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Madhya Pradesh High Court · body

2006 DIGILAW 11 (MP)

Tejmal v. 8arjudevi

2006-01-02

S.C.VYAS

body2006
JUDGMENT 1. This revision has been filed by one Tejmal who is claiming himself to be the Managing Director of Krishko Ki Seva Sahakari Sansthan Maryadit, Piploda, District Ratlam, against the impugned judgment of acquittal dated 7th August, 2002, passed in Cr.A. No. 9012001 arising out of the judgment and order of conviction dated 12.2.2001 passed in Criminal Case No. 540/1985 by Judicial Magistrate First Class, laora, whereby the respondent No. 1 has been convicted for an offence punishable under section 409 of the Penal Code and sentenced to undergo RI for 3 years and to pay a fine of Rs. 500/-. 2. Facts of the case before the trial Court were that respondent No.1 was working in the capacity cashier-cum-clerk in the said Sahkari Sansthan and in that capacity she was receiving the amounts from the field supervisors and the members of the society and used to deposit the same in the Sanstha after making the entries in the cash book. It was also alleged that she had collected the amount on various dates from the supervisors and members of the society of Rs. 35,582.21 paise but she did not make any entry in the cash book regarding the said amount and thereby misappropriated of the said amount. It was also alleged that respondent No. 1 was working as a public servant at the relevant point of time. After inquiry the applicant has lodged a written report in the police station with regard to the misappropriation of the said amount by respondent No. I on the basis of which an offence was registered at Police Station, Piploda. After completion of the investigation a charge-sheet was submitted before the JMFC, Jaora. 3. The learned trial Magistrate after framing the charge under section 409 of the Penal Code and on trial found guilty for commission of an offence under section 409 of the Penal Code, convicted and sentenced respondent No. 1 as stated hereinabove. 4. Being aggrieved by the conviction and sentence passed against her she preferred an appeal before the learned Additional Sessions Judge, Jaora, who in appeal by the impugned judgment dated 7.8.2002 acquitted the respondent No.1 of the offence. It is" this judgment of acquittal which is subject-matter of challenge in this revision by the Managing Director of the alleged Sahkari Sansthan. 5. It is" this judgment of acquittal which is subject-matter of challenge in this revision by the Managing Director of the alleged Sahkari Sansthan. 5. Today none had appeared on behalf of the applicant, therefore, I have heard the counsel appearing for respondent No. 1 and respondent No.2 and peruse the record. I have gone through the revision memo also. 6. It has been stated in the grounds of revision memo (in para 3) that the respondent No. 1 was working as clerk-cum-cashier in the society and under section 87 of the M.P. Co-operative Societies Act she was a public servant and the learned Additional Sessions Judge erred in acquitting her of the said offence. It was also alleged that it is clearly established from the evidence of Radheshyam Sharma (PW 1), Tejmal Jain (PW 3) and R.S. Kulkarni Auditor (PW 5) that respondent No.1 had received the alleged amount and passed the receipt Ex. P-l to Ex. P-10. 7. It has been further submitted in the revision memo that the learned Additional Sessions Judge erred in holding that Sarju Bai was not working as cashier in the society. It has also been averred in the revision memo that it was incumbent upon the learned Sessions Judge to have provided an opportunity to the complainant to lead evidence about the existence of the documents but no such opportunity was granted by learned Sessions Judge. 8. Shri Y.K. Gangwal counsel for respondent No. 1 has vehemently opposed the grounds raised in the revision memo and argued that the prosecution has failed to prove that respondent No. 1 was appointed as clerk-cum-cashier and she was entrusted to receive the alleged amount from the supervisors and members of the society. The alleged receipts passed by respondent No. 1 were not proved to be in the handwriting of respondent No. 1 by handwriting expert and the report was also not submitted and proved by the handwriting expert thus it has not been established by the prosecution that respondent No.1 had received the alleged amount and misappropriated the same. The original documents were also not filed and proved by the prosecution. Thus, the learned Sessions Judge has rightly acquitted the respondent No.1 of the offence. 9. The original documents were also not filed and proved by the prosecution. Thus, the learned Sessions Judge has rightly acquitted the respondent No.1 of the offence. 9. In para 9 of the impugned judgment the learned Sessions Judge held that the respondent No. 1 has been appointed as a clerk on temporary basis which is clearly evident from the evidence of Tejmal (PW 3) the Branch Manager. From Ex. D-2 it is clearly evident that respondent No. I was appointed as a clerk and not cashier-cum-clerk and was not entrusted by the bank to receive the said amount. The original receipts Ex. P-l to P11 were not filed by the prosecution and it has not been proved that these receipts were signed by respondent No. 1. In para 14 of the impugned judgment learned Sessions Judge has rightly held that the original documents seized during investigation were not examined by the handwriting expert to prove that the receipts were signed by respondent No.1 and the amount was received and misappropriated by her to. It was incumbent upon the prosecution to prove by positive and conclusive evidence that such endorsement were made by respondent No. 1 and bears the signatures of respondent No.1. Mere oral statement of the employees of the society cannot be said to be sufficient to prove the fact, when documentary evidence was available and the same has been duly examined by handwriting expert but the report of the handwriting expert was not submitted by the prosecution before the trial Court and for wan of such report it becomes doubtful that the endorsement was made by respondent No. 1 and bears the signature of respondent No.1. Therefore, an adverse inference can very well be drawn against the prosecution that the same was deliberately not filed and benefit of not filing of the report and non-examination of handwriting expert goes in favour of accused. Thus, in absence of cogent, reliable and convincing documentary evidence, it would be unsafe to base conviction. 11. Therefore, in such circumstances, the learned Additional session Judge has committed no mistake in acquitting the respondent No.1. The scope of interference in the judgment of acquittal by way of revision a the instance of a private party is very much limited. Thus, in absence of cogent, reliable and convincing documentary evidence, it would be unsafe to base conviction. 11. Therefore, in such circumstances, the learned Additional session Judge has committed no mistake in acquitting the respondent No.1. The scope of interference in the judgment of acquittal by way of revision a the instance of a private party is very much limited. The finding recorded by the lower appellate Court may be erroneous to some extent but unless it is shown that such finding is perverse or contrary to the recorded facts, no interference can be made in the criminal revision at the instance of a private party. The apex Court in the matter of Akalu Ahir and others v. Ramdeo Ram, [ AIR 1973 SC 2145 ] relying on its earlier judgment has observed as under:-- "This Court, however, by way of illustration, indicated the following categories of cases which would justify the High Court in interfering with finding of acquittal in revision:-- (i) where the trial Court has no jurisdiction to try the case, but has still acquitted the accused; (ii) where the trial Court has wrongly shut out evidence which the prosecution wished to produce; (iii) where the appellate Court has wrongly held the evidence which was admitted by the trial Court to be inadmissible; (iv) where the material evidence has been over-looked only (either) by the trial Court or by the appellate Court: and (v) where the acquittal is based on the compounding of the offence which is invalid under the law. These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal." 12. Applying the proposition laid down by the apex Court in the above referred case and in many other cases, it is manifestly clear that the scope of interference in a criminal revision at the instance of a private party against the judgment of acquittal is very much limited. 13. Consequently, in the present case also after going through the entire record of the Courts below and after considering the contentions made in the revisions memo, I am of the view that the learned Sessions Judge has rightly acquitted the respondent No. 1 of the charge levelled against her. 14. 13. Consequently, in the present case also after going through the entire record of the Courts below and after considering the contentions made in the revisions memo, I am of the view that the learned Sessions Judge has rightly acquitted the respondent No. 1 of the charge levelled against her. 14. In the result the revision is devoid of any merit and substance. The same is hereby dismissed.