(1) Cri. Appeal No. 718 of 2003 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. CRIMINAL APPEAL NO. 718 OF 2003 The State of Maharashtra, .. Appellant Through PSO, Cidco Police Station, (Original complainant) Aurangabad. versus Shri Birballal Santaram Bhasin, Age : 45 years, Occupation : Director, R/o. Bhasin Villa, Padampura, .. Respondent Aurangabad. (Original accused) ....................... Mr. S.N. Kendre, Additional Public Prosecutor, for the appellant. Respondent absent, although served. ........................ CORAM : SHRIHARI P. DAVARE, J. DATE : 28TH NOVEMBER 2011 (2) Cri. Appeal No. 718 of 2003 COURT'S ORDER : 1. Heard learned APP for the appellant / State. None for the respondent although served. 2. The appellant / State seeks leave to file present appeal challenging the judgment and order of acquittal dated 10-7-2003, rendered by the learned 14th Judicial Magistrate (First Class), Aurangabad, in Regular Criminal Case No. 522 of 1990, thereby acquitting the respondent (original accused) for the offence punishable under Section 406 of Indian Penal Code. 3. I have perused the impugned judgment and order dated 10-7-2003, and record and proceedings with the assistance of the learned APP for the appellant. 4. Parties are hereinafter referred to as per their original status i.e. complainant and accused. 5. The accused faced the trial for the offence punishable under Section 406 of Indian Penal Code, on the allegations that although the accused deducted E.S.I. contribution amount of Rs. 10,885/- from the salary of employees of M/s. G.G.T. Kay Pee Company, MIDC, Chikalthana, Aurangabad, for December 1988, in such capacity, and although the said amount was entrusted (3) Cri. Appeal No. 718 of 2003 with him, he failed to deposit the same in E.S.I. account and thereby committed criminal breach of trust regarding the said amount by misappropriating it for his own use. 6. To substantiate the case of the prosecution, the prosecution examined two witnesses, namely, Shivaji s/o. Kalu Mahale, as PW 1, and Prakashchandra s/o. Bhuralalji Pathak, as PW 2, and relied upon documents Exhibits 41, 42, 43 and 44. 7. The main defence of the accused is that the accused is not concerned with the day-to-day affairs of the business of the factory and he is not responsible for it. 8. Having comprehensive view of the matter, it appears that the sanction letter is faulty. Moreover, the complainant has failed to prove and establish that the accused was in-charge and responsible for day-to-day affairs of the Company in the capacity of Director. 9. Moreover, Prakashchandra (PW 2) also admitted that the complaint is silent on the point of presence of accused, namely, Birballal Santaram Bhasin, in the Company at the time of inspection and that he informed his purpose of visit to accused Bhasin. He has further admitted that it is not mentioned in (4) Cri. Appeal No. 718 of 2003 complaint that the accused Mr. Bhasin called Mr. Nagore and directed him to produce all documents before him. He has also admitted during cross examination that no document bears signature of the accused. Hence, considering all these aspects and deformities and infirmities in the prosecution case, learned trial court has rightly acquitted the accused and no interference therein is required in appellate jurisdiction. 10. In the circumstances, after scrutinizing and analyzing the evidence on record, the view adopted by the learned trial court, while acquitting the accused, is a possible view and the same does not appear to be perverse, and reasoning given therefor also, apparently, cannot be faulted with, and hence, leave to file appeal deserves to be rejected. 11. In the result, leave to file appeal stands refused, and consequently, present Criminal Appeal is disposed of. 12. Record and proceedings be sent back to the concerned court. ( SHRIHARI P. DAVARE ) JUDGE ......................... bgp/kapp718