Uttarakhand High Court
State Of Uttarakhand ..... State/ vs Jiwan Chand Pandey on 12 September, 2019
Equivalent citations: AIRONLINE 2019 UTR 555, 2020 CRI LJ (NOC) 102
Author: R.C. Khulbe
Bench: R.C. Khulbe
Reserved on 22.08.2019
Delivery on 12.09.2019
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Government Appeal No. 231 of 2004
State of Uttarakhand ..... State/Appellant
Versus
Jiwan Chand Pandey ....Respondent
Mr. A.K. Sah, A.G.A. along with Mr. Sachin Panwar, learned
Brief Holder for the State/appellant.
Mr. Amar Shukla, learned counsel for the respondent.
Hon'ble R.C. Khulbe, J.
The present Government Appeal has been filed by the State Government against the judgment and order dated 19.04.2004 passed by the Chief Judicial Magistrate, Tehri Garhwal in Criminal Trial No. 132 of 2000, whereby the accused was not found guilty and acquitted under Section 409 IPC.
2. Brief facts of the present case, inter alia, are that on 10.01.2000, on making surprise inspection of UP. State Employees Welfare Corporation, Collectorate Depot, New Tehri carried out by Kailash Chanrda Tiwari, some irregularities were found at the time of physical verification, conducted in presence of Jiwan Chand Pandey incharge of that depot and found shortfall of Rs.30709.75/-. The items which were found short at the time of inspection are annexed with the information. Thereafter, the accused-Jiwan Chand Pandey apprised by his letter dated 28.02.2000 mentioning therein that Harsh Lal Bahuguna, who was the incharge of the counter and has deposited the entire shortage and the embezzlement was done by Harsh Lal Bahuguna. On the basis of said information 2 FIR was lodged on 06.03.2000 at Police Station New Tehri against Harsh Lal Bahuguna.
3. During the course of investigation the accused Harsh Lal Bahuguna moved an application before the Investigating Officer and stated that the alleged crime was committed by one Jiwan Chand Pandey not by him. On the basis of said application charge sheet was submitted against Jiwan Chand Pandey under Sections 409, 468, 471 IPC. Accordingly, charge was framed under Section 409 of IPC against the present accused- Jiwan Chand Pandey.
4. In support of its case, the prosecution produced PW-1, Kailash Chandra Tiwari, PW-2, Kedar Singh, PW-3, Constable Gyan Lal, PW-4, Harsh Lal Bahuguna, PW-5, S.I. P.P. Bahuguna.
5. After completion of the prosecution evidence, statement of the accused under Section 313 of Cr.P.C. was recorded.
6. Learned trial court by its impugned judgment and order has arrived at the conclusion that the prosecution has failed to prove its case beyond reasonable doubt and acquitted the accused person. Feeling aggrieved, State Government has preferred present appeal.
7. PW-1, Kailash Chandra Tiwari stated that from November, 1998 to October, 2000 he was posted as Manager at Collectorate Depot, Dehradun in the U.P. State Employees Welfare Corporation, Collectorate Depot and the accused- Jiwan Chand Pandey was incharge of Collectorate Depot at New Tehri. The duty of the accused was to distribute articles among the employees and maintained the records, depositing the 3 sales amount in the bank everyday. Harsh Lal Bahuguna was posted there in the said depot as Assistant and used to get pay scale of 4th Class employees. The work of the Assistant was mainly to give articles to the employees, as per the direction of Executive Director. He conducted the physical verification of depot along with Kedar Singh on 10.01.2000, at about 4:00 PM at the time of inspection the accused Jiwan Chand Pandey was incharge and he was present at the time of inspection. While Harsh Lal Bahuguna was absent. At the time of inspection stock book, sales register as well as cash book were found incomplete and also found shortfall of Rs.30709.75/-.
8. PW-2 Kedar Singh stated that on 10.01.2000 he along with Kailash Chandra Tiwari Regional Manager went UP. State Employees Welfare Corporation, Collectorate Depot at New Tehri and inspection was done by Kailash Chandra Tiwari. On that day the accused Jiwan Chand Pandey was the incharge of the Depot and his duty to receive cash and deposit the same in the bank.
9. PW-3 Constable Gyan Lal is a formal witness. On the basis of information he lodged chick FIR Ex. Ka-38 and made its entry in G.D. Ex. Ka 39.
10. PW-4 Harsh Lal stated that he was posted as Assistant in UP. State Employees Welfare Corporation, Collectorate Depot, New Tehri in the year 1989, his duty was to give articles to the employees. It was the duty of accused Jiwan Chand Pandey to make entry in the register.
11. Pw-5 S.I. P.P. Bahuguna, who conducted the investigation and recorded the statements of witnesses, after completion the investigation, charge sheet Ex. Ka-
442 was submitted against the accused- Jiwan Chand Pandey.
12. It is argued by learned counsel for the State that there is sufficient material available on record to convict the accused under Section 409 IPC and the trial court did not assess the evidence properly.
13. On the other hand, learned counsel for respondent/accused argued that the prosecution has failed to produce clinching evidence against the respondent/accused. An FIR was lodged against PW-4 Harsh Lal Bahuguna, who had embezzled the money and deposited the same, but the I.O. has submitted false charge sheet against the respondent. While, the accused was not the custodian of the items kept in the depot.
14. Heard learned counsel for the parties and also perused the record.
15. PW1 Kailash Chandra Tiwari, Officiating Manager U.P. State Employees Welfare Corporation, Collectorate Depot along with PW-2 Kedar Singh conducted surprise inspection in the U.P. State Employees Welfare Corporation, New Tehri and at the time of physical verification they found that many items were missing from the depot and the cost of items was Rs.30709.75/-. On the basis of this, PW-1 Kailash Chandra Tiwari moved an application Ex. Ka 35 for lodging the FIR. On the basis of said information a chick FIR Ex. Ka-38 was lodged against the PW-4 Harsh Lal Bahuguna under Section 409 IPC at Police Station New Tehri on 06.03.2000 with the allegations that several items were missing amounting of Rs. 30709.75/- from the depot.
516. After lodging the said FIR PW-4 Harsh Lal Bahuguna moved an application Ex. Ka-40 before the I.O. alleging that the said crime was committed by Jiwan Chand Pandey (respondent) not by him. Thereafter, charge sheet Ex Ka 42 was submitted by I.O. against the respondent-Jiwan Chand Pandey and exonerated PW-4 Harsh Lal Bahuguna.
17. The informant PW-1 Kailash Chandra Tiwari in his examination-in-chief, although narrated the same story as alleged in the FIR, but in cross examination he admitted that departmental disciplinary proceeding was initiated against PW-4 Harsh Lal Bahuguna in which charge sheet was given to him regarding the same embezzlement. He also admitted that Harsh Lal Bahuguna was the Assistant in the depot it was his duty to maintain the registers. He further admitted that initially Harsh Lal Bahuguna deposited Rs.2,000- in favour of the department regarding the said embezzlement. Thereafter Rs.26893/- were deposited in the second time.
18. The prosecution produced Harsh Lal Bahuguna as PW-4. Initially against whom FIR was lodged and admitted that he was posted in the depot from 1989 to till date of inspection as Assistant.
19. The prosecution produced a list of items dated 17.04.1999 from which charges of items was given by respondent-Jiwan Chand Pandey to PW-4 Harsh Lal Bahuguna. This fact is admitted by PW-4 Harsh Lal Bahuguna in his cross examination and clearly admitted that he had taken the charge of the items as per list dated 17.04.1999 from respondent- Jiwan Chand Pandey.
620. From the above evidence, it is clear that the respondent-Jiwan Chand Pandey had given the charge of the items and handed over the said items to PW-4 Harsh Lal Bahuguna on 17.04.1999. In this regard, PW-1 Kailash Chandra Tiwari admitted in his cross examination that, it was the duty of PW-4 Harsh Lal Bahuguna to maintain the stock book. In this regard, chares were framed against him and initiated departmental proceedings. As regard the deposition of Rs. 2000/- is concerned, PW-4 Harsh Lal Bahuguna admitted in his cross examination that he signed in the deposition form Ex. Ka-24.
21. From the above evidence, it is clear that PW- 4 Harsh Lal Bahuguna initially deposited Rs. 2000/- on 13.01.2000, after the inspection conducted by PW-1 Kailash Chandra Tiwari on 10.01.2000 and remaining amount of Rs. 26,893/- were also deposited in favour of the department. In this regard the prosecution has failed to prove that the said amount of Rs. 26,893/- were deposited by respondent-Jiwan Chand Pandey.
22. From the above evidence, it is clear that although the respondent-Jiwan Chand Pandey was the depot in charge, but he had handed over all the items to PW-4 Harsh Lal Bahuguna on 17.04.1999 much before the date of inspection and Harsh Lal Bahuguna was Assistant in the depot, it was his duty to supply the items and maintain all the registers and to deposit the money in the Bank. If any items amounting Rs. 30709.75/- were found missing, then it was not the responsibility of respondent-Jiwan Chand Pandey, because the said items were not in the actual position of respondent-Jiwan Chand Pandey. While from the prosecution evidence it is proved that the said items were in the actual position of PW-4 Harsh Lal 7 Bahuguna. The prosecution has failed to prove clinching evidence against the respondent-Jiwan Chand Pandey.
23. The learned trial court found that there is no evidence on record to convict the respondent and acquitted him.
24. From the reassessment and re-appropriation of the evidence, I also came to this conclusion that there is no clinching evidence against the respondent to convict him under Section 409 IPC. The prosecution has failed to produce ample evidence. There is no merit in the appeal and the appeal is liable to be dismissed. Accordingly, the Government appeal stands dismissed and the judgment and order dated 19.04.2004 passed by the Chief Judicial Magistrate Tehri Garhwal in Criminal Trial No. 132 of 2000, under Section 409 of IPC, is hereby affirmed.
25. Let a copy of this judgment along with the LCR be transmitted to the Court concerned.
(R.C. Khulbe, J.) Balwant