IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 296 of 2002 along with Cr. Appeal No. 297 of 2002. Date of Decision : 15.10.2011 _________________________________________________________ Cr. Appeal No. 296 of 2002. State of H.P. ….Appellant Versus Govind Singh ….Respondent. Cr. Appeal No. 297 of 2002. State of H.P. ….Appellant Versus Nirath Singh ….Respondent _________________________________________________________ Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 _____________________________________________________________ For the Appellant: Mr. R.K. Sharma, Sr. Additional Advocate General. For the Respondent (s): Mr. Jagdish Vats, Advocate. ______________________________________________________________ Dev Darshan Sud, J. (oral) Both these appeals are being disposed of by this judgment as they arise out of a common judgment in appeal passed by the learned 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 Sessions Judge, Kinnaur Sessions Division at Rampur Busahr reversing the judgment of the trial Court sentencing and convicting both of them for offence under Section 409 read with Section 34, IPC. 2. The prosecution case in brief is that respondents Neerath Singh and Govind Singh were working as Sub Postmaster and Extra Daily Delivery Agent ( EDDA) in the sub branch Post Office, Ghattu, Tehsil Nirmand. In this capacity, they were thus agents of the Government. Both these respondents had misappropriated money orders of Rs.180/- each to be paid as old age pension to Smt. Chhunki Devi. Neerath Singh had been entrusted with Money Order No. 9110/43, dated 12.11.1992 for a sum of Rs.180/- and Govind Singh was entrusted with Money Order No.430/32 for the same amount. These money orders could not have been paid to Chhunki Devi as she had died on 18.1.1992, according to the Gram Panchayat record. The prosecution case is that they had committed criminal breach of trust and should be prosecuted and punished for that. 3. The defalcation came to the notice of PW7 Phula Chand, Sub Divisional Postal Inspector, Rampur Bushahr, who reported this matter in his written complaint Ex. PW5/A to the Police Station, Nirmand to register a case and the FIR was recorded by ASI Khub Ram, PW5. During the course of investigation, the police took into possession appointment order of Neerath Singh as Sub Post Master, Ex. PW6/B, money order form bearing No. 9110/43, Ex.PW6/C and money order form bearing No. 430/32, Ex.PW6/D, daily account sheets dated 20.12.1992 and 17.2.1993 Ex. PW6/F and ExPW6/G. The death certificate of Smt. Chhunki Devi, Ex. PW6/E was also brought on record. Handwritings of the accused etc, were also sent for comparison. 3 4. The prosecution examined 10 witnesses to prove its case. Puran Chand (PW1), Khem Chand (PW2) and Smt. Bimla Devi (PW3) are the witnesses to the seizure memos etc. PW3 Bimla Devi was declared hostile as she has refused to support the prosecution case. 5. Phula Sigh (PW7) stated that he had remained as Inspector in Post Officer Rampur Bushahr in the year 1994 and had filed complaint EX.PW5/A with Police Station, Nirmand. Smt. Chhunki Devi had been awarded Old Age Pension of Rs.180/- by the State of H. P. which was being sent through money orders. He has stated that Govind Singh was working as Extra Daily Delivery Agent and Neerath Singh was Branch Post Master at Post Office, Ghattu. He had received complaints from the general public that the accused were not making payments of money orders etc. After conducting an inquiry, he found that these two persons had misappropriated a sum of Rs.180/- each of the two money orders Ex. PW6/C and Ex.PW6/D. In cross-examination he admitted that she had been identified by Shri Hari Ram and Om Prakash (both of these persons have not been examined by the prosecution in evidence) and that the person in whose name money order, registered letters or VPP parcels had been entrusted for disbursement were not personally known to the employees of the Post Office. Shri Bhim Chand (PW8), Additional Chief Judicial Magistrate, Rohru had obtained the specimen signatures and handwritings of the two accused. 6. Adverting to this evidence on record, trial Court holds that the factum of death of Chhunki Devi on 18.1.1992 is established by Ex. PW6/E. Two money orders Ex.PW6/C and Ex.PW6/D of Rs.180/- each were payable to Chhunki Devi widow of Hirdu Ram of village Kandu. The 4 trial Court concluded that the accused persons had obtained the thumb impression of Smt. Chhunki Devi in the presence of Om Prakash and Hari Ram and thereafter they had appended their signatures to the respective money orders certifying payment. Govind Singh signed on 23.11.1992 and whereas there is no date below the signature of accused Neerath Singh. From this the learned trial Court holds that both the accused had premeditated intention/design to misappropriate the money entrusted to them. On the defence that two persons namely Hari Ram and Om Prakash, who are vital to the case as they had identified Smt. Chhunki Devi had not been examined in the case, the trial Court holds that their examination of no consequence as the other evidence on record establishes the complicity of the accused. On the precedent in J.D. Aggarwal vs. State of U. P. A.I.R. 1981, S.C. 1646 and State of Orissa versus Shayam Sunder Rath and another, 1984(2) Crimes-35, learned trial Court holds that these are on different facts and are not applicable in the present case. It, therefore, proceeded to sentence the accused for offence under Section 409, IPC to undergo simple imprisonment for three years and to pay fine of Rs.2,000/- each. 7. Both the accused/respondents appealed before the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr. Learned Sessions Judge re-appreciated the entire evidence on record. Submission made by the prosecution that both the accused have written on the money orders that the amount is paid to the payee, the learned Appellate Court considers evidence of PW7 Phula Singh and in particular his cross-examination where he admitted that the employees of the post office did not know the address of the payee personally and in this 5 circumstance, it is mandatory on their part to pay/disburse money order on identification of the payee by a witness. He had admitted that Hari Ram and Om Prakash were identifiers of the payee. With respect to money order No. 9110/43 supposed to have been disbursed by Govind Singh, it was categorically recorded that this was done in the presence of Hari Ram, who has identified the payee and attested the payment. Similarly, in the case of money order No. 430/32, the amount of Rs.180 was paid to Chhunki Devi which was attested by Om Prakash, who had identified the payee. In these circumstances, it was but necessary and incumbent for the prosecution to have examined both these persons, who were vital to unfold the case as to how they had identified a dead person and attested the payment having been made to her. It was not the case where the prosecution was expected to multiply the number of witnesses on the same issue but to have examined only witness to the fact of having identified the payee and attested the payment. 8. Adverting to the judgment of the trial Court, the learned Appellate Court holds that the learned trial Court in paragraph-22 of its judgment accepts that the accused/respondents were not personally known to the payee nor there is any evidence on record to establish the fact that they in fact knew her. The prosecution had no complaint with respect to the identification of the deceased and attestation of the payment by these two witnesses. Learned Appellate Court then also consider the cross-examination of PW7 Phula Singh, who had admitted that there could be a number of persons of the same name within the operation area of branch of sub Post Office Ghattu and that the possibility 6 of the payment having been received by one out of these persons cannot be ruled out. 9. On the aspect urged by the prosecution that in the past number of complaints had been received against these two persons of non payment of money orders, the learned Appellate Court holds that except the oral testimony of Phula Singh, PW 7 there is no other material on record to establish this fact. In the totality of the facts and circumstances of the case, the appeal was accepted and the judgment of the trial Court was reversed by the learned Sessions Judge. 10. Learned Senior Additional Advocate General urged that learned Appellate Court was wrong in reversing the well reasoned judgment of the learned trial Court and the fact that Chhunki was dead which has been proved beyond reasonable doubt on record by death certificate Ex.PW6/E was itself sufficient to have brought home the guilt to the accused. This argument though logically sound cannot be accepted in the present facts and circumstances of the case. We need not reiterate the evidence of Phula Singh who admitted (a) that accused persons were not familiar with Chhunki Devi (b) that the payment had been attested and the payee was identified by Hari Ram and Om Prakash (c) that both these persons have been withheld from evidence for reasons best known to the prosecution for which there is no explanation on record (d) that these persons were vital rather the only link to establish as to how they had identified a dead person and attested the payment made to her. On this reasoning, we cannot differ with the learned Appellate Court. We find that the trial Court has been cryptic and had brushed aside every argument on facts on record consistent of the innocence of the respondents. We are not 7 unmindful of the fact that criminal breach of trust is a serious matter irrespective of the amount involved. But surely if such offence is to be establish, it is incumbent for the prosecution to prove this fact by clear and cogent evidence which we find lacking in the present case. We therefore find no merit in these appeals which are accordingly dismissed. Bail bonds furnished by the respondents are discharged. (R.B. Misra) Judge October 15, 2011 (Dev Darshan Sud), (jai) Judge