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2012 DIGILAW 727 (KAR)

State by Chickpet Police Station v. Suresh James

2012-08-29

K.N.KESHAVANARAYANA

body2012
Judgment 1. This appeal by the State is directed against the judgment and order dated 17-9-2004 passed by the IV Additional CMM, Bangalore, in C.C. No.8179 of 1994 acquitting the respondent-accused for the offences punishable under Sections 408 and 477-A of Indian Penal Code, 1860. 2. Though the records of the Trial Court were called for as far back as on 27-3-2007 and inspite of issuance of reminders, records were not submitted by the Trial Court. It is now reported by the Trial Court that the records are lost and are not traced. The appeal is already seven years old. The proceedings were initiated about 18 years ago and the offence alleged to have been committed between 3-1-1992 and 26-8-1993. Therefore, without waiting for the records to be traced in the Trial Court, the matter was heard on the basis of the findings recorded by the Trial Court and the copies made available by the learned Counsel for the respondent/accused. 3. The allegations made against the respondent/accused was that between 3-1-1992 and 26-8-1993, the accused while working as Manager of the Bata Showroom, Avenue Road, Bangalore, misappropriated the accounts of the showroom to the tune of Rs.5,12,423.92 and Rs.43,927.55 in respect of 145 pairs of shows supplied to M/s. Graphite India Limited and also the balance amount of Rs.25,506.77 received from M/s. Amala Engineering Company. Thus, the accused has totally misappropriated the amount of Rs.5,81,858.24 by falsifying the accounts of the showroom and thereby he has committed the aforesaid offences. 4. The respondent-accused pleaded not guilty for the charges levelled against him. 5. It is undisputed that the respondent-accused was working as Manager in Bata Showroom, Avenue Road, Bangalore, from 3-1-1992 to 26-8-1993. At the time of assuming charge as Manager, an agreement had been executed by him as per Ex.P.1, which sets-out the duties and obligations to be performed by him. As per the terms of Ex.P.1, the accused, as Manager of the said showroom, was responsible for the stock held in the showroom and also to the sale proceeds. Therefore, the admitted facts indicate the entrustment of the property to the accused. 6. Now the question would be, whether there was any kind of misappropriation of the funds of the Company? 7. Basis for accusation made against the respondent/accused was the alleged inventory said to have been made by P.W.2 between 9-8-1993 and 11-8-1993. 8. Therefore, the admitted facts indicate the entrustment of the property to the accused. 6. Now the question would be, whether there was any kind of misappropriation of the funds of the Company? 7. Basis for accusation made against the respondent/accused was the alleged inventory said to have been made by P.W.2 between 9-8-1993 and 11-8-1993. 8. According to the prosecution, P.W.2-R.R. Koshraju, who is stated to be the District Manger, visited the shop of the accused on 9-8-1993 and started inventory and closed it on 11-8-1993. According to P.W.2, on verification of the stock, he found shortage of stock worth Rs.5,81,858.24 and in this regard, he submitted a statement, based on that the complaint came to be filed before the jurisdictional police. 9. The learned Magistrate on assessment of oral as well as documentary evidence, found that the evidence of P.W.2 regarding the alleged inventory and report of misappropriation by the accused is defective inasmuch as he has not taken into consideration several remittance appears to have been made by the accused directly to the head office bypassing the South Regional Office and the starting point for conducting inventory has also been wrongly taken from the 11th week of 1993; that even according to the Company, weekly statements upto 29th week of 1993 have been correctly submitted and there was no difference or shortage upto that period and therefore, instead of finding-out as to there was any kind of shortage between 29th and 33rd week, the alleged inventory stated to have been done for the period from 11th week to 33rd week. Therefore, the learned Magistrate was of the opinion that the alleged inventory said to have been made by P.W.2 cannot be the sole basis to record conviction against the respondent/accused. 10. With regard to the other allegations of not accounting for the amounts said to have been received from M/s. Graphite India Limited and M/s. Amala Engineering Company, the learned Magistrate held that the prosecution is not able to prove the payments from such companies to the accused. Having regard to the evidence on record, the learned Magistrate found that the payments from those companies were through Demand Drafts and not by cash and that those Demand Drafts have been remitted to the accounts of the Bata Shoe Company. Having regard to the evidence on record, the learned Magistrate found that the payments from those companies were through Demand Drafts and not by cash and that those Demand Drafts have been remitted to the accounts of the Bata Shoe Company. In that view of the matter, the learned Magistrate found no acceptable evidence to hold the accused guilty of the charges levelled against him. Therefore, the accused was acquitted. Aggrieved by the said judgment, the State is in appeal. 11. It is brought to the notice of this Court that on the basis of this very allegation of misappropriation of the funds in the company, Departmental Enquiry was held against the accused, in which, he was found guilty and was dismissed from service. However, the said order of dismissal was set aside by the Labour Court on a reference on 24-9-2001 in ID No.15 of 1994 on the file of the Principal Labour Court, Bangalore, and the said matter is pending before this Court in a writ petition filed by the Company. 12. I have carefully read the judgment passed by the learned Magistrate. The learned Magistrate has elaborately referred to the evidence of material witnesses namely P.W.2 and has found several defects as to the inventory stated to have been conducted by him. From the evidence of P.W.2, the learned Magistrate has also noticed that during that relevant year, there was some agitation in the organisation, on account of which there were difference of opinion between the management and the Managers manning the showrooms, as a result, the Managers went on agitation and during that period certain remittances were made directly to the Head Office at Calcutta bypassing the south office and those remittances appears to have been made by the accused directly to the Head Office to the tune of Rs.3,00,000/-and add and that has not been taken into consideration during the inspection conducted by P.W.2. The learned Magistrate has also found that P.W.2 appears to have commenced the inventory on the basis of the statement submitted for the 11th week of 1993, while the evidence on record showed that upto 29th week of 1993 the statements had been submitted and they were found to be correct, therefore, the learned Magistrate noticed that the inventory ought to have been on the basis of the statements from 29th week of 1993 onwards upto 33rd week of 1993. As alleged, the inventory was commenced in 33rd week of 1993. 13. Having regard to the evidence of P.W.2 and in the light of several infirmities pointed-out in the evidence of P.W.2, in my opinion, the learned Magistrate is justified in holding that the prosecution has failed to prove that the accused has misappropriated the funds of the Company. With regard to the supply of 145 pairs of shoes to M/s. Graphite Indian Limited, though the prosecution examined P.W.4, the Senior Manager of M/s. Graphite India Limited, as noticed by the learned Magistrate, the evidence of P.W.4 did not support the case of the prosecution. The evidence of P.W.4 did not indicate that they had placed any orders for supply of 145 pairs of shoes nor P.W.4 had seen the accused at any point of time. With regard to the alleged misappropriation of Rs.25,000/-from M/s. Amala Engineering Company, the learned Magistrate found that the evidence of P.W.5-Nadan, Proprietor of M/s. Amala Engineering Company establish that the amount of Rs.25,506.77 was paid by him to Bata Company through pay order and not in cash. On this basis, the learned Magistrate has held that the amount of Rs.25,000/-and add from M/s. Amala Engineering Company was not received in cash, but, it was received by means of Demand Draft. 14. The prosecution has not placed any evidence to show that the accused has received any amount in cash from M/s. Amala Engineering Company. Therefore, the learned Magistrate held that the prosecution has not proved the alleged misappropriation of Rs.25,000/-and add said to have been received from M/s. Amala Engineering Company. 15. Having regard to the facts and circumstances of the case and the evidence on record, I am of the opinion that the learned Magistrate is justified in holding that the prosecution has failed to prove the charges levelled against the accused beyond reasonable doubt. The evidence of P.W.2, as observed by the learned Magistrate, is wanting in all respects and his evidence could not be the basis for holding that the accused has misappropriated the funds of the Company and the report said to have been submitted by P.W.2 alone cannot be the basis to hold the accused guilty. The prosecution with the aid of other documents should have proved the actual misappropriation. The prosecution with the aid of other documents should have proved the actual misappropriation. Several documents produced by the prosecution would not convincingly prove that the respondent/accused had misappropriated the funds of the Bata Company, while functioning as Manager in its branch in Avenue Road, Bangalore. 16. Having regard to the facts and circumstances of the case and the evidence on record, I find no perversity or illegality in the findings recorded by the learned Magistrate, which warrants interference by this Court. The learned HCGP is unable to point-out any infirmities in the judgment under appeal. Therefore, I find no ground to interfere with the judgment of acquittal passed by the learned Magistrate. Hence, I find no merit in this appeal. Accordingly, the appeal is dismissed.