1 Cri-Appeal-474-91.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPEAL NO. 474 OF 1991 Shivaji Bhanudas Lohar ) aged about 30 years, occ: Ironsmith ) and agriculture, residing at ) Pandharewadi, Taluka Pandharpur. ) District Solapur. )... Appellant Vs. (Orig. complainant) 1. Bhajandas Shivaji Phalake ) aged about 30 years, Occ: ) Agriculturist and Manager of ) Ration Shop, residing at ) Pandharewadi, Taluka ) Pandharpur, Dist. Solapur. ) 2. The State of Maharashtra ). Respondents (No. 1 - accused) Shri S.G.Kudle, Advocate, for the appellant. Shri P.M.Mengane, Advocate, for respondent No.1. Shri Y.M.Nakhwa, APP, for the Respondent No.2 - State. CORAM: J.H.BHATIA,J. DATE : 3rd December, 2010. JUDGMENT: 1. This Appeal is preferred by the private complainant against acquittal of the accused for the offences punishable under Sections 409, 420, 468 read with Sec. 34 of IPC by the learned J.M.F.C., Pandharpur, in Regular Criminal Case No. 2 Cri-Appeal-474-91.sxw 151 of 1985 by the impugned Judgment and order dated 5.11.1990. 2. The case, in brief, is that deceased accused No.1 Arun Mahadeo Ghate was the licensed Fair Price ration shop keeper for the village Pandhrewadi, Taluka Pandharpur and accused No.2 Bhajandas shivaji Phalake, who is present respondent No.1, was appointed as a Manager of the said ration shop. The accused persons used to receive sugar and other articles from the Government for distribution to the ration card holders attached to the Fair Price Shop. It was alleged that they had received such goods from the Government, but during the month of June 1985, they had disposed of the same by selling to the local grocery shop owner by charging higher charges and thus the ration card holders were deprived of the supplies to them. A complaint was made to the Collector, but no cognizance was taken. Therefore, the present appellant filed the private complaint. It was alleged that accused had misappropriated 394 k.gs. of sugar, 84.500 kgs. of edible oil and 86 kgs. of wheat total amounting to Rs.3,000/-. 3. The accused pleaded not guilty. The complainant examined himself and 4 other witnesses to prove the offence and to bring home guilt to the accused. 4. After hearing the evidence led by the complainant, the learned trial 3 Cri-Appeal-474-91.sxw Court came to conclusion that accused No.1 was the owner of the ration shop. The foodstuff supplied by the Government were to be distributed to the ration card holders at the price fixed by the Government. Thus, the goods were entrusted to them. Accused No.2 was the Manager to whom the powers of management of the shop were delegated by accused No.1 and this was also sanctioned by the Government. Therefore, the accused Nos. 1 and 2 both could be held guilty for misappropriation and breach of trust if they failed to supply the foodstuff to the ration card holders and if they disposed of the same in the open market by charging higher prices. However, in view of the evidence on record, the trial Court noted that PW-2 Abdul Rashid, who was serving in the District Supply Officer at Solapur, only stated that some complaint was made to the S.D.O., who had made some enquiry and had imposed some fine but he did not have the personal knowledge about the enquiry. It appears that in that enquiry, fine of Rs. 100/- was imposed. However, there is no material to show that the said enquiry was about non-supply or distribution of the foodstuff to the ration card holders. PW-4 Bramhadeo Lohar and PW-5 Balu Sawant were the ration card holders. According to them, during the month of June 1985, they had not received their ration supply. They were shown the receipt Nos. 256, 962 and 394 bearing thumb marks. PW-4 claimed that his thumb mark was on receipt Nos. 256 and 962. PW-5 denied that the receipt No.394 had his thumb mark. Admittedly, the said 4 Cri-Appeal-474-91.sxw documents were never referred to the finger print expert to establish that the thumb marks on the said receipts were not of those witnesses. 5. The evidence on record revealed that as per the procedure not only the signature or thumb mark of the person, who had received ration on the card, was to be obtained on the receipt, the shop-keeper was also to make entry of the ration supplied to the ration card holder on the said card every time. Even though there was allegation that large number of ration card holders from that village were not given their food supplies from the said shop, the ration cards were not produced before the Court to prove that supplies were not made If there would be no entry on the ration cards, but there would be entry in the register maintained by the accused that he had supplied, inference could be drawn that he must not have supplied goods to the ration card holder, but must have illegally disposed of in the market. However, in absence of such evidence before the Court, it was not possible for the Court to come to conclusion that accused had in fact disposed of the said foodstuff in the open market and that he had not supplied the same to the ration card holders. In absence of evidence as noted above, the accused could not be held guilty of any of the charges. Therefore, I do not find any fault in the order of acquittal recorded by the trial Court. 5 Cri-Appeal-474-91.sxw 6. For the aforesaid reasons, the Appeal Stands dismissed. (J.H.BHATIA,J.)