aforesaid retail shop to the police vide memo Ex.PW1/A. He further stated that in the stock register, quantity was found to be less but the stock statement (MarkA) which was shown to him during the trial of the case, annexed with the report Ex.P7 did not bear the signatures of any person. PW1 Ram Gopal is the witness to the fact of handing over the record Ex.P1 to Ex.P4 to the police and PW2 Trilok Chand is another witness of the same fact. PW10 B. R. Sharma had examined the disputed documents and stated that the writing and signatures on the documents tallied with the admitted writing and signatures, which are allegedly that of the respondent. Report is Ex.PW10/D. As a matter of fact, in the instant case what is incumbent upon the prosecution is to prove that the respondent in his capacity as sales man of the retail shop was entrusted with the 4 property or with any dominion over it; further that he had dishonestly misappropriated that property or converted it for his own use or used it or disposed it of or willfully suffered some other person to do so in violation of any direction of law prescribing mode in which such trust was to be discharged or of any legal contract express or implied which he had made touching the discharge of such trust. In the instant case, I do not find any evidence led by the prosecution to prove the entrustment or with any dominion over property by the respondent. It is only PW3 Suresh Chopra that during the audit he found certain discrepancies in the stock register, day book and vouchers but none of these documents were shown to him during the proceedings of this case nor it has been explained as to how the items mentioned in Mark-A accompanied with the report Ex.P7/A were entrusted to the respondent. Further the stock statement (Mark –A) is an unsigned document. The quantity, which has been shown in less in his report Ex.P7, was based upon the stock register of the said retail shop but that register was not shown to him during the trial of the case. PW3 has admitted that during the audit, the respondent was transferred from that retail shop. The audit report Ex.P7 shows that the opening balance as on 1.4.1987 was shown as closing balance for the purpose of physical verification i.e. 1.4.86 to 31.3.87 and from 1.4. 87 to 4.9.87. Against this background it was incumbent upon the prosecution to prove, as already stated above, the main ingredients of the offence i.e. entrustment or dominion over the property by the respondent . To prove these 5 facts, there is no evidence on record. Said witness also admitted about having conducted no physical verification during the aforesaid period, therefore, on the basis of incomplete audit report, the respondent cannot be held guilty nor there is any evidence that he had dishonestly misappropriated the amount, which is sine-qua- non. Therefore, in these circumstances, I find that the learned trial court has committed no error in acquitting the respondent by giving him benefit of reasonable doubt. Accordingly, the appeal is dismissed. July 28, 2008 (Surinder Singh),J. (D)