STATE OF GUJARAT v. JERUBHAI FULJIBHAI — 1993 DIGILAW 143 (GUJ)

Y. B. BHATT, J. ( 1 ) THE present appeal by the State of Gujarat challenges the judgment and order of acquittal dated 30/09/1982 passed by the learned J. M. F. C. , Dholka in favour of the accused, whereby the accused is acquitted of having committed an offence punishable under Sec. 408 of i. P. C. ( 2 ) THE case of the prosecution, stated briefly, was as under : ( 3 ) THERE is a Co-operative Society by the name of the Ambareli seva Sahkari Mandali at village Ambareli, Taluka Dholka whereof the complainant was Chairman and the accused was the Secretary at the relevant time. The accused was on a salary of Rs. 315. 00 per month, that he was assigned the work of writing accounts, maintaining the cash balance and to look after the banking transactions, and the accused, was accordingly doing such work. The accused, as a Secretary, could not maintain a cash balance in excess of Rs. 500. 00 at any point of time and excess amount of cash balance was required to be deposited in the Bank as per a resolution passed by the said Society. The daily cash balance was maintained as per the accounts by the Secretary, and the actual cash was also kept with the Secretary. The relevant entires in the Rojmel as regards cash balance were made by the Secretary and the correctness thereof endorsed by the signature of the Chairman of the Society (the complainant ). The Bank Inspector of the Ahmedabad District Co-operative Bank Limited, dholka Branch (which was the financing agency for the Society) used to come for visits and check the cash balance, which was to be produced by the Secretary at the relevant time. On the relevant day, viz. , 13/09/1978 the cash balance, according to the Rojmel, was Rs. 14,193. 73 when the bank Inspector Shri Mohanbhai Patel paid a visit to the office of the Society, but the Secretary (accused) was unable to produce the cash balance. The accused has made an endorsement to this effect in the Rojmel dated 1 3/09/1978, according to the prosecution, and the same has been countersigned by the Bank Inspector. 14,193. 73 when the bank Inspector Shri Mohanbhai Patel paid a visit to the office of the Society, but the Secretary (accused) was unable to produce the cash balance. The accused has made an endorsement to this effect in the Rojmel dated 1 3/09/1978, according to the prosecution, and the same has been countersigned by the Bank Inspector. On the next date, i. e. , 14/09/1978 the same Bank Inspector again visited the office of the Society and again demanded the physical verification of the cash balance which according to the Rojmel was on that day Rs. 19,057. 81 (closing balance) which the accused could not produce, and the accused has made the endorsement to this effect against that entry in the Rojmel on the said date which was counter-signed by the said Bank Inspector. The prosecution case is, therefore, that the accused has, in his capacity as a Secretary of the Society, committed a criminal breach of trust in respect of cash balance amounting to Rs. 14,000/ - and odd on 13/09/1978 as also of Rs. 19,000. 00 and odd on 1 4/09/1978 (inclusive of the earlier amount ). This is in substance of the prosecution case based upon the private complaint filed by the Chairman of the Society, the complaint being at Exh. 21 on the record of the case, having been filed on 18/03/1979. ( 4 ) THE trial Court, after recording the evidence of various witnesses on behalf of the prosecution, has in the impugned judgment, considered such evidence in detail and has come o the conclusion that the prosecution has failed to prova the guilt of the accused beyond reasonable doubt and is, therefore, acquitted the accused in respect of the offence with which he was charged. Hence the present appeal. ( 5 ) BEFORE dealing with the contentions raised by Mr. S. T. Mehta, learned counsel for the State, it is pertinent to bear in mind the basic principles applicable to appeals from orders of acquittal. Hence the present appeal. ( 5 ) BEFORE dealing with the contentions raised by Mr. S. T. Mehta, learned counsel for the State, it is pertinent to bear in mind the basic principles applicable to appeals from orders of acquittal. It is by now a well settled principle of law that the appellate Court should not only be slow and cautious, but must be also reluctant to interfere with the orders of acquittal unless it can be made out that the impugned judgment and order of acquittal is a perversity in law or that the same is based on a gross misappropriation of evidence or is a case of total non-application of mind. It is also required to be borne in mind that when the appellate Court agrees with the general appreciation of evidence as found by the trial Court, no detailed reappreciation of such evidence is required and no elaborate reasoning needs to be given. This principle has been reiterated in the decision of the Supreme court in the case of Karnataka v. Hemareddy, reported at AIR 1981 SC 1417 (para 6 ). ( 6 ) MR. S. T. Mehta, learned Counsel for the State has taken me elaborately through the oral and documentary evidence on record as also through the record and proceedings of the case available to the Court. On a re-apprisal of the evidence on record, I am of the view that the judgment and order of acquittal passed by the trial Court is just and reasonable and in consonance with the evidence on record. It cannot be said by any stretch of imagination that the reasons for acquittal as given by the trial Court are in any manner not sustainable. This Court would not be justified in interfering with the judgment and acquittal order merely because it may perhaps be possible to take another view of the matter, in respect of the totality of the evidence on record. ( 7 ) I shall, however, discuss only the broader aspects of the matter and examine the evidence of the trial Court with respect to the relevant evidence. ( 8 ) THE prosecution case as sought to be made out is that on 1 3/09/1978 when the Bank Inspector Mohanlal visited the office of the Society and required the accused to produce the cash balance of Rs. 14193. ( 8 ) THE prosecution case as sought to be made out is that on 1 3/09/1978 when the Bank Inspector Mohanlal visited the office of the Society and required the accused to produce the cash balance of Rs. 14193. 73, the accused was unable to produce the same and accordingly made an endorsement in the Rojmel to that effect. Similarly, on 1 4/09/1978 on a similar demand being made by the same Bank inspector, the accused was unable to produce the necessary closing cash balance of Rs. 19,057. 81 and a similar endorsement was made in the rojmel on that day. ( 9 ) FROM the evidence on record it is clear that the complainant being the Chairman of the Society was responsible for the overall administration of the Society as such, and admittedly was responsible for the day-today functioning of the accused as the Secretary of the Society. Admittedly he was required to counter-sign the Rojmel of the Society which was being maintained by the accused. The Rojmel at Exh. 32 has been written with effect from 1/07/1978, and the entries in the same indicate that the cash balance in excess of Rs. 500 was being maintained consistently and continuously. It appears that the Chairman has made no effort to have such cash balance deposited in the Bank account of the Society nor has he at any point of time admittedly called upon the Secretary to do so, nor has he made any effort to comply with the resolution of the Society itself in this regard. Admittedly no action has been taken either before or after the incident in question to see that the cash balance in excess of Rs. 500. 00 is either deposited in the Bank or any other action taken in this regard against the accused. Even after the incident in question, i. e. , the visit by the Bank inspector in question neither the Chairman nor the Managing Committee of the Society nor any other authority has made any report to the District registrar of Co-operative Societies in this regard. There is no evidence whatsoever as to when and at what point of time the District Registrar caused any audit to be carried out in respect of the accounts of the Society, an annual audit being mandatory under the Statute. There is no evidence whatsoever as to when and at what point of time the District Registrar caused any audit to be carried out in respect of the accounts of the Society, an annual audit being mandatory under the Statute. Furthermore, it is an admitted position that no written intimation and/or complaint has been made to the District Registrar by any office-bearer of the Society. ( 10 ) ACCORDING to the deposition of Mohanlal Purshottamdas, the Bank Inspector (P. W. 5-Exh. 44), when he inspected the Rojmel on 13/09/1978, the rojmel had not been written for a few days. This aspect has not even been attempted to be explained by the complainant. According to this witness the entries in the Rojmel in respect of the few days prior to 13/09/1978 was caused to be written in the hand writing of the accused on 13/09/1978 itself. From these entries it appears that in these few days there were transactions involving sums of Rs. 384. 00, Rs. 357. 00 and Rs. 422 50. However, when the accused was required to produce the cash balance on 13/09/1978, which according to Rojmel was Rs. 14,193. 73, there is no record by way of documentary evidence, or by way of endorsement, nor is any explanation offered by any witness for the prosecution as to what was the amount of cash balance in fact produced by the accused. It is inconceivable that the accused refused or was unable to produce a cash balance of even one rupee. This aspect is significant inasmuch as had any attempt been made by the prosecution to explain or note the amount of actual cash balance produced by the accused on 13th September, it is quite possible that at least a sum of Rs. 319. 90 might have been produced by the accused, this being the amount of cash transaction entered into on 13/09/1978. ( 11 ) ANOTHER significant aspect which cannot be overlooked is that although the accused is alleged to have committed a criminal breach of trust in respect of Rs. 19,000 and odd, at least on 13th and 14/09/1978. he was permitted to hold charge of his post as a Secretary of the Society right upto 21/09/1978. The person who took over as a Secretary from the accused was the former Secretary, viz. , Natwarlal Bechardas (P. W. 3 - Exh. 38 ). 19,000 and odd, at least on 13th and 14/09/1978. he was permitted to hold charge of his post as a Secretary of the Society right upto 21/09/1978. The person who took over as a Secretary from the accused was the former Secretary, viz. , Natwarlal Bechardas (P. W. 3 - Exh. 38 ). Even Natwarlal does not explain nor does the record indicate in any manner as to what amount was handed over to the successor Secretary by way of cash balance. Furthermore, there is no explanation as to what transactions, if any, took place between 14th September, and 21st September, 1978, and who who wrote the accounts during the period, if at all they were written. ( 12 ) THERE is yet another discrepancy as regards the continuation of the tenure of the accused as the Secretary of the Society after 14/09/1978. According to Natwarlal Bechardas (P. W. 3 - Exh. 38), he took-over as a Secretary from the accused on 21/09/1978, whereas according to the complainant keshavlal Jesingbhai (P. W. 1 -Exh. 20), the accused was discharged as a Secretary on 29/09/1979. The prosecution has made no attempt to explain this discrepancy as regards holding of the charge by the accused inspite of the inspection carried out on 13th and 14/09/1978. ( 13 ) MOHANLAL Purshottam, Bank Inspector (P. W. 5 - Exh. 44) has admitted that although the accused was unable to produce the necessary cash balance on 13/09/1978, the said witness had not made any report to the Bank in this regard. The explanation offered by this witness in his deposition is to the effect that the accused had undertaken to make good the deficit. However this explanation offered by the Bank inspector in his deposition is not corroborated by any endorsement made on the rojmel nor is this fact mentioned in the statement made by this witness before the Police during the course of investigation. ( 14 ) ANOTHER significant aspect which has considerable bearing on the matter is that according to Mohanlal Purshottam (P. W. 5 - Exh. 44) and Manishanker prabhashanker, a member of the Managing Committee (P. W. 8 - Exh. 36), apart from the endorsement made in the Rojmel by the accused (Exhs. ( 14 ) ANOTHER significant aspect which has considerable bearing on the matter is that according to Mohanlal Purshottam (P. W. 5 - Exh. 44) and Manishanker prabhashanker, a member of the Managing Committee (P. W. 8 - Exh. 36), apart from the endorsement made in the Rojmel by the accused (Exhs. 23 and 24), the accused had executed separate inculpatory statements, by way of an explanation or otherwise, in respect of the shortage of cash balance in respect of the days, viz. , 13th and 14/09/1978. However, neither of these statements have been produced on record nor has the complainant attempted to explain this aspect of the matter. Had such an independent inculpatory statement or explanation been executed voluntarily by the accused, it is very probable that the same would have explained away or referred to the endorsements made on the Rojmel on 13th and 14/09/1978, at Exhs. 23 and 24. It, therefore, appears to be highly probable that the defence version, to the effect that the endorsement made on the Rojmel were made under pressure and at the instance of the Bank Inspector, is correct. The prosecution has totally failed in furnishing any reasonable or rational explanation to the non-production of these so-called voluntary statements. ( 15 ) KESHAVLAL Jesingbhai (P. W. 1 - Exh. 20) states that he was present on 13th as well as on 14/09/1978, and that on those days no transactions were entered into. However, the Rojmel (Exh. 32) clearly shows transactions recorded on both the days, and these transactions have been authenticated by the signature of the complainant himself. Thus the version of the complainant itself becomes doubtful. ( 16 ) NEITHER the complainant nor the prosecution witnesses have made any attempt to explain the long delay in filing the complaint which came to be filed on 15/03/1979, i. e. , 6 months after the incident. As already pointed out hereinabove, neither the Bank Inspector nor any office-bearer of the Society has complained to the District Registrar as regards the alleged misappropriation by the accused. ( 17 ) IT is an admitted position that the Statutory audit is conducted by an authorised officer of the District Registrar of Co-operative Societies, under the relevant provisions of the Gujarat Co-operative Societies Act. ( 17 ) IT is an admitted position that the Statutory audit is conducted by an authorised officer of the District Registrar of Co-operative Societies, under the relevant provisions of the Gujarat Co-operative Societies Act. Such audit would clearly bring out the accounting deficiencies, if any and would detect and pin-point the responsibilities for shortage of cash balance, if any, with reference to the relevant dates. Admittedly no such statutory audit nor the results thereof have been brought on record by the prosecution. It is also an admitted position that the Bank Inspector (P. W. 5 - Exh. 44) was merely a representative of the Ahmedabad District Co-operative Bank, which bank was concerned only with verifying the accounting practice with a view to safeguard its loans and verification of stock, etc. , by way of security for such loans. Admittedly the Bank Inspector had no power of audit, and in fact did not profess to conduct any audit at all. ( 18 ) ON such facts and circumstances it would be very risky and would amount to mere conjuncture to rely upon the endorsements alleged to have been made by the accused at Exhs. 23 and 24 in the Rojmel (Exh. 32) on 13th and 14/09/1978, particularly when they were made under pressure and compulsion. ( 19 ) ANOTHER aspect which is highly significant and which has been totally ignored both by the prosecution as well as by the trial Court is as regards the conduct of an average human being on the facts and circumstances of the case. If, as alleged, the accused was unable to produce necessary cash balance on 13/09/1978 amounting to Rs. 14,000. 00an odd, and was compelled to make an endorsement that he is unable to produce the necessary cash, it is highly improbable that the same accused would, in the normal course of human conduct, add to his liability and culpability by entering further transactions on the 14th, so as to raise the deficit cash balance to Rs. 19,000. 00 and odd at the close of 14/09/1978. This aspect assumes further importance in view of the deposition of Ratilal Harjivandas (P. W. 4-Exh. 41) who is a member of the Society and who has denied categorically and has refused to support the prosecution version, by disputing an entry of Rs. 4675. 00 shown in his account in the books of the Society. This aspect assumes further importance in view of the deposition of Ratilal Harjivandas (P. W. 4-Exh. 41) who is a member of the Society and who has denied categorically and has refused to support the prosecution version, by disputing an entry of Rs. 4675. 00 shown in his account in the books of the Society. This witness frankly admits that he had taken a loan of Rs. 6000. 00 four years ago in cash, and had passed a receipt of having received such a loan, and that the loan is still outstanding and not paid by him. He further admits that he had purchased some goods four years ago, but he had not till the date of his deposition paid for the same. This witness states that the sum of Rs. 4675. 00, which may be due to the Society, has not been claimed by the Society against the witness till date of his deposition, that no notice of demand has been issued and or any other proceeding taken in respect of this amount. What is equally significant is that this witness has not been confronted with the entries made in the Rojmel on 14/09/1973. It, therefore, becomes apparent that an entry has been passed showing cash receipts of Rs. 4675. 00 by the Society as having been paid in cash by the said witness Ratilal harjivandas. However, if the said entry in the Rojmel were shown to the said witness, he would, in all probability, have denied having made such a payment and would have, therefore, completely demolished the prosecution case. In any case, as already observed, hereinabove, this witness denies having made any payment to the Society in respect of his debt due and payable to the Society. Thus both directly and indirectly he falsifies the credit entry made in the rojmel on 14/09/1978. ( 20 ) THUS, in view of the overall appreciation of the evidence on record, I am of the view that the judgment and order of acquittal are both rational and reasonable, that the prosecution has failed to make out a case against the accused beyond reasonable doubt, and the benefit of doubt must go to the accused, . ( 21 ) THE appeal is, therefore, dismissed. .