IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No.406 of 2002. Judgment reserved on : 4.5.2009. Date of decision: 5.5.2009. State of Himachal Pradesh …Appellant. Versus Gian Singh ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No. For the Appellant : Mr. Anshul Bansal, Additional Advocate General. For the Respondent : Mr. Jagdish Vats, Advocate. __________________________________________________________ Kuldip Singh, Judge This appeal has been directed against the judgment dated 18.12.2001 passed by the learned Sub Divisional Judicial Magistrate, Rampur Bushahr, in case No.63-2 of 1998 acquitting the respondent under Section 408 IPC. 2. The prosecution case, in brief, is that PW-1 Lokinder Singh, Area Manager, Himachal Pradesh State Civil Supplies Corporation (for short ‘Corporation’) addressed a letter Ex.PW-1/A to Incharge, Police Station, Kumarsain and on that basis FIR Ex.PW-8/A was registered against the respondent. The respondent was posted salesman of the Corporation at retail shop, Khaneti from 1.4. 1997 to 24.10.1997. PW-1 had reported that respondent had embezzled Rs.91, 361.95 at retail ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes. 2 shop, Khaneti of the Corporation. PW-6 ASI Om Parkash, investigated the case and took into possession various documents. PW-3 Rattan Lal Goyal had prepared the audit report Ex.PW-3/A and physical verification report Ex.PW-3/B of retail shop, Khaneti. On completion of investigation, challan was presented against the respondent for commission of offence punishable under Section 408 IPC and accordingly charge was framed. The respondent pleaded not guilty and claimed trial. The prosecution has examined eight witnesses and placed on record several documents. The statement of respondent was recorded under Section 313 Cr.P.C., he denied the prosecution case but led no evidence in defence. The learned Sub Divisional Judicial Magistrate acquitted the respondent, as noticed above, hence this appeal. 3. I have heard Mr. Anshul Bansal, learned Additional Advocate General for the appellant and Mr. Jagdish Vats, Advocate, learned counsel for the respondent and have also gone through the record. The learned Additional Advocate General has submitted that the learned Judicial Magistrate except referring proposition of law has not discussed the evidence on record. The prosecution has examined eight witnesses and has placed on record documentary evidence. The oral and documentary evidence produced by the prosecution proves the case against the respondent, but the learned Judicial Magistrate has not considered the oral and documentary evidence of the prosecution. The learned counsel for the respondent has supported the impugned judgment. He has submitted that after 12 years the impugned judgment may not be set-aside only on the ground that the learned Judicial Magistrate has not discussed the evidence extensively in the impugned judgment. 4. The learned Judicial Magistrate after referring proposition of law has observed that in absence of mensrea or criminal intention criminal prosecution cannot be legally justified. A finding has been recorded that 3 accused had deposited the amount and indemnified the loss to the Corporation without any efforts of the Corporation. In the impugned judgment, the learned Judicial Magistrate has referred statements of witnesses but has not discussed even a single statement of any witness or document. He has not recorded a finding why the statements of witnesses and documents placed on record are not reliable. In absence of discussion of evidence, it cannot be said that the learned Judicial Magistrate has applied mind on the pointed question of proof of charge under Section 408 IPC against the respondent. The scope of civil liability and criminal liability has not been discussed. Therefore, the impugned judgment is not sustainable and is liable to be set-aside. 5. The result of the above discussion, the appeal is allowed. The judgment of acquittal dated 18.12.2001 passed by the learned Sub Divisional Judicial Magistrate, Rampur Bushahr, District Shimla in case No.63-2 of 1998 is set-aside. The case is remanded to the trial Court. The case is quite old and therefore, the learned Sub Divisional Judicial Magistrate, Rampur Bushahr, is directed to decide the case afresh on or before 31st October, 2009. The parties through their learned counsel are directed to appear before the trial Court on 22.5.2009. The Registry is directed to transmit the record of the Court below immediately, so as to reach before the said Court well in time. May 4, 2009 ( Kuldip Singh ), (GR) Judge.