State Of Maharashtra vs Vasant Bapurao Bhagwate And Ors
2017 Latest Caselaw 5446 Bom

                                                         Cri. Appeal No. 161/2001
                                           1


                     IN THE HIGH COURT AT BOMBAY
                 APPELLATE SIDE, BENCH AT AURANGABAD

                          CRIMINAL APPEAL NO. 161 OF 2001

          The State of Maharashtra
          Through Police Station Officer,
          Police Station Manwath,
          Tq. Pathri, Dist. Parbhani                               ....Appellant.

                  Versus

1.        Vasant s/o. Bapurao Bhagwate,
          Age 48 years, Occu. Service,
          R/o. Hingoli, Dist. Hingoli,
          Spl. Recovery Officer, Rural Bank,
          Parbhani, R/o. Lalit Kulabhawan,
          Kadrabad, Dist. Parbhani.

2.        Shrikrishana s/o. Bhanudas Jadhav,
          Age 40 years, Occu. Service,
          R/o. Kolha, Tq. Pathri, Nanded,
          Dist. Nanded.

3.        Manikrao s/o. Shankarrao Bhise,
          Age Major, Occu. Agri.,
          R/o. Kolha, Tq. Pathri, Dist. Parbhani.          ....Respondents.

Mr. S.W. Munde, APP for appellant/State.
Mrs. V.S. Ghanekar h/f. Mr. N.S. Ghanekar, Advocate for respondent
Nos. 1 and 2.
Mr. S.B. Bhapkar, Advocate for respondent No. 3.


                                   CORAM   :     T.V. NALAWADE AND
                                                 SUNIL K. KOTWAL, JJ.

                                   DATED       : AUGUST 02, 2017

JUDGMENT : [PER T.V. NALAWADE, J.]

.                 The appeal is filed to challenge the judgment and order

of R.C.C. No. 227/1989, which was pending in the Court of Chief

Judicial Magistrate, Parbhani. The Trial Court has acquitted the

Cri. Appeal No. 161/2001

respondents of the offence punishable under sections 409 r/w. 34 of

Indian Penal Code (hereinafter referred to as 'IPC' for short).

2) Respondent No. 3 was the Chairman of Kolha Krushak

Sarva Seva Sahakari Sanstha, Kolha, a Co-operative Society

registered under the provisions of Maharashtra Co-operative

Societies Act. Respondent No. 2 was the Managing Director of this

institution at the relevant time and respondent No. 1 was the

Manager. During audit, it was noticed that on 19.5.1981 the amount

of Rs.75,000/- was withdrawn by these accused persons from the

account of the institution and zink tin sheets worth Rs. 80807.96

were purchased from Steel Authority of India Limited. This material

was dispatched by loading it in truck No. MHT/3891. But, after

taking delivery of this material, the accused persons did not make

entry of this material in the stock register of the institution and they

misappropriated the tin sheets worth Rs.80807.96. Notice of show

cause was issued against them, but they did not reply the notice.

Then the auditor gave report to police. After making investigation,

chargesheet came to be filed against the accused for the offence

punishable under sections 409 r/w. 34 of IPC. Charge was also

framed for this offence to which the accused pleaded not guilty.

3) Prosecution examined in all five witnesses to prove the

offence. The Trial Court has acquitted the accused by holding that

Cri. Appeal No. 161/2001

actually delivery of the material to the institution is not proved by

the prosecution and as the custody of the material was not given to

the accused persons as per the record, they are acquitted. This

Court has carefully gone through the oral and documentary

evidence. Mohammad Anwar (PW 1) had given the report. He had

conducted the audit of the institution and copy of it is produced at

Exh. 42. Authorisation was given to him by District Special Auditor to

file complaint and it is at Exh. 43. The report given by him to police

is proved. He had prepared the report of particulars to fix the liability

and that document is proved as Exh. 44.

4) Prosecution examined one Pandurang Gurav (PW 2), who

was in service as Assistant Manager. He has tried to say that

accused No. 1 had collected the material from Maharashtra Krushi

Vikas Udyaog Mahamandal, Mumbai, supplier of the zink sheets and

had put his signature in token of receipt of material. He has deposed

that the value of this material was around Rs.75,000/-. There is only

this oral evidence. But such receipt or document showing signature

of accused No. 1 or any other accused is not produced on the record.

5) Mohammad Saifoddin (PW 3) was working with the

District Special Auditor and his evidence is similar to the evidence of

first informant. Additional evidence is given that order was placed by

the institution of the accused of purchase of zink sheets worth Rs.

Cri. Appeal No. 161/2001

1.85 lakh and such correspondence was made by the said supplier.

He has deposed that there was the record to show that amount of

Rs. 75,000/- was paid to supplier on 19.5.1981, but there was no

record to show that the delivery was taken and the entry of the

material was made in stock register. Thus, there is entry in the

record to show that amount was paid, but there was no record with

the society to show that the delivery of the material was given and it

was accepted by the institution or any of the three accused. There is

evidence of Investigating Officer on the investigation in respect of

the aforesaid allegations. To prove the offence punishable under

section 409 of IPC, it was necessary for prosecution to establish that

the supplier had actually given the delivery of material. When

delivery is made, the delivery challan record is prepared and one

copy remains with the supplier. Further, there must be employees, in

the godown of the institution, who were entrusted with the duty to

make entry in the stock register. They could have also said

something. Admittedly, there was no entry in the stock register and

there is no record of delivery of articles by supplier. Due to these

circumstances, this Court sees no reason to interfere in the decision

of the Trial Court. In the result, the appeal stands dismissed.

       [SUNIL K. KOTWAL, J.]             [T.V. NALAWADE, J.]


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