State of Haryana vs Sarup Singh and others

M.L. Koul, J.

This Criminal Appeal No. 346DBA of 1989 is directed against the judgment and order of Shri S.P. Sharma, Judicial Magistrate Ist Class, Tohana, District Hissar, whereby the respondents (hereinafter referred to as the accused) have been acquitted of the offences punishable under Sections 477A/408/409/120B of the Indian Penal Code for which they were charged on the basis of benefit of doubt.

All the accused faced investigation in F.I.R. No. 72 dated 13.2.1976 under Sections 467/468/409/420/120B of the Indian Penal Code on the basis of the case registered by Assistant Registrar, Cooperative Societies, Hissar, with the contention that they were employees of the Tohana Cooperative Marketing Processing Society and in the month of May, 1974 about, 1478 bags of urea fertilizer were lying in the possession of the Society at Jakhal. Information was received by the accused or one of them that the rates of urea fertilizer were going to be increased from Rs. 54/ to Rs. 103/ per bag. On receipt of that information, the accused entered into a criminal conspiracy and showed the sale of the fertilizer at the Jakhal Depot of Tohana Society to have been made in the name of some fictitious persons and the same was shown to have been sold at the old rate and thus they had defrauded the government and embezzled an amount of Rs. 86,288.80 for their personal benefit.

On trial the trial Court found that there was no connecting evidence available on the record that the accused had hatched up a conspiracy to embezzle the government money and in this regard, soon after they learnt that the sale rate of fertilizer had been enhanced from Rs. 54/ to Rs. 103/ it was managed to show that 1478 bags of urea had already been sold to the fictitious people and in this regard entries were made in the record of the Society when actually no such fertilizer was sold to such people.

It is at the outset found throttling to mention that although the case was registered with the police on 13.2.1976, yet the police managed not to arrest the accused for a period of eight months for the reasons best known to them. The police did not take sufficient care to conduct the investigation in the matter immediately.

Broadly, the case of the prosecution is that one Harbans Lal Sondhi, Managing Director, HAFED Chandigarh informed Shri Hari Singh, District Manager, HAFED, Hissar on 29.5.74 that the sale of the fertilizer be stopped immediately for the fact that the rates were to be enhanced considerably. This information was conveyed to Sarup Singh accused by Shri Hari Singh District Manager. On perusal of the file it has been found that neither Shri Harbans Lal Sondhi, Managing Director nor Shri Hari Singh, District Manager, have been examined as witnesses in the case to establish that any such information was received by the accused and the accused Sarup Singh was personally informed by Hari Singh, District Manager that the sale of the fertilizer be stopped for its rates were to be enhanced considerably. There is no proof available on the file that any written information was received by the accused that the rates had been enhanced from Rs. 54/ to Rs. 103/ and they should stop selling the fertilizer to the people East there would be loss to the government. Probably everything is in the air and no positive proof documentary or verbal, has been produced by the prosecution to establish that such information was conveyed to the accused Sarup Singh by Hari Singh, District Manager, HAFED, Hissar. Once both Shri Harbans Lal Sondhi and Shri Hari Singh District Manager have not been examined, the presumption drawn would be that if produced they would have spoken against the prosecution as envisaged under illustration (g) to Section 114 of the Evidence Act which says that the evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it.

No evidence has been brought on the record that the accused have fictitiously shown the sale of 1624 bags of urea fertilizer from 24.5.1974 to 30.5.1974 to different people when actually no urea was sold and an amount of Rs. 86,288.80 was embezzled by the accused. There is no evidence on the file that how the other accused were briefed by Sarup Singh accused about the enhancement of the rates of fertilizer and when and where they joined together to hatch up a conspiracy. It is the case of the prosecution that during investigation Rs. 50,076/ were deposited by the accused Sarup Singh but they could not establish as to how much amount was embezzled by him individually and what was the individual part played by other accused in embezzling the remaining amount.

No documentary evidence has been led or provided by the prosecution that the entries made in the record were in the handwriting of the accused. Surprisingly no handwriting expert has been examined. The signatures of the accused were not taken to get the same compared with the fictitious entries recorded in the records. No fictitious person has been examined to establish that actually no fertilizer was sold to them and that it was illegally retained by the accused.

There is no proof available on the file that the accused are public servants and they could be held responsible for an offence under Section 409 of the Indian Penal Code. No sanction of the government has been sought for the purposes of trying them as public servants. It is amazing and surprising that the prosecution did not arrest all the accused for eight months and remained silent knowing that the accused were in government service and they could be easily arrested for the purposes of investigation.

According to the trial Court on 15.11.1976 the accused Sarup Singh, Madan Lal, Mukhtiar Singh and Makhan Lal had given their signatures before the police for the purposes of comparison with the disputed signatures. It is nowhere contained in the report submitted under section 173 Cr.P.C. whether these signatures were sent to the handwriting expert for his opinion and if so what was his opinion. This shows that the prosecution has withheld the opinion of the expert in this regard, and if produced in the Court it would have gone against the prosecution. The worst of it is that the prosecution did not examine any government servant or any person who was acquainted with the handwriting of the accused to prove that the fictitious entries made in the records were made by the accused and the accused alone and none else. The prosecution did not care to enquire as to by whom the fictitious entries on pages 176 to 203 were made in the cash book of the Society of Tohana which ipso facto establishes that the entries made in the cash book from 24.5.1974 to 30.5.1974 were not made by accused Mukhtiar Singh or Madan Lal in their hand. Had it been so, the prosecution could establish that these entries were made by the accused.

It is an admitted fact that the accused were employees of the Society and although as public servants they are not liable for an offence under Section 409 I.P.C, but as they were employees of the Society and were entrusted with the property of the Society, therefore in case of misappropriation they were liable to be punished under Section 408 I.P.C. The sole question which remains for consideration is as to whether the accused have actually misappropriated the property of the Society by making false entries in the records and whether they have been actually informed about the increase in the rate of urea fertilizer by the authority verbally or by some written document. No evidence whatsoever is available in the form of ocular or in the form of any document that such an information was received by the accused before 24.5.1974 and they in spite of that disposed of the property fictitiously and thereby misappropriated the money dishonestly for their personal use. It actually appears and is found that no information was received by the accused in this regard that the rates have been changed by the authorities and they should not sell the fertilizer to the people. The prosecution has nowhere established that they did it even after the written orders were received by them telephonically or by a letter. Rather it is found that the fertilizer has been sold in the ordinary course of the business and no entries have been found that they have deposited the cost of the fertilizer at the rate of Rs. 54/ in the Treasury whereas they kept the fertilizer with them and sold it afterwards at the rate of Rs. 103/ per bag and thus deceived the government. As no evidence has been led to establish that any conspiracy was formulated and brought into action by the accused to defraud the Society, therefore the trial Court has rightly acquitted them all the charges framed against them and for which they were tried.

We do not find any ground for interference and therefore this appeal fails and is dismissed.