State Of Mah.Thr.Investigating ... vs Ramkrushna Bhagwanji Shende
2017 Latest Caselaw 7474 Bom

                                      1                                         apeal371.04




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO.371 OF 2004


 State of Maharashtra, 
 through Investigating Officer, 
 Police Station City Wardha, 
 Tahsil and District Wardha.                                    ....       APPELLANT

                     VERSUS

 Ramkrushna Bhagwanji Shende, 
 Aged 53 years, Occupation - Nil,
 Resident of Hindnagar, Wardha, 
 District Wardha, at present resident 
 of Near Observation Home Arvi Naka,
 Wardha.                                                        ....       RESPONDENT

 ______________________________________________________________
             Shri A.V. Palshikar, Advocate for the appellant, 
  Shri S.R. Chakraborti, Advocate h/f. Shri R.M. Patwardhan, Advocate
                            for the respondent.
 ______________________________________________________________

                               CORAM : ROHIT B. DEO, J.

DATED : 22 nd SEPTEMBER, 2017.

ORAL JUDGMENT :

The State is in appeal challenging the judgment and order

dated 09-3-2004 in Regular Criminal Case 11/1993, delivered by the

learned Chief Judicial Magistrate, Wardha, by and under which the

respondent (hereinafter referred to as the "accused") is acquitted of

offence punishable under Section 408 of the Indian Penal Code.

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2. Heard Shri A.V. Palshikar, learned Additional Public

Prosecutor for the appellant and Shri S.R. Chakraborti, learned

Advocate holding for Shri R.M. Patwardhan, Advocate for the

respondent.

3. The accused faced trial for having committed offence of

misappropriation punishable under Section 408 of the Indian Penal

Code.

4. The gist of the prosecution case is that the accused was

serving as a Cashier in the Sub-Division Office of Maharashtra State

Co-operative Cotton Growers Marketing Federation in Wardha. The

accused used to withdraw cash from the bank. The modus operandi

alleged is that the accused was withdrawing cash from the bank and

while entering the amount in the cash book, the accused used to enter

lesser amount and misappropriate the amount not recorded in the cash

book.

5. The prosecution case that the special auditor who is

examined as P.W.1 conducted the audit for the period 01-10-1989 to

30-9-1990. The misappropriation came to light during the said audit.

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Accordingly, a first information report was lodged by R.M. Sakharkar,

the Special Auditor. On the basis of the report, offence under Section

408 of the Indian Penal Code was registered on 12-5-1991 vide Crime

250/1991. The completion of investigation culminated into a charge-

sheet before the learned Chief Judicial Magistrate. The learned Chief

Judicial Magistrate, framed charge under Section 408 of the Indian

Penal Code vide Exhibit 9. The accused pleaded not guilty and

claimed to be tried.

6. With the assistance of the learned Additional Public

Prosecutor for the appellant/State and the learned Advocate for the

accused, I have scrutinized the record. It is evident that the

prosecution has miserably failed to establish the ingredients of Section

408 of the Indian Penal Code.

7. The audit was conducted for the period 01-10-1989 to

30-9-1990. However, the period during which the accused allegedly

misappropriated the amount is 01-8-1988 to 30-9-1989. That apart

except for proving the entries in the cash book, the prosecution has not

adduced even an iota of evidence to prove that a particular amount

was withdrawn from the bank and that lesser amount was deposited in

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the cheque book. The relevant record or the counterfoil of the cheques

or the cheques are not even produced on record muchless proved.

8. The conclusion reached by the learned Chief Judicial

Magistrate is the only conclusion possible on the evidence on record.

The view taken is not only a possible or plausible view, the view is the

only view which any judicial mind could have taken in view of the

evidence or rather the lack of evidence.

9. This Court would appreciate if the State, as a model

litigant, exercises more discretion in approaching this Court against the

judgments of acquittal. The dockets of the Court are even otherwise

overburdened. I refrain from making any further observation. The

judgment and order impugned is unexceptional. The appeal is

frivolous and absolutely devoid of substance and is dismissed. Bail

bond of the accused shall stand discharged.

JUDGE adgokar