HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.329 of 1997. Decided on: August 27, 2010. State of H.P. …Appellant. VERSUS Som Nath ….Respondent. Coram The Hon’ble Mr.Justice R.B.Misra, Judge. The Hon’ble Mr.Justice V.K.Ahuja, Judge. Whether approved for reporting?1 For the Appellant: Mr.Rajinder Dogra, Addl.AG. For the respondent: Mr.Malay Kaushal vice Mr.Ramakant Sharma, Advocate. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to judgment dated 31st July, 1996, passed by learned Sub Divisional Judicial Magistrate, Nalagarh, District Solan, in Criminal case No.92/2 of 1991, thereby acquitting the respondent for offence under Sections 406, 409, 420 and 468 of the Indian Penal Code. 2. The prosecution case is that, the accused, while working as Secretary of Majra C.A.S. Society Ltd. (for short referred to as ‘society’), committed certain financial irregularities in the Whether the reporters of the local papers maybe allowed to see the judgment? …2… year 1988-89 and in that respect, the Inspector (Audit / Co-operative Societies, Solan District) found the following irregularities, as noted below:- (a) At Page 101 of the ledger, a sum of Rs.12,000/- has shown to have been received from Smt.Bant Kaur in respect of amount withdrawn by her from her account No.80 whereas said Smt.Bant Kaur had never withdrawn any amount from her account No.80. In this way, the accused person had made fictitious entry in the records and mis-appropriated this amount for his own use. (b) At Page 102 of ledger, a sum of Rs.6100/- was disbursed as loan to the members of the society but the accused person has shown this amount as Rs.26,100/- and as such mis-appropriated a sum of Rs.20,000. (c) At Page 107 of the ledger, the accused person credited in the account of society a sum of Rs.5133.47 on account of sundaries on 24.3.1989 but debited this amount in the account of the society on the next date i.e. 25.3.1989. There are no supporting vouchers of this account. (d) The accused person received a sum of Rs.400/- from Shri Som Nath against his …3… account No.118 and a sum of Rs.60/- from Smt.Sardi Devi against A/c No.155 and entered this amount in their pass books but he did not account for this amount in the account of the society. 3. In reference to such irregularities indicated by the audit, F.I.R. No.148 of 1989 was lodged and on investigation the respondent / accused was charged for the above offences. 4. In order to prove its case, the prosecution has examined as many as fifteen witnesses, whereas, the respondent / accused, to his statement under Section 313 Cr.P.C., has denied the charges and prosecution case. 5. We have gone through the prosecution witnesses and materials on record. We notice that despite endeavour, the prosecution has neither placed the appointment letter of the respondent / accused on record nor any resolution, passed by the society, whereby it could be known as how the respondent / accused was appointed as Secretary of the society. Prosecution has also not been able to bring anything on record to indicate that as to what duties were assigned to the respondent / accused as Secretary of the said society. Nothing has been brought on record by the prosecution by way of oral or documentary evidence that all the records were to be maintained by the Secretary …4… only. The Audit was conducted in absence of the respondent and the report was submitted behind his back. So much so, the prosecution has also not been able to prove the entrustment of the money to the respondent / accused while deployed as Secretary in the society. 6. The entire case of prosecution is based upon the entries recorded in the cash book, ledger and pass books. To prove these entries, the prosecution has relied upon the report of the hand- writing expert Ext.PW15/A. PW-15 Shri R.K.Jain, had compared the questioned entries allegedly made by the respondent / accused on the basis of specimen writing obtained by PW-12 Shri Suresh Kumar Bhardwaj, Executive Magistrate. The Executive Magistrate could not be authorized to obtain specimen writing of the respondent / accused under Section 73 of the Evidence Act, as such, the report of the hand-writing expert, which is based upon specimen writing, obtained by PW-12, is not admissible in evidence in view of the decision of Hon’ble Supreme Court in Sukhvinder Singh & Others versus State of Punjab, 1994 SCC (Cri) 1376. 7. On the basis of prosecution witnesses and material on record, we notice that the respondent / accused has been charged for embezzlement of a total sum of Rs.20,000/-. However, during trial the evidence led by the prosecution only discloses …5… the alleged embezzlement of Rs.14,460/-. We also notice that the respondent / accused had withdrawn a sum of Rs.12,000/- from A/c No.80 of Smt.Bant Kaur and subsequently he had deposited the said amount. As per entries at Page-56 of the ledger Ext.P-5, this amount was withdrawn on 4.1.1989 and returned on 25.6.1989. Entries of withdrawal and deposits are marked as Q-11 and Q-12. Besides this the prosecution has produced no evidence to prove that these entries are in the hand of the respondent / accused. In these circumstances, entries Q-11 and Q-12, which forms the basis of this charge, has not been proved on record. Besides these, there is no evidence on record to show that the respondent / accused has actually withdrawn such amount and misappropriated the same. 8. Regarding preparation of forged promissory note for Rs.3000/-, the prosecution has alleged that the signatures of Shri Bhag Singh on this note have been put by the respondent / accused. However, no witness has been produced to prove that the respondent / accused has made these signatures. There is no evidence on record that the amount of this promissory note was firstly withdrawn by the respondent / accused and thereafter deposited by him, as such, the charge of forgery and embezzlement cannot be said to have been proved. …6… 9. Another charge against the respondent / accused is regarding misappropriation of Rs.60/- which PW-5 Smt.Sardi had given to respondent / accused for depositing that amount in her account. As per prosecution case, the respondent / accused had received this amount from PW-5 and made entries in her pass book Ext.P-6 and ledger Ext.P-5 but he did not account for this money in the ledger. This charge is based upon the observation at Page-8 of the audit note Ext.P-1, however, this charge is not substantiated on record because the amount of Rs.60/- had been duly accounted for at Page-184 of the ledger vide entry Ext.Q-15 and in the cash book Ext.P-4 at Page-110, as such, mis-appropriation of Rs.60/- is not proved. 10. Another allegation is in respect of Rs.400/- received by the respondent / accused from PW-8 Shri Bhola Ram and entries to this effect were made in his pass book Ext.PW-6/A and ledger Ext.P-5 but the respondent did not made entry in the cash book Ext.P-4. PW-8 has stated that he had given Rs.450/- to the respondent / accused, however, he had not stated that on which date he had given this amount to the respondent / accused. The entries Q-17 in pass and Q-14 in the ledger, which have been allegedly made by the respondent / accused in his hand, have not been proved on record or no witness had been produced who had seen the …7… respondent making these entries. PW-8 has stated that he had paid Rs.450/- but the audit report and ledger show this amount as Rs.400/-. In these circumstances also, the prosecution has not been able to prove its case. 11. On analysis of the testimonies of prosecution witnesses, materials on record and keeping in view the facts and circumstances of the case, learned Judicial Magistrate has rightly come to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt to the accused and there is no scope for interference in the impugned judgment and the criminal appeal, being devoid of any merit, is accordingly dismissed. 12. Bail bonds, furnished by the respondent, are hereby discharged. ( R.B.Misra ), J. August 27, 2010. ( V.K. Ahuja ), J. (soni) …8…