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2005 DIGILAW 1153 (PNJ)

State Of Punjab v. Jarnail Singh

2005-11-08

SATISH KUMAR MITTAL

body2005
Judgment Satish Kumar Mittal, J. 1. The State has filed this appeal against the judgment dated 9.10.1992 passed by the Judicial Magistrate Ist Class, Ludhiana vide which he has acquitted accused Jarnail Singh from the charge levelled against him under Section 409 IPC in case FIR No. 11 dated 16.1.1985 registered at Police Station Sarabha Nagar, Ludhiana. 2. The aforesaid FIR was registered against the respondent on the basis of the written complaint dated 14.12.1984 made by the Executive Engineer, Punjab Water Supply & Sewerage Board, Division No. 1, Ludhiana. In the complaint, it was alleged that in March 1984, the physical verification of various cement stores of Punjab Water Supply & Sewerage Board, Division No. 1, Ludhiana, was conducted by senior officials of the Board and shortage of 4857 Nos. of cement bags valuing Rs. 3,15,705/- was detected. As a follow up action, an enquiry was held in which P.S. Mohil, SDE, who was incharge of the Stores, Sub Division before R.S. Cheema, SDE, Jarnail Singh, JE, incharge, Cement Stores and Hans Raj, JE, who held the charge of Cement immediately before Jarnail Singh, were charge-sheeted. Consequently, P.S. Mohil and Jarnail Singh accused were placed under suspension, and Hans Raj, who was on deputation from Public Health department, was also departmentally proceed with by the said department. On the said complaint, Senior Superintendent of Police, after obtaining the opinion of A.D.A. (Legal) ordered registration of a case only against accused Jarnail Singh under Section 409 IPC. Subsequently, charge was framed against the respondent accused under Section 409 IPC to which he did not plead guilty and claimed trial. 3. In support of its case, the prosecution examined 16 witnesses and thereafter closed the evidence. In his statement under Section 313 Cr.P.C, the accused pleaded that he has been falsely involved and claimed trial. 4. After considering the evidence led by the prosecution, the learned trial Court came to the conclusion that the prosecution has miserably failed to prove the entrustment of the misappropriated cement bags to the accused. It has been found that the stock verification of the cement on various godowns was conducted in March, 1984 whereas the respondent accused was transferred from the alleged store on 28.12.1983 and thereafter the charge was taken over by one Raj Pal Sharma, Junior Engineer. It has been found that the stock verification of the cement on various godowns was conducted in March, 1984 whereas the respondent accused was transferred from the alleged store on 28.12.1983 and thereafter the charge was taken over by one Raj Pal Sharma, Junior Engineer. It has been also found that the shortage of 4857 cement bags was detected on verification from six godowns and the prosecution has not led any evidence to prove that accused Jarnail Singh had a control over all the stores/godowns. The prosecution has not led any evidence that all the stores/six godowns were in the charge of accused Jarnail Singh. The prosecution witnesses i.e. PW1-Rai Singh Sandhu, Sub Divisional Engineer and PW2-D.S. Bakshi, Executive Engineer could not point out whether Jarnail Singh or Raj Pal Sharma were the incharge of the cement stores. PW9- Prahlad Singh, who was Sub Divisional Engineer from 29.5.1981 to 7.11.1983 has stated that when the accused Jarnail Singh was working under him as incharge of the stores, no shortage of cement was found from the accused. It has been further held that even in the enquiry report, copy which had been placed as Ex.PW11/8, the respondent accused was not found solely responsible for the alleged shortages and it was found that the possibility of the involvement of the other officials in the alleged shortage cannot be ruled out. In light of this evidence, the trial Court acquitted the respondent while holding that the prosecution has failed to prove the entrustment of the cement bags to the accused. 5. Counsel for the appellant-State argued that the shortage of cement bags has been proved during the enquiry in which the respondent has also admitted his guilt and also deposited an amount of Rs. 76,000/- therefore, an inference should be taken that he admitted his guilt, and the trial Court has committed grave illegality ignoring that aspect of the matter and acquitting the accused from the alleged charge. 6. On the other hand, learned counsel for the respondent has submitted the prosecution did not lead any cogent evidence which could have proved the alleged charge against the respondent. He submitted that the offence under Section 409 IPC has not been made out and the trial Court has rightly acquitted the respondent accused. The entrustment of the alleged cement bags to the respondent, which were found to be short, has not been proved. He submitted that the offence under Section 409 IPC has not been made out and the trial Court has rightly acquitted the respondent accused. The entrustment of the alleged cement bags to the respondent, which were found to be short, has not been proved. He submitted that as per Ex.PW13/A, the respondent was transferred on 28.12.1983 and in his place one Raj Pal Sharma, Junior Engineer had joined. In this case, the stock verification was made in March, 1984 and at that time Raj Pal Sharma was looking after and taking care of the stores. Learned counsel submitted that there is no evidence on the record which proves that the respondent was entrusted with the misappropriated short cement bags before 28.12.1983. PW1- Raj Singh Sharma Sandhu, SDE has stated that Raj Pal Sharma had taken over the charge from Jarnail Singh and further in his examination-in-chief he has deposed that the shortage could not be pinpointed J.E. wise. The learned counsel further submitted that PW2-D.S. Bakshi, Executive Engineer and PW3- R.N. Sharma, Executive Engineer have not supported the prosecution case. Similarly, PW5-S.L. Aggarwal, S.E. in his cross-examination has stated that he cannot state as to who was incharge of the godown at the time of the checking. He further submitted that PW9-Prahlad Singh, SDE has categorically stated that during his tenure from 29.5.1981 to 7.11.1983 there was no shortage of cement and he used to check and record incoming and outgoing of cement. The learned counsel submitted that keeping in view all this evidence, the trial Court has rightly given the benefit of doubt to the accused respondent while holding that the entrustment of the misappropriated cement was not proved by the prosecution. Thus, the learned counsel submitted that there is no illegality or infirmity in the impugned judgment. 7. After hearing the counsel for the parties and going through the record of the case and the statements of various witnesses led by the prosecution, I do not find any illegality or perversity in the impugned judgment passed by the trial Court vide which the respondent has been acquitted. In my opinion, merely because at one point of time during the departmental investigation if the respondent had admitted some part of his guilt and deposited some amount, he cannot be presumed to be guilty until and unless the prosecution proves the guilt against him beyond reasonable doubt. In my opinion, merely because at one point of time during the departmental investigation if the respondent had admitted some part of his guilt and deposited some amount, he cannot be presumed to be guilty until and unless the prosecution proves the guilt against him beyond reasonable doubt. In the instant case, during the criminal trial, the prosecution, in my opinion, had failed to prove the offence under Section 409 IPC against the respondent. The essential ingredient of the offence under Section 409 IPC i.e. the entrustment of the goods, which are alleged to have been misappropriated, has not been proved. In the instant case, a categorical finding has been recorded by the trial Court on the basis of the evidence led before it that the prosecution has failed to prove the entrustment of the alleged shortage of cement bags to the respondent as on the date when the physical verification was done, he was neither incharge of the stores nor the misappropriated cement was controlled by him. Admittedly at that time, Raj Pal Sharma was incharge of the stores and he took the charge of the stores from the accused respondent much prior to the alleged stock verification i.e. 28.12.1983. In these circumstances, I do not find merit in the instant appeal filed by the State as in my opinion neither there is any illegality nor any misreading of the statement of any witnesses or any perversity in the impugned judgment. Thus, the appeal against the impugned judgment filed by the State is hereby dismissed.