Punjab-Haryana High Court
Ut Chd vs Satinder Dhawan on 9 October, 2014
CRA No.691-DBA of 2002 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
CRA No.691-DBA of 2002
DATE OF DECISION: October 09, 2014.
U.T Chandigarh
....APPELLANT
VERSUS
Satinder Dhawan
...RESPONDENT
CORAM :HON'BLE MR. JUSTICE M. JEYAPAUL
HON'BLE MRS. JUSTICE SNEH PRASHAR
Present: Mr. Amarjit Singh Virk, Addl. P.P., U.T. Chandigarh.
Mr. Gaurakh Nath, Advocate
for the respondent.
****
SNEH PRASHAR, J.
1. The Union Territory of Chandigarh assailed the judgment dated 12.09.2001 passed in Criminal Case bearing FIR No.428 of 21.11.1988, registered under Section 409 of the IPC, at Police Station Central, Chandigarh by virtue of which respondent/accused- Satinder Dhawan was acquitted of the charge under Section 409 of the IPC RASHMI 2014.11.13 14:11 I attest to the accuracy and integrity of this document CRA No.691-DBA of 2002 2 levelled against him.
2. Precisely, the prosecution case was that Shri Satinder Dhawan was an employee of the Haryana State Lotteries Department, who used to collect tickets from Delhi office and while acting as sales officer, Chandigarh, had been selling tickets to the agent on cash payment basis and used to deposit the sale proceeds with the department. He was entrusted with lottery tickets valuing Rs.16,00,857-61 paise for sale for the period 07.01.1982 to 16.04.1987, relating to draws No.101 to 115 of Jai Durga Lottery, draw rd th No.477 to 481 of Mahalaxmi Lottery and 3 and 5 draw of Brahspati Lottery. He did not deposit the sale proceeds and with the allegation that he misappropriated the said amount, the instant case was registered against him. The Investigation commenced, the accused was arrested, challaned and charge-sheeted. He pleaded not guilty and claimed trial.
3. During the trial, the prosecution examined as many as 12 witnesses to substantiate its charge. Statement of the accused under Section 313 of the Code of Criminal Procedure was recorded whereby he again denied the allegations and pleaded that he was innocent.
4. In his defence evidence, the accused examined the witnesses and tendered into evidence, receipts Ex-P5, Ex-P-6 and Ex-D1 to Ex- D3 relating to deposit of some sale proceeds by him.
5. Finding that prosecution utterly failed to prove the guilt of the accused by proving entrustment of the lottery tickets/amount or misappropriation of the amount with dis-honest intention on his part, learned trial Court acquitted the accused giving him benefit of doubt. RASHMI 2014.11.13 14:11 I attest to the accuracy and integrity of this document CRA No.691-DBA of 2002 3
Feeling aggrieved, the State preferred the instant appeal.
6. In nut shell, the allegation against the accused was that he was entrusted with lottery tickets worth Rs. 16,00,857-61 paise during the period August, 1986 to 01.04.1987 but he failed to deposit the sale proceeds of the said tickets despite repeated reminders issued to him. So far as the fact that the accused was a public servant, was concerned, the same was not disputed by him. Otherwise also, the voluminous evidence adduced by the prosecution was sufficient to indicate that the accused was holding the office as a Public Servant being an employee of Haryana State Lotteries Department.
7. To begin with, in order to appreciate the ingredients and circumstances circumventing Section 409 of the Indian Penal Code in a proper perspective it shall be relevant to reproduce the said section hereunder:
Section 409 "Criminal breach of trust by public servant, or by banker, merchant or agent.- Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." Apparently, the first and vital ingredient constituting an offence under Section 409 of the Indian Penal Code is entrustment of RASHMI 2014.11.13 14:11 I attest to the accuracy and integrity of this document CRA No.691-DBA of 2002 4 the property to the accused which he was duly bound to account for and in respect of which he committed criminal breach of trust.
8. A scrutiny of the testimony of the witnesses examined by the prosecution as well as the documents proved by them would show that there was not an iota of evidence to establish entrustment of the alleged lottery tickets worth Rs. 16,00,857-61/- to the accused. The only document which can be taken into consideration in that direction is the receipt Ex-PW-6/A tendered during the statement of PW6- Dharampal-Cashier. Before analyzing the said receipt it shall be relevant to scrutinize the ocular evidence offered by the witnesses.
9. PW1-N.C. Madan, Chief Accounts Officer, Haryana Tourism, Sector-17 Chandigarh, admitted in his cross-examination that he had no document to produce with regard to entrustment of the lottery tickets valuing the disputed amount i.e. Rs. 16,00,857.61 paise or the said amount to the accused. Similarly, PW2-Om Parkash, Treasury Officer, Haryana, Sector-17, Chandigarh, testified that he had not brought any account or record proving entrustment of the lottery tickets for sale to the accused. He could not even state the month or year during which he had checked the accounts. It is also in his statement that he did not see the record of Lotteries Department to verify whether the accused had actually received the lottery tickets. Same was his answer to the query put to him regarding sale of tickets and deposit of the sale proceeds thereof .
10. PW4- Vinod Kumar, Clerk, Haryana State Lottery, Sector-17, Chandigarh,, PW6-Dharam Pal, Asstt. In Haryana State Lotteries, Sector-17, Chandigarh, PW7-H.C. Naib Singh No.20, CAW Cell, RASHMI 2014.11.13 14:11 I attest to the accuracy and integrity of this document CRA No.691-DBA of 2002 5 Sector-17, PW10- Kishori Lal, Superintendent, Haryana State Lotteries, Chandigarh, all unequivocally admitted that a receipt was obtained from an employee whenever the lottery tickets were entrusted to him for sale. They all stated that they had no receipt executed/signed by the accused in lieu of the lottery tickets entrusted to him, PW10- Kishori Lal, Superintendent deposed that during the period 03.12.1986 to 15.04.1987 the tickets worth Rs. 16,00,857-61 were entrusted to the accused but he never signed any receipt in token of having received the tickets for sale to various agencies. He outrightly admitted that there was no document to prove entrustment of the tickets to the accused.
11. Coming to the receipt Ex-PW6/A, PW-6 Dharam Pal, Assistance of the office of Haryana State Lotteries, Sector-17, Chandigarh, proved the said document and stated that it was signed by the accused in his presence in token of some lottery tickets handed over to him. The accused denied the signatures on Ex-PW6/A. A perusal of the receipt Ex-PW6/A shows that some lottery tickets of Haryana State Lotteries were sent to the Director of Haryana State Lotteries, Chandigarh, through Dharam Pal(PW6) who deposed that being an official of the Directorate of Chandigarh Office he had brought tickets from Delhi worth Rs. 2,25,000/- of draw No.105 of scheme "Jai Durga" and tickets of Rs.40,000/- of draw No.477 of scheme "Mahalaxmi" along with tickets of other draws which he had handed over to accused- Satinder Dhawan. In his cross-examination, he admitted that it was not written in the receipt that the tickets of "Jai Durga" scheme and of "Mahalaxmi" Scheme were being given to RASHMI 2014.11.13 14:11 I attest to the accuracy and integrity of this document CRA No.691-DBA of 2002 6 accused- Satinder Dhawan. He may have stated that the receipt bears the signatures of accused- Satinder Dhawan in lieu of receipt of the lottery tickets, but in absence of specific recital to that effect, it cannot be assumed that the signatures if there, of accused-Satinder Dhawan on the receipt Ex-PW6/A were in lieu of entrustment of the lottery tickets to him.
12. Even if it is assumed for the sake of arguments that the receipt Ex-PW6/A was executed by accused-Satinder Dhawan in lieu of handing over of the lottery tickets to him, yet the same related to only lottery tickets worth Rs.2,25,000/- plus 40,000, whereas the allegation of the prosecution was that the lottery tickets worth Rs.16,00,857-61 were entrusted to the accused.
13. As already observed above, the accused denied his signatures on the receipt Ex-PW6/A. The specimen signatures of the accused were taken and were sent to handwriting and Fingerprints expert for comparison with the disputed signatures. Shri, R.K. Jain Deputy Government Examiner of questioned documents, Shimla appeared as PW-11. He tendered his report Ex-PW11/A stating that there was similarity between the disputed initials and specimen initials. However, his statement/report is of no help to the prosecution case since he never appeared for his cross-examination by the accused. Since, a valuable right to cross-examine the witness in order to bring out the truth was declined to the accused, such statement of the witness could not be used as a incriminating evidence against the accused. For the said reasons the receipt Ex-PW6/A has no evidentiary value and cannot be relied upon.
RASHMI 2014.11.13 14:11 I attest to the accuracy and integrity of this document CRA No.691-DBA of 2002 7
14. The above scrutiny of the evidence of the prosecution shows that it miserably failed to prove entrustment of lottery tickets worth Rs. 16,00,857-61 the accused for sale to different agencies. When entrustment of the said property to the accused was not established, the question of any misappropriation/embezzlement by him did not arise.
15. Last but not the least, the testimony of PW10 Kishori Lal, Superintendent, is very important as it shatters the case of the prosecution altogether. In his cross-examination, PW10 deposed that an inquiry was held against the accused with regard to the lottery tickets in dispute. During the inquiry, the accused had produced certain receipts executed by DharamPal-Cashier, in order to prove deposit of the sale proceeds of the lottery tickets by him with that Cashier. He further stated that said Cashier-Dharam Pal was present during the inquiry proceedings and he tore off the receipts produced by the accused in presence of the inquiry officer, but he expressed ignorance regarding the amount of the receipts so torn off by Dharam Pal- Cashier.
In any case the factum proved by PW10-Kishori Lal, diverted the pointer towards Dharam Pal-Cashier as far as misappropriation/embezzlement of the lottery tickets was concerned. When the accused himself possessed the documents proving his innocence and the said documents were destroyed by Dharam Pal- Cashier during inquiry proceedings, it can be said without hesitation that the allegation of embezzlement of the amount of the lottery tickets levelled on the accused was highly suspicious.
RASHMI 2014.11.13 14:11 I attest to the accuracy and integrity of this document CRA No.691-DBA of 2002 8
16. The genesis of the above discussion is that the prosecution had utterly failed to substantiate its charges against the accused and the learned trial Court had rightly acquitted the accused giving him benefit of doubt. Accordingly, the appeal is dismissed and the judgment of acquittal recorded by learned trial Court is upheld.
(M. JEYAPAUL)
JUDGE
(SNEH PRASHAR)
October 09, 2014 JUDGE
rashmi
RASHMI
2014.11.13 14:11
I attest to the accuracy and
integrity of this document