HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No.: 208 of 2002 Reserved on: 31.12.2008 Decided on: 9.1.2009 State of Himachal Pradesh ………Appellant. Versus Bhagwan Dass ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Ms.Shubh Mahajan, Deputy Advocate General. For the respondent: Mr.Ashutosh Burathoki, Advocate. 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 of the court of learned Additional Chief Judicial Magistrate(I), Kangra, dated 3.4.2001, vide which the respondent was acquitted of the charge framed against him under Sections 406/420 of the Indian Penal Code. Briefly stated the facts of the case are that a statement was made by Smt.Chanchla Kumari before the police on 13.1.1995 that she had opened an RD account in Branch Post Office Samloti through BPM Bhagwan Dass. She alleged that whenever the pass book used to mature, the said Bhagwan Dass used to pay full money and she had no doubt on his integrity. She thereafter had given 10 RD copies to Bhagwan Dass for depositing the amounts which copies were in the name of her daughters and others. In February, 1994, she needed money ______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - and she inquired from Bhagwan Dass about the RDs and he told her that the pass books have been sent to the Head Post Office, Kangra for verification and for the purpose of charging interest. In February, 1994 itself, when she demanded money, Bhagwan Dass paid Rs.6,000/- and Rs.1,500/- in March, 1994 and stated that on receipt of the pass books, he would deduct this amount and make full payment. The complainant Smt.Chanchla Devi verified from the Post Office and was told that no money has been deposited in the pass books up-to- date and she made a complaint to Post Office, Kangra for conducting an inquiry on which the case was registered. It was also the prosecution case that when an inquiry was conducted by the postal authorities by Superintendent of Post Office, it was found that the respondent had collected money from several persons, opened their accounts, got the pass books issued and after taking money from the people, he used to tell that the same would be deposited in the post office and relevant entries would be made in the pass books. He used to collect the money and used to deposit the money only sometimes and the remaining money was not deposited in the Post Office nor any entries were made in the pass books. It is the further case of the prosecution that during investigation, all the pass books of the accounts which had been opened through the accused were taken into possession, his specimen hand writing and signatures were also taken and on conclusion of the investigation by the police as well as by the postal authorities that the respondent had cheated the persons for number of years, the challan was split year-wise and the present challan had been filed before the learned trial Court for misappropriation made during the year 1992. On consideration, a charge under Section 406/420 IPC was framed by the learned - 3 - trial Court as against the respondent, who was tried by the learned trial Court leading to his acquittal. I have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned Deputy Advocate General for the State were that there are oral statements made by the depositors that they gave the amount regularly to the respondent, who failed to deposit it in the post office and since the pass books were in the custody of the respondent, they could not confirm as to whether the amount has been deposited in the post office account or not. On the other hand, the learned counsel for the respondent submitted that there are statements of the depositors not corroborated by any details as to when the amount was given, in whose presence it was given and since there are no entries in the pass books wrongly made by the respondent, these do not prove the guilt of the respondent since he had deposited the money which was received by him from the depositors and since the prosecution had failed to prove their case, the findings recorded by the learned trial Court are not perverse calling for an interference by this Court. I have gone through the record of the case. It is clear that various RD accounts of several persons were opened on different dates and some amounts were deposited in those accounts also. Coming to the testimony of some of the depositors, who have been examined in this case, PW-1 Chanchla Devi has stated that when she needed money in February, 1994, she inquired and then learnt that though she had paid Rs.12,000/- to the respondent at the rate of Rs.200/- per month, he had not deposited the whole amount and paid her Rs.7500/- to be adjusted on payments from the post office. However, on - 4 - verification, she found from the post office that no regular deposits had been made and she made a complaint to the police Ext.PW-1/A on which the case was registered and pass book was taken in possession from her. A perusal of her statement and that of other depositors PW-2 Shakuntla, PW-3 Subhash Kumar, PW-9 Nirmla Devi, PW-11 Bideshri Devi, PW-11 Dewan Devi, PW-12 Satya Devi, PW-13 Ramesh Chand and PW-17 Rasila Ram shows that they all have stated that they used to give money to the respondent, who was to deposit the same in the post office, but they learnt that the full amount has not been deposited in the post office. There is statement of PW-21 Shanti Swaroop, Assistant Superintendent Post Office, who had conducted the preliminary inquiry, collected the pass books and submitted his report Ext.PW- 21/B. He further stated that he recorded the statement of the respondent Ext.PW-5/A during inquiry in presence of the Pradhan PW-5 Ram Parkash, who has supported his statement that the statement of Bhagwan Dass respondent was recorded. However, this statement has not been got proved from the Expert of Questioned Documents and, therefore, it has not been established that any such statement was made by accused and the same bears his signatures. It is not the prosecution case that the respondent made the entries in the pass books about the amount received but it was not shown in the accounts of the Post Office and, therefore, there are no fake entries in the hand of the respondent in the pass books, which could prove that he received the amount, entered the same in the pass books, but did not deposit the same in the Post Office. A perusal of the statements of these witnesses clearly shows that they have stated in general only that they used to pay the amount to the respondent for the RD accounts but there is no evidence to show as to when it was given to - 5 - the respondent, on which date it was given and in whose presence and as to whether every month the amount was being paid regularly on such particular dates to the respondent. The evidence led is general in nature and even the witnesses have not been able to state the exact dates every month as to when they used to pay the money to the respondent and they have not got in writing anything that they have a proof to show that these amounts were paid and on which date these were paid. Therefore, the solitary statements of all such depositors not corroborated by any dates or other evidence cannot be said to be sufficient to lead to the conclusion that they had been paying the money of RD accounts regularly to the respondent who misappropriated the same or cheated them. In regard to the question as to whether the respondent was posted as EDPM, there is statement of PW-21 Shanti Swaroop that during April 1992 to July 1996, he was working as Assistant Superintendent of Post Office. Samloti Post Office was under his charge and the respondent was working as AD Branch Post Master, Samloti during those days. The fact that the respondent was working as such during the relevant period has not been disputed in evidence or in the statement made by the respondent under Section 313 of the Cr.P.C. However, he has denied having received any such money and the oral evidence led by the prosecution in the form of statements of the depositors cannot be said to be sufficient to hold that these amounts were paid to him and he failed to deposit them. Therefore, the findings recorded by the learned trial Court on the basis of such general evidence cannot be said to be perverse calling for an interference by this Court. In view of above discussion, I hold that there is no merit in the appeal filed by the State of H.P. and the same is dismissed accordingly. The Bail bonds - 6 - furnished by the respondent shall stand discharged. However, the Senior Superintendent Post Office is at liberty to take departmental action against the respondent on the basis of the preliminary inquiry conducted in regard to the complaint against the respondent, if no action has been taken so far. January 9 2009. (V.K. Ahuja), (TILAK) Judge.