State Of Maharashtra vs Deorao S/O Ganpatrao Waghmare
2017 Latest Caselaw 2443 Bom

Judgment

                                                                    apeal238.03 3

                                         1

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

               CRIMINAL APPEAL NO.238 OF 2003

State of Maharashtra,
Through Station Officer,
Nandgaon Khandeshwar,
District Amravati.                                       ..... Appellant.

                                  ::   VERSUS   ::

Deorao s/o Ganpatrao Waghmare,
Aged about 45 years,
R/o Watfali, Taluka Ner, 
District Yavatmal.                              ..... Respondent.
==============================================================
          Mrs. Harshada Prabhu, Addll. P.P. for the Appellant/State.
          Shri P.R. Agrawal, Counsel for the Respondent.
==============================================================


                                CORAM : N.W. SAMBRE, J.  

DATE : MAY 9, 2017.

ORAL JUDGMENT

1. While carrying out the supply of essential

commodities through the public distribution system,

each Collector has established its godowns at district

headquarters and taluka places and amongst these

.....2/-

Judgment

apeal238.03 3

godowns, at Nandgaon Khandeshwar in Amravati

district was manned by the respondent/accused in

capacity of godown keeper. In fact, the Tahsildar Shri

Sonar of the said godown carried out an inspection on

5.12.1982 and noticed mis-appropriation of essential

commodities, resulting into lodging of the F.I.R. against

the respondent/accused vide Exhibit-17. After

registration of the crime in question, charge came to be

framed against the accused at Exhibit 9 for the offence

punishable under 409 of the Criminal Breach of Trust.

Learned Chief Judicial Magistrate at Amravati on

21.8.1990 convicted the accused and sentenced him to

suffer rigorous imprisonment for one year and to pay

fine of Rs.5,000/-. In an appeal against conviction,

learned Additional Sessions Judge at Amravati

acquitted the accused. As such, the present appeal

against acquittal by the State.

.....3/-

Judgment

apeal238.03 3

2. It is the case of the prosecution that mis-

appropriation for a period from 24.12.1977 to 23.12.1978

has resulted into registration of one crime, and for a

period from 24.12.1981 to 23.12.1982 another offence

came to be registered against the accused.

3. In support of the prosecution case, learned

Additional Public Prosecutor Ms Harshada Prabhu for

the appellant/State would urge that the evidence of the

truck driver is mis-interpreted by the Court below while

allowing the appeal as according to her, Exhibits 18 and

21, the delivery memos, were very much proved by

witnesses PW3 and PW8 who have identified the

signature of the accused about receipt of the schedule

commodities. She would then urge that even if original

complainant Tahsildar Shri Sonar is not examined,

same is not prejudicial to the case of the prosecution

.....4/-

Judgment

apeal238.03 3

when in support of the case of the prosecution there in

all 8 witnesses were examined. According to her,

evidence of PW4 Ramkrishna Hingole can be considered

for proving the F.I.R.. According to her, the appeal

needs to be allowed and the judgment of conviction

rendered by learned Chief Judicial Magistrate at

Amravati is required to be restored.

4. While opposing the claim, learned counsel

Shri P.R. Agrawal for the respondent/accused would

urge that the acquittal of the accused is after

re-appreciation of the entire evidences by learned

Additional Sessions Judge as learned Chief Judicial

Magistrate has chosen to write a cryptic one. He would

then urge that entire evidence is appreciated and the

acquittal is ordered, as such learned counsel has sought

for dismissal of the appeal.

.....5/-

Judgment

apeal238.03 3

5. It is required to be noted from the record that

in support of the prosecution case, the prosecution has

examined in all 8 witnesses viz. PW1 godown keeper

who took charge from the accused, PW2 a retired Naib

Tahsildar, PW3 and 8 are the truck drivers who have

deposed in support of the delivery of the goods for

proving Exhibits 19 and 21, the delivery memos, PW6

retired Tahsildar Devidas Kherdekar, and PW5 Supply

Inspector Pandurang Dhawale.

6. It is then to be noted that this Court while re-

appreciating the evidences, has confined itself to the

issue as to whether the view of acquittal expressed by

learned Additional Sessions Judge is a plausible view or

not.

7. As stated earlier, the evidences of the

witnesses particularly in regard to Exhibits 19 and 21

.....6/-

Judgment

apeal238.03 3

given by PW3 and PW8 are required to be scrutinized.

8. Both these witnesses are neither the

employees of the State Government nor the persons who

are in regular contact with accused person so as to

know and identify the signatures or handwriting. These

witnesses though have stated about identification of

signatures of the accused person on delivery memos

Exhibits 19 and 21, the same is required to be discarded

particularly when the signatures of the accused on

Exhibits 19 ad 21 are not matching with each other and

these witnesses had no occasion to identify these

signatures but for only delivering the goods. It is then

to be noted that the prosecution has not proved beyond

reasonable doubt, particularly mismatch of signatures

on Exhibits 19 and 21.

9. If the aforesaid evidences are appreciated in

.....7/-

Judgment

apeal238.03 3

the light of the defence of the accused, essential

commodities were never delivered to him. It was

expected of the prosecution to prove the lifting of the

material from the government godown and delivery of

the same to the accused, however the receipt of such

material is not proved beyond reasonable doubt.

10. It is then to be noted that inspection of the

godowns which was carried out by Tahsildar Shri Sonar

being incharge and under authority of the inspection on

5.12.1982 prepared a report of mis-appropriation. The

said report was found to be the basis of registration of

the F.I.R. Exhibit 17. Said Tahsilar Shri Sonar is not

examined in support of Exhibit 17.

11. The prosecution for the said purpose has

relied upon the evidences of two Naib Tahsildars and

the Supply Inspector.

.....8/-

Judgment

apeal238.03 3

12. If the evidences of these witnesses are

appreciated, it is to be noted that once it is not proved

that the commodity was delivered vide Exhibits 19 and

21, delivery memos, to the godown keeper that is

accused, the inference that the accused has mis-

appropriated the said schedule commodity cannot be

accepted beyond reasonable doubt.

13. The evidences as are appreciated by learned

Additional Sessions Judge appear to be in tune with the

provisions thereof. The view expressed, based on such

evidences, is a plausible view. As such, no interference

is warranted in the judgment impugned in this appeal.

In the result, the criminal fails and is dismissed.

JUDGE

!! BRW !!

...../-