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Himachal Pradesh High Court · body

2001 DIGILAW 284 (HP)

STATE OF H. P. v. PURAN LAL

2001-10-09

M.R.VERMA

body2001
JUDGMENT M.R. Verma, J. :- This appeal has been preferred by the State against the judgment dated 28.6.1996 passed by the learned Chief Judicial Magistrate. Sirmaur. at Nahan. whereby the respondent -accused (hereafter referred to as the accused) has been acquitted of a charge under Sections 408 and 420 IPC. 2. Briefly stated, case of the prosecution is that a partnership firm known as M/s. Him Industries. Mogi Nand in District Sirmaur was engaged in manufacture of Gypsy pencils and art materials in the year 1987. The said firm had employed the accused as its sales representative on October 1. 1987 on a monthly salary of Rs.1300/-. His duty was to book orders for the products of the said firm from the desirous shopkeepers and to distribute the booked articles. He had no authority to collect the -ale proceeds from the customers. The accused, however, collected a sum of Rs. 19.055.25 from various shopkeepers on account of the supply of articles to them for and on behalf of the firm but did not deposit the sad amount with his employer. These facts came to the notice of Vinod Kumar, the Managing Director of the firm on August 9. 1989. When the shopkeepers to whom the articles were supplied disclosed that they did not owe anything to the firm and had paid the price of the articles received by them, the accused was asked by said Vinod Kumar of settle the matter but the accused put him off on one pretext or the other and finally refused to pay the amount received by him on behalf of the firm and also refused to return the order book and a briefcase supplied to him by the firm. Vinod Kumar then made a written report Ex.PW-19/A in respect of the occurrence to the Superintendent of Police. District Sirmaur and as a consequence, formal FIR Ex.PW-18/B was registered at Police Station. Nahan. During the course of investigation, the relevant challans. orders, receipts, bills and vouchers were taken into possession by the investigating agency. Specimen writing and signatures and admitted writings of the accused were taken in possession and along with the questioned writings were sent to the State Forensic Science Laboratory for opinion. As per the reports received from the Forensic Science Laboratory Exs. PW-21/R and PW-21/S. most of the questioned writings were found in the hand of the accused. Specimen writing and signatures and admitted writings of the accused were taken in possession and along with the questioned writings were sent to the State Forensic Science Laboratory for opinion. As per the reports received from the Forensic Science Laboratory Exs. PW-21/R and PW-21/S. most of the questioned writings were found in the hand of the accused. Statements of various witnesses were also recorded under Section 161 Cr.P.C. On being satisfied that the accused had committed offences punishable under Sections 408 and 420 IPC to the extent of Rs 14.265.50 the officer incharge of the concerned police station submitted a charge sheet against the accused who was charged and tried for the said offences by the learned Chief Judicial Magistrate. Sirmaur at Nahan. 3. To prove the charge against the accused, prosecution examined as many as 23 witnesses. The accused was examined under Section 313 Cr.P.C. wherein he admitted that he was a representative of the firm to book orders and was not authorised by the firm to collect the sale proceeds from any customer in any manner. He has further admitted taking of his specimen signatures. However, rest of the case of the prosecution has been denied by him. He has claimed to be innocent and that he has been falsely implicated in the case. The accused, however, did not lead any defence evidence. After appreciation of the material on record, the learned trial Magistrate found that the charge against the accused was not proved and accordingly acquitted him. Hence the present appeal. 4. I have heard the learned Assistant Advocate General for the appellant - State and the learned counsel for the accused and have also gone through the records. 5. There is no dispute that the accused was appointed as a , sales representative by the aforesaid firm and his duty was to book/ orders for the products of the said firm from the desirous shopkeepers and to distribute the booked articles but he had no authority to collect the sale proceeds from the customers. However, there is no evidence to show that the accused was entrusted with any property with domain over the same. To constitute an offence under Section 408 IPC. However, there is no evidence to show that the accused was entrusted with any property with domain over the same. To constitute an offence under Section 408 IPC. entrustment of property or domain over any property alleged to have been misappropriated is one of the essential ingredient, since such an ingredient is not made out even as per the allegations in the FIR or by evidence, therefore, the accused cannot be held to have committed an offences punishable under Section 408 IPC. 6. The case of the prosecution against the accused, in fact, is that he collected the sale proceeds of the articles supplied to the customers fraudulently and without any authority and utilized such proceeds for his own used. Therefore, as per the allegations, the j accused is alleged to have committed an offence punishable under Section 420 IPC. The learned Assistant Advocate General has also conceded that in fact the allegations against the accused that he received money from the customers fraudulently as he had no authority to receive the same, constitute an offences punishable under Section 420 IPC and not an offences punishable under Section 408 IPC. In view of this admitted position, the accused has rightly been acquitted of the head of charge under Section 408 IPC. 7. It was contended by the learned Assistant Advocate General that it is admitted case of the accused that his assigned duty was only to book orders from the desirous shopkeepers for supply of the products of the firm and he had no authority to collect the sale proceeds of the articles supplied by the firm to the customers. However, the accused without any authority, collected the sale proceeds and thus fraudulently made the customer to deliver the sale proceeds to him and did not account for the sale proceeds so received. It was further contended that in view of the oral as well as documentary evidence, it is fully established that the accused fraudulently made the customers of the firm to deliver the value of the goods supplied to them to him and failed to account for the money so received, therefore, the head of charge under Section 420 IPC is fully proved against him and the impugned judgment acquitting the accused of the offence punishable under Section 420 IPC is sustainable and accused deserves to be sentenced for the said offence. 8. 8. On the other hand, the learned counsel for the accused has contended that the evidence on record shows that there had been inordinate delay in lodging the FIR which is fatal to the case. It was also contended that as per the allegations contained in the FIR. the accused is alleged to "have received a sum of Rs.l9.055.25 from the customers. However, during investigation; this allegation was found incorrect and after suppression of the primary evidence, misappropriation of a sum of Rs. 14.265.50 only was sought to be proved. The evidence on record, however, does not prove commission of either of the offences by the accused and he has been rightly acquitted. 9. It is admitted case of the prosecution that the Managing Director of the complainant firm had come to know about the alleged unlawful receipt of money by the accused from the customers on 9.8.1989. However, the FIR was lodged on 3.10.1989. There is no evidence on the record to explain the delay in lodging the FIR. Though in the complaint Ex.PW-18/A it has been mentioned that the accused was repeatedly contacted with a view to realized the amount but he refused to do the needful. However, none has supported this version at the trial. Thus, the delay in lodging the FIR is a strong circumstance adverse to the case of prosecution and has to t>e kept in view while examining the prosecution evidence. 10. It may also be pointed out that as per the particulars given in the complaint Ex.PW-18/A. the accused in all received a sum of Rs.l9.055.25 inclusive of miscellaneous charges etc. from the customers of the firm without authority and failed to deposit it with the firm. However. during investigation some of these particulars have been found incorrect. As per the complaint Ex.PW-18/A accused did not deposit a sum of Rs.l00/- which he received from Ms. Daulat Ram Satish Kumar. However, during investigation, it was not found so. Similarly, he is alleged to have received Rs.840/- from Ms. Sanjay Book Depot but failed to deposit. On investigation, it was found that only Rs.335.50 was allegedly received by the accused and a sum of Rs.504.50 was payable by the firm itself whereas according to version in the complaint, the entire sum of Rs.840/- was paid by the said firm as per information given by it. Sanjay Book Depot but failed to deposit. On investigation, it was found that only Rs.335.50 was allegedly received by the accused and a sum of Rs.504.50 was payable by the firm itself whereas according to version in the complaint, the entire sum of Rs.840/- was paid by the said firm as per information given by it. Similarly, as per the complaint, the accused received a sum of Rs .847/- from Capital Stationary Man against a bill for Rs.l 747.50. It has been found that out of this bill, a sum of Rs. 1000/- had been received by the Firm. If so. Over payment of Rs. 1000- by the customer firm to the accused. As per Ex.PW-18/A. the accused is alleged to have received a sum of Rs.4167/- under the head "Miscellaneous Expenditure". However, despite demand by the investigating agency, the complainant could not produce any record or evidence whatsoever regarding this item. It is further admitted by the investigating officer (PW-23) that it could be verified only from the registers i.e. Bahi Khata of the complainant as to which amount had been received by deposited with the firm against the amounts in question or which had not been received deposited. However, despite demand made by him from the officials of the complainant firm, no such Bahi khata Registers were produced nor they assigned any reason as to why the were withholding such registers. He has unambiguously and clearly admitted that without verification from the accounts registers maintained by the firm, if May not possible to verify-as to whether the accused has misappropriated any amount or not. In view of the aforesaid admissions, it is evidently a case of withholding the best evidence to verify the correctness or otherwise of the allegations in the complaint, which, in itself, is sufficient to raise serious doubts about the correctness of the version as contained in the complaint. This circumstance when read with the unexplained delay in lodging the F.I.R.. is fatal to the case of the prosecution. 11. The only witness allegedly concerned with the affairs of the Firm, at the relevant time, who has been examined is Dev Raj Sharma (PW-8). In his examination in chief, he has not supported the prosecution version on any particular except that the accused was a salesman of the complainant firm and he is a partner thereof. 11. The only witness allegedly concerned with the affairs of the Firm, at the relevant time, who has been examined is Dev Raj Sharma (PW-8). In his examination in chief, he has not supported the prosecution version on any particular except that the accused was a salesman of the complainant firm and he is a partner thereof. He was then declared hostile and was cross examined by the Public Prosecutor. Almost the entire case of the prosecution was put to him in the form of suggestions which he went on admitting as correct. In cross examination by the accused, at one stage, he has stated that he had not contacted any of the parties regarding the payment. At another stage, he has admitted that he had also contacted some of the parties and other parties were contacted by Vinod Kumar (who could not be examined as he died before the case came to be listed for prosecution evidence). At one stage, he has stated that Vinod Kumar had personal!} contarcted the customers who informed him about the entire payment. At another stage, he states that they had received written complaints from the parties that they had made the full payments. He has gone to the extent of denying the suggestion that neither the articles were supplied by the firm to the party in his presence nor any amount was received by the accused in his presence. In case the amount has been received by the accused in his presence for supply of such articles which were supplied in his presence, then one wonders why the payment was not received by him himself when the payment was being made in his presence for the goods supplied by the firm whose affairs he was looking after at the relevant time. He admits that he is a partner of the firm and Vinod Kumar was the other partner. After the death of Vinod Kumar, he is managing the assets and liabilities of the firm. The witness, however, has not produced or referred to any account books regarding the supply of articles, receipt/deposit of the amount and the complaints, if any. received from any of the customer. The other partner Megh Nath has not been produced. Thus, the self contradictor} and self destroying statement of PW Dev Raj Sharma. the most material witness, is of no help to the prosecution. 12. received from any of the customer. The other partner Megh Nath has not been produced. Thus, the self contradictor} and self destroying statement of PW Dev Raj Sharma. the most material witness, is of no help to the prosecution. 12. There is yet another suspicious circumstance in this case. It is the initial version vide complaint Ex.P\Y-18 A that the complainant Vinod Kumar had come to know about the alleged misappropriation on 9.8.1989 when the concerned parties/customers disclosed to him that the various amounts had been collected by the accused from them on behalf of the firm. However, the affidavit regarding the alleged payment sworn by Ramesh Kumar of M/s: Ramesh Book Depot does not bear any date but appears to have been attested on 4.3.1993 on a stamp paper issued on the same day. and obtained after about 4 years of the lodging of the FIR. Similarly, affidavit of Shami Kumar of Ms Sanjay Book Depot is dated 7.4.1993. Affidavit of Suman Kumar has been attested on 18.3.1993. Thus, these affidavits have been procured after about 4 years of the registration of the case. Copies of the accounts, if any. maintained by them have not been taken into possession. As per the affidavit Ex.PW-23/C of Shami Kumar, he had made a final payment of Rs.640/- against a bill of the complainant firm to the agent of the firm and nothing remained t be paid by his firm Ms. Sanjay Book Depot whereas it has been found during investigation that no full and final payment has been made by this firm and it was found liable to pay a sum of Rs.504.50 to the complainant firm, whereas according to the complaint Ex.PW- 18 A. the accused had received a sum of Rs.840- from this firm and has not deposited it with the complainant firm. These discrepancies remain unexplained. No reason has been assigned as to why these affidavits were procured from these witnesses. 13. PW-1 A jay Kumar has claimed that receipt of Rs. 1690.50 was issued by the accused and was signed by him which has been marked as A. However, he has admitted that this receipt, itself, is not in the proper form and has finally admitted that had this receipt been prepared in his presence, it would have contained necessary contents. It simply belies his statement that this receipt was executed in his presence. 14. It simply belies his statement that this receipt was executed in his presence. 14. PW-2 Satish Kumar has stated that he had paid a sum of Rs.700/- to the accused against a receipt and that subsequently someone had come from the complainant industry and taken the receipt from him. However, he has not proved the alleged receipt as it has not been put to him and he is not aware as to when the payment was made. He has admitted that accused had been selling pencils in wholesale market since long and that is why he knew the accused. A paper mark B which was shown to him as having been given by him to the police. He has denied to have given it to the police. 15. PW-4 Surinder has also stated that he had made payment of Rs.1600 to the accused against receipt which has been marked is Ex.PW-4/B. However, the witness has admitted in his cross examination that in lieu of the aforesaid amount paid against receipt Ex.PW-4/B to the accused, he had received a pakka receipt from the complainant firm: meaning thereby that the amount was received by the complainant firm. He has further stated that the complainant had not demanded payment of any of its dues from him. 16. PW-5 Kuldip also claims that he had made payment of Rs. 1671.10 to the firm through the accused against receipt E.x.PW-5/A. However, in his cross examination, he has admitted that unless receipt Ex.P\V-5/A is compared with the corresponding entries in the ledger, it cannot be said as to for what purpose, the receipt had been issued. Thus, the very purpose for which this receipt might have been issued is not established. 17. PW-6 Subhash Gupta has stated that he had received articles worth about Rs.600 - from the complainant firm and he made the payment on 4.5.1988 to the accused against acknowledgement on document Ex.PW-6 A. In cross examination, however, he has admitted that he has not received any complaint from the complainant firm that the amount paid by him had not been received by the said firm. He has further stated that even before 1987. He has further stated that even before 1987. that is the year of appointment of the accused as a sales representative by the complainant firm, the accused had been dealing in stationary articles and had been supplying goods to the witness and used to receive payment in lieu thereof. 18. PW-7 Prem Parkash has stated that he had placed a supply order with the proprietor and the agent of the complainant firm worth Rs. 1857.50. Out of this amount, he had paid Rs.857/- to the proprietor who instructed him to make the remaining payment of Rs. 1000 - to the accused. He has further stated that he had paid Rs. 1000/- to the accused against receipt. However, he has not been confronted with any receipt. In cross examination, he has stated that the complainant firm had never complained to him that the payment against the aforesaid order had not been received by it from him. It is also evident from his statement that the accused was authorised to receive the payment of the remaining amount, though as per condition of his employment, he was not to receive any payment. From this departure from the condition of employment of the accused and the acknowledgments of some deposits of money received by the accused, it is clear that the condition that the accused would not receive payments from customers, was not strictly followed even by the employer. 19. PW-9 Ashok Kumar has stated that for the material supplied he had made payment of Rs.5260.40 to the complainant firm through the accused, a receipt about which is appended on he invoice and other receipts are Exs. PW-9 B. PW-9/C and PW-9/D. In his cross examination, he has also admitted that neither he received any notice from the complainant for payment of any amount nor he was ever informed that the payment has not been received by the complainant firm. He has further stated that the proprietor of the complainant firm had never made any demand for any payment from him for the dues which stood paid by him. 20. PVV-10 Charanjit Singh has not stated anything specific. He stated that he was dealing in biscuits in 1987-88. He had received supply of pencils from the complainant firm through the accused and he had returned the supply and balance amount was paid to the accused. 20. PVV-10 Charanjit Singh has not stated anything specific. He stated that he was dealing in biscuits in 1987-88. He had received supply of pencils from the complainant firm through the accused and he had returned the supply and balance amount was paid to the accused. He has no receipt about any payment nor he is in a position to state as to when did he receive the supply and when did he make the payments. It also seems improbable that a person dealing in biscuits will receive supply of pencils and then return the supply and make payment of the balance. 21. PW-11 Satish Kumar has stated that he had received supply from the complainant firm worth Rs. 1758.50 and he had made the payment to the accused against receipt. He claims to have received a letter from the complainant firm about non-payment against the supply. However, neither he has produced any receipt regarding payment nor has produced the letter regarding non-payment. 22. PW-12 Roshan Lal has stated that he used to place orders through the accused and also used to make payment through the accused. He has not made any specific statement about any supply or payment. Further, he has not stated as to what is the name of his firm but what he states is that his business is of manufacturing pen ink It is thus not clear as to how he was concerned with the supply of pencils when he is dealing in pen ink. However, he has stated that receipts Exs. PW-12/A and PW- 12/B are signed by the accused. In cross-examination, he has also admitted that he had no notice from the complainant firm that the payments made by him to the accused were not deposited with the complainant firm and has further stated that he was intimated by the complainant firm that the draft of Rs.200/- issued by him (admittedly through the accused) had been received and credited by the complainant firm and there was nothing due from him to the complainant firm. Evidently, there is no pilferage of any money according to the statement of this witness. 23. PW-13 Suman Sharma has stated that he had paid a balance amount of Rs. 180 - to the accused which was payable by him to the complainant and a receipt for such amount was given to him by the complainant firm. Evidently, there is no pilferage of any money according to the statement of this witness. 23. PW-13 Suman Sharma has stated that he had paid a balance amount of Rs. 180 - to the accused which was payable by him to the complainant and a receipt for such amount was given to him by the complainant firm. At a later stage, he improved upon his earlier statement and stated that the receipt was issued to him by the accused. In cross examination, he has admitted that neither anything is recoverable by him from the complainant firm nor he is liable to pay amlhing to the firm. 24. PW-15 Shami Kumar has stated that his firm has business transactions with the complainant firm and the accused used to go to him to get supply orders and to receive payments and that whatever supplies he had received, he had made payments therefore to the accused. He has further stated that receipts in this regard are Exs. PW-15/B. PW-15/C and PW-15/D and that he does not owe anything to the complainant firm. In cross examination, he has also admitted that no complaint from the complainant firm was received by him that any amount was due from his firm to the complainant firm nor any notice of this type was ever received by him. 25. PW-16 Harmesh Kumar had stated that in the year 1988. he had purchased articles worth Rs. 1673/- from the complainant firm and had paid price thereof to the accused in two installments of Rs.800/-and Rs.855/- whereas a sum of Rs. 18- was deducted from the total bill. However, he has not obtained any receipt from the accused about the said payment. In cross examination, he has stated that he has received a letter from the complainant firm which was replied to. However, neither any such letter nor his reply has been put to him in his examination. He is one of those witnesses whose affidavits had been procured after about four years of the institution of the case. 26. What emerges from the aforesaid evidence is that at times the accused had been receiving payments against the supplies. It also emerges that in a certain case, pakka receipt had been issued by the firm about such payments whereas earlier, the receipt was issued by the accused. 26. What emerges from the aforesaid evidence is that at times the accused had been receiving payments against the supplies. It also emerges that in a certain case, pakka receipt had been issued by the firm about such payments whereas earlier, the receipt was issued by the accused. Some of the customers have been informed by the company that the payments received from them has been duly adjusted and there is no balance left. It also appears that in a certain case, the concerned customer was asked by the proprietor himself to make the payment to the accused. There is no evidence at all that either of the customer was misled by the accused in any manner to make payments to him. It also appears from the aforesaid statements that even prior to his employment as sales representative of the complainant firm. accused had been dealing in stationary articles and one of the witnesses to whom he has issued the receipts, had the dealings with him. even prior to his joining the service of the complainant firm as a sales representative. It also emerges from the statements of various witnesses, as discussed hereinabove. that they have never received any complaint from the complainant firm that they have not paid their dues. Thus, though it is established that the accused has received certain payments against the articles supplied by the complainant firm to its customers but it was not done dishonestly or with fraudulent intention but was with the express and implied consent of the firm which has been accepting deposits of such amounts as is evident even from the case of the prosecution itself as averred in the charge sheet. There is no evidence at all that the accused had not deposited the sale proceeds received by him from the customers of the complainant firm. As already stated, the best evidence in this regard has been deliberately withheld by the complainant firm in the absence whereof it cannot be concluded that the accused had not deposited any amount received by him with the complainant firm. Therefore, on the strength of the evidence on record, it cannot be concluded that the accused received the price of the goods supplied to its customers by the complainant firm by deceitful or fraudulent means and that he had not deposited that amount with the complainant firm. 27. Therefore, on the strength of the evidence on record, it cannot be concluded that the accused received the price of the goods supplied to its customers by the complainant firm by deceitful or fraudulent means and that he had not deposited that amount with the complainant firm. 27. In view of this discussion, the learned trial Magistrate is fully justified in coming to the conclusion that even the head of charge under Section 420 IPC is not proved against the accused. 28. In view of the above discussion and reasons, the impugned order of acquittal of the accused does not call for any interference. 29. As a result, the appeal fails and is accordingly dismissed. The bail bonds furnished by the accused are discharged.