HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A.No.: 203 of 1994 Reserved on: 23.9.2008 Decided on: 21.10.2008 State of Himachal Pradesh ………Appellant. Versus Om Parkash ………Respondent. 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 the respondent: Mr.Romesh Verma, Advocate. Per V.K. Ahuja, J: This is an appeal filed by the State of H.P. against the judgment passed by the learned Additional Chief Judicial Magistrate, Shimla, dated 5.6.1993, vide which the respondent was acquitted of the charge framed against him under Sections 409, 465, 467 and 468 of the Indian Penal Code. Briefly stated the facts of the case are that Assistant Superintendent of Post Office conducted the inspection of the branch of respondent where he was posted as Sub Post Master at Sub Post Office, Jathia Devi during the period 1981 to 1983. He found that some amount has been misappropriated by the respondent which was entrusted to him by the depositors and it was also found that the respondent had forged the entries in pass books pertaining to the accounts of several persons. The case was registered and after investigation, ______________________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. the challan was filed as against the respondent, who was tried by the learned trial Court under the sections mentioned above leading to his acquittal. We have heard the learned counsel for the parties and have gone through the record of the case. A perusal of the charge sheet shows that the respondent is alleged to have misappropriated a sum of Rs.1,310/-, which was allegedly deposited by five persons, namely, Shanti Devi, Med Ram, Champa Devi, Gian Chand and Nika Ram, which amount allegedly was never credited to the accounts of the said persons. It was also alleged that the respondent made false entries in the pass books pertaining to these persons though the amount was never credited to those accounts. The first thing required to be proved by the prosecution was that the respondent was posted as Sub Post Master i.e. a public servant during the period from 13.11.1981 to 13.10.1982 and that during this period he was entrusted with a sum of Rs.1,310/- belonging to these persons. The fact that the respondent was posted as Sub Post Master during this period and was entrusted with the work of receiving of cash for deposit from the account holders stands established and was admitted by the respondent himself in his statement under Section 313 Cr.P.C. However, he denied having received the money or forged the entries in the pass books, which facts were required to be proved by the prosecution to prove the charge as against the respondent. Out of the five persons, who allegedly had entrusted the amount of Rs.1,310/- to the respondent, the prosecution had not examined four of the them, namely, Shanti Devi, Champa Devi, Nika Ram and Gian Chand. Thus, in the absence of the evidence of these witnesses that they had deposited the amount at any time with the respondent or it was not accounted for, this fact does not stand established that the respondent misappropriated the sum entrusted to him by these persons. The only person, out of the five persons, examined by the prosecution is PW-6 Med Ram, who has clearly stated that he had opened an account in Branch Post Office, Jathia and had deposited Rs.400/- to Rs.500/-. He further stated that there was no discrepancy of short deposit in his account and he was satisfied with his account. He was declared hostile as he resiled from his previous statement. He stated that the police never investigated anything from him nor asked about deposit. Thus, all the persons, who allegedly deposited the amounts with the respondent, have either not been examined or when examined have not supported the prosecution story that this amount was entrusted to the respondent at any time or it was misappropriated by the respondent. Coming to the second point that false entries were made in their pass books though they have not deposited the amount, there is no evidence on record to show that these amounts were deposited by these depositors or false entries were made in their pass books which were not proved from the statements of these persons. The prosecution has also examined one Shri N.C. Sood, Assistant Government Examiner of Questioned Documents, as PW-18 to prove that the writings in the pass books are of the same person whose specimen signatures were sent for comparison. However, the prosecution had failed to prove that the specimen hand writing and signatures of the respondent were taken and in whose presence. The prosecution had examined PW-16 Shri M.C. Joshi, who stated that the signatures of the accused were taken and police brought the accused to him. He has stated that the certificate is Ext.PW-17/A and PW-17/A- 6 and specimen are Ext.PW-14/G to Ext.PW-14/L. He never stated that these signatures were taken in his presence. In cross examination, he has also stated that the accused was not known to him personally and he was identified by one Police Inspector and two Constables, who were accompanying the accused. The said Inspector Mr.Yadav has not been examined by the prosecution to prove that he had submitted an application to Shri M.C. Joshi and the signatures of the accused were taken in presence of the said officer. Therefore, the report of the expert cannot be linked with the accused in the absence of such evidence that the specimen hand writing and signatures of the accused were taken by the officer concerned and then they were handed over to the police. The learned trial Court had also observed that the prosecution had not led evidence to prove that the amount was not included by the accused in the daily transaction. The prosecution was required to prove that this amount was deposited by the depositors in which they failed and they were also required to prove that in case this amount had been deposited, it was duly accounted for in ledger. Therefore, we find no reason to interfere with the findings recorded by the learned trial Court holding that the prosecution has failed to prove the guilt of the respondent and, therefore, the judgment passed by the learned trial Court calls for no 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 H.P. which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged. (Deepak Gupta), Judge. October 21, 2008. (V.K. Ahuja), (TILAK) Judge.