State of U.P. vs Rukam Pal Singh

M.C. Jain, J.—The State has challenged the order of the acquittal passed by Sri N. C. Pushkar, the then Judicial Magistrate, Sadar, Mathura on 8.9.1981 in Criminal Case No. 1003/IX of 1980. The accused Respondent has been acquitted of the charge of Section 409, I.P.C. levelled against him.

The accused-Respondent was the Assistant Sale Officer-II in U. P. State Agro Industrial Corporation Ltd. at Raya godown from 14.11.1973 to 29.12.1973. He sold fertilizer worth Rs. 34,463.09 p. during this period but deposited only Rs. 4037.50 p. in State Bank, Raya, against the said sale. He, thus, committed embezzlement of Rs. 30,425.59 p. It came to light on 30.11.1973 when he was transferred and the charge was assumed by his successor Palku Ram. The Accountant G.B. Tiwari P.W. 6, on gaining knowledge of embezzlement, got the F.I.R. lodged by the Branch Manager Gajendra Singh Yadav P.W. 1 on 13.12.1974. Consequent upon the lodging of the F.I.R. a case was registered and investigated whereafter the charge-sheet was filed against the accused Respondent. At the trial, the prosecution examined six witnesses whereas four witnesses were examined by the defence too.

The defence of the accused Respondent was that though he had received the questioned amount by sale of fertilizer, but he had made over the same to the accountant G. B. Tiwari P.W. 6 and had even made a report in this behalf to S.S.P., Agra, before the lodging of the F.I.R. of this case.

The accused-Respondent was served with notice in 1989 after admission of the appeal, but he did not engage any counsel. After it came to be listed he could not be served and under order dated 13.5.2003, Sri Kamal Krishna came to be appointed as amicus curiae to argue out the appeal on this behalf.

We have heard Sri M. C. Joshi, learned A.G.A. in support of the appeal and Sri Kamal Krishna, amicus curiae in opposition thereof. The submission of learned A.G.A. is that the receipt of the amount in question was admitted to the accused-Respondent and he did not deposit the same. As such he was guilty of embezzlement. Gajendra Singh Yadav, Branch Manager P.W. 1 stated in his cross-examination that the accused-Respondent was transferred from Raya on 29th or 30th December, 1973. He did not know whether he had made a report to S.S.P., Agra and to the Manager of the corporation about having paid the amount to the accountant G. B. Tiwari in the presence of S. P. Upadhyay D.W. 2 and complaining that the accountant was not giving receipt of the same. Obviously, his knowledge was based only on record. It came down from the statement of G. B. Tiwari, Accountant P.W. 6 that on detecting the non-deposit of the amount in question by the accused-Respondent in the bank, he had placed the matter before the Branch Manager with his note. He expressed his ignorance whether the accused-Respondent had, earlier to the lodging of the F.I.R., made an application to S.S.P., Agra, on 12.1.1974 that he had deposited that amount with him. The disturbing and sad feature of the case is that his witness was not interrogated by the Investigating Officer about the case put forth by the accused-Respondent that he had deposited the amount in question with him. Nor any probe was made by the Department. He was not questioned at all. It was a fact that in his bail application before the Sessions Judge, the accused-Respondent had averred that he had paid the amount in question to the Accountant G. B. Tiwari and that he did not give receipt to him. The application to S.S.P. (Ext. Kha-1) making the same allegation was also made by the accused-Respondent earlier to the lodging of the F.I.R. The evidence of payment of amount in question to the accountant G. B. Tiwari P.W. 6 has been given by S. K. Sharma D.W. 1, S. P. Upadhyay D.W. 2 as well as by the accused-Respondent Rukam Pal Singh himself as D.W. 4. The Accountant G. B. Tiwari. P.W. 6 admitted that he had no enmity either with these witnesses or the accused-Respondent. The accountant was the superior officer of the accused-Respondent. Admittedly, it is not disputed that the sale amount could be deposited either at Agra or Mathura. It cannot be brushed aside lightly that earlier to the lodging of the F.I.R., the accused had made a report to the S.S.P. that he had paid the amount to the accountant. It being so, the matter required thorough probe from this angle. Though it came to the notice in the department as well as of Investigating Officer, but neither the department made any probe into the controversy from this aspect of the matter nor the Investigating Officer thought it proper even to interrogate the accountant. The Investigating Officer was not also produced as a witness and the accused Respondent was deprived of an opportunity to cross-examine him as to what where the circumstances for not investigating the contention put forth by him and for not interrogating the accountant. The fair play required that G. B. Tiwari, accountant should have been made a co-accused in view of the specific contention of the accused-Respondent, which had been taken even earlier to the lodging of the F.I.R.

The possibility could not be ruled out that the case put forth by the accused-Respondent earlier to the lodging of the F.I.R was correct that he had paid the amount to his superior G. B. Tiwari, Accountant P.W. 6 who had not issued any receipt to him and at the time of transfer of accused Respondent, he (accountant) thrust the blame on the accused taking advantage of the ground fact that he had not issued any receipt to him.

On over all consideration, we agree with the trial Magistrate that the accused-Respondent could not be held to be guilty of any embezzlement.

The appeal fails and is hereby dismissed.

Let a copy of this judgment be sent to the court below for incorporating necessary entries in the relevant register and reporting compliance within two months.

Sri Kamal Krishna, who argued the appeal as amicus curiae from the side of accused-Respondent on being so appointed under the orders of this Court, shall get Rs. 1,000 as his fee.