- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR O R D E R S.B.CR.LEAVE TO APPEAL NO.83/2002 (Heera Lal Vs. Shikhar Chand) ***** S.B.CRIMINAL LEAVE TO APPEAL UNDER SECTION 378(4) CR.P.C. ***** DATE OF ORDER::-17-09-2008 P R E S E N T HON'BLE MR.JUSTICE S.P. PATHAK Mr.Biri Singh,for the petitioner Mr.Nitin Jain & Mr.Kamal Porwal, for the respondents BY THE COURT: This appeal has been filed under section 378(4) Cr.P.C. against the judgment and order dated 19.11.2001 passed by the Addl. Sessions Judge, Malpura in Appeal No.23/2000, whereby the judgment and order dated 12.9.2000 passed by the learned Judicial Magistrate, Toda Raisingh in Cr.Case No.765/96(303/89) has been set aside and accused was acquitted of the charge under Section 408 I.P.C. Briefly stated the facts for disposal of this criminal leave to appeal are that complainant filed a complaint in the trial court against the accused respondent alleging therein that - 2 - he was a contractor and he employed the accused respondent as his assistant to look after the work of Theka and in this regard accused drew a sum of Rs.48,000/- from the Bank on 5.2.1988 and out of the above amount only Rs.21,000/- were paid to the labourers and rest of the amount i.e. Rs.27,000/- was embezzled by him. The learned trial court on filing the complainant, after recording the statements under section 200 & 202 Cr.P.C. took cognizance against the accused under section 406 I.P.C. and on giving appearance by the accused before the trial court, a charge under section 406 I.P.C. was framed. In all 3 witnesses were produced by the complainant. In the statement recorded under section 313 Cr.P.C. the accused denied the allegations made in the complaint and in his defence produced 7 witnesses and also got exhibited a partnership deed. During the course of trial charge was also altered from one under section 406 to 408 I.P.C. and thereafter hearing both the sides, the learned trial court convicted and sentenced the accused respondent under section 408 I.P.C. vide judgment and order dated 12.9.2000. The appeal preferred by the accused respondent was accepted by the learned Addl. Sessions Judge, Malpura, Tonk on 19.11.2001 setting aside the impugned judgment passed by the trial court convicting and sentencing the accused respondent. It is contended by the learned counsel for the appellant that the learned appellate court committed illegality - 3 - in setting aside judgment of the trial court as the case under section 408 I.P.C. was made out. On the other hand, the learned counsel for the accused respondent argued that there is no evidence at all and in the matter on previous occasion also a complaint was filed that was dismissed. I have considered the submissions made before me and perused the impugned orders and the material available on record. It is to be seen that in the instant case, the learned trial court committed illegality inasmuch as that charge was altered from Section 406 to 408 I.P.C. and thereafter, no opportunity to cross examine the witnesses examined earlier was given to the accused respondent. It further appears that by leading defence evidence and by producing Ex.D1 i.e. partnership deed that shows that appellant-complainant and the respondent both were partners. If that is so then how the accused can be held guilty under section 408 I.P.C. It also appears that in the instant case, at the initial stage complainant lodged a First Information Report in the Police Station, which resulted into final report as the police found that it was a matter of civil nature. The learned trial court did not consider all these aspects of the matter. The learned appellate court with reasons recorded its findings and set aside the impugned judgment passed by the trial court. It also appears from the material placed on record prior to filing this complaint - 4 - by the complainant, on previous occasion also, a complaint was filed, which was dismissed. In view of above factual aspect of the matter and the legal aspect of the matter, no case of entrustment was proved. Therefore, the submissions made by the learned counsel for the appellant require to be rejected and the criminal leave to appeal is liable to be rejected. In view of above discussion, finding no merit in this case, the criminal leave to appeal stands rejected. (S.P.PATHAK) J. BKS/-