IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.6 of 2003 Decided on: April 7, 2011 Nitan Shah .. Appellant. Versus State of HP .. Respondent Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. M.S. Chandel, Senior Advocate with Mr. N.S. Chandel, Advocate. For the Respondent : Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, Judge (oral) Appellant Nitan Shah has appealed against the judgment, dated 17.12.2002, of learned Special Judge (Forests), Shimla, by which he has been convicted of offences, under Sections 409, 467, 471, 477-A and 13(2) of the Prevention of Corruption Act and sentenced to undergo imprisonment for three years and to pay a fine of `5000/- for each of the offences, under Sections 409, 467, 477-A IPC, to undergo imprisonment for two years and to pay a fine of `3000/- for offence, under Section 471 IPC and to undergo imprisonment for one year and to pay a fine of Whet her report ers of t he l ocal papers may be al l owed t o see t he j udgment ? É2É `1000/- for offence, under Section 13(2) of the Prevention of Corruption Act. 2. Prosecution case, which led to the trial and conviction of the appellant, may be stated. Appellant was appointed as Junior Accountant in Bombay Branch of HPMC in the year 1981. His job included handling of cash and writing the account books. In the year 1988, he was promoted as Senior Assistant. Because of his promotion, he was directed to handover the charge to PW-10 Susheel Shankar Gangan. Charge was handed over by the appellant to PW-10 Susheel Shankar Gangan on 28.6.1988. Cash Book Ext. PW7/H, showed cash balance of `1,46,217.56 on that date. However, vide charge handing over report Ext. P-24, only a sum of `8749.50 was accounted for out, of which a sum of `2750/- was stated to have been given in advance to three different persons. However, nobody reported to anybody, not even PW-10 Suhseel Shankar Gangan, that there was shortage of cash. 3. In March, 1992, PW-7 H.K. Kaushik, joined as Assistant Accounts Officer in the Bombay Branch of HPMC. He came to know that there were bogus entries in the account books, reflecting payment of `50,000/- to two business concerns, having dealing with H.P.M.C., namely M/s Shah Brothers and M/s George Omen. He came to know about the bungling only when he received complaint Ext. PW7/A from M/s Shah Brothers, in the month of April, 1992 É3É and another complaint from George Omen in August, 1992. He reported the matter to General Manager PW-12 Shekhar Gupta, who, in turn, further reported the matter to police vide letter Ext. PW12/A. Case was formally registered vide FIR Ext. PW15/A. 4. During the course of investigation, three cash books, subsidiary ledger, certain vouchers, receipt books etc. were taken into possession from the Bombay Branch of HPMC. Entries in cash books Exts. PW7/H, PW7/L and PW7/Q, regarding payment of `50,000/- to each of the aforesaid two concerns, were sent to Government Examiner of Questioned Documents, for comparison with the specimen and admitted writings of the appellant. Handwriting Expert, namely PW-11 B.A. Vaid, vide opinion Ext. PW11/41, opined that entries were in the hand of the appellant. 5. Two vouchers, in original and photostat copies of two other vouchers, regarding disbursement of a sum of Rs.60,000/- to the aforesaid two concerns, were also sent to the Handwriting Expert for comparison, with the standard writings of the appellant. Bodies of all the four vouchers (two original and two photostat copies) were opined to be written in the hand of the appellant. 6. On completion of investigation, report, under Section 173 Cr. P.C. was drawn and submitted, alongwith relevant papers, in the Court of learned Special Judge É4É (Forests), Shimla. Copies of the report, under Section 173 Cr. P.C. alongwith documents attached therewith, were supplied to the appellant by the trial Court. Thereafter, learned trial Court heard both the sides and went through the record and felt that a prima-facie case, under the aforesaid provisions of IPC and Prevention of Corruption Act, was made out against the appellant. He was charged accordingly. Appellant pleaded not guilty. Therefore, he was put on trial. 7. Prosecution examined 15 witnesses and proved various documents to bring the charge home to the appellant. Appellant denied that he had misappropriated any amount of money. 8. Trial Court concluded that the appellant had committed criminal breach of trust, in respect of amount of `1 lac and also committed the offence of forgery by forging vouchers and also the offence of using forged documents as genuine, by making aforesaid forged entries in the account books . He was also held guilty of falsification of account books, i.e. the cash books. Consequently, he was convicted and sentenced, as aforesaid. 9. I have heard learned counsel for the appellant as also learned Assistant Advocate General and gone through the record. 10. Learned trial Court has mainly relied upon the circumstance of appellant having not handed over the entire É5É amount of cash-in-hand, as reflected in Cash Book Ext. PW7/H to PW-10 Susheel Shankar Gangan, at the time of handing over the charge, to come to the conclusion that he committed defalcation of an amount of ` 1 lac and to cover up the act of defalcation, he forged the vouchers and made false entries in the cash books. It rejected the plea of the appellant that he did hand over the entire amount of money, shown as cash-in-hand, when the charge was handed over and that cash-in-hand included the cash which was supposed to be available with the other sub-centres of HPMC, but the same had been entered in the main cash book, maintained in the branch where he was posted, with the reasoning that a suggestion was thrown to PW-10 Susheel Shankar Gangan, in the course of his cross- examination that the entire amount of `1,40,000/- and odds had been handed over to him. Here the learned trial Court has erred. Though such a suggestion was thrown to PW-10 Susheel Shankar Gangan, in the course of cross- examination, yet in the very next breath it was suggested that only a sum of `8700/- and odds was available as actual cash in hand and that the rest of the cash was with the Incharge of the Cold Store and other two sub-centres. These suggestions have not been taken into account by the learned trial Court, while jumping to the conclusion that the appellant had admitted that he had actual cash to the tune É6É of `1,46,271.56 at the time when charge was handed over to PW-11 Susheel Shankar Gangan. 11. PW-10 Susheel Shankar Gangan though stated that he had pointed out to the Incharge of the Branch, namely PW-14 B.R. Padiar that the cash that was handed over to him was short, yet he admitted that he made no complaint, in writing, either to B.R. Padiar or anybody else. B.R. Padiar, in his testimony as PW-14, categorically stated that it had not been pointed out to him by PW-10 Susheel Shankar Gangan even orally that the cash handed over to him was short. 12. Otherwise also, if the appellant had the entire amount of `1,46,271.56 with him and he had handed over, out of that amount, only `8700/- and odds, there was supposed to be shortage of cash to the tune of `1,38,000/- and odds. It is nobody’s case that the appellant has defalcated an amount of `1,38,000/-. Charge is of defalcation of ` 1 lac only. Not only that the charge is like that, but evidence is also to this effect. PW-10 Susheel Shankar Gangan, when in the witness box, admitted that as per cash book, there is no shortage of additional amount of `38000/-. The fact probabilizes the defence plea that the entire amount of cash-in-hand in the cash book was not actually available in the Branch, but also included the cash, which was available in other sub-centres. É7É 13. There is an entry in cash book Ext. PH, which is dated 25.6.1988, suggesting that a sum of `58647.75 was cash in hand, on account of cold store account. 14. Coming to the accusation of forgery, according to the prosecution, there were seven vouchers, on the basis of which bogus entries in the cash book were found. PW-5 K.K. Gupta, MD, who accorded sanction for the prosecution of the appellant, stated that when the report was presented to him, with the request for grant of sanction, there were seven vouchers, in original. However, in the Court only two vouchers, in original, i.e. Ext. P-20 and P-21, have been produced. There are also two photostat copies of two other vouchers. Vouchers Exts. P-20 and P-21 pertain to a sum of `10,000/- each. In one voucher, Ext. P-20, payment is shown to have been made to George Omen concern and in the other, Ext. P-21, payment is shown to have been made to M/s Shah Brothers. Vouchers purport to be signed by the recipient of the money. Purported signatures are Q-10 on Ext. P-20 and Q-13 on Ext. P-21. 15. Handwriting Expert has not given the opinion that the aforesaid signatures are forged. His opinion is confined only to the writing of the bodies of the vouchers and these writings have been opined to be in the hand of the same person, who wrote specimen writings, marked S-1 to S-7 on Exts. P-27 to P-33 and admitted writings marked A-1 to A-6 on Exts. PW11/17 to PW11/22, which are proved É8É to be of the appellant. There are entries in subsidiary ledger in the accounts of M/s George Omen and M/s Shah Brothers, corresponding to these vouchers and those entries in the subsidiary ledger are not only not proved to be in the hand of the appellant, but one of the entry, i.e. entry encircled in red and marked D at page 2 of subsidiary ledger Ext. PW7/G, is proved to be in the hand of one R.K. Verma. The fact is testified by PW-7 H.K. Kaushik. It is on the basis of this entry that there is corresponding entry in the cash book, copy of which entry is Ext. PW7/P. 16. Second voucher Ext. P-21 also has a corresponding entry in the subsidiary ledger Ext. PW7/J in the account of M/s Geroge Omen. Entry in the subsidiary ledger, on the basis of which entry Ext.PW7/J in cash book has been made, is not shown to be in the hand of the appellant. So is the case with respect to the photostat copies of vouchers Exts. P-22 and P-23. There is no opinion that the purported signatures of the recipient of money are forged, because these purported signatures were not subjected to comparison by the Handwriting Expert. Also, there are corresponding entries in the subsidiary ledger, aforesaid and there is no evidence that entries in the subsidiary ledger are in the hand of the appellant. 17. Prosecution has offered no explanation for withholding the original vouchers of photocopies Exts. P-22 and P-23 nor has it offered any explanation for withholding É9É remaining three vouchers. Even the photostat copies of the other three vouchers have not been proved. Prosecution is liable for adverse inference for not producing original of Exts. P-22 and P-23 and also for withholding other three alleged forged vouchers. 18. It is true that PW-8 George Omen and PW-13 Vikram Bhailal Shah, husband of one of the partners of M/s Shah Brothers, testified that they had not received the amounts entered in the cash book and that the vouchers Exts. P-22 and P-23 are also not signed by them, but they offered no plausible explanation for not lodging any complaint for the allegedly bogus entries of payment of `50,000/- to each of them. Explanation offered by them was that they came to know about the bogus entries only when they were supplied copy of statement of account in the year 1991 and on comparison of those statements with their own account books, they found that they had not received the amount, shown to have been paid against the alleged bogus entries. The witnesses denied the suggestion that statements of accounts were supplied to them every year. But another witness of the prosecution, namely PW-14 B.R. Padiar, Assistant Accounts Officer in Bombay Branch of HPMC, very categorically stated that statements of accounts used to be supplied to all the account holders every year. The witness did not say that the above named PW-8 George Omen or PW-13 Vikram Bhailal Shah, ever complained that É10É the entries, in question, regarding payment of `50,000/- to each of them, were bogus or that they had not received the money mentioned against those entries. 19. Prosecution also did not produce account books maintained by M/s Shah Brothers or M/s George Omen, to seek corroboration to the testimony of PW-8 George Omen and PW-13 Vikram Bhailal Shah that in their cash books there were no entries, corresponding to the alleged bogus entries. 20. In view of the above discussion, this Court is of the considered view that this is not a fit case for conviction. Hence, the appeal is accepted, impugned judgment, convicting and sentencing the appellant, is set aside and he is acquitted. April 7, 2011 (ss) (Surjit Singh), J.