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2005 DIGILAW 1711 (RAJ)

State of Rajasthan v. Kundan

2005-07-05

SATYA PRAKASH PATHAK

body2005
Judgment S.P. Pathak, J.-The present criminal leave to appeal under Section 378(1) & (3) CrPC has been filed by the State against the Judgment and order dated 110.2000 passed by Additional Chief Judicial Magistrate, Bundi in Criminal Case No.183/1989, whereby the accused respondents have been acquitted of the charges punishable under Section 408, 420, 467, 468, 477-A and 120-B IPC. 2. Briefly stated, the facts of the case are that prosecution was initiated on the basis of Exhibit-P/18, written report lodged by PW. 2 Moolchand Shukla on 112.1979 in Police Station Kotkasim, who at the relevant time was Assistant Executive Officer in the Central Co-operative Bank Branch, Kotkasim, with the averments that the accused respondents, while functioning as office bearers of the Ganapur Gram Seva Sahakari Samiti Ltd., Gangapuri embezzled the loan amount which was required to be disbursed amongst its members. The total amount is said to be of Rs. 1,05,176/-. It was further stated that the accused respondents obtained loan amount from the Central Co-operative Bank Branch, Kotkasim and the amount was not disbursed between the members of the Society and they by preparing false and forged documents misappropriated the same. It was further stated that during the course of the inquiry under the provisions of the Rajasthan Co-operative Societies Act, 1965 (hereinafter to be referred to as `the Act of 1965) it was revealed that societys fund was misappropriated, therefore, they were liable to be punished. It was also stated that the order under Section 74 of the Act of 1965 was also passed holding the accused respondents guilty for misappropriation of the funds of the Society, thus, a case was required to be registered against them under Section 408 IPC. On the basis of above written report Exhibit-P/18, a regular FIR was chalked out which is Exhibit-P/19. 3. After usual investigation, a charge-sheet was filed before the Additional Chief Judicial Magistrate, Kishangarh Bas under Section 408, 420, 467, 468, 471 477-A read with Section 120-B IPC and after hearing arguments on the charge, charges against the accused respondents were framed accordingly. The accused denied the charges and claimed trial. 4. The prosecution in support of its case examined as many as 26 witnesses. In the statement recorded under Section 313 CrPC, the accused respondents denied the prosecution case and claimed to be innocent. In defence, no evidence has been led by the accused respondents. 5. The accused denied the charges and claimed trial. 4. The prosecution in support of its case examined as many as 26 witnesses. In the statement recorded under Section 313 CrPC, the accused respondents denied the prosecution case and claimed to be innocent. In defence, no evidence has been led by the accused respondents. 5. The learned trial Court vide its Judgment and order dated 110.2000 in Criminal Case No.183/1989, acquitted the accused respondents of the charges framed against them. Hence, the present Criminal Leave to Appeal has been filed. 6. Record of the case has been received. I have heard learned Public Prosecutor. 7. The contention of learned Public Prosecutor is that it has been amply proved on the basis of statement of PW. 1 Suhalal, Loan Inspector of the Central Co-operative Bank, Kotkasim that the accused respondents while holding charge of the President, Manager and treasurer of the Society embezzled societys fund and the loan amount received from the Bank was not disbursed to the members of the Society, therefore, the learned trial Court committed serious error in acquitting the accused respondents of the charges framed against them. It has next been contended that in the operative part of the order some of the sections have been mentioned which are not existing in the IPC. According to learned Public Prosecutor this shows non-application of mind on the part of the learned trial Court. It has further been contended that the extra judicial confession made before PW. 1 Suhalal has been discarded without assigning any cogent reason by the trial Court, therefore, the accused respondents are liable to be convicted and sentenced. 8. I have considered the submissions made before me. .9. The learned trial Court while acquitting the accused respondents of the charges levelled against them has held as under :- .(i) It was the duty of the prosecution to have proved that the alleged loan forms filled in the names of the persons, who had obtained the loan to have produced them in evidence. They have neither been examined nor their thumb impression or specimen signatures have been taken. They have neither been examined nor their thumb impression or specimen signatures have been taken. As no comparison of thumb impressions/signatures have been made of those persons from the thumb impression sent to the FSL who say that they have not received the loan amount, in the absence of specimen of thumb impressions/signatures of the alleged persons, it cannot be said that the FSL reports Exhibits-P/3 and P/43 stand proved. .(ii) The person who had obtained the thumb impression of some of the persons sent for examination in the FSL has not been examined and further the prosecution has not disclosed the names of the persons whose thumb impressions or the signatures were sent to the FSL for examination. .(iii) Theallegation of the prosecution that the loan amount said to have been disbursed in the name of some unknown persons have not been proved as no evidence has been led by the prosecution to prove that in fact the names of those persons are not available in the register showing the names of the persons amongst whom the loan amount is said to have been disbursed. .(iv) The persons in whose names the loan amount is said to have been disbursed, description of those persons has not been given in detail and further on the certificates issued in this regard to show that the disbursement of loan amount had taken place i.e., Exhibits-P/36 and 37, the signatures were obtained by PW. 23 Sarpanch, Ganga Ram during the course of the investigation, therefore, the prosecution was not able to prove its case beyond reasonable doubt. .(v) Inrelation to extra judicial confession, the learned trial Court found that unless extra judicial confession which is alleged to have been made before PW. 1 Suhalal on 15.05.1976 was counter-signed on 12.09.1983 at a belated stage by the Assistant Registrar, Co-operative Society, Kishangarh Bas, was doubtful and further the loan amount of the persons alleged to have been embezzled written by PW. 1 Suhalal himself . 10. In view of the above, the learned trial Court acquitted the accused respondents of the charges levelled against them. 11. Now, it is to be seen as to whether the Judgment and order passed by learned trial Court suffers from any illegality or not and is a fit case where leave to appeal requires to be granted. 12. 10. In view of the above, the learned trial Court acquitted the accused respondents of the charges levelled against them. 11. Now, it is to be seen as to whether the Judgment and order passed by learned trial Court suffers from any illegality or not and is a fit case where leave to appeal requires to be granted. 12. It appears that an order under Section 74 of the Act of 1965 was passed on the basis of an inquiry under Section 70 of the Act of 1965, holding the accused respondents guilty as such a First Information Report was lodged and after usual investigation charge-sheet was filed against the accused respondents. 13. The basic principle which cannot be denied is that it is duty of the prosecution to establish its case beyond reasonable doubt. The case of the prosecution is that the accused respondents were President, Treasurer and the Manager of the society. The loan amount obtained showing disbursement of the same either in the name of wrong persons or in the name of members of society who denied to have obtained the same and the loan amount received from the bank was embezzled by the accused respondents. In this connection, most of the prosecution witnesses have either been turned hostile or they have not supported the prosecution case. It is suffice to say that leaving 2 or 3 witnesses, all other witnesses have been declared hostile and did not support the prosecution case. 14. It is further to be seen that when the allegation of thumb impressions being forged on the loan form, it was the duty of the investigating agency to have taken thumb impressions of those persons who have denied the thumb impression on the alleged loan form for the purpose of sending the same for the opinion of expert. But in the instant case, thumb impressions of those persons have not been obtained and sent to the Forensic Science Laboratory for examination. If that is so, then, drawing an inference that thumb impressions sent to the Forensic Science Laboratory were not of those persons in whose name loan amount is said to be outstanding would not be proper. But in the instant case, thumb impressions of those persons have not been obtained and sent to the Forensic Science Laboratory for examination. If that is so, then, drawing an inference that thumb impressions sent to the Forensic Science Laboratory were not of those persons in whose name loan amount is said to be outstanding would not be proper. It is not known as to why during the course of the investigation thumb impressions and the specimen signatures were not taken of the persons who have denied to have taken loan and put their thumb impression on the loan forms. Only on the basis of Exhibits-P/3 & P/43 FSL reports, to draw the conclusion that the accused respondents have embezzled the amount cannot be said to be sufficient material to connect the accused respondents with the charges levelled against them. 15. In the present case, extra judicial confession is said to have been made before PW . 1 Suhalal, who is loan inspector and that too after considerable long time and in that extra judicial confession names of the persons who obtained the loan amount have been filled and written by PW . 1 Suhalal himself being an inquiry authority under the provisions of the Act of 1965. An extra judicial confession is normally made before a person in whom there is some faith of the person making it. In the instant case, there appears to be no circumstance or convincing evidence which may indicate that the alleged extra judicial confession of that nature was made before PW . 1 Suhalal. The learned trial Court has assigned reasons while appreciating the evidence and has held that the matter has not been properly investigated and the evidence required to prove the case against the accused respondents is missing. It is even doubtful as to whether Kundanlal, was or was not the Manager of the society at the relevant time as no evidence or investigation has been done in that behalf . It is also doubtful in the present case as to whether Shisram was the President of the society at the relevant time. In a case of criminal breach of trust, it is required of the prosecution to prove by convincing and reliable evidence that the amount which was entrusted to the accused respondents has been embezzled. It is also doubtful in the present case as to whether Shisram was the President of the society at the relevant time. In a case of criminal breach of trust, it is required of the prosecution to prove by convincing and reliable evidence that the amount which was entrusted to the accused respondents has been embezzled. It was also required of the prosecution to have produced all those persons in whose name the loan amount has been shown as disbursed. 16. As discussed hereinabove, there is no trust worthy and reliable evidence available on record in this case as most of the prosecution witnesses have turned hostile and it is not safe to hold guilty the accused respondents on the basis of the alleged weak type of extra judicial confession that too also appears doubtful. 17. In view of the forgoing discussion, I do not find any merit in this criminal leave to appeal and the same deserves to be dismissed after confirming the Judgment and order of the trial Court passed in Criminal Case No. 183/89. 18. In the result, the application for leave to appeal is refused.