State of Himachal Pradesh vs Sukhdev Singh Cheema

Deepak Gupta, J.—This appeal by the State is directed against the judgment dated 20th December, 2003, delivered by the learned Additional Chief Judicial Magistrate, Amb, District Una, H.P. in case No. 37/II of 2002, whereby he acquitted the accused of having committed an offence punishable u/s 409 of the Indian Penal Code. The prosecution story, in brief, is that in the year 1985, the accused was working as Block Development Officer, Amb. PW-3, A.N. Sharma, Additional District Magistrate, Una, visited the office of the Block Development Officer and physically verified the cash books and the cash in hand. According to the prosecution, as per the cash book, there was cash balance of Rs. 5,64,784.74/-, but the actual amount found in the chest was only Rs. 22,384/-. So, there was shortage of Rs. 5,42,300.74/-. When the accused was asked to explain this discrepancy, he could not give any satisfactory reply, but sought for three-four days to reconcile the discrepancies. Thereafter, on 12th August, 1985, again cash books and cash were physically verified and this time, the shortage was of Rs. 5,24,710.66/-. Basically, on these facts, it was alleged that the accused had embezzled this amount.

To prove a charge of embezzlement u/s 409 of the Indian Penal Code, it is incumbent upon the prosecution to prove that the accused was entrusted with the property and that the accused with a dishonest motive misappropriated or converted the same to his own use. Unless both the facts are proved, an accused cannot be held guilty.

The learned trial Court, after going through the entire evidence, came to the conclusion that the prosecution has failed to prove entrustment of the property itself.

No doubt, the accused was the DDO and Head of the office, but this did not mean that all the functions had to be performed by him. Though, PW-3, A.N. Sharma, has stated to the contrary, according to PW-12, Bakshish Singh, there were two keys of the chest; one with the DDO and one with the Head Clerk. Therefore, unless both connived, the money could not go out of the chest. The accounts were not maintained by the DDO, but by the Accountant/Cashier. There is definitely discrepancy between the entries in the cash book and the amount which was actually found. This may raise a strong suspicion about the involvement of the accused, but suspicion can never take place of the truth.

As pointed out earlier, it was not only the accused, who had the key of the cash chest, but it was the Head Clerk also. It has also come in evidence that only when both the keys were simultaneously used, the cash chest could be opened.

The statement of PW-3, A.N. Sharma, is that he was informed by the Accountant that both the keys of the chest remained with the accused. This statement of PW-3 is hear-say and is not admissible in evidence. Either the Accountant should have been examined or other evidence should have been led in this behalf.

We are of the considered view that when there are two keys to a cash chest, it will be obvious that both the keys have to be used by different officials, otherwise entire purpose of having two separate keys would be defeated. Therefore, the benefit of doubt has to be given to the accused.

We are, therefore, of the opinion that the learned trial Court was justified in acquitting the accused. The accused may have been highly negligent in the performance of his duties, but it cannot be said that he was entrusted with the money or that he has dishonestly misappropriated the same. For the aforesaid reasons, we find no merit in the appeal, which is accordingly dismissed. Bail bonds discharged.