Delhi District Court
State vs Harjinder Singh & Ors. on 1 July, 2019
CNR No. DL CT020001522001
IN THE COURT OF SH. KAPIL KUMAR
METROPOLITAN MAGISTRATE05, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR No. DL CT020001522001
CIS No. 294747/16
State Vs Harjinder Singh & Ors.
FIR No. 42/1997
PS. IP Estate
U/s. 409/120B IPC
JUDGMENT
1) The date of commission of offense : November 1996 to 22.01.1997
2) The name of the complainant : Sh Shashi Bhushan, Retired as Director Academy, CBSE, Delhi
3) The name & parentage of accused : 1. Arun Kumar S/o. Ram Preet Mehto
2. Vasudev Harit S/o Sh Late Jugal Kishore
3. Sukhbir Sharma S/o Sh Sharan Lal
4. Harjinder Singh Bhatia S/o Sardar Avtar Singh
4) Offence complained of : 409/120B IPC
5) The plea of accused : Pleaded not guilty.
6) Final order : Acquitted.
7) The date of such order : 01.07.2019
Date of Institution : 25.02.2000
Judgment reserved on : 06.06.2019
Judgment announced on : 01.07.2019
State Vs. Harjinder Singh & Ors; CIS No. 294747/16;
FIR No. 42/1997; PS IP Estate;
U/s. 409/120B IPC 1/21CNR No. DL CT020001522001 THE BRIEF REASONS FOR THE JUDGMENT:
1) The present FIR was registered on the complaint dated 23.01.1997 sent by Sh Sashi Bhushan, Deputy Secretary(Vigilance) to the SHO IP Estate. As per the allegations leveled in the complaint dated 23.01.1997 paper store unit, working under AdministrationIII department of CBSE deals with day to day affair of papers used in printing, procuring from paper mills, its delivery to printers, maintenance of stock registers and other allied matters. This unit had its godown at 17B, Indraprastha Estate, New Delhi to stock huge quantities of paper directly purchased from paper mills. Last periodical verification of the stock was got done in November 1996 and the report was sent to Audit Section in December 1996.
1.1) Accused H.S Bhatia was serving as Section Officer; accused Vasu Dev Harit was serving as Head Assistant; accused Sukbir Sharma was working as Assistant while accused Arun Kumar was posted as peon in the paper store. The store was being supervised by Assistant Secretary(AdministrationIII) and Deputy Secretary(AdministrationIII), CBSE.
1.2) On 22.01.1997 a report was given by accused H.S Bhatia, Section Officer to Sh M.C Goyal, Assistant Secretary(AdminIII) that a number of bundles of different sizes and quantity/quality were missing. Accused H.S Bhatia alleged to have verified the stock position earlier also. On his transfer to another section he was required to handover the charge to his subordinate staff.
State Vs. Harjinder Singh & Ors; CIS No. 294747/16;
FIR No. 42/1997; PS IP Estate;
U/s. 409/120B IPC 2/21CNR No. DL CT020001522001 1.3) Prior thereto on 15.01.1997 accused H.S Bhatia is alleged to have found shortage in the stock and as such got the locks of the godown changed. On 17.01.1997 fresh stocks were received but on 21.01.1997 some more bundles found to be missing even from the fresh stock. Accused H.S Bhatia reported the matter to his superiors Sh M.C Goyal and Sukhdayal and the godown was inspected. The connivance of security guards provided by M/s Dynamic Security Services was also suspected but the security services denied to have any kind of liability. Since the value of stock of the papers missing was found to be Rs 1,35,750/ the matter was report to the police. 1.4) It is alleged that accused persons hatched a criminal conspiracy to misappropriate paper stocks and in furtherance to that conspiracy misappropriate large quantity of papers from paper store in the capacity of public servants.
1.5) After investigation the present chargesheet for the offences U/s 409 IPC has been filed against abovementioned four accused persons. The Ld Predecessor of this court took the cognizance and accused persons were summoned.
2) In compliance of Sec. 207 Cr.PC, documents supplied to the accused persons. Arguments on point of charge were heard. Charges for the offences U/s 409/120B IPC was framed upon the accused persons, to which they pleaded not guilty and claimed trial.
3) In support of its case, prosecution has examined ten witnesses. After conclusion of prosecution evidence statement of accused persons were State Vs. Harjinder Singh & Ors; CIS No. 294747/16;
FIR No. 42/1997; PS IP Estate;
U/s. 409/120B IPC 3/21CNR No. DL CT020001522001 recorded in which accused persons denied all the allegations and opted to lead DE. Sh Pritam Saluja, Section Officer, CBSE was examined as DW1.
4) I have heard the arguments of Ld. APP for State and Ld. Defence Counsels for accused persons. I have also perused the record carefully.
5) The testimony of prosecution witnesses is being touched upon, in brief, as follows: 5.1) PW1 Complainant Sashi Bhushan was party examined on 13.12.2013. His examinationinchief was not completed. Thereafter he got expired. His testimony could not be read in evidence.
5.2) PW2 Sh Vijay Kumar Sharma deposed that on 12.11.1998 he had given some documents to the IO which was seized by him vide seizure memo Ex.PW2/A. In his testimony the stock registers for the year 199596 and 1996 97 were proved as Ex.P1 and Ex.P2; gatepasses for the period 199697 as Ex.P3(colly); challans files for the year 199596 and 199697 were proved as ExP4 and Ex.P5; indents of the year 199596 and 199697 were proved as Ex.P6 and Ex.P7; the letter dated 18.03.1997 was proved as Ex.P8 while the report of preliminary investigation as Ex.P9.
5.3) PW3 ASI Pardeep deposed that on 12.11.1998 all accused persons were arrested and personally searched by the IO in his presence. 5.4) PW4 Retired ASI Rashid Ahmed proved the endorsement on the rukka and the FIR. He deposed that after registration of the FIR he handed over the copy of FIR and original rukka to Ct Surender for transmitting the same to IO ASI Jaipal Singh.
State Vs. Harjinder Singh & Ors; CIS No. 294747/16;
FIR No. 42/1997; PS IP Estate;
U/s. 409/120B IPC 4/21CNR No. DL CT020001522001 5.5) PW5 Retired SI Jai Pal Singh deposed that on 23.01.1997 he received the complaint from CBSE regarding theft of paper and on 25.01.1997 he prepared the rukka Ex.PW5/A and got the present FIR registered. He deposed that site plan Ex.PW5/B was prepared and he had given notices U/s 91 Cr.PC to the CBSE Office through complainant Sh Sashi Bhushan. He deposed that he collected the relevant documents and seized the same vide Ex.PW2/A. He deposed that he arrested all accused persons.
5.6) PW6 Sh Ashok Kumar Kaushal deposed that he was appointed as inquiry officer by the disciplinary authorities qua the accused persons. He proved his inquiry reports qua accused persons H.S Bhatia, Vasudev and Sukhbir as Ex.PW6/A to Ex.PW6/C respectively.
5.7) PW7 Sh Tarun Kumar deposed that in the year 2008 he was posted as Section Officer(Vigilance) in CBSE Delhi and on the request of IO he provided the photocopies of some documents to the IO. He proved letters dated 13.02.2008 and 19.05.2008 as Ex.PW7/A and Ex.PW7/B respectively. 5.8) PW8 Sh M.C Goyal deposed that he was intimated by the accused Sh H.S Bhatia regarding the shortage of papers in the paper store and he forwarded that information to Deputy Secretary, Secretary and to the Chairman CBSE. He deposed that the inquiry committee was appointed and inquiry was initiated against accused persons.
5.9) PW9 Inspector Navin Kumar deposed that on 25.09.1999 the present case was marked to him for the further investigation and as per objection of prosecution department he added the name of witness Sh M.C Goyal, Sh Sukh State Vs. Harjinder Singh & Ors; CIS No. 294747/16;
FIR No. 42/1997; PS IP Estate;
U/s. 409/120B IPC 5/21CNR No. DL CT020001522001 Dayal and Sh S.U Sorte in the list of witnesses as their names were mentioned in the inquiry report.
5.10) PW10 ACP Naresh Khanka deposed that on 04.01.2007 the re investigation was marked to him. He deposed that on 04.01.2008 he went to the CBSE office where he met complainant Shashi Bushan and gave him notice U/s 91 Cr.PC to provide some documents related to the appointment, job description, period of posting at the paper store, memo of charge and finding against accused persons. He deposed that on 17.02.2008 he received the certified copies of abovementioned documents along with the forwarding letter which is Ex.PW9/A. He deposed that he recorded the statement of Sh Tarun Kumar. He deposed that on 17.03.2008 he recorded the statement of one Kaushal U/s 161 Cr.PC who conducted the departmental inquiry. He deposed that during his further investigation he asked the concerned officials of CBSE qua the documents related to the present case i.e stock registers, gate pass etc which was received by him vide Ex.PW9/B. He deposed that on perusal of those document he found several discrepancies and prepared the supplementary chargesheet which was later on filed in the court.
6) It is the cardinal principle of criminal justice delivery system that the prosecution has to prove the guilt of the accused beyond reasonable doubts. No matter how weak the defence of accused is but the golden rule of the criminal jurisprudence is that the case of prosecution has to stand on its own legs.
State Vs. Harjinder Singh & Ors; CIS No. 294747/16;
FIR No. 42/1997; PS IP Estate;
U/s. 409/120B IPC 6/21CNR No. DL CT020001522001
7) For the appreciation of various facts which have been came on record in the present case and to have clarity on the issues involved, it is relevant that the appreciation of evidence visavis the facts proved be done under the various heads.
Complaint.
8) The present complaint was given by Sh Sashi Bhushan, Deputy Secretary CBSE. On the basis of that complaint the present FIR was registered. The testimony of complainant could not be completed as Sh Sashi Bhushan got expired. Perusal of record reveals that even the examinationin chief of complainant/PW1 Sh Sashi Bhushan could not be completed. Accused persons did not get opportunity to crossexamine the complainant and as such the part testimony of complainant cannot be read in evidence against accused persons. This turns out to be huge blow for the case of the prosecution as even the complaint could not be proved on record. This led to the non proving of even the contents of the FIR. Complainant was the only witness of the prosecution who could have deposed about the alleged misdeeds of the accused persons in the capacity of public servants. The other nine witnesses examined by the prosecution are the witnesses qua the production of the documents before the IO of the present case or the officials who conducted departmental inquiry of the accused persons but technically there is no witness of the prosecution, in the absence of the complainant, who could depose anything about the misappropriation of papers from paper store. In the absence of the complainant there is no witness to the fact that as to State Vs. Harjinder Singh & Ors; CIS No. 294747/16;
FIR No. 42/1997; PS IP Estate;
U/s. 409/120B IPC 7/21CNR No. DL CT020001522001 when, where and how the accused persons allegedly misappropriated the paper stock. This fact is certainly beneficial to the accused persons.
9) When the testimony of complainant was not completed the remaining trial went on, prima facie, with the implied thought that the complaint is proved. If the testimony of other nine witnesses of the prosecution be read carefully than it can be said that the testimony of these witnesses could have provided the missing links, if any, had the complainant was completely examined on oath and supported the case of the prosecution. The reason behind this will be clear in the later part of this judgment.
10) If it is assumed that the entire case of the prosecution is based upon documentary evidence than it has to be seen as to what are those documents on which the prosecution is relying. There is no document in itself which can be said to be directly incriminating against accused persons. The prosecution is relying upon the set of various documents including the stock registers, gate pass, indents etc to show that the accused persons were under capacity or had opportunity to misappropriate the paper stock. These documents are required to be considered one by one to see as to whether these documents are helpful for the case of the prosecution or not.
Stock Registers
11) The first document on which the prosecution is relying is the stock registers for the year 199596 and 199697. These stock registers were proved in the testimony of PW2 as Ex.P1 and Ex.P2. Relevant to mention here that PW2 not deposed about any irregularities in these stock registers. At the risk State Vs. Harjinder Singh & Ors; CIS No. 294747/16;
FIR No. 42/1997; PS IP Estate;
U/s. 409/120B IPC 8/21CNR No. DL CT020001522001 of repetition, it can be said that it was the deceased complainant only who could deposed about the irregularities in the stock registers as maintained by the accused persons. Though the third IO ACP Naresh Khanka who started the reinvestigation of the present case after more than ten years deposed that he noted some irregularities in the stock registers yet the same is not so incriminating against accused persons which can be said to become the basis of the conviction of accused persons for the following reasons.
12) It is important to refer the FIR here. It is mentioned in the FIR itself that the periodical verification of the stock paper was got done and the same found to be correct during the last verification held in November 1996 and the audit section filed the report in month of December 1996. This fact in itself carves out that there was no irregularities in the stock of papers at godown till November 1996. The audit report was accepted by the concerned authority that has attained the finality. In the entire trial there is no whisper that the audit report of the paper stock submitted in December 1996 was incorrect. There is no reason as such for this court also to raise any kind of doubt on the audit report submitted in December 1996. Since this fact is not in challenge and as such the same cannot be digged without any reason.
13) Keeping in mind this fact and the fact that the testimony of complainant cannot be read in evidence it is relevant to refer the testimony of ACP Naresh Khanka at this stage. ACP Naresh Khanka/ PW10 deposed that he checked the stock register of year 1994, page 54 which shows the negative entry at Mark Y1; stock register of December 1993 page3 column 5 the calculation was State Vs. Harjinder Singh & Ors; CIS No. 294747/16;
FIR No. 42/1997; PS IP Estate;
U/s. 409/120B IPC 9/21CNR No. DL CT020001522001 wrong; stock register of September 1993 at page 65 the size of the papers was wrongly mentioned; stock register of January 1995, page 8 column shown the blank entry however the stock register of February 1995 column 9 same size of paper and quality shows the entry of seven rims and the stock register of May 1995 at page no.61, column no8 the final calculation of stock is wrong. Thus PW10 found some mistakes in the stock registers maintained since September 1993 till May 1995. Contrary to that the audit report submitted in December 1996 for the audit done in November 1996 did not mention about any kind of illegality. The CBSE itself relying on that audit report in the complaint itself. If the audit report has not been challenged by the concerned authority than the testimony of IO, who does not have any experience of audit, wherein he deposed that he found mistakes in stock registers maintained prior to May 1995 is of no consequence at all. Further the testimony of IO is not trustworthy on this aspect as there is no report from the auditor in this regard. If the IO after ten years of the registration of the case find some mistakes in some old stock registers of CBSE than he could have taken the aid of expert in that field which could be the certified government auditor to substantiate that fact and report of the auditor could have been proved on record during the trial. There is no such steps from the side of the IO and thus the testimony of ACP Naresh Khanka which in itself is contrary to the admitted fact mentioned in the FIR is of no benefit for the case of the prosecution and also not reliable.
14) The audit section of CBSE is an independent authority. It is not the case of the prosecution that the auditors who conducted the audit in the November State Vs. Harjinder Singh & Ors; CIS No. 294747/16;
FIR No. 42/1997; PS IP Estate;
U/s. 409/120B IPC 10/21CNR No. DL CT020001522001 1996 were in handsingloves with accused persons. If the independent authority had given any finding on certain government record which remained unchallenged than there is no basis for this court to discard that relied audited report and to give more credence to the testimony of IO which is allegedly based upon his own observation without any having any backing of the expert in that field. Accordingly, the alleged mistakes found by the IO in the stock registers does not instill the faith of this court.
Gate Passes
15) The other document relied upon the prosecution is the gatepasses on the basis of which the stock could have been transferred from the store. In the testimony of PW2 the gate passes from the year 199697 were proved as Ex.P3(colly). PW2 is the person who provided the gatepasses to the IO. The testimony of complainant/PW1 cannot be read in evidence as mentioned above. PW2 did not have the personal knowledge about the present case as admitted by him in the crossexamination when he stated that he cannot say anything about the incident except the record which have been produced by him. He deposed that except vigilance record he does not have knowledge about the facts of the present case. Thus in the testimony of PW2 certain gate passes are simply given exhibits and PW2 did not depose anything about the alleged mistakes/falsity/forgery of those gatepasses.
16) Again the prosecution is relying upon this aspect on the testimony of IO ACP Naresh Khanka as he is the only witness who had deposed something about the gatepasses. PW10 deposed that the gatepass dated 22.04.1996 had State Vs. Harjinder Singh & Ors; CIS No. 294747/16;
FIR No. 42/1997; PS IP Estate;
U/s. 409/120B IPC 11/21CNR No. DL CT020001522001 serial no. 3506 while the gate pass dated 25.04.1996 had serial no. 3505; gate pass dated 24.01.1997 has serial no. 5611 which shows the supply of six bundles of papers but the same is not mentioned in page no.103 of the stock register of January 1997; the prescribed gatepass was issued by the CBSE vide Ex.PW9/D however the number of the gatepasses of different dates were issued on the letter head not prescribed by CBSE as Ex.PW9/E has eight copies of different dates and gatepassed no. 2299 bears no date and time however it shows the supply of three bundles of sheet.
17) There is no evidence on record that the gatepasses as relied upon by the prosecution are in the handwriting of accused persons. It is not proved that those gatepasses have the signatures of accused persons. It is not proved on record that the paper stock which have been mentioned on those gatepasses are that stock only which was actually misappropriated. Finding a mistake in the procedure is a different thing from establishing the identification of the property which was allegedly misappropriated. There was no effort on the part of the prosecution to link the entries in the gatepasses as to the movements of the stocks to the alleged misappropriated paper stock. It is to be reminded here that this court is not conducting a departmental or fact finding inquiry against accused persons. This court is dealing with the poser of misappropriation of certain articles by the accused persons in the capacity of public servants and in these circumstances it was required for the case of the prosecution to connect the articles mentioned in the gatepasses to the paper stock allegedly misappropriated. The case of the prosecution is silent on this aspect. This fact State Vs. Harjinder Singh & Ors; CIS No. 294747/16;
FIR No. 42/1997; PS IP Estate;
U/s. 409/120B IPC 12/21CNR No. DL CT020001522001 in itself sufficient to state that the gatepasses as proved by the prosecution is again of no consequence for the case of the prosecution.
18) It was argued that the accused persons did not use the prescribed format of the gatepasses. The IO had collected one such prescribed gatepass from one of the official of the CBSE namely Tarun Kumar(PW7) and proved the same on record. He deposed that he recorded the statement of PW7 on this aspect. Contrary to that PW7 deposed that his statement was not recorded by the police and he is not aware about the contents of the documents given by him to the police. Thus the government official/PW7 deposed on oath that his statement was not recorded by the IO which is contradictory to the testimony of IO. No circular/bylaw/rule of CBSE has been proved that a gate pass should be in a given format only. This was required to be proved specifically by the prosecution so that gatepasses allegedly used by the accused (even this fact not proved) were perse illegal.
19) On the aspect of prescribed government format it is necessary to refer to the testimony of DW1 who is also a official from CBSE only. The summoned record was proved as Ex.DW1/B(35 pages). The documents brought by DW1 are attested by assistant secretary(vigilance) CBSE. The office order dated 26.02.1998 states that'a proper format of gatepass indicating the quantity, quality, grammage, the name of firm from which the papers were received shall be devised by the officers concerned with the paper store in consultation with the audit branch'. There is no suggestion from the side of the State contrary to this document. This document reveals that the State Vs. Harjinder Singh & Ors; CIS No. 294747/16;
FIR No. 42/1997; PS IP Estate;
U/s. 409/120B IPC 13/21CNR No. DL CT020001522001 prescribed gatepass is to be devised after the office order dated 26.02.1998 and such impliedly there was no proper format of the gatepass till 26.02.1998. The present case is of the year 1997. If the format of the gatepass is to be prepared after 26.02.1998 than how it is believable that there was prescribed format of gatepass in the year 1997. The document proved on record in defence evidence negates the case of the prosecution that there was a prescribed gatepass format in the year 1997.
20) IO/PW10 deposed in the crossexamination that Sh Tarun Kumar(PW7) had disclosed that there must be a unique number of the gatepass. First of all PW7 not deposed on this aspect. IO admitted in the crossexamination that he did not take the original register of the unique gatepasses in his possession and even he did not get the photocopies attested. It is not came on record as to vide which means the unique number of a gatepass was to be generated in the year 1997. The uniqueness of a thing lies in the fact that there cannot be same two things. What was the procedure to generate that unique gatepass number is not on record. If any serial number was to be given in the gatepass which could be said to be unique one than it was required to be proved by the prosecution than who was the competent authority to issue that unique gate pass. Again there is a void in the case of the prosecution in that aspect also.
21) Further admittedly there was 24X7 security at the paper godown from a independent private agency. If any goods were to be taken out from the godown than those goods must have been came in the notice of the security agencies also and in general parlance the entry of gatepasses must have been State Vs. Harjinder Singh & Ors; CIS No. 294747/16;
FIR No. 42/1997; PS IP Estate;
U/s. 409/120B IPC 14/21CNR No. DL CT020001522001 required to be done in the register maintained at the guard room also. There is no witness from the security company nor any record of the security company maintained at the gate of the store has been proved on record.
22) This court is not able to find any circumstance/fact vide which it could be stated that gatepasses allegedly used by the accused persons were illegal in itself. Prosecution not able to connect gatepasses proved on record to the present case as it is not on record that papers which are allegedly moved out of godown vide those gatepasses are actually that paper stock which was misappropriated.
Security services.
23) It is an admitted fact that the paper store was guarded by the security guards 24X7 through the security services provided by the company M/s Dynamic Security Services. This fact is itself mentioned in the complaint. Surprising to note that no sincere efforts were made by the investigating officer to make inquiry from the abovementioned company. There is no prosecution witness from the security services company.
24) IO/ACP Naresh Khanka deposed that during his reinvestigation he tried to locate the company M/s Dynamic Security Services but of no avail. He deposed that he had not interrogated security guard provided by the company. The guards which were on duty when the alleged misappropriation took place could have been best witnesses for the prosecution to prove that there was unauthorized movements of paper stocks from the godown. The CBSE which is a government undertaking must have float tenders for the security services State Vs. Harjinder Singh & Ors; CIS No. 294747/16;
FIR No. 42/1997; PS IP Estate;
U/s. 409/120B IPC 15/21CNR No. DL CT020001522001 and there must have been a proper agreement of CBSE with the above mentioned company. It is not possible that neither the company nor the directors of the company or the employees provided by the security services company could not have been traced had sincere efforts were made in that directions by the IO.
25) If there was no liability of the security services company or no document was prepared by the security services as to the movement of paper stock or the visit of person in the store than it could not be comprehended as to what was the purpose of that security services availed by the CBSE. A paper godown was put on guard 24X7 than it is not possible that the security services employees were not maintaining any record regarding the movement of the papers. No such document has been placed on record. The case of prosecution is completely silent on the aspect of security provider company.
26) This issue is very much relevant due to the reason had the company was traceable than the statements of the guards posted at the store at the relevant time could have been examined and they could have deposed about the manner in which the papers were being taken out from the store and on the basis of what documents. It could have also been came on record as to whether any proper record as to the documents/requisition paper were being maintained or not? If yes, than who was the concerned authorities who was keeping the check on those records. In absence of these facts a gap is created in the case of the prosecution and the accused persons are entitled to have benefit of this gap.
State Vs. Harjinder Singh & Ors; CIS No. 294747/16;
FIR No. 42/1997; PS IP Estate;
U/s. 409/120B IPC 16/21CNR No. DL CT020001522001 Departmental Inquiries against accused persons.
27) The accused persons were put for departmental inquiry by the CBSE. PW6 Ashok Kumar, a retired officer working under the Government of India was appointed as Inquiry Officer by the disciplinary authority of accused persons H.S Bhatia, Vasudev and Sukhbir Singh. In his testimony the inquiry report were proved as Ex.PW6/A, Ex.PW6/B and Ex.PW6/C.
28) It is important to mention here only that the departmental inquiries cannot substitute the trial. The finding of these departmental inquiries are not binding upon this court. The fact that the departmental inquiry was conducted is a fact only which can be appreciated and taken into consideration as any other fact. Any finding of the disciplinary authority, if it is against the delinquent official, cannot be the sole basis of conviction of the employee when there are no other material evidences on record to hold that employee guilty.
29) The submissions on the part of the State that the departmental inquiry was against the accused H.S Bhatia and this fact is so relevant that it can be the basis of conviction is meritless. If that be so than there would not have been any requirement for any trial before the criminal court and the accused could have been punished on the basis of departmental inquiries only. In that scenario the prosecution was required to just prove the finding of departmental inquiry committee and the accused can be convicted then and there only, but the law is not so. The departmental inquiry is just a fact which can be used as a aid to the other substantial evidence if came on record or the State Vs. Harjinder Singh & Ors; CIS No. 294747/16;
FIR No. 42/1997; PS IP Estate;
U/s. 409/120B IPC 17/21CNR No. DL CT020001522001 can be said to be circumstantial evidence which can be used to complete the missing link of evidences had the other evidences came on record are proving the guilt of accused persons. Unfortunately in the present case the complainant could not have been examined completely and the basis of the present case i.e the complaint is even not proved.
30) The other witness Sh M.C Goyal/PW8 simply deposed that he was called during inquiry proceedings which was initiated against accused persons. He was so called as the accused H.S Bhatia reported about the missing stock of paper from the godown to him only and thereafter the matter was reported to the police official. PW8 deposed that his statement was not recorded by the police. The testimony of PW8 Sh M.C Goyal is not incriminating to the accused persons.
31) Accordingly, the finding of departmental inquiry against the accused persons is not of great help to the case of the prosecution in view of the facts as proved on record during the trial.
AdministrationIII Department of CBSE.
32) This is not in dispute the management of paper store was under
AdministrationIII Department of CBSE. The report of Management Committee of CBSE dated 28.06.1997 has been proved in the defence evidence as per which the paper store is question was in dilapidated condition. It is mentioned in the report that the structure is unsafe from the safety point of view. This report of CBSE is relevant to point out that in the month of June 1997 the committee appointed by CBSE the paper store was in dilapidated State Vs. Harjinder Singh & Ors; CIS No. 294747/16;
FIR No. 42/1997; PS IP Estate;U/s. 409/120B IPC 18/21
CNR No. DL CT020001522001 condition.
33) It will not be wrong to state that the investigation was faulty in the present case. The Ld Predecessor of this court discharged the accused persons vide order dated 02.11.2007 and thereafter directed the reinvestigation in the present case which was done after 12 years of the incident. The IO not made proper inquiry from AdministrationIII official. It was admitted by the IO/PW10 that no indents of the papers were collected. The AdministrationIII department of that time was having the senior officials namely M.C Goyal and Sukh Dayal. No inquiries were made from them as to any work order which must have been given to the concerned authorities at that time. If the work orders were to be signed by the seniors officials of AdminIII than the facts of the present case requires that those senior officials must also have been inquired.
34) The necessary inquiry could have been made from the AdminIII as to the requisitions which were made during the relevant year and the necessary informations as to the printing agencies could have been collected as to the movement of papers from the store. Merely making an avernment that accused persons misappropriated papers of value of more than Rs 1 Lac without proving the manner in which such misappropriation took place and under what circumstances such misappropriation could have been possible is of no consequence.
Identification of the misappropriated paper stock and its recovery.
35) The first IO of the present case namely SI Jai Pal Singh examined as State Vs. Harjinder Singh & Ors; CIS No. 294747/16;
FIR No. 42/1997; PS IP Estate;
U/s. 409/120B IPC 19/21CNR No. DL CT020001522001 PW5 deposed that no recovery of the case property was effected from the possession of accused persons. This is a important fact as there is nothing on record as to the identification of alleged misappropriated goods.
36) In the absence of testimony of complainant the identification of papers which were allegedly misappropriated not came on record. There is nothing on record during the testimony of other witnesses as to the identification of specific paper stock which was allegedly misappropriated. It is not came on record as to when that paper stock came in the paper store which was allegedly misappropriated. Nothing proved on record as to the colour/size/quality/quantity/grammage of the papers allegedly misappropriated. This is the requirement of law that there should not be any ambiguity as to the identification of the property which was allegedly misappropriated when the charge is of criminal misappropriation property or breach of trust. A person cannot be convicted that the committed misappropriation of a thing which is unknown. The specific identification of the case property was required to be proved on record by the prosecution but the prosecution failed to do so.
Conclusion.
37) It is well settled law that suspicion, however grave it may be, cannot take the place of proof and there is huge difference between something that 'may be proved' and 'will be proved'. In criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. The large gap between ' may be true' and 'must be true', must be covered by way of clear, State Vs. Harjinder Singh & Ors; CIS No. 294747/16;
FIR No. 42/1997; PS IP Estate;
U/s. 409/120B IPC 20/21CNR No. DL CT020001522001 cogent and unimpeachable evidence produced by the prosecution before the accused could be condemned as convict. Reliance could be place upon Judgments titled as Hanumant Govind Nargundkar & anr. Vs State of M.P., AIR 1952 SC 343; Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra, AIR 1973 SC 2622; Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622; Subhash Chand Vs State of Rajasthan, (2002) 1 SCC 702; Ashish Batham vs State of MP AIR 2002 SC 3206; Narendera Singh & Anr Vs State of MP., AIR 2004 SC3249; State through CBI Vs Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan Vs State of U.P AIR 2012 SC 1979.
38) In view of above said discussion, it can be said that the prosecution has failed to prove the guilt of the accused persons beyond reasonable doubts. Accordingly, accused persons are hereby acquitted of the charges framed in the present case. File be consigned to record room subject to compliance of section 437 A Cr.PC.
Digitally signed by KAPIL KAPIL KUMAR
KUMAR Date:
2019.07.01
16:19:28 +0530
Announced in open court (Kapil Kumar)
on 01.07.2019 MM5/Central District
Tis Hazari Courts/Delhi,
State Vs. Harjinder Singh & Ors; CIS No. 294747/16;
FIR No. 42/1997; PS IP Estate;
U/s. 409/120B IPC 21/21