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1996 DIGILAW 150 (HP)

STATE OF HIM ACHAL PRADESH v. KALU RAM

1996-08-30

P.K.PALLI, R.L.KHURANA

body1996
JUDGMENT R.L. Khurana, J.: The present appeal has been directed by the State against the judgment dated 5.12.1987 of the Additional Sessions Judge (II), Shimla allowing the appeal of the respondent against the conviction and sentence imposed upon him under Section 409, Indian Penal Code by the learned Chief Judicial Magistrate, Shimla on 30th June, 19 87, thereby the conviction and sentence was set-aside and the respondent was acquitted of the said offence. 2. Briefly stated, the prosecution story is this. The respondent Kalu Ram at the relevant time was working as a Cashier in the office of the Deputy Director, Agriculture and in such capacity he was maintaining and looking after the cash transactions of the Department. During the course of physical verification of the cash, a sum of Rs.2965.20 paise was found in the chest as against the balance in hand of Rs.66, 238.61 paise as shown in the cash book. During the course of such checking, vouchers showing the disbursement of Rs.34699-65 paise were also recovered. In order to assess the correctness of the accounts and the cash balance in hand a departmental Auditor was appointed. Such Auditor after going through the accounts found the respondent having committed criminal mis-appropriation of the amount of Rs.28.573-76 paise. 3. On the basis of the report made to the police a case under Section 409, Indian Penal Code came to be registered vide F.I.R. No.25/80 with police station East, Shimla. After necessary investigation on a case having been found against the respondent, he was accordingly arrested, challaned and sent up for trial. 4. The learned Chief Judicial Magistrate, vide judgment dated 30th June, 1987 found that the respondent had committed temporary criminal misappropriation of the amount to the tune of Rs.434-30 paise. The respondent was accordingly convicted for the offence under Section 409, Indian Penal Code and sentenced to rigorous imprisonment for a period of six months and to pay a fine of Rs.1000/-. In default of payment of fine, the respondent was directed to undergo rigorous imprisonment for a further period of one month. 5. The respondent went up in appeal before the learned Sessions Judge, Shimla against the conviction and sentence imposed upon him by the learned Chief Judicial Magistrate, Shimla. The appeal came to be heard by the learned Additional Sessions Judge (II), Shimla. The appeal filed by the respondent was allowed on 5.12.1987. 5. The respondent went up in appeal before the learned Sessions Judge, Shimla against the conviction and sentence imposed upon him by the learned Chief Judicial Magistrate, Shimla. The appeal came to be heard by the learned Additional Sessions Judge (II), Shimla. The appeal filed by the respondent was allowed on 5.12.1987. The conviction and sentence imposed upon the respondent by the trial court was set aside and he was acquitted of the offence under Section 409, Indian Penal Code. 6. The State has now come up before this Court by way of the present appeal after obtaining the necessary leave from this court against the impugned order of the learned Additional Sessions Judge (II), Shimla acquitting the respondent of the offence under Section 409, Indian Penal Code. 7. We have heard the learned counsel for the parties and have gone through the record of the case. 8. There is no denying that a sum of Rs.434-30 paise had been entrusted to the respondent in his official capacity. The evidence coming on the record shows that the said amount of Rs.434-30 paise was accounted for and handed over by the respondent to PW 4 Tarsem Singh who had taken over as Cashier from the respondent on 15.5.1980. Subsequently on 19.5.1980 PW 15 Amar Lai came to be appointed as Cashier and the said amount of Rs.434-30 paise was handed over to him by PW 4 Tarsem Singh. 9. A combined reading of the statements of PW 4 Tarsem Singh and PW 15 Amar Lai establishes beyond doubt that the amount of Rs.434-30 paise stood duly accounted for by the respondent at the time of handing over, the charge of the post of Cashier to his successor. 10. According to the prosecution, the respondent was guilty of temporary j embezzlement of said amount of Rs.434-30 paise inasmuch as the said amount was retained by him with him and was never accounted for by him in the accounts books. 11. 10. According to the prosecution, the respondent was guilty of temporary j embezzlement of said amount of Rs.434-30 paise inasmuch as the said amount was retained by him with him and was never accounted for by him in the accounts books. 11. Before a person can be convicted for the offence of criminal misappropriation, the prosecution must prove:- (a) There was an entrustment of property or an dominion over the property; (b) That there was dis-honest misappropriation or conversion by a person to his own use of that property or that there was dishonest use or disposal of that property in violation of any direction of law prescribing mode in which such trust was to be discharged or of any egal contract express or implied, which he has made touching the discharge of such trust, or that he willfully suffered any other person to do so. 12. Under the law, retention of property entrusted would amount to the offence of criminal misappropriation only if from the fact of retention of property entrusted, the ingredient of misappropriation or conversion etc. can be correctly inferred. 13. Even if a person under the law and the rules is required to deposit the amount entrusted in the Treasury within a specified period, the failure to do so would not by itself amount to the offence of criminal breach of trust since in addition to this fact it has to be proved that there was dis-honest misappropriation or conversion or dishonest use or disposal of that property. In other words, the element of dishonesty has to be specifically proved. The possibility of the person, due to negligence or forgetfulness, having failed to deposit the money which was entrusted to him cannot be ruled out. The mere failure to deposit the money would not, therefore, prove dishonesty and there must be other circumstances to prove the element of dishonesty and unless such element of dishonesty is proved, the mere retention of money would not by itself be offence of criminal breach of trust. 14. A person may have been negligent in the discharge of his duties, however, such a person cannot be convicted for his mere negligence. 15. In the present case, the evidence goes to show that the respondent has been negligent in the discharge of his duties as a Cashier. 14. A person may have been negligent in the discharge of his duties, however, such a person cannot be convicted for his mere negligence. 15. In the present case, the evidence goes to show that the respondent has been negligent in the discharge of his duties as a Cashier. No doubt, that the amount of Rs.434-30 paise has not been reflected in the cash book by the respondent, the evidence coming on the record shows that the respondent even failed to enter the disbursement of more than Rs.34,000/- in the relevant books of accounts though vouchers supporting such disbursements were available at the time of audit of the accounts. It is in the statement of PW 4 Tarsem Singh that when the charge of the post of Cashier was handed over to him, a sum of Rs.66, 238-61 paise was shown as balance in the cash book and that the vouchers to the tune of Rs.34, 699-65 paise evidencing the disbursements of the said amount had not been duly entered in the relevant books of accounts. Such evidence shows the negligence on the part of the respondent in the discharge of his duties as a Cashier inasmuch as he had failed to maintain upto date accounts. 16. Save and except the failure on the part of the respondent to maintain the upto date accounts of the Department, there is nothing on the record to show dishonest intention on his part either to misappropriate the amount of Rs.434-30 paise or to convert the said amount for his own use with any malafide intention. 17. Considering the entire evidence coming on the record in its totality, we are in full agreement with the findings of the first appellate Court that the prosecution has failed to bring home the offence under Section 409, Indian Penal Code against the respondent beyond a reasonable doubt. The respondent stands rightly acquitted of the offence charged against him. The order of acquittal passed by the first appellate Court does not suffer from any illegality and it does not call for any interference by this Court in this appeal. 18. As a result, the present appeal fails and the same is accordingly dismissed.