IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. 511 of 2000 Decided on: 7.12.2010 State of H.P. ..…Appellant Versus Om Parkash Tiwari ..…Respondent Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting?1No For the appellant : Mr. R.K. Sharma, Sr. Addl. A.G. For the respondent : Mr. Bimal Gupta, Advocate. Sanjay Karol, J. (Oral) For an offence, which is alleged to have been committed in the month of September, 1991, accused was put to trial. In terms of judgment dated 25.3.2000, passed by learned Chief Judicial Magistrate, District Kinnaur at R/Peo, H.P. in Criminal Case No. 151-2 of 94, titled as State of H.P. Vs. Om Parkash, accused stands acquitted of the charged offence. 2. It is the case of the prosecution that on 16th of July, 1993, Ramesh Bhardwaj lodged a complaint with Police Post, Kafnoo against the accused. On the basis of said complaint, FIR No. 56 of 93 (Ext. PW3/B) was registered at Police Station, Bhawa Nagar, under Section 409 IPC. SI Hem Raj (PW-13), ASI Shiv Ram (PW-4) and Shankar Singh (PW-11) carried out investigation. Investigation revealed that between the period 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 November 1992 and April 1993, accused received Rs. 63,000/- from five teachers namely, Ram Pal Sharma, Ravi Shankar, Jagat Ram, Ram Chauhan and Chet Ram Sharma, for depositing the same in the account pertaining to the Small Saving Scheme opened by them. However, same was misappropriated by the accused. It also revealed that a sum of Rs. 15,500/- was also received by the accused from Arun Lata, Bhag Devi, Varinder Singh, Roop Singh, Rajinder Singh and Roop Lal for the said purpose. Even, this amount was misappropriated by him. Accused also did not deposit a sum of Rs. 2076/- pertaining to the building funds and Rs. 2889/- pertaining to the Science funds, medical funds and sports funds received by him. Further, accused had been receiving a sum of Rs. 279/- in excess of his entitlement as a Senior Clerk. Thus, in all accused embezzled a total sum of Rs. 27,856.90 P. Government record was taken into possession. Specimen hand writing of the accused was sent for comparison with the record seized by the police and report obtained. With the completion of investigation, challan was presented in the Court for trial. 3. Accused was charged for having committed an offence punishable under Section 409 IPC, to which he did not plead guilty and claimed trial. 4. In order to prove its case, prosecution examined fourteen witnesses and the statement of accused under Section 313 Cr.P.C. was also recorded. 5. The Court below acquitted the accused of the charged offence. Hence, the present appeal. 3 6. At the threshold, we may point out that none of the teachers, who allegedly entrusted the sums to the accused for depositing the same in the Small Saving Scheme, have been examined in Court. Their statements under Section 161 Cr.P.C. were recorded but they were not examined in Court. Thus, this part of the allegation cannot be said to be proved. 7. The star witnesses of the prosecution appears to be Shri R.C. Bhardwaj (PW-8) and Dile Ram ( (PW-6). Careful scrutiny of their statements, as also statement of Shri Dina Nath (PW-10) further reveals that none of these witnesses have deposed that accused was entrusted with public funds or in the course of discharge of his duties was authorized and entitled to deal with the same. Except for a bald statement made by PW-8 to the effect that accused embezzled the amount in question there is no other corroborative statement on record. Even his statement is conspicuously silent with respect to particulars of the date of the specific and relevant entries. 8. Our attention has been invited to the record from which it appears that prosecution itself is not sure of its case. According to PW-6, who was posted as Section Officer in the office of the District Education Officer, alleged offence appears to have arisen out of negligence of the then Head Masters’ Dina Nath and Tilak Raj. Now, prosecution has not taken any action against them. Why so, is not clear ? According to the prosecution there is a short fall in the purchases made by the school. PW-6 clarifies that in fact purchases were made by the Head Master. Now, if this was so, then how is a clerk responsible for the short fall. According to PW-8, short fall was 4 discovered after he took charge and that too during the course of investigation of the case. No stock taking was done before charge was taken over by him. Short fall could have been even during his period. Accused cannot be held responsible for the lapses of the senior officials against whom no action has been initiated by the prosecution. 9. Even though Roop Lal (PW-1) states that PW-8 had produced bills pertaining to 28 items but admits that he was not aware as to whether accused had sign the same or not. 10. After careful appreciation of the evidence, to which our attention has been invited, it cannot be said that the prosecution has been able to prove the case as urged at the bar. It also cannot be said that the accused had withdrawn amounts in excess of what he was otherwise entitled to. 11. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (R.B. Misra), Judge. December 7, 2010, (Sanjay Karol), Judge. (vs) 5