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2009 DIGILAW 1242 (HP)

STATE OF H. P. v. DHARAM SINGH

2009-12-09

SURINDER SINGH, SURJIT SINGH

body2009
JUDGMENT Surjit Singh, J.(Oral)- State has appealed against the judgment dated 19.4.1995 of learned Sessions Judge, Kangra at Dharamshala whereby, accepting the appeal of the respondent Dharam Singh, against the judgment dated 29.11.1994 of learned Chief Judicial Magistrate, Kangra at Dharamshala by which the said respondent had been convicted and sentenced for offences under Sections 409, 408 and 471 Indian Penal Code, the said judgment dated 29.11.1994 was set aside and the respondent was acquitted. 2. Facts relevant for the disposal of the appeal may be noticed. Respondent Dharam Singh was employed as Supervisor in Common Facility Workshop, Dhaliara. It appears that the Workshop was under the overall control of Panchayati Raj Department. Audit of the accounts of the aforesaid Workshop was conducted by PW1 Dev Mitter Tiwari sometime in the year 1983. In the course of that audit, it was found that several amounts of money had not been accounted for by the respondent during a period of three years. On the basis of that audit report, the Director Panchayati Raj through the Deputy Commissioner, Kangra got a case registered against the respondent with the Superintendent of Police (Enforcement North Zone, Dharamshala). Case was registered under Sections 406, 408, 468, 470 and 471 Indian Penal Code. During the course of investigation, it was noticed that various amounts of money had been embezzled during a period spread over three financial years. Therefore, separate challans were filed for each year. 3. This appeal arises out of the challan filed in respect of the year 198182. As per challan, respondent had misappropriated a sum of Rs. 25,333.46 paise during the year 1981. The alleged embezzlement pertained to the following amounts in the manner stated against each:- (a) Rs. 15,832.96. Money was received by the respondent on account of salary of five employees named Rustom Chand, Tota Ram, Lekh Ram, Karam Singh and Hukam Chand for the period from April, 1980 to July, 1980 but the aforesaid amount was not disbursed to the aforesaid employees and were mis-appropriated and false entries were made in the cash book showing disbursement of the said amount; (b) Rs. 9500/-. The money had been received in parts by the respondent on 30th March, 1981, 16th May, 1981, 21st August, 1981, 10th August, 1981 and 30th November, 1981. He did not account for the said amount which he had received as advance on different dates; (c) Paisa 50. 9500/-. The money had been received in parts by the respondent on 30th March, 1981, 16th May, 1981, 21st August, 1981, 10th August, 1981 and 30th November, 1981. He did not account for the said amount which he had received as advance on different dates; (c) Paisa 50. Respondent had received Rs. 11.50 Paise from the customers. He accounted for only Rs. 11/- in his cash book. 4. Trial Court convicted and sentenced the respondent for all the aforesaid offences. Respondent appealedto the Sessions Judge and the learned Sessions Judge vide impugned judgment accepted the appeal, set aside his conviction and sentence and acquitted him. 5. We have heard the learned Assistant Advocate General as also the learned counsel for the respondent and perused the record. 6. Learned Sessions Judge has observed on the basis of evidence on record that account books in respect of the income and expenditure of the Workshop were being maintained not by the respondent, but by a Clerk in the office of Block Development Officer, Panchayati Raj and that a case of mis-appropriation had been got registered against the Head Cashier of the said Office of Block Development Officer. PW1 Dev Mitter Tiwari, the Auditor, examined by the prosecution, admitted this fact. Witness also admitted that the entries in the cash book maintained in the Office of Block Development Officer had not been verified by any Officer. Since the cash book was being maintained in the Office of Block Development Officer, presumption should be that it was the Block Development officer, who was supposed to verify the entries in the cash book and was responsible for its proper maintenance. In any case, there is no evidence indicating that it was the job of the respondent to maintain the accounts, leave alone the cash book. 7. In the cash book, entries are there that the salary had been disbursed to all the above named five employees of the Workshop. Three of those employees, namely, PW7 Karam Singh, PW9 Totu Ram and PW16 Lekh Ram were examined by the prosecution and all of them admitted that their salary had been disbursed to them, though they denied their signatures on the disbursement vouchers. 8. Respondent had made an entry of only Rs. 11/- in one of the cash books which he was not supposed to have officially maintained. 8. Respondent had made an entry of only Rs. 11/- in one of the cash books which he was not supposed to have officially maintained. He had maintained that cash book in his private capacity for his personal memory/satisfaction. He pleaded that he had disbursed the salary to the employees, which fact is proved by the testimony of the above named three employees, namely, PW7 Karam Singh, PW9 Totu Ram and PW16 Lekh Ram. As regards amounts of advances aggregating Rs. 9500/-, as referred to in item (b) hereinabove, his explanation is that he had accounted for the money to the concerned official of the Block Development Office and that he cannot be held responsible for the aforesaid amount of money if the concerned official did not make entry in the record or the cash book. 9. In view of the above stated position, we are of the considered view that respondent cannot be held guilty of misappropriation. 10. As regards the charge of forgery, under Sections, 468 and 477 Indian Penal Code, the same was ill founded. This is not a case of forgery. Firstly, there is nothing on record, indicating that any entry in the cash book, except an entry of Rs. 11/- in a personal book maintained by the respondent, was in his hand and secondly, one does not commit the act of forgery by making an entry in any record if the entry purports to be made by him and by no other person, because such an entry would not fall within the mischief of Section 464 Indian Penal Code, defining the term ‘making a false document’. As a matter of fact, when false entries in account books are made and the same purport to be made by the person by whom the same are made, that amounts to an offence of falsification of accounts, under Section 477-A Indian Penal Code. 11. For the foregoing reasons, we see no merit in the appeal. The same is therefore, dismissed.