Jai Narain vs State of Haryana

Harbans Singh Rai, J.

Jai Narain petitioner was convicted by Judicial Magistrate Ist Class, Jhajjar, under sections 409 and 467, Indian Penal Code, vide his order dated 29.5. 1984, and sentenced to six months S.I. and a fine of Rs. 400/ under both the counts. His appeal was dismissed by the Additional Sessions Judge, Rohtak, vide his order dated 4.4.1985. Feeling aggrieved, he has filed this revision

The prosecution case is that Hari Dutt Sharma PW was posted as SDO, Haryana State Electricity Board, Kosli, in the year 1978. Jai Narain was working as SDC under him at that time. His coaccused Yoginder Parkash Gupta was working as a Line Superintendent in the same department.

In the month of October, Om Parkash, cashier had proceeded on leave and Jai Narain petitioner was ordered to work as cashier during his absence. it is alleged by the prosecution that on 9.10.1978, Jai Narain withdrew Rs. 800/ from the cash chest as temporary advance in the name of Yoginder Parkash Gupta. Jai Narain made an entry to that effect in the cash book, and obtained receipt, Exhibit PA, from Yoginder Parkash Gupta. The prosecution has alleged that the withdrawal was without the approval of the SDO and the entry in the cash book was also not authenticated by the SDO. Similarly, receipt Exhibit PA was not approved by the SDO and this amount of Rs. 800/ was not used for any government work and both Jai Narain and Yoginder Parkash Gupta were in league with one another and had misappropriated the government money and dishonestly used the same for their own purpose by interpolating the entries in the cash book.

Shri S. D. Sharma, SDO, Kosli, lodged a complaint against Jai Narain in the office of DIG (Vigilance), Haryana State Electricity Board, for the registration of a case. The matter was enquired into by Inspector Sada Ram Chawla and he recommended registration of the case under sections 409/467, Indian Penal Code, and first information report was registered on 15.11.1981 by ASI Jas Ram in Police Station, Sahalawas. After necessary investigation, the petitioner was challaned, convicted and sentenced as mentioned earlier. Yoginder Parkash Gupta was not before the Court as he had absconded and Jai Narain alone was tried and convicted, in this case.

I have heard the learned counsel for the parties and gone through the record.

The case of the prosecution is that Rs. 800/ were taken by Jai Narain petitioner out of the cash chest, an entry was made in the cash register and he handed over the same to Yoginder Parkash Gupta and obtained receipt, Exhibit PA. The grievance against the petitioner is that this money was misappropriated by him, in connivance with Yoginder Parkash Gupta. Prosecution has examined Hari Dutt Sharma, SDO as PW1, who has deposed that Rs. 800/ were given for government work. It is also stated by him that receipt Exhibit PA was handed over by the petitioner in his charge to his successor. It is further stated by him that the cash chest has two keys and it is opened if both the keys are applied. One key remained with him and the other with the cashier. He has denied the suggestion that the money was given to Yoginder Parkash Gupta at his instance. Om Parkash PW2, who was cashier, has stated in his. statement that Yoginder Parkash Gupta had admitted receipt Exhibit PA when it was shown to him and had stated that he had received the amount. He has further stated, that this receipt was handed over to him by the petitioner in the charge. He has also stated receipt of payment was certified by the SDO, as it is required to be certified by him and this payment was also certified and approved by the SDO. There was no excess or shortage in the cash. PW4, Pirthi Singh Dlal, SDO has stated that the certificate of correctness of cash is given in the end of every month and in this case also it was given as there was no difference in the rash book. He has further stated that this amount of Rs. 800/ is outstanding against Yoginder Parkash Gupta according to the record.,

According to the prosecution, the money was paid by the petitioner to Yoginder Parkash Gupta for government work. Yoginder Parkash Gupta admitted the receipt of money and the execution of the receipt., The entry was duly made in the record and receipt was handed over by the petitioner at the time of handing over charge to his successor. It is further in evidence of the prosecution that this amount of Rs. 800/ is outstanding against Yoginder Prakash Gupta. Obviously he has not given the details how the money was spent on government work. Taking the prosecution case as it is, there is no evidence on the file to show how the petitioner has misappropriated the amount or prepared false record or in any way tampered with the record. It is the petitioner''s case as well as of the prosecution that he paid Rs. 800/ to Yoginder Parkash Gupta, entered it in the cash register and obtained a receipt from him. Yoginder Prakash Gupta is an employee of the department and if he has not utilised that amount or has misappropriated it, how the petitioner is liable for the acts of the former. Prosecution has not led any evidence to show that the petitioner and Yoginder Parkash Gupta were in conspiracy or the amount was withdrawn for the benefit of the petitioner. They have led evidence simply to prove that the amount was paid by the petitioner to Yoginder PrakashGupta and the SDO concerned had not authenticated the same. It is not clear how, in the absence of any evidence as to whether the petitioner received any money, he can be held guilty of misappropriation. He has acted as a government employee in discharge of his duty, paid the amount to another employee, made entry in the relevant register, and had obtained receipt from the payee, then how he can be hauled up for misappropriation. If there had been some mischief played by the petitioner, the SDO would not have certified the cash register at the end of the month. There is no evidence at all to connect the petitioner with any act which may satisfy the mischief of sections 409 and 467 of the Indian Penal Code, the offence for which he has been convicted.

For the reasons given above, this revision is accepted, the judgements of the Courts below convicting the petitioner are set aside and he is acquitted.