State Of ... vs Moreshwar Ajabrao Varade
2017 Latest Caselaw 5875 Bom

                                                                                             CRI.APPEAL.310.03
                                                             1


                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  BENCH AT NAGPUR, NAGPUR.
                                             ...

                             CRIMINAL APPEAL NO. 310/2003

          State of Maharashtra 
          Through  P.S.O. Ramnagar 
          Chandrapur.                                                                ..         APPELLANT 

                     v e r s u s

          Moreshwar  s/o Ajabrao  Varade
          Aged about 38 years, occu:Labour
          R/o  Allipur, Tq. Hinganghat 
          Dist. Wardha.                                                           ..           RESPONDENT

...........................................................................................................................
           Mr. N.H.Joshi, Additional  Public Prosecutor for  appellant-State
           Mr.H.S.Chavan, Adv.h/for Mr. P.S.Chavan, Adv. for respondent 
............................................................................................................................

                                                     CORAM: MRS.SWAPNA JOSHI, J.

                                                     DATED:     11th August, 2017

ORAL  JUDGMENT: 

1. The present Appeal has been filed by the appellant-State against

the judgment and order dated 15.02.2003 delivered by the learned Chief

Judicial Magistrate, Chandrapur thereby acquitting the respondent/accused

of the offence punishable under Sections 406, 467 and 4712 of the Indian

Penal Code.

2. I have heard Mr. N.H.Joshi, the learned Additional Public

Prosecutor for the appellant-State and Shri H.S.chavan, Advocate h/for Mr.

P.S. Chavan, for the respondent.

CRI.APPEAL.310.03

3. The prosecution case in a nutshell is as under :

The accused was working as a pigmy agent of Nagri Pat Sanstha

from 1990 to 1998. The business of the Sanstha is to accept the deposit of

members of the Sanstha and to advance loan to its members and also collect

daily collection from account holders. The pigmy agent used to collect the

amount from the account holders. He used to deposit the the collected

amount in the office of the Sanstha on the next day. The pigmy agent also

used to open the accounts of the customers by accepting their forms and later

on he was required to submit those forms in the office of the Sanstha. The

Sanstha used to issue passbook and account number to each of the customer.

The Sanstha used to maintain ledger of all the account holders and passbook

etc. issued to the account holders through the pigmy agent. The Manager of

the Sanstha used to maintain the account of the amount deposited on behalf

of each of the customer and make the entry of it in the ledger book. The

account holders used to pay the amount to the pigmy agent and thereafter the

pigmy agent was required to deposit the said amount in the Sanstha in their

respective accounts. The pigmy agent was also required to make entry in

the passbook after accepting the amount from the customers and he was

required to return the passbook to the customer. Thus, the passbook used to

be in the custody of the customer.

4. About 5 to 6 months prior to lodging of the complaint, the

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Manager of the Sanstha asked some customers to attend the office with

passbooks for verification. Those passbooks were verified by the Manager (PW

1). He also tallied the entries in the passbook with the ledger entries of

account holders and, to his utter surprise, noticed that there was some

discrepancy in the entries made in the passbook. When tallied with the ledger

book, he found that there was more amount in the passbook whereas in the

ledger book the amount was less. The Manager verified the passbooks of

about 89 customers and their corresponding entries from ledger maintained

by the Office of the Sanstha. The Manager noticed that all those entries in the

passbook were not found in the entries of ledger book. It came to the notice of

the Manager that the accused did not deposit the entire amount which he

received from the customers in the office of the Sanstha and, therefore, there

were no corresponding entries in the ledger. The Manager found that the total

amount to the tune of Rs.3,98,665/- was not deposited by the accused in the

office of the Sanstha. Since it was realised that there was misappropriation of

huge amount of Rs. 3,98,665, the President of the Sanstha lodged a complaint

on 2.2.1999 against the accused at Exh.41. On the basis of said complaint,

an offence was registered and the investigation was carried out by the police

machinery. Charge-sheet was filed. The charge was framed and on conducting

the trial, the learned Chief Judicial Magistrate, acquitted the respondent-

accused, as aforesaid.

5. The learned Additional Public Prosecutor vehemently

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canvassed that the judgment of the trial Court is illegal and perverse,

inasmuch as it failed to consider the evidence of the witnesses and also failed

to consider the fact that huge public money is involved in the transaction.

6. Per contra, the learned counsel for the respondent contended

that the prosecution has failed to produce the important piece of the evidence

i.e. the legder in which the corresponding entries were made by the Sanstha,

in order to prove that the respondent had siphoned off the amount by not

depositing the same with the Sanstha. Mr. H S Chavan further pointed out

that the learned Chief Judicial Magistrate, Chandrapur had issued directions in

the judgment to the Deputy Inspector General of Police, Nagpur Range to

take action against the Investigating Officer PSI D.D. Jadhav who did not

step into the witness box and who failed to perform his duty to investigate

the matter in right direction.

7. To consider the contentions advanced by the learned counsel for

the respective parties, it would be appropriate to go through the evidence

adduced by the prosecution before the trial Court. The prosecution examined

in all five witnesses. The material witnesses are: PW1-Ashok Kude, Manager

of Sanstha, PW3-Waman Zade, President of the Sanstha; and the complainant

and PW4-Ramesh Prabhawat, a depositor with the Sanstha. The prosecution

failed to examine the name the Investigating Officer, as stated above.

8. As far as the testimony of PW1-Ashok Kude is concerned, he is

the Manager of the Sanstha since 1991. According to him, the respondent

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was a pigmy agent from the year 1990 to 1998. PW1 stated that he verified

the passbooks received by his office from the depositors. He also verified the

entries in the passbooks and also the corresponding ledger entries of each

account holder and found that there is a difference in the amount mentioned

in the passbooks and the ledger book. He noticed that there is entry of more

amount in the passbooks, whereas the entries in the ledger book were of less

amount. He verified the passbooks of as many as 89 customers and their

corresponding entries from the ledger maintained by the Office. To the utter

surprise of PW1, he noticed that the accused had not deposited the entire

amount received from the customers in the office of the Sanstha and,

therefore, there were no corresponding entries in the ledger. It came to the

notice of PW1 that the amount of Rs.3,98, 665/- was not deposited by the

respondent in the account of the Sanstha. PW1 took charge of five passbooks

of the customers (articles A,B,C,D,E,) under seizure panchnama (Exh.31).

Article-A is the passbook of Gulab Raghobaji Chaure. The entries taken in

the passbook is of Rs.10,900 from 2.5.1998 to 12.12.1998, whereas as per

the ledger book, the account of Gulab is maintained and the entry of Rs.1700

was made from 2.5.1998 to 30.11.1998. The remaining amount was not

deposited by the respondent. Therefore, there is no entry of remaining

amount in the ledger. Article-B is the passbook of one Arif Khan Ayub Khan

which was issued by the office of the Sanstha through the respondent. The

total amount of Rs. 4650/-was deposited during the period between 17.9.1998

CRI.APPEAL.310.03

and 13.12.1998. The ledger entry shows that only an amount of Rs. 800

was deposited during the said period. The remaining amount of Rs. 3850/-

was not deposited in the account. Thus, articles-C,D,E also reveal that there

was discrepancy in the amount which was shown in the passbook and the

amount which was mentioned in the ledger. According to PW1,the respondent

misappropriated amount to the tune of Rs. 3,98,665/- from the passbooks of

all 89 account holders in the same manner.

9. During the cross-examination, PW1 stated that the balance

sheet is filed by him with the charge-sheet. However, it is for the period of one

month i.e. 30.10.1998 till 29.11.1998. PW1 failed to submit the balance

sheet of other months. He admitted that as per the ledger entry dated

30.11.1998, the amount deposited by the respondent in the account of

Gulab Chaure is of Rs.1200/-. So far as article-B is concerned, PW1 admitted

that as per balance sheet Rs. 700/- was deposited by his account in November,

1998. The respondent took entry of the said amount of Rs. 700/- in the

passbook showing that he received the amount and deposited with the

Sanstha as per the monthly balance sheet. The said version of PW1 indicates

that the respondent used to take the entries of the amount which was taken by

him from the depositors. PW1 admitted that as per rule 5 of the Passbook, it

is duty of the pigmy agent to deposit the daily collection with the society

with concession for certain period on account of his area schedule. He stated

that Rule 5 is for the account holders and if it is not possible, he may deposit

CRI.APPEAL.310.03

the daily collection in lump sum for certain period to the pigmy agent. He

further stated that Rule 4 is also for the account holder and as per the said

rule the Sanstha has to verify the correctness of the entries in the passbook

and return it to the agent. PW1 admitted that he did not verify all the five

passbooks as per rule 4. The said version of PW 1 makes it clear that PW1

being the manager, was supposed to verify whether the account holder has

complied with the provisions of Rule 5 of the Passbook and whether the

pigmy agent has followed the said rule. In view thereof it cannot be said that

the account holders had promptly deposited the amount with the pigmy agent

and pigmy agent has, in turn, deposited the said amount with the Sanstha.

Thus, PW1 further admitted that although he had verified the five passbooks

he had not put his signature on those passbooks and mentioned about

verification of the passbooks and the ledger. It appears that the PW1 has not

verified those passbooks and tallied it with the ledger. PW1 failed to state as

to how much amount was recovered from each of the customers. It appears

that the PW1 has not maintained the account of the account holders properly.

Significantly, the allegations against the respondent is that he had duped 89

gullible account holders. However PW1 has collected the passbooks in respect

of only five account holders. Thus, PW1 is not found to be a reliable and

trustworthy witness.

10. Moreover, PW 1 has not produced all 89 passbooks as per the

allegations made in the complaint. PW1 has not put his signatures on the

CRI.APPEAL.310.03

passbooks of the account holders and there is no endorsement on the

passbooks that they are verified by PW1, being the Manager of the Sanstha.

The passbooks are not tallied with the ledger. In view thereof, it is difficult to

rely upon the passbooks taken charge of by PW1. In fact, the corresponding

entries are not tallied by PW1 with the original ledger. But crucially, the

original ledger was not taken charge of by the police and it was directly

produced at the time of adducing evidence. No opportunity was given to the

accused to verify the said ledger. It is worthy to note that the signatures of the

respondent in the passbook were not tallied by PW1. So also, it were not

tallied by the Investigating Officer by getting it verified from the handwriting

expert. Thus, no reliance can be placed on the testimony of PW1 and he is

not found to be a trustworthy witness.

11. As far as the testimony of PW 3-Waman Zade is concerned,

who was the President of the Sanstha at the relevant point of time, he stated

that on receipt of plethora of complaints from account holders he verified

all the relevant entries of the passbook with the ledger of the Sanstha and

found that the respondent misappropriated the amount. Accordingly, he filed

the report (Exh.41). PW3 utterly failed to state the names of the complainants

and he admitted that for 5 to 6 months he did not issue any notice to the

respondent. PW3 admitted that as per rules, the pigmy agent has to deposit

the payment collected by him from the depositors within three days from the

date of collection. PW 3 failed to state as to what was the exact amount

CRI.APPEAL.310.03

misappropriated by the respondent. He admitted that the amount mentioned

in the report was Rs.4,50,000/- and the period of misappropriation was in

between 1997 and 1999. Thus, the testimony of PW3 does not inspire

confidence at all.

12. As far as testimony of PW2-Sayyed Nasir, PW4-Ramesh

Prabhawat and PW 5-Mangala Randhaye is concerned, these witnesses

are mainly on the point of specimen signature of the respondent obtained by

the police, to prove his signature in the passbook while accepting the daily

collection amount from the depositors. PW 2-Sayyed Nasir did not support

the prosecution case. PW 2 was the witness on the specimen signature of the

respondent and panchnama, that was in respect of the seizure of 12 documents

in respect of signature of the accused. However, he turned hostile and did

not support the prosecution case. PW 5-Mangala Randhaye had taken the

envelope containing the specimen signature of the respondent to the

document examiner at Nagpur. The testimony of PW 4 reveals that police

obtained signatures of the respondent as specimen signatures on 12 papers in

his presence and documents Exhs. 41-(1) to (12) are the documents on

which the signatures of the accused were obtained in his presence. However

in the cross-examination, he stated that without reading the contents of

Panchnama (Exh.43),he signed on Exh.43 as well as those 12 documents.

He specifically stated that police had already obtained all the signatures of

the respondent on those documents and police brought those documents to his

CRI.APPEAL.310.03

hotel and obtained his signature on Exh.43 and 44 in the hotel itself.

Significantly, the Investigating officer who obtained the sample signature of

the respondent on the above-stated 12 documents and prepared the

Panchnama (Exh.43), is not examined by the prosecution. The prosecution

also failed to examine the examiner of document. The learned trial Judge

expressed that the said document was annexed to the charge-sheet and it

indicated that the examiner could not give opinion as regards the identity or

the otherwise of the signature for want of adequate identifying data. Thus,

the testimony of PW 2, 4 and 5 in respect of specimen signature of the

respondent is of no assistance to the prosecution case. There is no evidence on

record to show that the entries were made by the respondent in the passbooks

of the account holders, in their respective passbooks. In view thereof, it cannot

be safely said that the respondent used to collect the amount from the account

holders and make entries in that regard in the passbooks. In fact, the

allegations against the respondent were that he had duped a total of 89

depositors, however, there is absolutely no evidence on record to show that

in the passbooks of 89 account holders there are entries in ledger in respect of

the amount collected from the respondent. The prosecution also utterly failed

to prove the corresponding entries in the ledger. There is absolutely no

evidence of record to show that the entries in the ledger did not match with

the entries in the passbook. The Investigating agency failed to take charge of

the ledger. Furthermore, there is absolutely no material collected by the

CRI.APPEAL.310.03

Investigating Officer to level said charges against the respondent that he

forged such documents as genuine one. The prosecution has failed to prove

any of the offences against the respondent. The prosecution failed to prove

that the respondent committed the criminal breach of trust, the offence of

forgery in respect of either the passbooks or any other record in the office of

Sanstha and used such forged document as genuine one. The Judge of the

Court below had issued directions to DIG Nagpur Range to take action against

the PSI D.D. Jadhav, who failed to perform his duty to investigate the matter

in the right direction. However it appears that no such directions are followed

by the Police Department. There is no perversity or illegality noticed in the

judgment passed by the learned trial Judge. The learned Judge has considered

the case in its correct perspective warranting no interference at the hands of

this Court.

13. By now, the law is well-settled in respect of the appeal against

acquittal. Merely because, the other view is possible that itself is not sufficient

for the Appellate Court to record a different finding that though the Appellate

Court has full power to re-appreciate the entire prosecution case. For

exercising the appellate power in the Appeal against acquittal the judgment

appealed against, has to be perverse one or the view taken by the Court below

is impermissible on the basis of the evidence that is brought on record. In my

view, the learned Judge has correctly appreciated the facts brought on record

by the prosecution. On re-appreciation of the entire prosecution case, I am of

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the view that, nothing is brought on record to upset the finding and order of

acquittal passed by the learned Judge. Consequently, the Appeal fails and is

dismissed.

JUDGE

sahare