Bombay High Court
State Of Maha vs Vijay Narendr Mahore on 6 January, 2018
Bench: S.S. Shinde
cria319.03
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.319 OF 2003
The State of Maharashtra,
Through Public Prosecutor,
High Court, Aurangabad.
...APPELLANT
VERSUS
Vijaya Narendra Mohore,
R/o-Akola, Old locating,
At present- Khandesh Mill Colony,
Gangabai Bhadge Plot,
Jalgaon.
...RESPONDENT
...
Mr.A.A. Jagatkar A.P.P. for Appellant-State.
Mr.M.M. Bhokarikar Advocate for the
Respondent (Absent).
...
CORAM: S.S. SHINDE AND
A.M. DHAVALE, JJ.
DATE : 6TH JANUARY, 2018
JUDGMENT [PER S.S. SHINDE, J.] :
1. This Appeal is filed by the State
challenging the Judgment and order dated 17th
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January, 2003 passed by the Chief Judicial
Magistrate, Jalgaon in Regular Criminal Case
No.223 of 1994, thereby acquitting the
Respondent/original accused - Vijaya Narendra
Mohore for the offence punishable under Section
409 and 47-A of the Indian Penal Code (For short
"I.P. Code").
2. The prosecution case, in nut-shell, is as
under :-
(A) Accused - Vijaya Narendra Mohore and
Complainant - Dada Pohare, both are Labour Welfare
Officers. Complainant had taken charge of his post
on 29th January, 1994. Prior to that, accused was
working at Jalgaon as Labour Welfare Officer.
Complainant reported the fact to police that it
revealed in audit that accused had committed
misappropriation of Rs.55,218=75 while working as
Labour Welfare Officer at Jalgaon. Accused had
taken false entries in cash book. She had also
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withdrawn Rs.40,000/- from Bank of Maharashtra and
used the said amount for her own purpose without
permission of Bombay Office. Thus, accused made
defalcation of Rs.83,892=50/-. This report is
lodged by the complainant on 2nd June, 1994 at the
police station. Police registered offence against
the accused. Police recorded statements of
witnesses. They have seized relevant registers
from the office of the complainant. After
completion of investigation, charge-sheet was
filed.
(B) Charge at Exhibit-8 was framed against
the accused person and the same was explained to
her. The accused pleaded not guilty and claimed to
be tried, with the defence of total denial.
3. After recording the evidence and
conducting full fledged trial, the trial Court
acquitted the accused from the offence with which
she was charged, as stated herein above in Para-1
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of the Judgment. Hence this Appeal.
4. Heard learned A.P.P. appearing for the
Appellant-State, at length. The counsel appearing
for the Respondent -accused is not present. With
the able assistance of learned A.P.P., we have
carefully perused the entire original record
including the notes of evidence, so as to find
out whether the findings recorded by the trial
Court are in consonance with the evidence brought
on record or otherwise.
5. The evidence on record shows that only
two employees were working in the Labour Welfare
Office and those were accused and PW-2 Rajesh
Bambe. Accused was working as Labour Welfare
Officer and PW-2 Rajesh Bambe was working as
junior clerk in the said office. It is the case of
the prosecution that only the accused was
responsible for the alleged misappropriation of
amount in the said office.
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6. We have carefully perused the evidence of
all the prosecution witnesses and in particular,
evidence of PW-1 Dada Pohare, who is the
complainant. PW-1 Dada Pohare admitted in the
cross-examination that only one clerk was provided
to their office. He admits that during the period
of accused and during his period also one Suresh
Bambe (PW-2) used to work as clerk. The clerk was
also dealing with the work of cashier and that
clerk was having right to distribute the amount to
the villages under the jurisdiction of said
office. It is the duty of the clerk to accept
whatever fees received to their office, such as
admission fee, monthly and yearly subscription,
deposit and utilize the amount. PW-1 Dada Pohare
admits that during the relevant period PW-2 Ramesh
Bambe used to deal with the above stated work and
if any amount remained with the office, it was the
duty of the clerk to deposit the same in the Bank.
Depositing amount in Bank, accepting its receipt
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and maintaining its account was duty of the clerk
in the office. It was duty of the clerk to inform
his superior officer about the day-to-day
transactions took place in the office. Cashier
used to write cheques in the name of the
customers. It is the duty of the clerk to take
entry from whom he received the amount and to whom
he had given the amount.
7. Upon careful perusal of the evidence of
PW-1 Dada Pohare, as already observed, it is
crystal clear that only two employees were working
in the office i.e. accused herself and PW-2 Ramesh
Bambe. PW-2 Ramesh Bambe was working as junior
clerk in the office and he used to carry out all
the work in the office including acceptance of
amount, deposit of amount, writing of cheques.
Therefore, if misappropriation of any amount takes
place in such office where only two employees are
working, the complaint should have been lodged
against both the employees and not against only
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one employee. The prosecution has not brought on
record that any departmental enquiry was conducted
against PW-2 Ramesh Bambe in respect of the said
misappropriation and that he was exonerated from
the said charge. Surprisingly, in this case
PW-2 Ramesh Bambe is not made accused but he is
examined as witness by the prosecution and
therefore it appears that the prosecution against
the accused is motivated. Upon perusal of oral
evidence of PW-2 Ramesh Bambe also, it is clear
that it was his responsibility to do all the
monetary transactions in the office.
8. It is the case of the prosecution that it
was shown by the accused that some amount was paid
to one Mr. Jogi and Mr. R.L. Jadhav, but actually
the amount was not paid to those persons and the
same was misappropriated by the accused. However,
said Jogi and R.L. Jadhav were not examined by the
prosecution who were the vital witnesses. Though
it is alleged by the prosecution that accused had
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withdrawn the amount from the bank account of the
office and misappropriated the same, to prove the
said fact the concerned employee from the bank was
not examined.
9. The trial Court has properly considered
all the evidence brought on record by the
prosecution and observed that, the act for which
accused is involved is the act relating to PW-2
Ramesh Bambe and there is no role of the accused.
The trial Court further observed that it was the
duty of PW-2 and not of accused and that PW-2
played major role and not the accused. Inspite of
this there is no blame against PW-2 and without
any reason and fault, the accused is involved in
the matter. The trial Court has further observed
that the prosecution absolutely failed to make out
nexus of the accused with the alleged crime.
Considering all the evidence on record, the trial
Court has acquitted the Respondent from all the
charges with which she was charged.
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10. In the light of discussion herein above,
on independent and in-depth scrutiny of entire
evidence, we are of the opinion that the trial
Court has considered all the evidence brought on
record in its proper perspective and recorded the
findings which are in consonance with the evidence
on record. The conclusions reached by the trial
Court are in consonance with the evidence brought
on record by the prosecution. There is no
perversity as such.
11. In the light of discussion in foregoing
paragraphs, we are not inclined to cause
interference in the impugned Judgment and order of
the acquittal. Hence the Appeal stands dismissed.
[A.M. DHAVALE, J.] [S.S. SHINDE, J.]
asb/JAN18
