HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A.No.: 58 of 1993 Decided on: 25.11.2008 State of Himachal Pradesh ………Appellant. Versus Madan Mohan and another ………Respondents. 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, Deputy Advocate General. For respondent No.1: Mr.Sanjeev Bhushan, Advocate. For respondent No.2: Mr.Anup Rattan, Advocate. Per V.K. Ahuja, J: This is an appeal filed by the State of H.P. under Section 378 of the Cr.P.C. against the judgment passed by the learned Special Judge, Solan, dated 29.4.1992, vide which the respondents were acquitted of the charge framed against them under Sections 409 and 120-B of the IPC and Section 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act, 1988. The prosecution story in brief is that on receipt of an information about the misappropriation of pipes in the store of Division No.II of the Irrigation and Public Health Department at Saproon, Deputy Superintendent of Police (Vigilance), Solan carried out checking of the said store during the period from 17.7.1990 to 19.7.1990. It was found during the course of checking that pipes ______________________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - of various dias measuring 3704 metres, valued at Rs.1,95,621/- were found short. Pipes of various dias measuring 4045 metres, valued at Rs.2,32,769/- were found in excess. During the relevant time, respondent Madan Mohan, Junior Engineer, was the Incharge of the Store, while respondent No.2 Santosh Kumar, a daily rated worker, was the Store Keeper. On the basis of the report made by the Dy.S.P., an FIR was registered and after completion of the investigation, the challan was filed and the respondents were tried by the learned trial Court leading to their acquittal. We have heard the learned counsel for the parties and have gone through the entire evidence. A perusal of the impugned judgment shows that the main ground taken by the learned trial Court in acquitting the respondents was that mere shortage in all cases would not fall within the mischief of criminal breach of trust. It was also observed that a public servant having dominion over the property might have been negligent in the performance of his duties. It was also held that the negligence does not fall within the ambit of Section 409 of the IPC and none of the witnesses examined by the prosecution has stated about the accused having committed misappropriation of pipes. It was also observed that the documents placed on record do not point out towards this. The learned trial Court had referred to the statement of the Investigating Officer PW-14 Ram Kumar, Dy.S.P., who has prepared the list Ext.PW-1/A and has stated that the said list was prepared without carrying out actual inspection at the spot. He has admitted that the pipes of various sizes were found in each stack and he had counted the number of pipes, but it is surprising that he did not deem it necessary to measure all the pipes found in the store. According the statement of PW-3 Puran Dutt, who was present at the - 3 - time of checking conducted by the Investigating Officer PW-14 Ram Kumar, one pipe from each stack was measured by the Investigating Officer out of the group of five and this has been corroborated by the statement of PW-7 Raj Kumar also. It appears that PW-14 Ram Kumar, the Investigation Officer, had not measured all the pipes and average length of each pipe was taken by him. Once there were pipes of different sizes and all the pipes were not measured, it cannot be said that there was misappropriation of the pipes of various dias measuring 3704 metres. This assumes more significance, particularly, when the pipes of various dias measuring 4045 metres valued at more amount of Rs.2,32,769/-, against the value of missing pipes of Rs.1,95,621/-, were found in excess. The learned trial Court had not concluded as to how the pipes were found in excess or these were found in excess since all the pipes were not measured and the possibility that the respondents were negligent in not mentioning the complete details of the pipes found, which were also not measured individually by the Investigating Officer, leading to the conclusion that some pipes were found in excess. It was for the prosecution to explain as to how the pipes of more values were found in excess than the one allegedly misappropriated and this may be due to the fact that the details of all the pipes were not properly entered in the register leading to this conclusion that there was some misappropriation of pipes. The learned trial Court had observed that every article of store received in the store vide a goods receipt is entered in the Bin Card and the said Bin Cards were not proved on record leading to the conclusion that the prosecution has failed to prove their case beyond any reasonable doubt. We are in agreement with the said conclusion drawn by the learned trial court and in such circumstances, we need not express our opinion on the two other grounds taken by the learned trial Court in acquitting the respondents, namely, in regard to the - 4 - preliminary inquiry held or the grant of sanction, whether it was valid or not since the prosecution had failed to prove their case in regard to misappropriation. Therefore, the findings recorded by the learned trial Court cannot be said to be perverse calling for an interference by this Court. In view of the above discussion, we hold that there is no merit in the appeal filed by the State of Himachal Pradesh, which is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged. (Deepak Gupta), Judge. November 25, 2008. (V.K. Ahuja), (TILAK) Judge.