IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 233 of 2007. Date of decision: March 16, 2011. State of H.P. ….. Appellant. Vs. R.S.Rawat …. Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the appellant : Mr. Vikas Rathore, Dy. Advocate General with Mr. Ramesh Thakur, Asstt. Advocate General. For the Respondent : Mr. M.S.Guleria, Advocate. Surjit Singh, Judge, (oral) . State has appealed against the judgement dated 23.4.2007 of learned Special Judge, Mandi, whereby respondent R.S.Rawat, who was tried for offences, under Sections 409, 467, 468, 120-B IPC and Section 5(2) of Prevention of Corruption Act, 1947 read with Section 13(2) of Prevention of Corruption Act, 1988, has been acquitted, on the ground that there was no sanction for his prosecution, under Section 197 of Code of Criminal Procedure. 2. Prosecution’s case as per evidence adduced during trial is that in the year 1987 respondent R.S.Rawat was working as Head- clerk-cum–Cashier in the office of Project Director, Desert Development Project, Kaza. The Project Director, namely PW 22 Whether the reporters of the local papers may be allowed to see the Judgment? …2… Deepak Sanan, sanctioned Rs.2,00,000/- for construction of Veterinary Hospital at Kaza. The work was to be executed through Public Works Department, and therefore, money was required to be remitted to Executive Engineer (PWD), Kaza. That money was remitted by respondent R.S.Rawat by means of two cheques i.e. Ex. P-2 and Ex. P-3. 3. The Project Director PW 22 Deepak Sanan had issued a (self) cheque Ex.P-4 for Rs.2,00,000/-. The cheque was handed over to respondent R.S.Rawat for encashment. Respondent encashed that cheque. An entry was made in the cheque-book with regard to the receipt of amount of cheque from the bank. It is alleged by the prosecution that after withdrawal of the amount of said cheque, respondent entered into a conspiracy with Dharam Chand, Sub Divisional Clerk in the office of Executive Engineer, PWD, Kaza to misappropriate Rs.1,00,000/- out of the aforesaid amount of Rs.2,00,000/- received by the respondent on encashment of cheque Ex. P-4. To give practical shape to that conspiracy, a receipt regarding payment of Rs.1,00,000/- by the respondent to said Dharam Chand, Sub Divisional Clerk in the office of Executive Engineer, Kaza was prepared. The same is Ex. PW 4/D. In this receipt, it was mentioned that a sum of Rs.1,00,000/- had been paid to Public Works Department by means of a draft bearing No. A/147-0258093. As a matter of fact, this was the number of cheque Ex.P-4, against which, a sum of Rs.2,00,000/- had been withdrawn by the respondent. However, the date of the draft in the receipt Ex. PW 4/D was of another cheque, i.e. Ex. P-2, one of the two cheques, …3… against which payment had already been made to Executive Engineer by book transfer. Case was registered against the present respondent, as also said Dharam Chand. Dharam Chand was also charged alongwith the present respondent for the aforesaid offences. Unfortunately, Dharam Chand died during the pendency of the trial and case as against him abated. 4. Prosecution examined a number of witnesses. The witnesses so examined included PW 18 Sudershan Bir, whose statement was recorded on 1.1.2004. Several entries including a few entries in the ledger book and also some vouchers supporting the entries in the ledger book were also proved. Respondent denied that he had embezzled the amount of Rs.1,00,000/- or the receipt Ex. PW 4/D, which was alleged to be bogus, was not genuine. 5. Trial court taking note of the statements of only a few of the witnesses and also a few documents proved by the prosecution, concluded that respondent had embezzled an amount of Rs.1,00,000/- and had prepared bogus voucher Ex. PW 4/D. However, it acquitted the respondent, as already noticed, on the ground that sanction, under Section 197 of the Code of Criminal Procedure, had not been obtained to prosecute him. 6. We have heard learned Assistant Advocate General as also learned counsel representing the respondent and scanned the prosecution evidence. 7. It is not a case where sanction, under Section 197 of the Code of Criminal Procedure, was required for prosecuting the respondent, because he is not a public servant, who cannot be …4… removed by or with the sanction of the government. He was only a Head-Clerk-cum-Cashier and could have been removed by an Officer of the government, who was his appointing authority and no sanction of the government was required. Otherwise also, in a case where the allegation is of falsification of accounts and preparation of bogus vouchers, no sanction is required, because this kind of illegal acts cannot be said to have been performed by a government servant in the course of discharge of his duties, as such servant. 8. As regards the merits of the case, we find that learned Sessions Judge has taken lop-sided view of the matter, inasmuch as, he has not taken into consideration the testimony of some of the witnesses of the prosecution, which is quite relevant, both from the view point of the prosecution, as also the defence and has also not considered some very vital documents. For example testimony of PW 18 Sudarshan Bir and entries in the ledger book regarding payments to PWD Department, for the work in question, and vouchers supporting such entries which were duly proved by the prosecution have not been looked into. We are purposely not expressing our views with regard to the probative value of the left out evidence, so that prejudice is not caused to either side. We could have ourselves decided the matter on merits, but since the trial court has given the finding on fact without taking into consideration the entire material evidence, our deciding the case in appeal by taking into consideration the entire evidence, may deprive affected side of the right of appeal against finding of fact, based on evidence not considered by the trial court. …5… 9. In view of above discussion, we accept the appeal, set- aside the judgement of the trial court and remand the case to the trial court with a direction to decide the same afresh on merits. The trial court shall, now, not allow the plea of want of sanction to be raised before it, because of our having categorically held hereinabove that sanction was not required in this case. Case shall be decided by the trial court within two months of the receipt of the record and appearance of the parties before it. Trial court’s record be remitted with a copy of this judgement immediately and in any case, by 18.3.2011. ( Surjit Singh ), Judge. March 16, 2011. ( Kuldip Singh ), (Hem) Judge.