State (Delhi Administration) vs T. Narayanan
1994 Latest Caselaw 133 Del

JUDGMENT

Y.K. Sabharwal, J.

(1) Respondent T. Narayanan, Cashier in the Accounts Section of Union Public Service Commission was tried for an offence under Section 409 IPC. The allegations against him were that he committed misappropriation and criminal breach of trust of a sum of Rs. 43,943.68 which amount was in his custody as a Cashier.

(2) Initially, a case of theft under Section 380 Indian Penal Code was registered. During investigations, however, it was found that the iron chest from which the cash was reportedly missing was operated by double lock system, one key remaining with the Cashier and the key of the other lock remaining in the custody of Finance and Accounts Officer (FAO). In addition thereto there was a pad lock fixed on the iron chest, key of which used to be with the FAO. For the opening of the cash chest the Fao had to be personally present and open the pad lock as well as the inbuilt lock first with his key and thereafter the Cashier will apply his key and then the cash chest would open and that the same procedure was adopted at the time of closing of the cash chest after office hours. It was also found that there was a collapsible door between the cash room and the outer room where the officials of the cash Section used to sit. The investigation revealed that there was no sign of any intruder having entered the cash room from the other side of the cash room or windows or ventilators. In view of the aforesaid the possibility of theft was ruled out. It was considered to be a case of someone from the office to be responsible for the missing of the amount. The case of the prosecution was that the amount had been embezzled by respondent Narayanan during the period 1974 and the date of the incident, namely, 19th March, 1976 and that he had lost the amount in Delhi Race Course Club on betting on horse races. The case was accordingly converted from Section 380 Indian Penal Code to that of an offence punishable under Section 409 IPC.

(3) An application seeking committal of case to Court of Session filed by the prosecution in the Court of Metropolitan Magistrate before whom challan had been filed was not opposed by the defense. In view thereof and also stating that in view of the huge amount of alleged misappropriation it was a fit case for trial by the Sessions Court as the Magistrate would not be able to pass adequate sentence after the conclusion of the trial, the learned Magistrate committed the case to Court of Session. Apart from Narayanan the other accused before the Magistrate was Mr. P.R.P. Panikar who at the relevant time was FAO.

(4) The learned Additional Sessions Judge came to the conclusion that offence under Section 409 read with Section 34 Indian Penal Code was not made out against Panikar who, was accordingly discharged. A charge was, however, framed against the respondent that during the period 17th October, 1974 to 18th March, 1976 when he was posted as Cashier in the Accounts Section of the Upsc, he misappropriated and committed criminal breach of trust of the amount of Rs. 43,943.68p which was entrusted to him in his capacity as a public servant and thereby committed an offence punishable under Section 409 IPC.

(5) The most of the witnesses examined by the prosecution were officers officials of Union Public Service Commission besides the Police officials who had conducted the investigation.

(6) On consideration of evidence on record the learned Trial Court came to the conclusion that the prosecution had failed to prove conclusively the guilt of the accused. The respondent was, accordingly, acquitted and hence this appeal by the State.

(7) It is not disputed and is otherwise amply established on record that the procedure for opening and closing of the Chest on everyday which was required to be followed was that the chest would be opened first by opening of the pad lock and then opening of the inbuilt lock by the Fao the keys whereof also used to remain with Fao and then by the opening of other inbuilt lock by the cashier, the key whereof used to remain with the cashier. The respondent was the cashier and Mr. Panikar was the FAO.

(8) In view of the aforesaid, it is difficult to accept the plea that the amount was in the exclusive possession of the respondent. Mr. Sharma, learned Public Prosecutor , however, contends that Panikar had not gone for the opening of the chest and had given his keys to the respondent, who had opened the locks i.e. padlock and inbuilt lock with the said keys and the other lock was opened with the key which used to remain with the respondent. Counsel, thus, submits that the amount was in exclusive possession of the respondent and accordingly it is for him to explain as to what happened to the amount and since he has not explained that fact, he is liable to be convicted. Reliance is placed by learned Counsel to the testimony of Panikar who was examined as a Court witness, and to the testimony of PW-20 Inspector Joginder Nath who deposed that during investigation Panikar told him that he had given his two keys to the accused to open the chest. The respondent was on leave on 18th March,1976. When he came to office on 19th March, 1976 he kept on attending to his normal work up to Ii a.m. It is also in evidence that the respondent had gone in routine to Panikar asking him to come and open the cash chest. Panikar does not suggest that the accused has in any manner maneuvered or manipulated to make Panikar part with his keys in favor of the respondent. There is no evidence that any attempt was made by the accused to procure the keys of Panikar by some foul means to explain the shortage of the amount. The plea of the accused in his statement under Section 313 Cr.P.C. is that Panikar never parted with his keys and had come as usual at the time of opening of the chest and finding something amiss with the pad lock, without touching the chest, he went to inform the Secretary and the chest was opened for the first time when the Secretary came there. This plea finds corroboration from the evidence of the Secretary (Public Witness -IO) as well as Under Secretary Mr.P.N.Mukherjee (Public Witness -I) inasmuch as both say that when they came to the Cash Section accompanied by Panikar the cash chest was lying closed and that it was opened by Panikar by applying his own keys. It is unlikely that an officer of the standing and experience of Panikar, on finding the accused having opened the chest and having shown him the amount missing, would lock the chest after taking- keys from the respondent and again open the same in the presence of the Secretary and Under Secretary by providing the key from his own pocket. There is also no evidence to explain whether there was any shortage of amount on 17th March, 1976 when the chest was closed after the close of the office hours. The decision of the Supreme Court relied upon by Mr. Sharma in the case of State of Andhra Pradesh v. Y. Basavadeundu, has no applicability to the facts and circumstances of the present case. In that case it was admitted that the embezzled amount i.e. Rs.l,22,500.00 was shown to have been paid against fake and spurious demand drafts to unknown persons. The documents proved in that case and admitted by the accused showed that the payments were made after getting the identification of the payees verified by a person unknown to the accused. Under these circumstances the Supreme Court held that the facts were in special knowledge of the accused persons and as such it was incumbent upon them to disclose the names and identity of the person who had identified the payee and that having not been done the burden which had shifted on to the accused had not been discharged. In the case of circumstantial evidence the burden of proving the guilt of the accused clinchingly remains on the prosecution and the prosecution is to prove the entire chain of events in order to bring home the guilt of the accused. These chains, we are afraid, are missing in the present case of which a detailed discussion has been made in the impugned judgment.

(9) Apart from the above we may also notice certain other aspects. It has come in evidence that both the pad lock as well as the inbuilt locks of the chest had a duplicate set of keys and the said set of keys were kept in a sealed cover with an officer in UPSC. It also seems that the question of the duplicate set of keys came up at a fairly early stage but no explanation is forthcoming on the record as to where those duplicate keys were and whether the same were intact or not in the sealed cover.

(10) Further the case as initially put up when the challan was filed was that the misappropriation took place during the period 17th October, 1974 to 19th March, 1976. The charge was also to the same effect. During the trial, however, entirely a . new case was made out that the embezzlement took place between the period 1st March, 1976 and 19th March, 1976. This departure had to be made as it had come in evidence that on verification made on 1st March, 1976 there was no shortage. Besides this, the prosecution had come forth with a definite case that the amount was lost by the respondent in race bets at Delhi Race Course Club. On this aspect, out of the many witnesses cited only two were examined by the prosecution, namely, PW.8 and PW.9. They did not support the case of the prosecution. There is thus no evidence to show that the alleged embezzled amount was lost by accused in race bets. We may also notice that it has come in evidence that no falsification of entries or manipulation in the cash book was detected for the entire period when it was handled by the respondent.

(11) It is not possible to hold that the view expressed by the learned Additional Sessions Judge is not the reasonable view to take on the basic of evidence on record. The learned Additional Sessions Judge after detailed discussion and marshalling of evidence, in our opinion, has rightly come to the conclusion that the prosecution has failed to prove the guilt of the respondent beyond reasonable doubt. The case does not call for any interference. The appeal is accordingly, dismissed.