Research › Search › Judgment

Uttarakhand High Court · body

2012 DIGILAW 130 (UTT)

KRISHNA DEVI v. STATE OF UTTAR PRADESH

2012-03-27

SUDHANSHU DHULIA

body2012
JUDGMENT Hon’ble Sudhanshu Dhulia, J. (Oral) 1. Heard Mr. Anurag Bisaria, Advocate for the defendants/appellants and Mr. B.K. Gupta, Additional Advocate General for the plaintiff-respondent/State. 2. This second appeal has been admitted by the learned Single Judge of this Court on the following question of law, which reads as under: “1. Whether the first appellate court has erred in law in decreeing the suit as against the appellants/ defendants who have allegedly not inherited the property of defendant No. 1 Madan Lal (Since deceased), the employee of the plaintiff/respondent who is said to have embezzled the amount.” 3. All the same, when the learned counsel for the defendants/appellants as well as learned counsel for the plaintiff/respondent were being heard, it transpired that another substantial question of law also presently arises for consideration by this Court. Before we come to this aspect, brief facts of the case must be stated. These are as under: 4. In the erstwhile Irrigation Department of the State of Uttar Pradesh one Sri Madan Lal (defendant no. 1) was the Class IV employee and was working as Store Keeper at Belwala and at another place at Cheella in district Pauri Garhwal. He worked as such between 14.12.1975 to 10.8.1981. After his transfer from the said place as Store Keeper, it came to light that there was a shortage of many of the articles in the Store Room such as Cement, Iron Timber etc. Consequently, a departmental inquiry was constituted against Sri Madan Lal. After inquiry, a First Information Report was lodged against Madan Lal (defendant no. 1), which was registered as Case Crime No. 35/83 under Section 409 IPC, which ultimately resulted in filing of a charge sheet in which Sri Madan Lal to face criminal trial under Section 409 of the Indian Penal Code. Meanwhile it was revealed that Mr. Madan Lal had purchased a property in the year 1978 at Jwalapur in Haridwar. According to the plaintiff-respondent, this property was purchased out of the “funds”, which he had “misappropriated” as a Store Keeper in the Irrigation Department as a government employee! Consequently, a suit was filed for recovery of `1,99, 122.18/- against Sri Madan Lal (Defendant No.1). Apart from Sri Madan Lal, who was defendant no. 1, his wife Smt. Krishan Devi and two sons Mr. Satish Kumar and Mr. Pradeep Kumar were also made party as defendant nos. 2, 3 and 4 respectively. Consequently, a suit was filed for recovery of `1,99, 122.18/- against Sri Madan Lal (Defendant No.1). Apart from Sri Madan Lal, who was defendant no. 1, his wife Smt. Krishan Devi and two sons Mr. Satish Kumar and Mr. Pradeep Kumar were also made party as defendant nos. 2, 3 and 4 respectively. This was done because the property had been purchased in the name of his wife and sons. The entire case of the plaintiff was that the money misappropriated was around of `1,98,000/-, and out of this amount the said property was purchased in the name of his wife and two sons and hence the suit for recovery was filed with the following substantial questions of law which was formulated by the trial court, which read as under: “1. Whether during the tenure of defendant no. 1 between 14.12.1975 to 18.8.1981 at Belwala and Cheela the goods of the plaintiff were in his custody and there was any shortage, if yes, whether defendant is liable to pay its cost? 2. Whether defendant no. 1 on 22.3.1981 admitted the said shortage, if yes, its effect? 3. Whether suit was instituted by wrong plaintiff, if not so, its effect? 4. Whether the property purchased by defendant no. 1 by Bainami in the name of defendant no. 2 to 4 can be auctioned? 5. Whether the suit is bad for mis-joinder of unnecessary parties? 6. Whether the court has jurisdiction to try the suit? 7. Whether the suit is barred by limitation? 8. Whether the defendant no. 1 is not liable to compensate the shortage? 9. Whether the suit is bad for mis-joinder of parties? 10. Relief? If any.” 5. On issue no. 1, 2, 3 and 8 the trial court given a finding that apart from defendant no. 1 Madan Lal, there was as many as 15 Chowkidar, Assistant Engineers and other persons working in these two particular stores, therefore, the responsibility cannot be fixed on defendant no. 1 alone. Apart from this, the mere admission of defendant no. 1 is that there was a shortage of articles was not enough evidence to fix the entire liability upon him. Curiously, though after giving such a finding on issue nos. 1 alone. Apart from this, the mere admission of defendant no. 1 is that there was a shortage of articles was not enough evidence to fix the entire liability upon him. Curiously, though after giving such a finding on issue nos. 1, 2 and 3 in favour of plaintiff which would be that the finding of the court was that the plaintiffs have not been able to prove that there were any shortage at the store and that the responsibility for the shortage can be fixed upon the defendant no.1. Since this was the finding the issue no.8, which was “whether the defendant no.1 is not liable to compensate the shortage” could not have gone in favour of the plaintiff and against the defendants. This seems to be a mistake by the trial court, because if one reads the judgment of the trial court as a whole one finds that on issue no. 1 to 3, the trial court has not fixed the liability on defendant no. 1, therefore, it can be said that logically issue no.8 would have gone against the defendants. 6. The plaintiff though aggrieved filed first appeal being Civil Appeal No. 17 of 1996 before the appellate court and the appellate court came to the conclusion that there is inherent contradiction in the conclusion of the trial court arrived at on issue nos. 1, 2, 3 and 8 and came to the conclusion that there was liability fixed upon defendant no. 1 and all these issues have to be given in favour of the plaintiff. Apart from this sole evidence, on which a finding has been given by the lower appellate court, is an admission by defendant no. 1 that there was a shortage of certain articles as per the records. It is clear view of this Court that merely on this evidence liability could not have been fixed upon defendant no. 1 particularly in view of the fact that the appellate court has merely presumed that such a liability was fixed by the trial court whereas it has not been done. Apart from this, there is another aspect inasmuch as there is no evidence on record to prove that the property was purchased in the name of defendant nos. 2, 3 and 4 out of the misappropriated funds, as alleged by the plaintiff-respondent. Apart from this, there is another aspect inasmuch as there is no evidence on record to prove that the property was purchased in the name of defendant nos. 2, 3 and 4 out of the misappropriated funds, as alleged by the plaintiff-respondent. In order to prove this and in order for the suit to succeed against the remaining defendants as well, a very heavy burden had to be discharged by the plaintiff-respondent, and they had to establish a nexus between the misappropriation done by defendant no. 1 and the investment done out of that misappropriated funds in the form of purchase of property in the name of defendant nos. 2 to 4. This has clearly not been done by the plaintiff-respondent before the trial court or before the appellate court. 7. Considering these factors in the present second appeal, the counsel for the defendants-appellants as well as counsel for the plaintiff-respondent were heard already on the substantial questions of law so formulated by this Court. Apart from this, the defendants/appellants have also been heard on the substantial question of law which is “whether the plaintiff has been able to discharge its burden by fixing the responsibility of misappropriation of funds on defendant no. 1 and further whether the plaintiff has been able to discharge its burden regarding the nexus between the misappropriated fund and actually purchased of the property in the year 1978 in the name of defendant nos. 2 to 4”. 8. Having heard learned counsel for the parties, this Court is of the considered view that the lower appellate court has erred in law in decreeing the suit as against the defendants/appellants, as there has been no evidence before the trial court to have come to the conclusion that the property has been purchased in the name of defendant nos. 2 to 4 out of misappropriated funds. The other two issues formulated at the time of hearing also decided in favour of the defendants-appellants and against the plaintiff-respondent inasmuch as there has been no worthwhile evidence on record to prove that there was any nexus between the misappropriation of funds and subsequent purchase of property. Therefore appeal is liable to be allowed and is hereby allowed. Judgment and order dated 17.3.2009 passed by the learned Additional District Judge/IIIrd Fast Track Court, Haridwar in Civil Appeal No. 17/1996 is also set aside. 9. Matter is consigned to record.