IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 2 of 2008. Date of decision: March 30, 2011. Chuni Lal ….. Appellant. Vs. State of H.P. …. Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the appellant : Mr. M.S.Guleria, Advocate. For the Respondent : Mr. Ramesh Thakur, Assistant Advocate General and Mr. J.S. Guleria, Asstt. Advocate General. Surjit Singh, Judge (oral) . Chuni Lal, appellant is aggrieved by the judgement, dated 31.12.2007, rendered by Special Judge, Chamba, whereby he has been convicted of offences, under sections 409, 420, 467, 468, 120-B IPC and Section 13(2) of Prevention of Corruption Act and sentenced as follows:- (a) Ten years simple imprisonment and fine of Rs.10,000/- for offence, under Section 409 IPC; (b) Seven years simple imprisonment and fine of Rs.10,000/- for offence, under section 420 IPC. (c) Ten years simple imprisonment and fine of Rs.10,000/- for offence, under Section 467 IPC; Whether the reporters of the local papers may be allowed to see the Judgment? …2… (d) Seven years simple imprisonment and fine of Rs.10,000/- for offence, under section 468 IPC; (e) Seven years simple imprisonment and fine of Rs.10,000/- for offence, under Section 13(2) of Prevention of Corruption Act. 2. A report, under Section 173 Cr. P.C. was filed by the police against the present appellant and one Joginder Kumar. The appellant had been working as Range Officer, Tissa during the years 1989 and 1990. Joginder Kumar, his co-accused, was working as Forest Guard under him. According to the prosecution, appellant and his co-accused hatched a conspiracy to misappropriate government funds received for nursery and other projects of the forest department by forging receipts and preparing bogus muster-rolls showing engagement of labourers for various purposes. In pursuance of that conspiracy, they prepared bogus muster-rolls, vouchers, bills amounting to Rs. 26436/- and withdrew the money from government treasury. Chuni Lal at the time of his transfer in August 1989, did not hand over the cash in hand showing a balance in the cash book amounting to Rs.484.01 to his successor PW 10 Tej Singh. He also did not hand over certain utensils worth Rs.1495/- to his successor. He collected a sum of Rs.62995/- on account of royalty, Rs.16156/- for export permits and Rs.40113/- for grazing permits, but deposited the aforesaid amount after a gap of about six months and thus misappropriated these amounts, though temporarily. He also misappropriated temporarily an amount of Rs.6696/- drawn for disbursement to the labourers, because the disbursement was made …3… six months after the withdrawal of money from the treasury. Also, he issued 207 T.D. permits without having any legal authority to do so and thus caused loss to the tune of Rs.57,12,787.60 to the State exchequer. Also, he falsely showed distribution of 20500 broad leave plants worth Rs.4100/- to the people of the area and misappropriated the said amount of money by forging papers that those plants had been distributed. 3. The matter was reported to the D.F.O. by the successor Range Officer of the appellant, who in turn reported the same to the Conservator of Forests. On the basis of that report a case was got registered by the Conservator of Forests against the appellant and his co-accused Joginder Singh vide FIR Ex. PW 4/A. During the course of investigation, various documents including the allegedly bogus muster-rolls, receipts regarding deposit of royalty, export fee, vouchers and bills alleged to be false were taken into possession. Statements of the persons, who were employed as per muster-rolls were also recorded. On completion of investigation, challan under Section 173 Cr.P.C. alongwith relevant papers was filed in the court. 4. Trial court after complying with the requirement of Section 207 of the Code of Criminal Procedure and hearing the learned Public Prosecutor and learned defence counsel, as also going through the record felt that a prima facie case, under the aforesaid penal provisions of law was made out against the appellant and his co- accused. They were charged accordingly. They pleaded not guilty. They were, therefore, put on trial. …4… 5. Prosecution examined 70 witnesses including some of the persons, named as labourers, in the muster-rolls numbering 38. It also examined large number of forest officials. 6. 37 out of 38 witnesses, named as labourers in various muster-rolls, which are Ext. PW 50/A, Ex. PW 50/A-1 to Ex. PW 50/A- 4, Ex. PW 10/6-2 to Ex. PW 10/6-19, have been examined. All of them denied having received the money shown against their names in the muster-rolls. However, prosecution’s own evidence suggests that it was not the appellant, who used to disburse the wages, but it were Block Officer and Forest Guard under him, who were responsible for disbursement of wages. Reference in this behalf may be made to the testimonies of PW 50 Parkash Chand and PW 43 Chander Shekher, both forest guards, and also to endorsements made on muster- rolls Ext. PW 50/A and Ex. PW 50/A-1 to Ex. PW 50/A-14 purported to be written and signed by Lachhman Dass, Block Officer. Endorsements are written in first person by one Lachhman Dass, Block Officer. Prosecution has not examined this Lachhman Dass, Block Officer, nor has it led any evidence to show that endorsements are not correct or Lachhman Dass had nothing to do with the disbursement of the wages to the labourers, named in the muster-rolls. Therefore, the allegations regarding non-disbursement of wages to the labourers or delay in disbursement of wages made against the appellant cannot be said to have been proved. 7. However, the evidence on record fully proves the charge of embezzlement, though temporary. Appellant deposited a sum of Rs. 56279/- in the government treasury in the month of November …5… 1989 or say about three months after his handing over the charge to his successor PW 10 Tej Singh on his transfer. No plausible explanation for retention of this huge amount of money for a such long period has been offered by the appellant. 8. Learned counsel representing the appellant submits that Tissa, the place where appellant was posted being far off from Chamba, where government treasury existed could not deposit the money within time because of long distance. Submission has been noticed only to be rejected. If the reason for delay in deposit of the money was the distance, why did not the appellant hand-over the aforesaid amount of money to his successor PW 10 Tej Singh, while handing over the charge to him in August 1989. This fact alone is enough to jump to the conclusion that he had misappropriated the aforesaid amount of money and was not in a position to account for the same when he handed over the charge to PW 10 Tej Singh in August 1989 and deposited the money three months later in the government treasury at Chamba after arranging it. We do not find any evidence with regard to the allegation of forgery of receipts, vouchers or the muster-rolls. Learned trial court has also not made any reference to the evidence of alleged forgery in its judgement, though it has convicted the appellant of various offences falling in the category of crime of forgery. 9. In view of above discussion, we partly accept the appeal. The conviction of the appellant for offence, under Section 409 IPC, for temporarily embezzling government money, is upheld. For rest of the offences, his conviction and sentence are set-aside. …6… 10. Learned counsel representing the appellant submits that appellant is 72 years old and that it is a case of temporary misappropriation of government money for a period of about 4-5 months and therefore, leniency may be shown in the matter of award of punishment. Record shows that appellant is an old man of 72 years. The loss caused by him to the government has also been made good by him. So we take a lenient view and reduce the sentence of substantive imprisonment to the period of imprisonment already undergone by him (after conviction by the trial court) and to pay a fine of Rs.50,000/-. Appellant is stated to have already deposited a sum of Rs.50,000/- with the trial court. The trial court shall verify the fact and in case the appellant has not deposited the money or the money deposited by him falls short of the amount of fine imposed hereby, it shall take steps to realize the fine due. The appeal stands disposed of. ( Surjit Singh ), Judge. March 30, 2011. ( Kuldip Singh ), (Hem) Judge.