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2010 DIGILAW 493 (HP)

STATE OF HIMACHAL PRADESH v. AJAY CHAND

2010-03-16

V.K.AHUJA

body2010
JUDGMENT V.K. Ahuja, J.(Oral)-This appeal has been filed by the State of Himachal Pradesh against the judgment passed by the Addl. Chief Judicial Magistrate, Court No.I, Shimla dated 1.7.2002 vide which he acquitted the respondent of the charge framed against him under Section 408 IPC. 2. Briefly stated, the facts of the case are that the respondent was allegedly posted as Secretary of Pagera Krishi Seva Sehkari Sabha Samiti, Panesh during the period 1.7.1988 to 30.6.1989 and was entrusted with various items for sale in the said society. It was alleged that he being the Secretary of the Society misappropriated a sum of Rs.33958.07 which came to the notice of the authorities during the audit of the Society conducted by the auditor. On the basis of the audit report, the complaint was lodged with the police who filed the challan after completion of the investigation and the case was tried by the learned trial Court leading to respondent’s acquittal. 3. I have heard the learned counsel for the parties and have gone though the record. 4. On appraisal of the judgment of the learned trial Court, it is clear that the learned trial Court has observed that there is nothing on record to show that the respondent was posted as Secretary of the concerned Society at the relevant time and the prosecution has also failed to prove entrustment of sale of various items. It was required of the prosecution to have produced evidence that the accused was posted as Secretary of the Society during the relevant time when he is alleged to have misappropriated the amount. It was also required of the respondent to have proved whether it was the duty of the respondent and whether he was required to receive the cash or the sale proceeds and in what manner the money was collected by him and was not accounted for. Therefore, the prosecution has failed to produce cogent and reliance evidence in regard to the fact that the respondent was posted as Secretary or was entrusted with the money and had not accounted for the same. The relevant Cash Book and voucher have also not been produced according to law during the trial before the learned trial Court and therefore, the findings recorded by the trial Court leading to the acquittal of the respondent cannot be said to be perverse calling for interference by this Court. 5. The relevant Cash Book and voucher have also not been produced according to law during the trial before the learned trial Court and therefore, the findings recorded by the trial Court leading to the acquittal of the respondent cannot be said to be perverse calling for interference by this Court. 5. However, it is clear that the learned trial Court has not observed that the Society is at liberty to proceed departmentally against the respondent and the other concerned persons. The Society is at liberty to initiate departmental enquiry, if not already initiated, in regard to the misappropriation of the amount and after fixing the responsibility, it shall take appropriate action in accordance with law for recovery of the amount in question. 6. With the above observations, the appeal is dismissed. The bail bonds shall stand discharged.