Himachal Pradesh High Court
Shri Prem Dayal vs State Of Himachal Pradesh on 12 July, 2021
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.32 of 2006 Judgment reserved on: 7.7.2021 Date of Decision: 12th July, 2021 .
_________________________________________________________________ Shri Prem Dayal ...Petitioner Versus State of Himachal Pradesh ...Respondent.
_________________________________________________________________ Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 For the petitioner: Mr. O.C. Sharma, Advocate.
For the respondent:
r Mr. Nand Lal Thakur, Ld. Additional Advocate General, Mr. Ram Lal Thakur, Assistant Advocate General and Mr. Rajat Chauhan, Law Officer for the respondent/State.
THROUGH VIDEO CONFERENCE _________________________________________________________________ Anoop Chitkara, Judge.
FIR NUMBER 13/1989 dated 14.3.1989, u/Ss 120-B, 408, 420, 465, 468, 471, 477A, IPC at P.S Parwanoo, Criminal Case 43/2 of 2000/91 before JMIC, Kasauli, Distt. Solan Number AND Case No.2FT/10 of 2005 before Addl. Sessions Judge, Fast Track Court, Solan
1. Challenging the conviction for embezzlement, cheating, forgery, and falsification of accounts passed by the learned Judicial Magistrate 1st Class, Kasauli, District Solan, and which was upheld by the learned Additional Sessions 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 12/07/2021 20:13:25 :::HCHP 2 Judge, Solan, the convict who was cashier of M/s. A.B Tools Private Limited has come up before this Court under Section 397 read with Section 401, CrPC.
2. In the year 1989, the management of M/s. A.B Tools Pvt. Ltd. came to know .
about shortages of funds in its bank account compared to the funds depicted in the cash books. Further internal probe pointed towards the involvement of employees of the company, namely Prem Dayal (petitioner herein), who was working as a cashier, one Sarvesh Kumar, who stands acquitted by the learned Trial Court, and one Harminder Singh, who remained unprosecuted.
3. After detection, the company got its accounts audited from its Chartered Accountant, who confirmed the shortages and tampering in the bank pay-in slips.
After that, the complaint was filed in the Police Station, Parwanoo, which led to the registration of the FIR mentioned above.
4. After completing the investigation, the Officer-in-charge of the Police Station, Parwanoo, launched prosecution against all the three accused. Vide order dated 2.8.1991, the learned Judicial Magistrate 1st Class, Kasauli framed charges against all the three accused of embezzlement of accounts of the company during the year 1988 and thereby for the commission of offences punishable under Section 120B, 408, 420, 465, 468, 471 and 477-A of IPC for embezzlement of funds amounting to Rs.94,708/-. The accused did not plead guilty and claimed to be tried.
5. During the investigation, the investigator seized the pay-in slips, which were allegedly tampered with to show inflated figures, and seized the corresponding slips from the bank. The investigator also obtained specimen handwritings of all the three accused of comparison and got the report from the handwriting expert.
6. The prosecution examined the Managing Director of M/s. A.B Tools Pvt. Ltd, its employees, bankers, Chartered Accountants, and the investigators to prove its case.
7. After completion of the evidence, the Court put the circumstances appearing in the prosecution evidence to the accused under Section 313, CrPC.
8. In reply to such evidence, the accused admitted that he was an employee with M/s. A.B Tools Pvt. Ltd and also admitted the constitution of the company ::: Downloaded on - 12/07/2021 20:13:25 :::HCHP 3 and its Managing Director etc. However, the accused denied the circumstance as incorrect about that he used to take cash to the bank and withdraw money from the bank. He stated that it was Managing Director who was keeping cash with him. The accused denied the tampering of pay in slips of the bank, and in reply to .
question No.9, he specifically stated that it was the management who used to deal with the bank. He also denied his specimen handwriting being taken.
9. The learned Trial Court found the evidence proved by the prosecution convincing and held accused Prem Dayal guilty of the offences and sentenced him as mentioned above. However, the learned Trial Court acquitted the other accused, Sarvesh Kumar. A perusal of the memo of parties reveals that Harminder Singh was not put to trial.
10. Aggrieved by the conviction and sentence, convict Prem Dayal filed an appeal before the learned Sessions Court, Solan, and learned Additional Sessions Judge, Solan partly allowed the appeal and set aside the conviction under Sections 420, IPC for cheating and Section 468, IPC for forgery for cheating. However, learned Appellate Court upheld the conviction under Sections 408, 465, 471, and 477-A, IPC and did not alter the sentence.
11. Challenging the dismissal described above of appeal, the convict came up before this Court by filing the instant Criminal Revision Petition.
12. I have heard learned counsel for the parties and gone through the old bulky record.
13. The bungling and misappropriation of accounts came to the notice through Shri Jai Parkash, who had left the job from M/s. A.B Tools Pvt. Ltd. on 9.7.1989 and was posted as its secretary. Jai Parkash, who testified as PW-11, stated that in March 1989, when checking the firm was going on, the Managing Director told him that he had handed over Rs.9000/- to Shri Prem Dayal (petitioner) to deposit the same in the bank. However, when they checked the bank statement, the said amount was not deposited, leading to further probe. Eventually, it was realized that several lacs of rupees had been misappropriated. In cross-examination, the witness was not aware of the date and time of handing over of Rs.9000/-.
::: Downloaded on - 12/07/2021 20:13:25 :::HCHP 414. The following material witness is PW/6 Devender Puri, who was working as Accounts Manager in M/s. A.B Tools Pvt. Ltd. He testified that he had come to know about bungling of the accounts and lesser deposits while checking the accounts. He further stated that after scrutiny of the accounts, they realized that .
all the three accused had misappropriated around Rs.5,50,000/- from the company's account. He stated that money handed over to Prem Dayal was shown to have been deposited as it is. Still, he deposited significantly less amount in the bank, i.e., approximately 1/10th of the same. Prem Dayal would tamper with the counter slip and in that slip would show the amount as was given to him, whereas the actual amount deposited with the bank was around 1/10th. He testified that in one of the receipts of the bank given to the company, the deposited amount was reflected as Rs.1000/-, whereas only Rs.100/- was deposited in the bank. He testified that this was the modus operandi of Prem Dayal.
15. The other relevant witnesses are the bankers. PW-7 Shri P.D. Gauri testified that he was posted as a Senior Manager in Punjab National Bank from July 1988 to April 1989. He testified that in one entry dated 10.8.1988, although Rs.150/- was deposited in the bank, the counter slip which was with the company reflected Rs.1500/-. Similarly, Rs.2000/- was made as Rs.20,000/-, Rs.160/- was made as Rs.1160/-, Rs.1200/- was made as Rs.12,000/- and so on.
16. PW-10 Shri Garish Sharma, who was also working as Clerk-cum-cashier in Punjab National Bank from 1983 to 1990, testified in similar terms.
17. PW-18 Shri R.L. Premi, who was also posted in PNB from 1986 to March 1989, corroborated the complainant's case.
18. The prosecution also examined Chartered Accountants Shri Rajiv Ahuja, PW-9, and Shri G.K. Jain, PW-16. They also found shortages of funds in the accounts.
19. Shri Rajan Jain, Managing Director of the company, also testified as PW-1 and stated the bungling in accounts.
20. The investigator had obtained specimen handwriting of the Executive Magistrate. He had obtained specimen handwriting signatures on 1.4.1989 as per Section 73 of the Indian Evidence Act. It was for the Court to direct any person ::: Downloaded on - 12/07/2021 20:13:25 :::HCHP 5 present in Court to write any words or figures to enable the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.
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21. It is well settled that the Executive Magistrate could not have obtained specimen handwriting then, and as such, this evidence is meaningless.
22. Thus, undoubtedly, the prosecution proved beyond reasonable doubt that there was a bungling of the company's accounts. It is also proved beyond reasonable doubt that the portion of pay in slips with the company was tampered with to show higher and actual deposit. In contrast, the money deposited in the bank was usually 1/10th of such entries. All the three accused were suspects.
Based on similar evidence, Sarvesh was acquitted by the learned Trial Court, and judgment of his acquittal had attained finality. Be that as it may, the evidence proved against the petitioner only shows that he worked as a cashier in the company. There is no evidence of who was supervising the bank deposits and, in whose custody, the pay-in slips were present. Furthermore, who had tampered with the pay-in slips is also not proved because of the lack of evidence.
23. To prove the offence of criminal conspiracy punishable under Section 120B, IPC, it is settled that a person cannot enter into a conspiracy with himself. In this case, the other two accused stand acquitted and were not convicted, and judgment of their acquittal has attained finality.
24. A perusal of the evidence proved by the prosecution does not prove the entrustment of the money to the convict. A person can misappropriate only that amount that is entrusted to him. Thus, to make out an offence punishable under Section 408, IPC, the foremost requirement is to prove that the property was entrusted to such person. However, there is not even an iota of evidence to prove the entrustment of alleged money to the convict-petitioner.
25. To prove the offence of forgery punishable under Section 465, IPC, in the counter-foils which were retained with the company, tampering had taken place, and after that, none had rechecked it. Secondly, to prove such forgery, it was essential to prove that who did it, but, in this case, handwriting specimen is not legally admissible.
::: Downloaded on - 12/07/2021 20:13:25 :::HCHP 626. The counterfoils which the company retained are not proved to be tampered with by the petitioner. Consequently, the ingredients of Section 471, IPC, are also not made out.
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27. To prove the offence of falsification of accounts punishable under Section 477-A, IPC, there is no evidence that the petitioner was writing the accounts for the bank. No one has stated that he had written the cash book or other ledgers.
Even if he had occasionally done so, the same had to be cross-checked by the concerned person of M/s. A.B Tools Pvt. Ltd. Furthermore, initially, three persons were suspects and were arraigned as accused. For this reason, the investigator found the involvement of all the three accused and not the petitioner alone. Thus, to conclude that it was the accused alone and none else guilty of falsifying the accounts is not legally proven.
28. The appreciation of evidence mentioned above and application of relevant law establishes that the evidence proved by the prosecution is insufficient to convict the petitioner. He may or may not be guilty, but the difference between may and must is huge in Kali Ram Vs. State of Himachal Pradesh, AIR 1973 SC 2773, a three Judges Bench of Hon'ble Supreme Court, held that the difference between maybe and must be is enormous.
29. Given above, it cannot be said that the accused and nobody else was responsible for the said bungling of the accounts, and thus, the accused is entitled to the benefit of the doubt.
30. Hence, for all the reasons mentioned earlier, the petition is allowed, and the judgment of conviction and sentence passed by the learned Trial Court, which was affirmed by the learned Additional Sessions Judge, Solan (HP), is set aside. The convict is acquitted of the charged offences. Bail bonds are discharged. The petitioner shall be entitled to claim the refund of the fine, if deposited. All pending applications, if any, are also closed.
(Anoop Chitkara), Judge.
July 12, 2021 (mamta) ::: Downloaded on - 12/07/2021 20:13:25 :::HCHP