State Of Maha vs Subhansingh Lubhansingh Patil
2017 Latest Caselaw 2390 Bom

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      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                     CRIMINAL APPEAL NO.655 OF 2003


 The State of Maharashtra,
 Through Erandol Police Station,
 Dist-Jalgaon.
                                 ...APPELLANT 
        VERSUS             

 Subhansingh Lubhansingh Patil,
 Age-39 years, Occu:-
 R/o-Javakhede Bk., Tq-Erandol,
 Dist-Jalgaon.   
                                 ...RESPONDENTS

                      ...
    Mr. S.D. Ghayal, A.P.P. for  Appellant.
    None present for Respondent.       
                      ...


               CORAM:   S.S. SHINDE, J.

DATE : 8TH MAY 2017

ORAL JUDGMENT :

1. This Appeal is directed against the

Judgment and order dated 2nd July, 2003, passed by

the Judicial Magistrate First Class, Erandol in

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Regular Criminal Case No.126 of 1990, thereby

acquitting Respondent - Subhansingh Lubhansingh

Patil, from the offence punishable under Section

408 of the Indian Penal Code (for short "I.P.

Code").

2. The prosecution case in nut-shell, is as

under:-

. Original complainant Gopal Gangadhar was

auditor. Audit of Sriganesh Dudh Utpadak Society

Limited, at Javkhede, Taluka-Erandol was carried

out by auditor D.B. Patil for the period from 1st

April, 1988, to 31st December, 1988. Half yearly

audit from 1st July, 1988 to 31st December, 1988

was completed on 28th February, 1989. He submitted

audit report vide outward No.90 dated 4th June,

1989. During that period, accused was Secretary of

said society. His duty was to maintain register

and to look transaction of the society. It was

transpired while audit of the stock register that

116 gunny bags of fodder were to be there but

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actually 35 gunny bags were there. It means 81

gunny bags of fodder were missing and short. In

presence of Chairman and panchas, panchnama was

prepared. He inquired with accused. It was

transpired that 81 bags were sold by accused and

it was not mentioned in the Kird and entry was

also not taken in sale stock register. The price

of said 81 gunny bags was Rs.10,149=30/-. One Appa

Dodhu Patil was Chairman of the said society. In

his presence accused admitted about the

misappropriation. A notice was given to accused

for recovery of misappropriation. Accused failed

to deposit the amount and avoided to give

undertaking. Therefore, as per directions the

complainant gave written complaint in Erandol

Police Station. It was registered vide C.R. No.70

of 1990 under Section 408 of the I.P. Code.

Investigation was handed over to P.S.I. He seized

register and recorded statements of witnesses.

After completion of investigation, he filed

charge-sheet against the accused.

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3. After filing charge-sheet, charge was

framed by the learned trial Court. Thereafter

necessary points were framed for determination,

and after appreciating the evidence of prosecution

witnesses, trial Court acquitted the Respondent -

accused. Hence this Appeal.

4. Learned A.P.P. appearing for the State,

invites my attention to the evidence of PW-3 Appa

Dodhu Patil, who was chairman of Ganesh Milk

Produce Society at the relevant time. Relying upon

his evidence, learned A.P.P. submits that accused

was entrusted with job of Secretary of the said

society. During the audit by the Auditor, it was

found that 81 gunny bags of fodder were missing.

At the time of audit, only 35 bags of fodder were

in stock. Price of said gunny bags was

Rs.10,471/-. However inspite of having those gunny

bags in stock, the Secretary of the society i.e.

accused has not shown the said amount as deposited

with the society. The said subject was placed

before the meeting of the Director Board. The

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Secretary i.e. accused informed during the meeting

that he has to collect the said amount from the

people and after such amount is recovered, he will

deposit the same. According to learned A.P.P., if

the evidence of PW-3 Appa Dodhu Patil is taken

into consideration, there is no manner of doubt

that ingredients of Section 408 of the I.P. Code

are attracted. Accused was entrusted with the job

of maintaining registers of the society and also

accepting the amount and depositing the same in

the account of the society. Therefore, in his

submission the view taken by the trial Court was

not plausible and the accused ought to have been

convicted for the offence punishable under Section

408 of the I.P. Code. Therefore, he submits that

the Appeal deserves to be allowed.

5. I have carefully perused the evidence of

all the prosecution witnesses and in particular,

evidence of PW-3 Appa Dodhu Patil. In his evidence

PW-3 stated that the Secretary of the society i.e.

accused did not deposit the amount in the account

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of the society immediately, as decided in the

meeting. However the accused deposited the said

amount after one month. During his cross-

examination, PW-3 stated that society had no

practice to sale out the goods on credit. However,

he stated that the accused did inform in the

meeting that goods were given on credit and that

fact is not verified by PW-3 from the record. He

has specifically admitted during cross-examination

that the accused did inform in the meeting that

amount was yet to be received and thereafter he

would deposit the said amount in the account of

the society. He has deposed in his examination-in-

chief itself that after one month of such meeting,

the amount was deposited by the accused.

6. The assertion of the prosecution that 81

bags of fodder were missing as noticed by the

auditor, was not supported by the prosecution

witnesses, in as much as panchnama of such missing

bags was prepared, however the panchas during

their examination before the Court, turned

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hostile. Therefore, taking over all view of the

matter, the trial Court reached to the conclusion

that the benefit of doubt deserves to be extended

in favour of the Respondent accused.

7. Upon independent scrutiny of all the

evidence brought on record by the prosecution, and

in particular evidence of PW-3 Appa Dodhu Patil,

and the fact that panch witnesses to the panchnama

which was prepared to show that 81 bags of fodder

were missing turned hostile, in my opinion, the

view taken by the trial Court was plausible and

the findings recorded also appears to be in

consonance with the evidence on record.

8. In the result, there is no merit in the

Appeal. The Appeal stands dismissed.

[S.S. SHINDE, J.] asb/MAY17