Om Parkash vs State of Himachal Pradesh

Bhawani Singh, J.—Petitioner, Om Parkash, feels aggrieved and assails the judgment of Sessions Judge (II), Shimla in Criminal Appeal No. 7-S/10 of 1986 decided on 17-1-1986. By this judgment, the appellate Court has upheld the conviction and sentence imposed upon the Petitioner by the trial Judge by decision dated 16-10-4985 to the extent of simple imprisonment for six months and fine of Rs. 1,000/-, in default of payment of fine, to undergo further simple imprisonment for two months u/s 403 of the Indian Penal Code.

The facts, in brief, are that the Petitioner was working as a Clerk in the Himachal Pradesh State Co-operative Federation, Shimla. He was a Clerk and it was not his duty to sell fertilizer from the depot of the Society but he had to do this job on 26-11-1977 as the Salesman looking after this job had gone on leave. The Petitioner sold fertilizer worth Rs. 8417.50 against Cash Memo No. 8800 dated 26-11-1977.

Cash Memo is prepared in triplicate. The original is given to the purchaser while the remaining two are retained in the cash memo book (Ex.P-1). This cash memo happened to be the last in the book numbered in seriatim. The sale against this cash memo was made to Upper Ubha Desh Service, Co-operative Society Ltd. Kalbog through Bhag Singh.

During the audit of the Society, it was detected that the amount of this Cash Memo No. 8800 had not been accounted for. The same was not entered in the Cash Book (Ex. P-3), thus, not deposited in the Co-operative Bank wherein the Society had its account.

The aforesaid two copies of the Cash Memo No. 8800 which were retained in the Cash Memo Book (Ex. P.1) were Also found missing. A report was lodged with-the Police and after investigation, a challan u/s 408 of the Indian Penal Code for committing Criminal Breach of Trust in respect of the money of the Society by the Petitioner was initiated, although, ultimately, the Petitioner was convicted u/s 403 of the Indian Penal Code.

The Petitioner pleaded not guilty to the charge and claimed to be tried. In his examination u/s 313 Code of Criminal Procedure the Petitioner expressed his ignorance as to the missing of the" Remaining two copies of the Cash Memo. No. 8800 from the Cash Memo Book (Ex. P-l): He admitted that he had issued the Cash Memo Ex.P.W-5/A under his signatures but stated that he issued the same at the asking of Shri B.K. Sharma, Secretary .in the Society. He also stated that it was not his duty to maintain the Cash Book as the same is done by the Accountant and he did not know as to why entry of this Cash Memo was not made in the Cash Book. Again he expressed ignorance as to. The procedure that in the Fertilizer Cell when some customer would come to purchase Fertilizer, a Cash Memo is issued to the person and the same employee who issues the Cash Memo goes to deliver the Fertilizer. The customer is the a supplied a copy of the bill and a copy of the bill is given to the Accountant and then an entry is made in Cash Book about the sale and sold fertilizer debited in the Stock Register. He further states that he did not know as to whether the pages of the Cash Memo Book (Ex. P-l) were missing. He also states that he did not sell the fertilizer to Rama Nand (P.W-12) nor received any Consideration although he issued the Cash Memo Ex. P. W-5/A, under his signatures. While answering question No. 15, he explained that Kishori Lal (P. W-3) was the accountant in the Society at that time but the Petitioner did not receive any amount. It was not his duty to hand over a copy of the Cash Memo to the Accountant for entry in the Cash Book. Finally, he states that he was implanted due to his signatures on the. Cash Memo, Ex. P. W-5/A. He issued the Cash Memo on the verbal instruction of Shri B.K. Sharma, Secretary of the Federation. He had not been handling any cash nor was he employed in the Fertilizer Cell. These pleas of the Petitioner did not succeed before the Trial Court. They also failed before the appellate Court. This is how the Petitioner has come in this Court by way of this Revision petition.

Before deciding whether the conclusion and the decision of the Appellate Court is legally sustainable it is necessary to examine and scan the material aspect of the case and the evidence thereon.

Subhash Aggarwal (P.W-2) states that Cash Memo No. 8800 for Rs. 8417.50 Mark "X" was issued by the Petitioner and given to the Police vide recovery memo Ex. P. W-2/A. The same is signed by the Petitioner. One Kishori Lal (P. W-3) was handling the Fertilizer section.

Kishori Lal (P.W-3) admits that he was Accountant in the Society during 1976-78 and he used" to write the Fertilizer Cash Book. In the Fertilizer cell, he states, Rajinder and Vidya Singh were employed. Explaining the office procedure, he states that; he office of the Society used to send a person to its Depot at Dhalli to deliver the supply and in case of payment being deposited in \\ the office, a receipt for the same used to be issued; In case the Salesman would receive the payment, he would deposit the money in the Bank or in the office. One Copy of the Cash Memo used to be sent along with the payment and the payment used to be recorded in the Cash Book. The money used to be deposited thereafter in the Bank. Cash Memo Mark ''X'' has not been re-, corded in the Cash Book. The Petitioner had sold 130 bags of fertilizer for Rs. 8417.50. The Petitioner did not deposit this amount nor was its cash memo given to him for the same.

He admits that he used to write with, his own hand the money received for the sale of the fertilizer. He also admits that he used to make entries in the Cash Book from the Cash Memo Book. He also admits that duty of Cash Book used to be done by the Accountant and during the time he remained accountant, no audit of the Accounts Books was done. He also admits that at the completed books of Cash Memos remained in the office but nobody is responsible for them. He also admits that the Petitioner used to prepare the subsidy bills and that his duty was not to handle the Cash. Bill No. 8715(Ex;P-5) indicates that the Cash of this sale had been received by him . It bears his signatures although the bill was prepared by Rejoinder. He also admits that in case the customers visited the office, the Cash Memo used to be issued in the office and Cash Memo Books remained in the office. He also, admits that in the office anyone could issue the Cash Memo. He further states that he could not say whether the Cash Memo Mark ''X'' had come to the office.

Rajinder Kumar (P.W. 5) states that after the sale, the second copy used to be given to the Accountant and thereafter entry in the Cash Book from the Bill book used to be made. At the stage of audit, remaining copies from the Cash Memo Book was found missing. He admits that the Manager used to tell anyone in the office to issue the Cash Memo to a party. Entry in the Cash Book used to be made by the Accountant.

Balak Ram (P.W. 9) conducted the audit and detected the shortage against this Cash Memo. He found that the remaining copies of the Gash Memo were not in the Cash Memo Book (Ex. P. l). The Original Cash Memo was got from Rama Nand, depot holder. It was issued by the Petitioner. A complaint was made by him arid the Police took into possession all the documents relating to this issue.

He admits that as per the Cash Book, the. Petitioner took an advance of Rs. 150/- on 26-11 -1977.

Jia Ram (P.W. 11) denies that the Petitioner did not receive an amount of Rs. 8417.50 and that this amount was, embezzled "by the Accountant. He also admits that signatures are taken on the triplicate copy of the Cash Memo.

Rama Nand (P.W. 12) was the salesman in the Society and it was in his absence due to leave that the Petitioner was asked to sell the fertilizer against Cash Memo.

Sh. Devinder Gupta, learned-counsel appearing for the Petitioner, submits that the; prosecution has not been able to prove the case against the Petitioner and the conviction recorded by the Courts below against the Petitioner suffers from lack of clear, cogent and. convincing evidence and deserves to be set aside. On the other hand, Sh. M.S. Guleria learned. Asstt. Advocate General made sustained submissions to uphold the judgment of conviction against the Petitioner. I proceed to examine the material on record and the submissions of the learned Counsel appearing for the parties.

It is undisputed that the Petitioner was a Clerk in the Society. It was not his duty either to handle Cash transactions or look after the sale of fertilizer. On that day, he was asked to look after this business in the absence of the salesman who had gone on leave: Issuance of the Cash Memo is admitted by him but not the receipt of the amount. Here is the crucial issue to be examined. It appears from the evidence that there was no proper procedure in the Society on this aspect. Cash used to be received by the Salesman and then deposited either in the office or in the Bank of the Society. The Cash Memo used to be issued by anyone in the office but there is no evidence as to who would revive the sale price in such a situation. Let it be taken that the Petitioner sold the fertilizer in question and issued the Cash Memo indicating the receipt of an amount of Rs. 8417.50 paise because he signed this Cash Memo. Did he actually receive it this is the question? Or did he issue this Cash Memo routinely as this was also a practice prevalent in the office. Besides, for example, Kishori Lal (P.W. 3) states that bill No. 8715 indicates; that the Cash amount was received by him as he signed the same but the Cash Memo had been issued by Rajender. The Petitioner accepts that he issued the Gash Memo at the instance of Sh. B.K. Sharma, Secretary in the Society. Obviously this appears to have been done in the office not at the sale depot of the Society. Now it can be safely said that the Cash amount appears to have been deposited by the Purchaser in the office, at least not with the Petitioner and the statement to the v. contrary of the. Concerned witness cannot be easily believed he being an interested person in the transaction. There is Anr. fact which comes to the rescue of the Petitioner at this stage. As per the procedure, the Cash Memo book goes to the Accountant wherefrom entries are made in the Cash Book. This Cash Memo Book has gone to the Accountant because entry in the Cash Book dated 23-11-1977 includes Cash Memos up to 8799. The disputed sale and Cash Memo pertains to 26-11-1977 where it is not entered although an amount of Rs. 150/- as advance has been shown in favour of the Petitioner. Therefore, when the Accountant got the Cash Memo book for the purposes of making entries in the Cash Book he could have easily detected the non deposit of the amount of this document and the deficiency in the accounts would have been ascertained at that stage 1 and in case of missing of the remaining two pages of the Cash 1 Memo book being last in the series that could be easily detected and matter brought to the notice of the Society. In these circumstances the only conclusion that can be reasonably drawn is that fault does not lie with the Petitioner but someone else. It is not clear who received the amount actually though the Cash Memo was signed by the Petitioner but it is natural that the amount may have been passed on to the person responsible for the receipt thereof otherwise the matter could have been detected on 26-11-1977 itself. After the Completion of this book, new book was used for future transactions of sale of fertilizer Who has taken away the last pages of the Cash Book, there is no evidence. At least this is clear that the Cash Memo book goes to the Accountant Immediately for making entries in the Cash Book and then thereafter the same is kept in the office but never under the charge of the Petitioner I see great force in the submissions of Sh. Devinder Gupta that in addition to the facts already submitted, the fact that the Petitioner got advance Traveling Allowance for going on tour on 26-11-1977 and in case he had an amount of Rs 8417.50 out of the sale proceeds of the fertilizer, as is alleged against him, there was no justification. 4 to take the advance of Rs. 150/- towards T.A. Equally forceful and convincing is the submission that the act did not at all constitute any criminal liability as the issue was purely relating to the. Accounts and the Settlement thereof by the persons concerned in this transaction and such paucities or inaccuracies in the absence of dishonesty and fraud did not constitute any criminal offence and the Society acted in gross haste in initiating these Criminal proceedings.

The aforesaid examination of this matter clearly establishes that the Petitioner may have acted foolishly but not dishonestly. He appears to have issued the Gash Memo receipt'' in good faith as per the common practice prevalent in the office. That too appears to be at the instance of the Secretary of the Society. The prosecution has not proved dishonesty in the action of the Petitioner by reliable and cogent evidence. The same cannot be presumed from the circumstances and the evidence in this case. Dishonesty is an essential feature of Section 403 of the Indian Penal Code Ramaswamy Nadar Vs. The State of Madras,

The Courts below have not appreciated the legal principles involved in this case nor appreciated the evidence oh record properly and, therefore, failed to draw accurate, reason able and practical inferences there from.

The result, therefore, is that there is merit in these revision petition arid calls for interference by this Court in exercise of its revision jurisdiction. The conviction and sentence imposed on the Petitioner is set aside; he is acquitted of the charge. Bail bonds and surety bonds, if any, executed by him at any stage of the trial of this case are hereby cancelled.