Bombay High Court
The State Of Mah vs Saheb Premaji Kapure And Anr on 18 April, 2016
Bench: R.M. Borde
Cr.Appln. 5112/12
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.5112/2012
The State of Maharashtra,
through Shivajinagar Police Station,
Latur.
...Applicant..
(Org.complainant)
Versus
1] Saheb s/o Premaji Kapure,
age 42 yrs., occu.service,
r/o Nandanvan Colony, Aurangabad.
2]
Liyakat s/o Abbas Shaikh,
age 55 yrs., occu.service,
r/o Kesar Jawalga. Tq.Omerga
Dist.Osmanabad.
...Respondents...
.....
Shri K.S. Patil, APP for applicant.
Shri Abhay Rathod, Advocate for respondent no.1.
Shri V.D. Gunale, Advocate for respondent no.2.
.....
CORAM: R.M. BORDE &
K.L. WADANE, JJ.
DATE: 18.04.2016
ORAL JUDGMENT (Per Wadane, J.) :
1] This is an application with a prayer to grant
leave to file an appeal u/s 378(1) and (3) of the Code of
Cr.Appln. 5112/12
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Criminal Procedure, 1973, against the order passed by the
learned Additional Sessions Judge, Latur, dated 13.7.2012
in Criminal Appeal Nos.24/2010 and 31/2010.
2] The respondent nos.1 and 2 herein are the
original accused. They were prosecuted for the offence
punishable u/ss.420 and 409 r/w 34 of the Indian Penal
Code vide Regular Criminal Case No.470/2002.
3] Brief facts of the case are as follows:-
a] The respondent no.2 - Liyakat Abbas Shaikh
was working as a Cashier during the period from
19.4.1994 to 26.4.2002 and the respondent no.1
Sahib Kapure was serving as a District Malaria
Officer, who was a Drawing and Disbursing
Officer.
b] The charge against them is that though they
have deducted the amount towards recurring
deposit, LIC premium, society and small savings
from the salaries of the employees, they have not
transferred the deducted amount to the account of
the concerned employees and thereby they have
committed the offence of misappropriation of
Rs.9,06,200/-.
Cr.Appln. 5112/12
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4] After conclusion of the trial, the learned Chief
Judicial Magistrate, Latur, has convicted both the
respondents. The respondent no.1 was convicted and
sentenced to suffer rigorous imprisonment for three years
and to pay fine of Rs.2,00,000/-. The respondent no.2
was convicted and sentenced to suffer rigorous
imprisonment for one year and to pay fine of
Rs.5,00,000/-, in default to suffer simple imprisonment
for six months.
5] Being aggrieved by the judgment and order passed
by the learned Chief Judicial Magistrate, Latur, both the
respondents have preferred different criminal appeals
namely Criminal Appeal Nos.24/2010 and 31/2010.
6] The learned Additional Sessions Judge, by common
judgment and order dated 13.7.2012 has acquitted both the
respondents. Hence, the State has filed present
application to grant leave to file appeal.
7] We have heard the arguments of Shri K.S. Patil,
APP for applicant; Shri Abhay Rathod, Advocate for
respondent no.1 and Shri V.D. Gunale, Advocate for
respondent no.2. We have also perused the record.
8] It is material to note that the respondents are
Cr.Appln. 5112/12
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charged for the offence punishable u/s.420 and 409 of the
Indian Penal Code i.e. misappropriation of the Government
amount and in order to establish the offence against the
respondents, the prosecution has examined in all 10
witnesses. We have perused the entire evidence and gone
through the observations of the learned Additional
Sessions Judge and the relevant record.
9] It is material to note that no audit was
conducted to know the actual amount, which the
respondents are alleged to have deducted from the salary
of the concerned employees and the same was not deposited
in the account of various employees under various heads.
Furthermore, it appears from the record that 3 / 4
persons from clerical cadre have inspected the entire
record and they found that there was no cash available in
the office as per the entries in the three cash books.
Only three cash books were seized, however, such
inspection was carried out in absence of both the
respondents herein. Therefore, in fact there was no
opportunity for them to explain about the availability of
the amount and the balance shown in the cash book.
Furthermore, the employees examined on behalf of the
Cr.Appln. 5112/12
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prosecution were unable to tell even their account number
and how much amount is deducted by the respondents. Only
three cash books are seized by the investigating officer.
However, there is no documentary evidence on record to
show that the so called deducted amount was not
transferred and deposited in the account of the
employees. The entire evidence adduced on behalf of the
prosecution is absolutely vague and incomplete. In such
circumstances, the learned Additional Sessions Judge has
rightly taken into consideration all these aspects.
Therefore, on appreciation of the available evidence, we
are of the opinion that no different view can be possible
than the one taken by the learned Additional Sessions.
10] In view of above, no case is made out by the
applicant to grant leave to file appeal. Hence, the
criminal application is rejected.
(K.L. WADANE, J.) (R.M. BORDE, J.)
ndk/cr1841618.doc
