State Of Mah. Thr. Pso Ps ... vs Arun Laxmanrao Wazalwar
2017 Latest Caselaw 2510 Bom

APEAL 543/03                                          1                             Judgment


     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
               NAGPUR BENCH, NAGPUR.
                   CRIMINAL APPEAL NO. 543/2003 
State of Maharashtra,
through PSO Police Station Jaripatka,
Nagpur.                                                                          APPELLANT

                                     .....VERSUS.....

Arun s/o Laxmanrao Wazalwar,
Aged 57 years, R/o Plot No.34,
Yogkshem Colony, Snehanagar, Nagpur,                                           RESPONDE
                                                                                        NT

          Shri N.R. Patil, Additional Public Prosecutor for the appellant.
                             None for the respondent.


                                                   CORAM : N.W. SAMBRE, J. 

                                     DATE   :   11  TH   MAY ,    2017. 
ORAL JUDGMENT   

In Crime No.268 of 1994 punishable under Section 409 of

the Indian Penal Code, respondent-accused came to be arrested on August

27, 1994 for loss of Rs.1,30,000/- from his custody when he was working

as a cashier of Sadhana Co-operative Bank.

2. Charge against the accused came to be framed at

Exhibit 9 on October 18, 1997 and in support of the prosecution

case, in all seven witnesses were examined.

3. Out of the witnesses examined, P.W.4-Ramkrishna turned

hostile, who was examined in support of seizure panchanama.

APEAL 543/03 2 Judgment

4. In the aforesaid background, learned Additional Public

Prosecutor, while questioning the acquittal of the accused would

urge that since the accused has admitted loss of Rs.1,30,000/- from

his custody, there is presumption against the accused that he is

involved in commission of crime and the presumption is not rebutted

by him. Shri Patil, the learned Additional Public Prosecutor would

invite the attention of this Court to the prevailing circumstances,

wherein the cash box from which an amount of Rs.1,30,000/- was

lost, was in the custody of the accused.

5. In the backdrop of abovereferred submissions, the

evidence of each of the witnesses in my opinion is required to be

appreciated. Search was carried out at the house of the accused and

also at his cabin, wherefrom nothing incriminating was recovered.

Rather the accused has taken an entry in the relevant register as

regards the receipt of cash of Rs.1,30,000/-. On the date of incident

when the cash was lost, audit inspection of the branch was going on,

in which the respondent-accused was required to cooperate with

audit team along with the Branch Manager.

APEAL 543/03 3 Judgment

6. P.W.2-Sunil and P.W.3-Suresh, who are witnesses to

the house search, have proved the same, however, nothing

incriminating, could be seized. P.W.6-Ratnakar, the Branch

Manager was examined at Exhibit 26 deposed about the officiating

capacity of the accused and the duties of the accused and further

proved loss of amount of Rs.1,30,000/-. In any case, loss of

Rs.1,30,000/- is already admitted by the accused and as such, no

separate findings are required to be recorded on the said issue.

7. The only point this Court is required to dwell upon is

whether such loss of amount by the accused is with criminal

intention to cause breach or he himself voluntarily involved with

criminal intention to commit such crime.

8. If the overall evidence as is brought on record is

analyzed, this Court hardly noticed any mens rea on the part of the

respondent-accused in the commission of the crime, rather the

accused has voluntarily admitted as regards receipt of Rs.1,30,000/-

and loss thereof.

9. The other mitigating circumstance as could be noticed

from the evidence of P.W.6, i.e. the Branch Manager is that on the

APEAL 543/03 4 Judgment

date of incident, there was an audit inspection. Along with P.W.6-

Ratnakar, the respondent-accused was required to participate and

cooperate the audit team. Accused by way of abundant caution

rightly stored the cash in the cash box which was kept in the cabin

in locked condition, however, the disappearance of the cash and

non-recovery of the same from the custody of the accused including

that of from his house, in my opinion, hardly make this Court to

believe the story as regards the criminal intention on part of the

respondent-accused to commit offence of breach of trust. It is not

the case of the prosecution that accused has taken away the cash.

The necessary ingredients of criminal breach of trust are not proved.

10. In the backdrop of above, the view expressed by the

trial Court acquitting the accused appears to be a plausible view.

The apex Court has already crystallized the arena in which the

appellate Court should interfere, particularly against the acquittal in

an appeal. As the view expressed by the Court below is a possible

view and not an impossible view, no perversity or material illegality

is brought to my notice. The appeal as such fails and is dismissed.

JUDGE APTE