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2006 DIGILAW 1461 (PNJ)

State Of Haryana v. Shamsher Singh

2006-04-04

K.S.GAREWAL, MAHESH GROVER

body2006
Judgment Mahesh Grover, J. 1. The State of Haryana has come up by way of application under Section 378(3) of the Code of Criminal Procedure seeking leave to appeal against the acquittal awarded to Shamsher Singh, son of Shri Sampuran Singh vide his judgment dated 11.3.2005, acquitting him of offence under Section 408 IPC. 2. On notice being issued, Sh. G.S. Sandhu, entered his presence on behalf of the respondent. 3. By present order, we propose to dispose of the aforementioned application moved by the state under Section 378(3) of the Code of Criminal Procedure. 4. The prosecution case was that at the instance Assistant Registrar Co-operative Societies, Karnal, the case was registered against the accused-Shamsher Singh on the allegation that he as an Ex-secretary of Phaphrana Credit and Co-op. Society Ltd., had embezzled an amount of Rs. 33,354.67 as per the special audit report pertaining to the year 1991-92. 5. The case was, accordingly, registered against the said accused vide FIR No. 306 dated 9.9.1993 under Section 409 of the Indian Penal Code, Police Station Assandh. The police during investigation found that the accused had committed embezzlement of cash amounting to Rs. 27,744.81 and also 34 kilograms of pesticides worth Rs. 5789.86. Hence, the total amount embezzled by the said accused came to Rs. 33,534.67. 6. After completion of investigation, two separate challans were filed bifurcating the amount embezzled into cash and kind. Challan bearing Criminal Case No. 453/1 of 2000 was filed in respect of embezzlement of cash amounting to Rs. 27,744.81 and second challan bearing Criminal Case No. 454/1 of 2000 in respect of embezzlement of 34 kilograms of pesticides worth Rs. 5789.86. 7. Charge was framed against the accused on 18.4.1996 and he was charged for having committed an offence punishable under Section 408 of the Indian Penal Code to which he pleaded not guilty and claimed trial, 8. The prosecution in order to prove its case had examined, as many as, five witnesses and the accused in his statement under Section 313 of the Code of Criminal Procedure while pleading his defence claimed his innocence and in defence, the accused produced document Ex.D1 and closed his evidence. 9. The prosecution in order to prove its case had examined, as many as, five witnesses and the accused in his statement under Section 313 of the Code of Criminal Procedure while pleading his defence claimed his innocence and in defence, the accused produced document Ex.D1 and closed his evidence. 9. Learned trial Court vide its judgment dated 14.2.2003 found the accused guilty and convicted him for having committed an offence under Section 408 of the Indian Penal Code and sentenced the accused to undergo rigorous imprisonment for two years and to pay a fine of Rs. 500/-. In default of payment of fine, he was directed to undergo rigorous imprisonment for one month. 10. In appeal against this judgment filed by the accused, the learned Additional Sessions Judge reversed the finding of the learned trial Court and acquitted him of the said offence vide his judgment dated 11.3.2005. 11. Aggrieved by this judgment, the State has filed the present application under Section 378(3) of the Code of Criminal Procedure seeking leave to appeal against the acquittal granted to the accused. 12. Sh. P.S. Sullar, learned Deputy Advocate General, appearing for the State of Haryana tried to highlight the seriousness of the offence by saying that 34 kilograms of pesticides entrusted to him by the Society were misappropriated by the accused and this fact had been highlighted by the audit report and consequently, there was no escape from the irresistible conclusion that the accused had committed an offence under Section 408 of the Indian Penal Code. 13. Sh. G.S. Sandhu, learned counsel for the respondent has submitted that two separate FIRs and two separate Challans were filed regarding these two offences and the accused was acquitted in related case regarding the misappropriation of amount of Rs. 33,534.67 and since both these offences were inter-related, hence, acquittal awarded by the learned Court below was perfectly in order. 14. We cannot permit ourselves to accept this argument and to say that the factum of acquittal in the connected case should be a reason enough to accord acquittal in the present case as well. We have, however, gone through the record and find that the prosecution has miserably failed to substantiate the charge against the accused person regarding the misappropriation of 34 kilograms of pesticides which was entrusted to the accused person. We have, however, gone through the record and find that the prosecution has miserably failed to substantiate the charge against the accused person regarding the misappropriation of 34 kilograms of pesticides which was entrusted to the accused person. Exhibit PW6/A is the report regarding the handing over the charge and at serial No. 4, the following entries are made : "Dawai (I.S.O.P.T.A.) : 34 Kgs." 15. However, the details of the name of the pesticides, date of manufacture or any other relevant details pertaining to the said pesticides have not been mentioned. The audit report, Exhibit PW4/A against count No. 5 also does not give the particulars of the pesticides which are alleged to have been not accounted for by the accused person. The weight of the pesticides is also not given. Shorn of all details, there is absolutely no manner in which the accused can be held guilty of misappropriating the pesticides or making the embezzlement of entire sale proceeds, as has been alleged. The audit report also mentions that the matter be inquired thoroughly and the efforts be made to fix the responsibility. However, neither any fact finding inquiry was conducted nor any attempt was made to ascertain the truth by the Society. 16. The prosecution is cast with very serious duty to bring on record quality evidence in order to substantiate its allegation against an accused person. It cannot seek conviction of any person without bringing substantial evidence on record as it becomes extremely difficult for the Court to pronounce a person guilty in the absence of fool-proof evidence nailing guilt by the accused person. 17. We also cannot be oblivious of the fact that this Court while considering the matter, regarding interference with the acquittals granted by the learned Courts below, certain factors have to be borne in mind such as : 1. The view of the trial Judges as to the credibility of the witnesses. 2. The presumption of innocence in favour of the accused, the presumption which is certainly not weakened by the fact that he has been acquitted in his trial. 3. The right of the accused to the benefit of any real and reasonable doubt, and the slowness of the appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. 18. 3. The right of the accused to the benefit of any real and reasonable doubt, and the slowness of the appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. 18. Apart from this, the reasons given by the Courts below also have to be taken into account while dealing with such like matters. 19. We are convinced that this is a case where the prosecution has miserably failed to prove its case. 20. Consequently, we do not deem it a fit case where we should interfere with the acquittal granted by the learned Additional Sessions Judge, vide his judgment dated 11.3.2005. 21. Special leave to appeal is, therefore, declined, for the reasons mentioned above.