1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 46 of 1997 Decided on: May 27, 2010. State of H.P. ..Appellant. Versus Rajinder Kumar ..Respondent Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? For the Appellant : Mr. Rajinder Dogra, Additional AG with Mr. Vikas Ratore, Dy. AG For the respondents : Mr. Rakesh Jaswal, Advocate. Justice R.B. Misra,J (Oral). The present Criminal Appeal has been preferred under Section 378 (3) of the Code of Criminal Procedure and after the leave to appeal has been granted in reference to the judgment dated 29.6.1996 passed by learned Judicial Magistrate, 1st Class, Court No.II, Amb, District Una, HP in case No. 41-1/92/27-II/94, under Sections 409,467,468, 471 IPC. 2. In order to adjudicate the present appeal, it is necessary to give the factual background of the case. The prosecution story which emerges from the evidence, led before the trial court is that the accused was working as Secretary, Ado Patehar Co-operative Agriculture Service Society during the period from 1.1.1982 to 31.12.1982. Being a Secretary, he was entrusted with receipt and payment of society money on behalf of the society, but accused misappropriated the amount received from the account holders and 2 for doing so, he prepared forged documents and made false entries in the accounts as well as pass books of various persons. He also withdrew money from the accounts of various account holders. In all, he committed embezzlement of Rs. 12,438.69 during the aforesaid period. The embezzlement of misappropriation, fraud and cheating on the part of the accused came in the light at the time of audit inspection of the society in the year 1986. Accordingly, case was registered against the accused under sections 409,467,468, 471 IPC. 3. In order to prove its case, prosecution has examined as many as 11 witnesses, whereas on behalf of defence, complete denial has been made of the prosecution case. 4. PW-1, Tilak Raj, Inspector of the Cooperative society has stated that he was working as Inspector of the Co operative Society, Una, since 1992. Prior to him, Achhar Singh was the Inspector and he was conversant with the handwriting and signatures of Achhar Singh. According to PW-1, abstract of report Ex PW1/A, special report Ex PW1/B and details of amount Ex PW1/C are in the hand of Achhar Singh and these exhibits have been signed by him. 5. PW-2, Swarnu Devi has deposed that she was having account in the society. A loan of Rs 2000/- has been shown in her account, but she never took this loan. According to PW-2, this amount has been withdrawn by some person after forging her signatures. 6. PW-3 is the bank official, who has been examined by the prosecution to prove the statement of account and withdrawal forms. 7. PW-4 has stated that he was having account in the society in question. According to PW-4, he had adjusted the entire 3 account and deposited the amount due to him. He came to know that loan was still standing in his name. 8. PW-5, PW-6 and PW-11 are the witnesses of the same facts as deposited by PWs 2 to PW-4. PW-8 is formal witness who had prepared challan of the case being SHO. PWs 9 and 10 are the Investigating Officers. 9. We have examined the prosecution witnesses and the material on record. It may be noted that the audit of the society was conducted in the year 1986 by the then Inspector (Audit) Cooperative Societies, Una, namely, Achhar Singh and at that time the accuse was the secretary of the society in question. So the entire case of the prosecution is based on the audit report of which Achhar Singh was the author. However, Achhar Singh could not be examined by the prosecution as he was not alive. Though the prosecution has examined PW-1, Tilak Raj to prove the audit report in question, but in cross examination, PW-1 had categorically stated that he knows nothing about this case. As such, the testimony of PW-1 is relevant to the extent it relates to audit report in question. In absence of Achhar Singh, true picture of audit report cannot be divulged. In his absence, various important aspects of the case remained unexplained. So much so, the prosecution has also failed to prove that at the relevant time the accused was Secretary of the Society in question when the alleged occurrence took place, whereas in the statement, under section 313 Cr.PC, the accused himself has admitted that he was Secretary of the society but since at relevant time, a cashier was deployed who was dealing the cash transaction. Many witnesses have been examined by the prosecution to prove the money was 4 deposited in their accounts, but the amount was misappropriated and false entries were made in the pass books of the account holders. To prove the facts as to whether the amount was deposited in the account or not, cash books could be the most important documents, but no such entry in cash book was said to have been made by the accused. Prosecution has not been able to prove that the false entries made in the cash books were in the hands of accused person. There is no evidence on record to prove that the accused has cheated the account holders and was solely responsible for withdrawing the money of the account holders. None of the account holders stated that it was the accused alone, who had withdrawn the money from their accounts. No experts were even examined to test such aspect also. 10. In our considered view, prosecution has failed to prove its case against the accused beyond reasonable doubt and has failed to bring home the guilt to the accused. Therefore, we do not find any scope of interference in the decision given by learned trial court. In view of the aforesaid facts and circumstances, the present criminal appeal being devoid of any merit is dismissed. The bail bonds furnished by the accused are discharged. ( R.B. Misra ), Judge May 27, 2010 ( V.K. Ahuja ) (sl) Judge