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Himachal Pradesh High Court · body

2019 DIGILAW 1185 (HP)

STATE OF HIMACHAL PRADESH v. PARTAP SINGH

2019-08-19

VIVEK SINGH THAKUR

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ORDER : 1. Present appeal has been preferred by the State against the judgment dated 31.05.2005, passed by learned Additional Chief Judicial Magistrate, Ghumarwin, District Bilaspur, H.P., in Case No. 810/1 of 2004/97, titled as State vs. Partap Singh, whereby the respondent-accused has been acquitted in case FIR No.134 of 1996 dated 19.11.1996, registered in Police Station, Ghumarwin, District Bilaspur, H.P., under Sections 408, 467, 468 and 471 of Indian Penal Code. 2. I have heard Mr. R.P. Singh, learned Deputy Advocate General on behalf of the appellant-State and Mr.Varun Chandel, learned counsel, for respondent-accused and have also gone through the record. 3. As per prosecution case, respondent-accused Partap Singh was a Branch Post Master in Postal Department and was posted at Branch Post Office Rohin during the period 1993-1996 and during this period, working in the said capacity, he was entrusted with amount by the account holders or their representatives, but instead of depositing the same with the Post Office, he had misappropriated said amount and after making false entries in the Pass Books of the account holders, had returned the same to the account holders as documents containing genuine entries. 4. From the record of trial Court, it appears that though only one FIR No. 134 of 1996 was registered against respondent but more than one challan/reports, with respect to misappropriation of amount during different span of period, were submitted in the Court and based on different challans/reports separate charge in each case was framed however trial in all cases was conducted jointly by leading common evidence in all cases. It also appears that after acquittal of respondent in all cases, appeal has been preferred only in one case i.e. in present case. After noticing aforesaid facts on previous dates, learned Deputy Advocate General had sought clarification from Superintendent of Police, Bilaspur, in response whereto office of Advocate General has been informed that in case FIR No.134/1996 registered in Police Station, Ghumarwin only one appeal i.e. present appeal has been preferred and no other appeal has been filed. In view of aforesaid information, acquittal of respondent in all other cases has attained finality. 5. On the basis of challan presented in the Court, in the present case, wherein appeal has been preferred by the State, respondent was charged-sheeted for misappropriation of amount of Rs. In view of aforesaid information, acquittal of respondent in all other cases has attained finality. 5. On the basis of challan presented in the Court, in the present case, wherein appeal has been preferred by the State, respondent was charged-sheeted for misappropriation of amount of Rs. 775/- pertaining to various account holders, breakup amount whereof is as under:- Name of Account holder Account No. Amount misappropriated Seema Devi 6401426 Ex.PA Rs. 200/- Pawan Kumar 6401427 Ex.PB Rs. 300/- Sushma 6401428 Ex.PG Rs. 200/- Sanjeev Kumar 6401137 Rs. 50/- Praveen Kumar 6401490 Rs. 25/- 6. Prosecution has examined 19 witnesses to substantiate its claim, whereas after recording statement under Section 313 Cr.P.C, respondent-accused has examined two witnesses in defence. 7. Out of 19 witnesses, PW.3 Shanti Devi, PW.4 Ram Pyari, PW.5 Sita Ram, PW.6 Sudama Ram, PW.7 Madhu Bala, PW.8 Surinder Kumar, PW.9 Roshan Lal, PW.10 Sunita Devi, PW.11 Ambika, PW.13 Nirmala wife of Hari Ram, PW.14 Nirmala Devi wife of Mansha Ram and PW.15 Naraini Devi, have been examined as account holders' witnesses. None of these witnesses, except PW.13Nirmala Devi wife of Hari Ram, is the account holder of those account numbers, which were put to the accused in the charge-sheet in present case, therefore, for the purpose of present case, their statements may not be relevant as in cases, wherein their deposition would have been relevant, no appeal has been preferred. 8. PW.13 Nirmala Devi has stated that she had opened R.D. Accounts in the Post Office in the names of Seema Devi A/C No. 6401426 (Ex.PA); Pawan Kumar A/c No.6401427 (Ex.PB) and Sushma A/c No.6401428 (Ex.PG) and she used to deposit Rs. 100/-each per month in these accounts with the accused and as and when she deposited money accused had made entries of the amount in the Pass Books every month and later on an Officer from Postal Authorities came to her and collected aforesaid Pass Books from her and has further sated that she did not know as to whether respondent-accused had made correct entries in the register or not, but Officer of Postal Department had made payment as per entries in the Pass Books with interest and had recorded her statement (Ex.PW.12/B). In her cross-examination, she has stated that she had received all the sum deposited by her in the aforesaid R.D. Accounts with interest which had accrued thereupon and she could not say that any embezzlement was there with respect to her R.D. Accounts and further that Officer who had collected the Pass Books from her did not read over the contents of Ex.PW.12/B to her. In her statement, there is nothing incriminatory against respondent-accused as alleged in the charge-sheet. 9. In the statement recorded under Section 313 Cr.P.C, only question put to respondent-accused with respect to account numbers referred in the charge-sheet is 'Question No.5', wherein it has been put to respondent-accused that during investigation Pass Books (Ex.PA to Ex.PP) were taken into possession by the Investigating Officer vide memo (Ex.PW.16/M) and answer to this question is that it was wrong. 10. On scrutiny of statement of respondent-accused recorded under Section 313 Cr.P.C, I do not find any other question, about alleged misappropriation of the amount put to him in the charge-sheet. 11. Sample of handwriting was also taken by the police during the investigation and comparison of the same with questioned handwriting has been proved on record through PW.19 M.C. Joshi, Assistant Government Examiner. According to his opinion, initials in the question documents Q-l (Ex.PA), Q-2 (Ex. PB) and Q-7 (Ex.PG) were found to have been written by one and the same person, whose samples were sent for comparison i.e. respondent-accused. The trial Court has rejected this piece of evidence for non-compliance of Section 73 of the Evidence Act. Even if said aspect is ignored, witness PW.13 Nirmala Devi, who was custodian of the accounts (Ex.PA, Ex.PB and Ex.PG) of her children, has not deposed anything against respondent-accused, rather she has stated that entries were found in her Pass Books as per her deposits and she had received entire money alongwith interest from the Post Office. 12. On scrutiny of record, no evidence with respect to Pass Books/account numbers other than three Pass Books (Ex.PA, Ex.PB and Ex.PG), referred in charge-sheet is found on record. As discussed supra, there is nothing adverse on record with respect to entries in Pass Books/Accounts Ex. PA, Ex.PB and Ex.PG also. 13. 12. On scrutiny of record, no evidence with respect to Pass Books/account numbers other than three Pass Books (Ex.PA, Ex.PB and Ex.PG), referred in charge-sheet is found on record. As discussed supra, there is nothing adverse on record with respect to entries in Pass Books/Accounts Ex. PA, Ex.PB and Ex.PG also. 13. Learned Trial Magistrate has rightly pointed out that prosecution has not proved on record the appointment and posting order of respondent-accused in Post Office, Rohin Branch as a Branch Post Master and also that it was part of his duty to collect money and make entries in the Pass Books. 14. From the aforesaid discussion, it is evident that only evidence on record with respect to Pass Books/Accounts referred in the charge-sheet is related to Seema Devi A/C No. 6401426 (Ex.PA); Pawan Kumar A/c No.6401427 (Ex.PB); and Sushma A/c No.6401428 (Ex.PG) and there is no evidence with respect to remaining Pass Books/Accounts and the evidence available with respect to Pass Books/Accounts (Ex.PA, Ex.PB and Ex.PG), is also not disclosing any misappropriation of the amount by the respondent-accused. Therefore, I find no illegality, irregularity, infirmity or perversity in the judgment passed by learned Additional Chief Judicial Magistrate, Ghumarwin, District Bilaspur, H.P., in Case No. 810/1 of 2004/97, titled as State vs. Partap Singh, registered in Police Station, Ghumarwin, District Bilaspur, H.P., under Sections 408, 467, 468 and 471 of IPC, rather learned Magistrate has appreciated evidence on record completely and correctly. 15. Respondent has advantage of having been acquitted by the trial Court fortifying presumption of his innocence and nothing material is available on record to rebut the same and to conclude that the acquittal of the respondent-accused has resulted into travesty of justice or miscarriage of justice. Therefore, no interference is warranted in the impugned judgment. 16. For all the aforesaid reasons, present appeal, being devoid of merit, is dismissed, so also pending application(s), if any. Bail bonds furnished by the accused are discharged. 17. Record of the trial Court be immediately sent back.