Gujarat State Civil Supplies Corp. Ltd. vs State of Gujarat and 1

R.D. Kothari, J.—Gujarat State Civil Supplies Corporation Limited has filed the present petition challenging the judgment and order dated 07.09.2007 passed by the Additional Judicial Magistrate, First Class, Palanpur in Criminal Case No. 3828 of 1999. By means of the said judgment, learned trial court is pleased to acquit the accused-respondent no. 2 for the offence u/s 408, 468 & 477, IPC. Short facts are thus, the accused-respondent no. 2, at the relevant time, was working as Assistant Manager. It is the case of the prosecution that the accused by misusing his position and by tampering with the record has misappropriated the goods to the tune of Rs. 2,46,106/- and accordingly, the Mamlatdar has lodged the complaint against the respondent no. 2. It is the case of the prosecution that on 12.01.1986, without handing over the charge, respondent no. 2 had left job and thereafter the irregularities committed by respondent no. 2 came to the notice of the complainant. It is the case of the prosecution that on 31.01.1986 Panchnama was carried out and the stock was taken and at that time, it came to the notice that 341 gas cylinders, 294 regulators, one burner and 47 meter rubber tube were missing.

Findings of learned Additional Judicial Magistrate, First Class, Palanpur in the said case are as under:

I. As to the duties of the respondent no. 2-accused no documentary evidence produced by the complainant''s side.

II. Earlier two inspections were carried out as per the say of the complainant, no irregularities was notice during the either of the two inspections.

III. The present inspection report on which the complainant''s case based is not placed on record.

IV. It is the say of the complainant''s side that Panchnama was prepared in the presence of Deputy Collector, however, prosecution has not examined the Deputy Collector as a witness nor the Panchas of Panchnama are examined by the prosecution.

V. It is the say of the complainant''s side that the reports are duly audited, however, no audit report is produced on record nor the complainant side has examined any other evidence.

Relying on the above finding, learned trial court was pleased to acquit the accused.

Heard Mr. Varun K. Patel for Mr. K.M. Patel learned advocate for the applicant, Mrs. Hansa Punani, learned Assistant Public Prosecutor for the respondent no. 1-State and Mr. N.D. Songara, learned advocate for the respondent no. 2.

Mr. Varun K. Patel, learned advocate for the applicant has submitted that learned trial court has seriously erred in not properly considering the oral evidence of the complainant. He has further submitted that Panchnama is exhibited and the learned trial court has seriously erred in not properly appreciating the Panchnama.

On the other hand, learned advocate for respondent no. 2 Mr. N.D. Songara has submitted that the order of the learned trial court is just and proper and no interference is required.

6.1. It is not possible to agree with the submission of learned advocate for the applicant. Merely because the document is exhibited, it does not shutdown further inquiry. In other words, what weightage the exhibited document does have depends upon the nature of the document and, on the facts and circumstances of the case. Evidentiary value of the document is different and distinct matter. In the context of present case, it can be said that merely on the basis of the Panchnama, accused cannot be held guilty for the offence u/s 408, IPC. The prosecution has to establish its case by the acceptable evidence. Above referred finding of the learned trial court is just legal and proper. Finding that, in earlier two inspection reports, no irregularities were found, has remained unanswered. Similarly the last inspection report on which the prosecution seeks to place reliance was not placed on record. So the only possible conclusion is obvious.

6.2. Learned advocate for the applicant Mr. Patel has drawn attention to the decision of Hon''ble the Supreme Court in the case of N. Bhargavan Pillai (Dead) by Lrs. and Another Vs. State of Kerala, and has placed reliance on head note (C) of the said judgment, which reads as under:

(C) Penal Code (45 of 1860), S. 409 Entrustment and misappropriation of property-Proof-Accused working at relevant time as Junior Manager on deputation in State Civil Supplies Corporation-Stock in godown in his charge, found short Vigilance department conducted enquiry-Meanwhile accused retired from service-Accused undertook to remit value of shortage and deposited part payment-Conviction of accused not recorded only on the basis of his undertaking But other evidence on record also unerringly proved entrustment as accused failed to prove as to how property entrusted with him was dealt with-Thus concurrent findings of fact relating to entrustment and misappropriation-Cannot be interfered with.

6.3. Above referred judgment cannot help the prosecution. Apart from the fact that it was a case under Prevention of Corruption Act, in that case as would appear from the head note, accused has under took to remit value of the shortage and deposited part of the amount. Bare reading of the said head note, it would show that it does not help the prosecution. In the present case, the learned trial court has not committed any error so as to call for interference in revisional jurisdiction. The order of the learned trial court is just legal and proper. It may also be mentioned that the State has not preferred any appeal against the order under challenge. Hence this revision application fails and the same is hereby dismissed. Rule is discharged.