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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL No. 40 OF 2000.
The State of Maharashtra,
through P.S.O. Police Station,
Saoner, District Nagpur. ....APPELLANT.
VERSUS
Vasanta s/o Laxman Thakre,
Aged 34 years, Resident of Sadar
Bazar, Nagpur. ....RESPONDENT
.
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Mr. S.S. Doifode, Addl. P.P. for the Appellant- State.
Mr. P.S. Tidke, Advocate for Respondent- Accused.
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CORAM : B. P. DHARMADHIKARI
& V.M. DESHPANDE, JJ.
DATED : MARCH 30, 2017.
ORAL JUDGMENT. (Per B.P. Dharmadhikari, J) This appeal against acquittal is filed by the State Government under Section 378 of the Criminal Procedure Code. Acquittal of respondent
- Vasanta for offence punishable under Sections 409 and 468 of Indian ::: Uploaded on - 03/04/2017 ::: Downloaded on - 04/04/2017 00:41:14 ::: Judgment apeal40.00 2 Penal Code on 18.10.1999 by the Chief Judicial Magistrate, Nagpur in Regular Criminal Case No.363/1989, has been questioned.
2. We have heard Shri S.S. Doifode, learned A.P.P. for the appellant - State and Shri P.S. Tidke, learned Counsel for the respondent - accused.
3. Learned A.P.P. submits that perusal of evidence of witnesses on record show that it was the responsibility of respondent to disburse salary and amount of deductions therefrom for payment of Provident Fund Contribution or premium of Group Insurance used to be in his custody. That amount has not been paid to the concerned offices/agencies and this fact has been brought on record by these witnesses. According to him, the deductions were also shown in relevant records by the respondent and as such, the fabrication of records has also been established. He is placing strong reliance upon deposition of P.W.4 - Ramkrishna Barkuji Chandekar, to show how the cash book entries were manipulated.
4. Shri Tidke, learned Counsel for respondent on the other hand submits that entrustment of amount to respondent and competency with him to credit the deducted amounts to Provident Fund Authorities or Group Insurance Scheme has not been established. He points out that as per ::: Uploaded on - 03/04/2017 ::: Downloaded on - 04/04/2017 00:41:14 ::: Judgment apeal40.00 3 answers given by the witnesses, the cash of salary used to remain in office of the Block Development Officer and the Block Development Officer used to sign the cheque for transmitting the deducted amount to the Provident Fund Authorities or Group Insurance Agency. He invites our attention to the discussion in this respect by the Trial Court to urge that there is no perversity in appreciation of material on record and a possible view has been reached.
5. Exh Nos.16, 23 and 24 are the charge memos under Sections 221, 222 and 223 of Criminal Procedure Code. Three different amounts are mentioned therein, but, then assertion is commission of criminal breach of trust in relation to those amounts and forging of cash book. In the course of judgment, the learned Chief Judicial Magistrate has framed two points for consideration. Points are in relation to all these three charges. By first point, question raised is about entrustment of money of General Provident Fund and Life Insurance Corporation deduction. Vide point no.2 question framed is - about forging of cash book. Evidence of various witnesses has been looked into by the trial Court and it has found that the witnesses have received correct amounts of their salary.
6. We find that P.W.1 - Prabhakar Bhagwan Gid, has stated that he ::: Uploaded on - 03/04/2017 ::: Downloaded on - 04/04/2017 00:41:14 ::: Judgment apeal40.00 4 had received a letter from the office of the Life Insurance Corporation about non receipt of premium, however, he could not produce that letter and accepted that he was disclosing that letter for the first time in Court. The portion about respondent - accused appropriately deducted amount for his own use appearing in Section 161 Criminal Procedure Code, is denied by this witness as incorrect.
P.W.2 - Damodhar Bhedruji Talekar also in cross examination could not substantiate the stand that amount of LIC Premium or GPF contribution was not being regularly credited to concerned Authorities.
P.W.3 - Shalikram Atmaram accepted that he received correct amount of G.P.F. and L.I.C. He denied statements to the contrary appearing in his Section 161 statement.
P.W.4 -Ramkrishna Barkuji Chandekar, a Panch witness accepted that dates of petty cash book were not mentioned in the panchnama. Trial Court has looked into this part of his evidence in paragraph no.33 of its judgment.
P.W.5 - Narayan Ramkrushna Ahir, is complainant. He has
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deposed that accused was serving as junior assistant at Panchayat Samiti, Saoner. Thus, story of prosecution that accused was working as cashier, has not been established. This witness states that prior to receipt of letter from LIC, he had no knowledge of misappropriation of money by the accused. However, that letter was not handed over to police. He had not made any enquiry with the Deputy Accountant and Senior Assistant in office, but, did not record their statement. He accepted that he used to check the cash and undertake surprise checks and also at the end of every month. He used to issue certificate when ever he checked the cash. He also accepted that he used to certify cash balance after office hours, every day. He could not state whether 4 copies of challan are prepared for depositing amounts so deducted.
7. In paragraph no.37, the Trial Court has found that carbon copy of complaint dated 22.01.1981 (Exh.71) was produced. It was addressed to Police Station Officer, Saoner. However, original complaint was not produced by anybody.
8. In view of this evidence of P.W.5, it is apparent that when cash was checked every day and every month and there were Deputy accountant and Senior Accountant in the office, fact that deducted amount has not been ::: Uploaded on - 03/04/2017 ::: Downloaded on - 04/04/2017 00:41:14 ::: Judgment apeal40.00 6 paid to LIC or PF. Deductions could have been learnt immediately. P.W.1 Prabhakar, a Senior Clerk has in cross examination stated that the Block Development Officer was incharge of the office and salary was being disbursed in presence of Block Development Officer. Deducted amount was to be sent to the concerned department through cheque signed by the Block Development Officer. He also expressly states that Block Development Officer alone was supervising payments and deductions.
9. This material therefore, shows that the amounts deducted from salary is not shown to be in custody of the present respondent thereafter. The Group Insurance amount and P.F. Contributions was to be deposited by cheque signed by the Block Development Officer. Block Development Officer was therefore, aware that he has not issued those cheques.
10. We therefore, find that custody of deducted amount after payment of salary is not shown to be with respondent. It is not the case of State Government that the deducted amount was to be sent to these offices by respondent only. When the cheques for that amount were to be issued by the Block Development Officer, it is apparent that the amount would go through Bank account of the office of the Block Development Officer to those offices. None of the witnesses has stated that it was the duty of respondent ::: Uploaded on - 03/04/2017 ::: Downloaded on - 04/04/2017 00:41:14 ::: Judgment apeal40.00 7 to deposit the deducted amount in any Bank.
12. When cheques in favour of Provident Fund department or Life Insurance Corporation were never prepared and sent to them, necessary documentation was not there. All superiors, including B.D.O, therefore, were aware of it. Unless the deducted amount is first deposited in bank, B.D.O. Could not have issued the cheques. In this situation, we find that the Chief Judicial Magistrate has taken a possible view of the matter and there is no perversity. Accordingly we uphold the acquittal of respondent and order dated 18.10.1999 in Regular Criminal Case No. 363/1989. Accordingly, we pass the following order :
(1) The Appeal is dismissed.
(2) The judgment and order delivered by Chief
Judicial Magistrate, Nagpur dated 18.10.1999
in Regular Criminal Case No.363 of 1989
acquitting the respondent for offences
punishable under Sections 409 and 468 of the
Indian Penal Code is maintained.
(3) No costs.
JUDGE JUDGE
Rgd.
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