State of U.P. vs Raj Singh Kushwaha

Mahendra Dayal, J.—Feeling aggrieved by the judgment and order dated 31.10.1980, passed by the Judicial Magistrate, 1st Class/District Muzaffarnagar, in case No. 1032/979, acquitting the accusedrespondent Raj Singh Kushwaha of the charge under section 409, I.P.C., the State has filed this appeal.

As per the prosecution case, the F.I.R. was lodged by the informant Ram Kishore Das on 28.3.1974 with Police Station Kotwali, District Muzaffamagar alleging therein that the accusedrespondent was posted as Assistant Agricultural Inspector at Liaqat Canj Seed Godown, District Muzaffamagar during the period 5.12.1972 to 10.9.1973 and the agricultural department had entrusted the charge of stock of fertilizer to the accusedrespondent.

On 10.4.1973 the accusedrespondent was transferred from Muzaffarnagar to Saharanpur and the transfer order was communicated to him, but instead of handing over the charge of the godown, he proceeded on leave on the ground of illness, he was repeatedly asked to handover the charge of the stock but when he did not turn up, the Magistrate (Tehsildar, Muzaffarnagar) broke open the lock of the godown on 7.9.1973 and a list of stock was prepared.

On verification and cross checking of stock position, it was found that the fertilizer valued about Rs. 71,246.12 was short. The informant, i.e. District Agricultural Officer, lodged the F.I.R. with the police station and also informed his higher officers regarding the incident. The police made investigation and finally submitted the chargesheet against the accused respondent under section 4091.P.C.

The prosecution, in order to prove its case, examined as many as nine witnesses. The learned Magistrate after considering the entire oral and documentary evidences on record, came to the conclusion that the prosecution had failed to prove the charge against the accusedrespondent beyond reasonable doubt and, therefore, he was entitled to get the benefit of doubt. On the basis of the aforesaid conclusion, the accusedrespondent was acquitted of the charge levelled against him.

We have heard Smt. Raj Laxmi Sinha, learned AGA and Shri P.S. Pundir holding brief of Shri Ramesh Pundir, learned Counsel for the accusedrespondent and also perused the trial Court record.

The learned AGA has challenged the judgment and order of acquittal mainly on the ground that the accusedrespondent being incharge of the Government Seed Godown was entrusted with the custody of the goods kept in the godown and, therefore, he was responsible for its safe custody.

The trial Court was also of the view that in the absence of accusedrespondent, the lock of the seed godown was broke open on 7.9.1973 and the stock was found short. The learned Magistrate also recorded a finding that when the lock of the godown was broke open and inventory was prepared, the accused respondent was on leave. The accusedrespondent had proceeded on leave on 24.4.1973 and during the period of hisleave, the godown was under the supervision of Raj Kumar and Swatantra Singh. The learned Magistrate has also recorded a finding that the godown was sealed on 13.7.1973 but before that Raj Kumar had already informed the authorities that the seal was tampered. In these circumstances, it cannot be said that on 7.9.1973 when the lock was opened for the preparation of inventory, the lock was duly sealed. The accusedrespondent, therefore, cannot be held responsible for the shortage of the goods.

Another ground taken for acquittal of the accusedrespondent is that the prosecution witness Rajendra Kumar Sharma, Accountant (PW2) was examined in the Court on 22.9.1977. However, during the course of examination, it was found that the audit report referred to by this witness, on the basis of which the F.I.R. was lodged, was not on record and its copy was also not supplied to the accusedrespondent.

The learned Magistrate deferred the crossexamination and directed the prosecution to supply a copy of the report within a week. It is not disputed that the copy of the audit report was neither provided to the accusedrespondent nor it was placed on record. Rajendra Kumar Sharma (PW2) also did not appear before the Court for crossexamination. The accusedrespondent was, therefore, deprived of his valuable right to crossexamine and test the veracity of the depositions of this witness. The evidence adduced by this witness, therefore, cannot be read in evidence.

Submission on behalf of the appellant is that the accusedrespondent has not denied the fact that he was incharge of the Government Seed Godown, Liakatganj, District Muzaffarnagar during the relevant period. The conduct of the accusedrespondent to proceed on leave after knowing fully well that he was transferred to Saharanpur goes to show that he had a guilty mind, therefore, instead of giving charge of the godown, he simply locked it and proceeded on leave. Even after being served with the show cause notice, he did not turn up and as such having no other alternative, lock was broke open and inventory of the goods available was prepared and the material kept in the godown was found short. Since the accusedrespondent was incharge of the godown and had also effective and physical control over the same, he had to explain as to how the material kept in the godown was short.

Further submission on behalf of the appellant is that the accusedrespondent had taken a defence that stock of the material was short since before his taking over the charge of the godown, but he could not prove it. The learned Magistrate wrongly relied upon the unproved defence of the accusedrespondent and granted him the benefit of doubt.

With regard to the evidence of Rajendra Kumar Sharma, PW2, it has been submitted on behalf of the appellant that the statement of this prosecution witness was recorded in the open Court and in the presence of the accused respondent/but at that time he did not object the recording of the evidence. In these circumstances, the statement of Rajenjdra Kumar Sharma, P.W.2 cannot be discarded. Moreover, the accusedrespondent also did not make any effort to recall the witness for cross examination. The accusedrespondent, therefore, cannot take the advantage of his own wrong. The prosecution witness had proved the charge against the accusedrespondent beyond reasonable doubt, therefore, the judgment and order of acquittal passed by the learned Court below is untenable and is liable to be quashed and the accusedrespondent is liable to be convicted under section 409 I.P.C.

The learned Counsel for the accusedrespondent while supporting the judgment and order of acquittal has argued that although the evidence of Rajendra Kumar Sharma (PW2) was recorded in the open Court and in the presence of accusedrespondent, but even then he was deprived of his valuable right to crossexamine the said witness. It was the duty of the prosecution to have complied with the order of the Court passed during the examination of the witness and also to produce the witness for crossexamination, but the prosecution neither supplied the copy of the audit report to the accusedrespondent nor the witness was recalled for crossexamination.

It has further been argued that even if the evidence of Rajendra Kumar Sharma (PW2) is found admissible in evidence, the same should not be relied upon and be read against the accusedrespondent because opportunity of crossexamination was not provided to him. Therefore, the learned Magistrate has rightly discarded the evidence of Rajendra Kumar Sharma (PW2).

With regard to the evidence of embezzlement, it has been submitted on behalf of the accusedrespondent that admittedly he was the Assistant Agricultural Inspector and was also the incharge of Government Seed Godown, Liakatganj, District Muzaffarnagar. During the relevant period, he did not proceed on leave for any ulterior motive, but he had proceeded on leave on 24.4.1973 after sanction of leave and subsequently he remained seriously ill and could not join his duties.

He has further submitted that accusedrespondent was not even informed before breaking open the lock of the godown. The accusedrespondent was on leave since much before the breaking open of lock, therefore, there is every possibility that some other person might have committed theft and this fact finds support from the information given by Raj Kumar to the higher authorities informing them that the seal was tampered much before breaking open the lock of the godown. In these circumstances, the accusedrespondent cannot be held responsible for the alleged shortage of stock.

Another argument put forward on behalf of the accusedrespondent is that the alleged shortage was continuing since much before the taking over charge by accusedrespondent. The prosecution witness. Ram Dulare has admitted before the Court that the alleged shortage was not of much importance. It is further submitted on behalf of the accused respondent that the entire prosecution case is based on circumstantial evidence and there is no direct evidence against him.

The learned Trial Court has rightly come to the conclusion that the alleged shortage of material was not because of any wrongful act of the accused respondent, as such he was entitled for the benefit of doubt. The judgement and order passed by the Court below'' is, therefore, based on correct appraisal of evidence and does not call for any interference by this Court.

For the offence of criminal breach of trust by a public servant, as defined under section 409 I.P.C. the following ingredients are necessary :

The accused must be a public servant.

He must have been entrusted in such capacity with property.

He must have committed the breach of trust in respect of such property.

In the case in hand, the first two ingredients are fully proved. It is an admitted case of the accusedrespondent that he was a public servant and was also entrusted with the property being incharge of Government Seed Godown. The third ingredient is the most important ingredient and it has to be proved by the prosecution beyond reasonable doubt.

The criminal breach of trust means dishonestly misappropriating the property or converting it to his own use. It must be proved by the prosecution that the accused dishonestly misappropriated the property or converted it to his own use or dispose of the property in violation of any direction or law.

The accused respondent was incharge of the Government Seed Godown, Liakatganj, District Muzaffarnagar and by the order dated 10.4.1973 he was transferred to Saharanpur. The accusedrespondent proceeded on leave on 25.4.1973 and remained absent till the lock of the godown was broke open and inventory was prepared and F.I.R. was lodged against him.

The defence of the accusedrespondent is that the physical verification of the godown was made from 9.4.1973 to 11.4.1973 and after this annual verification, the godown was sealed and after that no transaction was made and the accusedrespondent proceeded on leave. However, there is no material on record to substantiate that after 11.4.1973, the godown was actually sealed and remained sealed till 7.9.1973 when the lock was broke open for preparation of inventory. During this period, the possibility of tampering with the seal or misappropriation of the material by any other person cannot be ruled out.

The prosecution witness, Sudarshan Kumar Dhawan, who was Tehsildar, Sadar at that time has clearly stated that on 7.9.1973 when the lock was broke open, the godown was under the supervision of two independent persons, namely, Surendra Singh and Raj Kumar.

The prosecution witness, Ram Dulare Rai, who conducted the annual physical verification of the godown during the period 9.4.1973 to 11.4.1973 has clearly stated in his statementinchief that the shortage of stock was not material.

In these circumstances, considering the evidence on record, the learned Court below has rightly come to the conclusion that the offence of criminal breach of trust is not proved beyond doubt against the accusedrespondent.

So far as the evidence of R.K. Sharma (PW2) is concerned, he has stated on oath before the Court that he did audit of the Seed Godown, Liakatganj, District Muzaffarnagar between the period from 28.1.1973 to 10.9.1973 and after the audit of the Godown, he prepared a detailed audit report and signed the same. Since this audit report was an important evidence to be relied upon, the trial Court found it necessary to supply a copy of the same to the accusedrespondent so that his valuable right may not be prejudiced. The trial Court, therefore, deferred the cross examination and directed the public prosecutor to supply a copy thereof within a week to the accusedrespondent, but as indicated hereinabove, neither the copy of audit report was provided to the accusedrespondent nor R.K. Sharma (P.W.2) attended the Court for crossexamination. The statement of this prosecution witness was recorded in the open Court on oath and in presence of the accused respondent, therefore, his evidence is admissible, but since the accusedrespondent was neither provided an opportunity of cross examining the said witness nor was supplied the copy of the audit report, which is an important document to prove the guilt/innocence of the accusedrespondent, the evidence of such witness cannot be relied upon and used against the accusedrespondent. The accused respondent has been clearly denied the opportunity of fair trial. It was the duty of the trial Court to have ensured that the order of the Court was complied with, but it appears that the learned Magistrate instead of ensuring as to whether the copy of the audit report was actually provided to the accused respondent or not, proceeded to decide the trial.

The accusedrespondent could have also applied before the Court for recalling R.K. Sharma (P.W.2) to enable him to crossexamine the witness, but he cannot be penalized for his negligence, especially in view of the settled legal position of law that the initial burden to prove the charges beyond doubt against the accusedrespondent is upon the prosecution and it is the duty of the Court to ensure the attendance and examination of important prosecution witness. Since the Trial Court has utterly failed to comply its own order and ensure the attendance of the important prosecution witness for crossexamination, the accused respondent was certainly denied the opportunity of fair trial and his right was denied.

The provision of filing an appeal by the State or by the complainant against the order of acquittal is contained in section 378 of the Code of Criminal Procedure. The power of the appellate Court in the matters of appeal filed against the judgment and order of conviction as well as the judgment and order of acquittal, is to review or reapprise the evidence available on record. This Court while exercising the power of appeal, can reappraise the evidence and come to its conclusion on the basis of evidence available on record and can also reverse the findings recorded by the Trial Court and substitute its own finding only in case where such findings are against the weight of the evidence of record or otherwise perverse. If another view is possible, then the view which favours the accused should be adopted.

A Division Bench of this Court in the case of State of U.P. v. Ran Azore, 1991 (Suppl.) ACC 226 (Alld.) has held that appeal against the acquittal is an extra ordinary remedy. Appeals from acquittal should be allowed only in exceptional circumstances. Appeals by Government should be allowed in the case where the judgment is clearly wrong and its maintenance amounts to a serious miscarriage of justice.

In the present case, after considering, the entire evidence on record and after hearing the arguments on behalf of the appellant as well as the accusedrespondent, we do not find any perversity in the judgment passed by the Court below, as such it does not call for any interference. The appeal is, therefore, liable to be dismissed.

The appeal is accordingly dismissed.

The accusedrespondent is on bail and need not surrender unless wanted in any other case. His personal and surety bonds are discharged.

Let a copy of this judgment be certified to the Trial Court for its intimation.