HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 81 of 1995 Reserved on: 6.3.2009 Decided on: 12.3.2009 State of Himachal Pradesh ……… Appellant. Versus Anil Kumar ………Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.R.M. Bisht & Rajesh Mandhotra, Deputy Advocate Generals. For the respondent: Mr.Adarsh K.Vashisht, Advocate. Per V.K. Ahuja, J.: This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment, dated 24.1.1994, of the court of ld.Judicial Magistrate Ist Class, Mandi, vide which the respondent was acquitted of the charge framed against him under Sections 420, 467 and 468 of the IPC. Briefly stated the facts of the case are that the respondent was working as a Clerk in Himachal Pradesh Welfare Department and was posted in the office of District Welfare Officer, Mandi. It was alleged that while working as a Clerk, he sent a sum of Rs.26,568.80P. to his relatives or friends, which was to be sent to the persons who were receiving pension from the department concerned. One of the money order so sent was sent to one Pritam Singh at Purani Mandi ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - and postal authorities suspected since the person, who appeared to receive the pension was of the age of 20-22 years and was not a fit person to claim any pension. The matter was brought to the notice of District Welfare Officer by the postal authorities. An enquiry was held and it was found that a large number of amounts have been sent to several persons instead of the persons who were to receive the same as pensioners. It was found that some amount had already been delivered to addressees and some amount was still to be delivered which was sent by the respondent as pension. It is further the case of the prosecution that the amount which was not disbursed was recovered by the postal authorities by informing the concerned officials, which was deposited with the District Welfare Officer. It was also alleged that some money orders were sent by the respondent in the name of his relatives and friends and he used to collect the amount thereafter from them. A complaint was made to the police on which FIR was registered and after registration of the case, the challan was filed before the learned trial Court, who tried the respondent leading to his acquittal. We have heard the learned Deputy Advocate General for the State and the learned counsel for the respondent. We have been taken through the record of the case as well as through the judgment recorded by the learned trial Court giving the reasoning for acquittal of the respondent. The main point to be decided in this case was as to whether the respondent was dealing with cash while working as a Clerk and whether it was part of his duty to send money orders to the pensioners. The next question to be considered was as to whether the money orders, so sent to various persons wrongly, were in the hand writing of the respondent which could have proved that these money orders were wrongly sent to some persons instead of the eligible pensioners. Thus, the facts could have been easily proved by the prosecution by producing some witness from the District Welfare Officer, who could have proved the duties of the respondent and the fact that the respondent - 3 - was entrusted with this money, but surprisingly the prosecution has not taken any steps to prove this part of the evidence. There has to be entrustment of money to the respondent and then the next question would have arisen for consideration if it was sent wrongly by him. The prosecution was required to prove the money orders so sent by the respondent and his hand writing and specimen signatures were required to be proved by the prosecution, in which they have failed. A perusal of the record shows that the respondent was produced before the Judicial Magistrate for taking out the specimen hand writing/signatures but he refused to give the same. Therefore, no specimen hand writings were taken out. However, some admitted hand writing and signatures could have been sent to the expert alongwith the hand writing and signatures on the money orders, which could have easily proved if the money orders were in the hand of the respondent. However, the said evidence is lacking as shall be discussed below. The prosecution had examined 19 witnesses to substantiate their case. The statement of PW-1 Prithvi Singh only proves that one money order form and application were presented to the police, which was taken in possession in his presence apart from the cash book and its photocopy. PW-2 Gaytri Devi has stated that she received a money order of Rs.1200/- and after 3-4 months, the officials from the office came back and told her that it was wrongly sent and they took the money back from her. The statement of PW-3 Narender Kumar is not material, who had turned hostile. PW-4 Saligram, Assistant District Welfare Officer, is a witness to the taking in possession of the ledger. PW-5 T.R. Negi, Post Master from the Post Office, had given the vouchers of money orders Ext.P- 26 to P-50, which were taken in possession by the police in his presence. PW-6 Prabh Dayal Sharma had proved the appointment and posting order of the respondent. PW-7 H.C. Chuni Lal had taken in possession one receipt of Rs.1260/- produced by one Pritam Singh. PW-8 H.C. Desh Raj and PW-9 SHO - 4 - Roshan Singh are not material since they had only recorded the statements under Section 161 of the Cr.P.C. PW-10 Gaytri Devi stated that she had received one money order of Rs.1200/-, which she returned to the officials and has proved her signatures on the money order receipt Ext.P-32. PW-11 Harnam Singh, District Welfare Officer, has stated that the respondent was working with them. He conducted an enquiry and prepared a list of the MOs sent alongwith the names of the persons which have been sent wrongly and he submitted the report and has stated that the MO forms were bearing the signatures of the respondent, which were never proved. PW-12 Joginder Kaur has stated that she received amount twice and her mother-in-law was receiving the pension which she received and the respondent was a tenant with her. PW-13 Sh.Hukam Chand is a witness to the recovery memo vide which the MO forms were taken into possession. PW-14 H.C. Mastana Ram had taken in possession some record from the Post Office, Mandi including the MO forms. PW-15 ASI Prem Lal had taken in possession the copies of the money order receipts. PW-16 Gaytri Devi has stated that the respondent was living in their neighbourhood and she returned the money in the evening to the officials of the Department which was received by her in the morning. She turned hostile and had not supported the prosecution case. PW- 17 Shri A.K. Sharma had submitted an application for taking specimen signatures and he has proved the copy of the application as Ext.PW-14/A. PW-18 Constable Jagdish Chand is a witness to the recovery of office order pertaining to respondent and has proved the FIR. PW-19 Bahadur Singh, Sub Post Master, has stated that one Pritam Singh came to take the money order and he asked him to bring identification and then he informed the District Welfare Officer about these facts. On appraisal of the evidence led by the prosecution, it is clear that once the accused had refused to give his specimen signatures and hand writing, no - 5 - steps were taken by the prosecution or the investigating agency to prove the admitted hand writing and signatures of the respondent from the record, which could have been available and then the same should have been sent alongwith the money orders or part of money order in which the signatures are of the recipients, to the hand writing expert. But no steps were taken for comparison and no such report of the expert has been proved on record. In the absence of the said evidence, it cannot be said that the respondent had sent the money orders and these were in his hand writing and signatures and these were wrongly sent by him. It could have been easily proved by the prosecution that these money orders were wrongly sent since they were not the original pensioners entitled to the amount. It is also on record that some amount already received by the respondent though these money orders from the persons to whom these were sent was deposited by the respondent and copy of the challan is attached with the file, but regrettably the same was not proved on record to show that this amount was deposited by the respondent at his own instance during the course of the enquiry proceedings conducted against him. A perusal of the record shows that there is some letter from the Head of the Department of the respondent, Ext.DA, that the criminal action be dropped since action has been taken against the respondent and his increments have been stopped. This clearly shows that the Department of the respondent had proceeded in a casual manner. Without taking notice of the fact as to whether in fact his increments were stopped or action was taken against him since the department recommended the dropping of criminal proceedings, we are of the opinion that the Department is at liberty to take action according to law departmentally against the respondent in regard to these allegations, if no action has been taken so far, and proceed in accordance with law. The manner in which the investigation was conducted shows that it was not conducted in a proper manner. In case any employee has been entrusted with the money and - 6 - he misappropriates the same, this should not be taken lightly and action should be taken against such erring employee in accordance with law in a criminal court as well as departmentally. But, in the present case, keeping in view the above discussion, the findings recorded by the learned trial Court that the prosecution had failed to prove their case cannot be termed as perverse and call for no interference by this Court. In view of the above discussion, we accordingly hold that there is no merit in the appeal filed by the State of H.P., which is dismissed accordingly. However, we direct that a copy of this judgment be sent to the Head of Department of the respondent, namely, Director, Social and Women’s Welfare in view of the observations made above. The bail bond furnished by the respondent shall stand discharged. (Deepak Gupta), Judge. March 12, 2009. (V.K. Ahuja), (TILAK) Judge - 7 -