IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 386 of 1999 Date of Decision : August 03, 2010 State of H.P. …Appellant. Versus: Mohan Lal …Respondent-accused. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Rajesh Mandhotra, Dy. A.G. For the respondents : M/s. Neel Kamal Sood & Anup Chitkara, Advocates Deepak Gupta, J. (Oral). This appeal by the State is directed against the judgment dated 7.6.1999 delivered by the learned Judicial Magistrate Ist Class (II), Shimla, in Cr. Case No. 7/2 of 1993, whereby he acquitted the accused of having committed an offence punishable under Section 409 IPC. 2. Briefly stated the facts of the case are that accused Mohan Lal was posted as Incharge of Retail Shop, Himachal Pradesh State Civil Supplies Corporation Ltd, (for short HPSCSC) Auckland from 5.5.1989 to 21.2.1990. According to the prosecution, PW-2 Mohinder Singh Jinta, Sales Supervisor of 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 HPSCSC conducted the inspection of retail shop in January, 1990 and found extraordinary shortage of essential commodities. Accused Mohan Lal was transferred to the Head Office and Lachmi Nand, Incharge of the Sales Depot of Housing Board Colony, Jakhu was directed to take over the charge of the Sales Depot at Auckland, Shimla. According to the prosecution, the accused person avoided handing over the charge and, therefore, Sh. Lachmi Nand in the presence of Sh. Ashok Kumar Gupta, Assistant Manager, HPSCSC, Shimla, was handed over the charge on 21.2.1990. Thereafter, Sh. Rasal Singh, Accountant, Area Office, Shimla was directed to conduct the audit of the stock/funds of the said depot and submit the audit report for the period 1.4.1989 to 21.2.1990. This audit report was examined by PW-3 Suresh Chopra, Accounts Officer, and it was found that the accused had misappropriated and embezzled goods to the tune of Rs.60,795.98 paise. According to the prosecution, the accused had sold the stock of the essential commodities, such as Levy sugar, Rice, Wheat, Atta, Edible Oils etc. in the open market in black and for his personal gain and deprived the Card holders of their right to get ration of subsidized rates during this period. 3. To prove its case, it was incumbent upon the prosecution to have shown that what was the amount of material and cash which was handed over to the accused, when he took the charge of the Auckland Depot on 5.5.1989; what was the amount of material supplied to him during the period he was Incharge of the Depot i.e. from 5.5.1989 to 21.2.1990; and finally what was the 3 material and cash actually found at the time of taking over the shop on 21.2.1990. 4. Though in the complaint, it was stated that the accused took over the charge of Auckland Depot on 5.5.1989 and he was transferred to Auckland Depot, Shimla on 26.4.1989, the audit report is for the period 1.4.1989 to 21.2.1990. The audit report had to be from the period 5.5.1989 and not from 1.4.1989. The accused cannot be directed to explain the shortage, if any, from 1.4.1989 to 5.5.1989. The audit was conducted by Sh. Rasal Singh, who has not been examined. He was the most important witness and it was he alone who could have proved the audit report. The audit report has been proved in the statements of PW-1 & PW-3 but not by the author of the audit report. Therefore, the audit report cannot be used against the accused. 5. According to the prosecution, since the accused avoided handing over the charge to Lachmi Nand, on 21.2.1990 the charge of the depot was taken over by Lachmi Nand in the presence of Sh. Ashok Kumar Gupta. It was they alone who could have proved as to what was the stock and material taken over by Lachhmi Nand. Neither Lachmi Nand nor Ashok Kumar Gupta were examined in Court. Therefore, the prosecution has miserably failed to prove what was the material actually entrusted to the accused and what was the material took over by Lachmi Nand and in the presence of Ashok Kumar Gupta. No doubt, Ext.P4, charge list has been exhibited during the statement of PW-1, but this does not prove the contents of the documents which could have 4 only been proved by examining the person who had taken over the charge of the material and not by examining some person from the office to whom the charge report was sent. 6. The learned trial Court came to the conclusion that the specimen handwriting of the accused was obtained during investigation of the case and in view of the law laid down by the Apex Court in Sukhbinder v. State of Punjab (1994) 5 SCC 152, the so called admitted handwriting could not be used for comparison and, as such, the report of the Handwriting Expert could not be used at all. There is no error in this part of the judgment of the learned trial Court. 7. In view of the above discussion, we find that the prosecution has failed to prove that the documents were signed by the accused; that particular quantity of goods was handed over to the accused and that there was shortage in the stock. Therefore, the learned trial Court rightly acquitted the accused. There is no merit in the appeal, which is accordingly dismissed. The bail bonds are discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. August 03, 2010. (rana)