Durgan Prasad Ahirwar vs State of M.P.

G.S. Solanki, J.—Appellant has preferred this criminal appeal u/s 378(2) of Criminal Procedure Code being aggrieved by judgment dated 10.11.2011 passed by Third Additional Judge to the Court of Fourth Additional Sessions Judge (F.T.C.), Damon in ST. No. 182/2008, whereby the appellant has been convicted u/s 409 of I.P.C. and sentenced to R.I. for 2 years with fine of Rs. 1,000/-, in default of payment of fine, he has to suffer further R.I. for three months. It is not disputed on record that appellant was Shiksha Karmi Class-Ill and he was Incharge Superintendent of Govt. Adivasi Balak Ashram, Sadpur, District Damoh.

Facts in short that on 23.12.2005, Awadh Bihari Richharia (P.W.-6), District Organizer made a surprise inspection of the hostel, wherein it was alleged that appellant had not written the cash book from 01.10.2005. He further found that an amount of Rs. 19.029/- has neither entered into the cash book nor found in the hand of the appellant. Awadh Bihari Richharia (P.W.-6) had seized the cash book (ex P-6). Thereafter a show cause notice dated 24.12.2005 (Ex. D-2) has been issued to the appellant, which was replied by the appellant vide his reply dated 30.12.2005 (Ex. D-3). Area Organizer Salim Khan has further enquired the matter and the appellant was removed from the post. During enquiry, Salim Khan (RW.-3) found that appellant withdrew a total sum of Rs. 63,000/- from 08.08.2005 to 14.11.2005 and did not enter into the cash book after 01.10.2005. It is further submitted that one Suraj Giri Goswami was posted in place of appellant on the post of Superintendent but appellant has not handed over the alleged amount of Rs. 19,029/- to him and thereby he misappropriated the same and committed an offence of criminal breach of trust, therefore, a report was lodged at Police Out Post Sadpur of Police Station Rajpura. During investigation, it was informed by the appellant to the enquiry officer on 04.01.2008 that he has been deposited the amount of Rs. 19,029/- in the account of Govt. Adivasi Balak Ashram.

After due investigation, appellant was arrested and charge sheeted before Judicial Magistrate First Class, Hatta, who in turn committed the case to the court of Sessions and the Additional Sessions Judge framed the charge u/s 409 of I.P.C. against the appellant.

Appellant abjured the guilt and pleaded false implication. Appellant in his defence submitted that since he has prosecuted Awadh Bihari Richharia for the offence under SC/ST (Prevention of Atrocities) Act, therefore, he falsely implicated the appellant. He further pleaded u/s 313 of Cr.P.C. that Richharia took 86 vouchers from him on the date of inspection i.e., 23.12.2005, therefore, he could not carry out the expenditure in the cash book.

After appreciation of the evidence on record, the Additional Sessions Judge convicted and sentenced the appellant as mentioned hereinabove. Hence, this appeal.

Learned counsel for the appellant submitted that the trial Court committed illegality in not appreciating the evidence in its proper perspective. He has further submitted that appellant has taken defence that Inspecting Officer Awadh Bihari Richharia (P.W.-6) has seized as may as 86 vouchers from the appellant on the date of inspection, i.e. 23.12.2005, but the same vouchers were not produced before the trial Court and the same were destroyed by Awadh Bihari Richharia (P.W.-6). He further submitted that the prosecution tried to led the secondary evidence in regard to the aforesaid vouchers, though initially the trial Court allowed their application. Appellant challenged the aforesaid order dated 21.07.2009 passed by IVth Additional Sessions Judge, Damoh before this Court in Cr. R. No. 1312/2009. This Court set aside the aforesaid order with liberty to move a fresh application. The prosecution again moved a fresh application before the trial Court for permission to produce the secondary evidence of aforesaid documents but the same has been dismissed by the trial Court by order dated 05.01.2010. In these circumstances, the original 86 vouchers ought to have been produced before the trial Court. He further submitted that if the aforesaid vouchers were produced before the trial Court, then the appellant would get the opportunity to probablise his defence that an amount of Rs. 19,029/- has already been spent by him for the purpose of expenditure of the hostel and therefore, he has been falsely implicated by Awadh Bihari Richharia (P.W.-6). On the basis of aforesaid ground, he prays for setting aside the conviction and sentence passed by the trial Court.

Learned Panel Lawyer appearing on behalf of respondent/State has supported the conviction and sentence recorded by the trial Court and prays for dismissal of the appeal.

I have perused the impugned judgment alongwith the evidence recorded before the trial Court. Awadh Bihari Richharia (P.W.-6) stated that he made a surprise inspection on 23.12.2005 at Adivasi Balak Ashram, Sadpur, where appellant was Incharge Superintendent of aforesaid Ashram. He seized cash book (Ex. P-6), which was written upto 30.09.2005. He further stated that on the date of inspection, he found that an amount of Rs. 19,029/- has neither entered into the cash book nor found in the hand of the appellant. Thereafter, he directed Area Organizer to make a detailed inspection and enquiry. Salim Khan, Area Organizer (P.W.-4) stated that during the enquiry he found that appellant is not maintaining the account properly, there was a shortage of an amount of Rs. 19,029/- in the month of October, 2005. He further found that appellant has withdrawn a total amount of Rs. 63,000/-, but he has not produced the vouchers of Rs. 19,029/- and he had not given the aforesaid amount to the successive officer Suraj Giri Goswami. Suraj Giri Goswami (P.W.-7) has stated that he had not received the amount of Rs. 19,029/- from the appellant at the time of taking over the charge.

As far as the amount of Rs. 63,000/- is concerned, Salim Khan (P.W.-4) has admitted in his cross-examination that he prepared the enquiry report but the same has not been produced before the trial Court. The Trial Court has not exhibited the copy of the aforesaid document. In these circumstances, the story of withdrawal of Rs. 63,000/- has not been proved due to non-availability of original documents. Further, the charge against the appellant was framed only for misappropriation of an amount of Rs. 19,029/-.

After considering the statement of Awadh Bihari Richharia (P.W.-6) and Suraj Giri Goswami (P.W.-7) alongwith with the statement of Munnalal Jain (P.W.-2), Cashier of District Co-Operative Bank, Branch Batiyagarh, who has stated that appellant has deposited Rs. 19,029/- in the account of Adivasi Balak Ashram, Sadpur vide exhibit P-2. It shows that at the time of inspection made by Awadh Bihari Richharia (P.W.-6), an amount of Rs. 19,029/- has neither entered into the cash book nor found in the hand of the appellant and later on on the directions of District Magistrate (Collector), appellant has deposited the aforesaid amount in the account of Adivasi Balak Ashram, Sadpur.

Now the question arises for consideration is that whether appellant has dishonestly misappropriated the aforesaid amount of Rs. 19,029/- or not.

Appellant took the defence that at the time of inspection, Awadh Bihari Richharia (P.W.-6) has seized as many as 86 vouchers from him, wherein appellant has expended amount of money for purchasing different items for the use of Adivasi Balak Ashram. He further submitted that since appellant previously prosecuted Awadh Bihari Richharia for the offence under SC/ST (Prevention of Atrocities) Act, therefore, he has previous enmity with the appellant. Due to previous enmity, he destroyed the vouchers, therefore, the appellant could not make entry of aforesaid amount in the cash book.

After careful examination of statement of Awadh Bihari Richharia (P.W.-6), wherein he has admitted that the original record has been lost. He further admitted that after enquiry, he issued a notice (Ex. D-2) to the appellant. He further admitted that if entry of any voucher has not been made in the cash book, it may be an irregularity on the part of person concerned. It is admitted on record that the prosecution tried its level best to lead the secondary evidence in regard to documents (including vouchers) said to have been lost. Initially the trial Court allowed the prosecution to lead the secondary evidence, thereafter appellant filed criminal revision No. 1312/2009 before this Court and the same was allowed vide order dated 18.08.2009 and it was directed to make an appropriate application before the trial Court. Thereafter, prosecution again filed an application before the trial Court but the same was dismissed on 05.01.2010. In these circumstances, the prosecution has not led secondary evidence.

During the course of arguments, learned counsel for the appellant has filed the photocopy of the vouchers, which he got after filing application under Right to Information Act from the office of District Organizer, Adim Jati Kalyan Department, which shows that appellant has expended an amount of Rs. 21,531/- for the use of Adivasi Balak Ashram, Sadpur from 01.10.2005 till 01.12.2005, which is more than the alleged amount of misappropriation, i.e., 19,029/-. Certainly, if all the original vouchers have been produced before the trial Court and appellant got the opportunity to cross-examine the witnesses, he could have probablise his defence that he has not dishonestly misappropriated any amount of the institution.

Considering the aforesaid aspect of the case alongwith the fact that Awadh Bihari Richharia (P.W.-6) was previously prosecuted by this appellant under SC/ST (Prevention of Atrocities) Act, therefore he already having previous enmity with the appellant. In these circumstances, possibility of falsely implicating the appellant cannot be ruled out.

The word "dishonestly misappropriates" is very important in the definition of criminal misappropriation of the property. No doubt, dishonest misappropriation for a term only is a misappropriation within the meaning of misappropriation of property, but what is important is the word dishonest. If the appellant has expended the alleged mount for purchasing the different items for the use of Adivasi Balak Ashram, it cannot be said that he dishonestly misappropriated the aforesaid amount because there is no wrongful loss to the government or no wrongful gain to the appellant.

In these circumstances, merely non entry of aforesaid expended amount in the cash book is per-se not amount to dishonest misappropriation. Certainly, appellant was negligent in performing his duty as In-charge Superintendent of Adivasi Balak Ashram. For aforesaid dereliction of duty, he may be punished appropriately after conducting departmental enquiry, but at the same time in the aforementioned circumstances, criminal liability of dishonest misappropriation of the amount cannot be fastened on the appellant The trial Court has not considered the aforesaid aspect of the case and committed an illegality in recording conviction u/s 409 of I.P.C. against the appellant, which is not sustainable in the eye of law, same is liable to be set aside.

In the result, appeal is allowed. Conviction and sentence recorded against the appellant u/s 409 of I.P.C. is hereby set aside and he is acquitted from the aforesaid charge.

Appellant is on bail. His bail bonds and surety bonds stand discharged. Record of the trial Court be sent back alongwith copy of this judgment immediately for compliance and necessary action.