Full Judgment
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR SB: Hon’ble Mr. Justice N.K.Gupta, J.Criminal Appeal No.862 of 1997 State of Madhya Pradesh Vs. Umrao Singh ------------------------------------------------------------------------------------------- Shri Ajay Tamrakar, Panel Lawyer for the State/appellant. Shri F. Usmani, counsel for the respondent. ------------------------------------------------------------------------------------------- JUDGMENT
(Delivered on the 16th day of July, 2012) The appellant/State has preferred this appeal against the judgment dated 29.10.1996 passed by learned CJ.Raisen in Criminal Case No.865/1991 whereby the respondent was acquitted from the charges of offence punishable under Section 409 of I.P.C.
2. Prosecution's case in short is that the respondent was the President in Sewa Sahakari Samiti, Hakimkhedi whereas accused Moolchand was Samiti Sewak in that Society. On audit, it was found that in the year 1975 some amount was recovered from various members but, entire amount was not deposited in the cash book. A sum of Rs.803/- was recovered from Tularam whereas, only Rs.403/- were shown in the cash book. Similarly a sum of Rs.500/- was recovered from Baldev but, a sum of Rs.300/- was shown in 2 Criminal Appeal No.862 of 1997 the cash book. Similarly sums received from Gowardhan, Ramchandra, Gappu, Sitaram and Karim Khan were not shown exactly in the cash book and therefore, a criminal breach of trust was done of Rs.2,200/-. The Managing Director, Krishak Sewa Sahakari Committee had sent an FIR to the Police Station, Raisen on 31.8.1979 and thereafter, a case was registered against the respondent and investigation was initiated. Various documents having signatures of the respondent were sent to the expert for their examination and it was found that such receipts were issued by the signature of the respondent. After due investigation a charge sheet was filed before the Chief Judicial Magistrate, Raisen.
3. The respondent abjured his guilt. He did not take any specific plea but, he has stated that he was falsely implicated in the matter. He is an illiterate person who, signed on the various receipts as directed by the Samiti Sewak. He did not receive the money by himself. No defence evidence was adduced by the respondent.
4. Learned Chief Judicial Magistrate, Raisen after considering the prosecution evidence acquitted the respondent from the charge of Section 409 of I.P.C.
5. Heard the learned counsel for the parties.
6. Learned Panel Lawyer has submitted that being the President of that Society, it was the duty of the respondent to see that amount received from various members should be deposited in the Bank and also be shown in the cash book and 3 Criminal Appeal No.862 of 1997 therefore, his connivance is visible from his overt act. It is established that a sum of Rs.2200/- was defalcated by the respondent from the Society and therefore, he may be convicted for the offence punishable under Section 409 of I.P.C.
7. On the other hand the learned counsel for the respondent has submitted that cash book was to be maintained by the Samiti Sewak. Respondent was an elected person who, was not much literate and therefore, it was not possible for him to inspect the cash book. It is nowhere established that out of Rs.2200/- any sum was received by the respondent himself and not deposited in the account of the Society. It is possible that the respondent was required to inspect the cash book etc. but, in lapse of that duty his overt act may amount to a misconduct but, not to a crime of criminal breach of trust. Therefore, learned Chief Judicial Magistrate, Raisen has rightly acquitted the respondent.
8. After considering the submissions made by learned counsel for the parties and looking to the evidence adduced by the prosecution, it is apparent that signatures on the various receipts were appended by the respondent. Higher Authorities of that Samiti were examined to prove the documents and to show the defalcation but, by such documents and evidence of the higher authorities, it cannot be said that defalcation was done by the respondent himself. In this context statement of one Gappu Singh (P.W.2), may be 4 Criminal Appeal No.862 of 1997 considered. Gappu Singh has stated that he deposited a sum of Rs.500-600/- in the Society and receipt was given by the Secretary. The respondent appended his signature on the receipt but, after some time bank demanded the remaining amount of the loan then it was found that a sum of Rs.100/- was not deposited in the cash book of the Society. Witness Gappu Singh has admitted that the respondent was an illiterate person and receipt was given by the Secretary, Moolchand. Similarly Kundanlal (P.W.3) turned hostile.
9. Looking to the evidence adduced by the prosecution, it is apparent that one Moolchand was deputed as Samiti Sewak with the respondent and it was expected from the Samiti Sewak to maintain the cash book. Since the respondent was an illiterate person he could not knot that the Samiti Sewak had not made a proper entry in the cash book of a particular deposit whereas, receipt was issued by the respondent. Therefore, only by issuance of the receipt it cannot be said that the sum was obtained by the respondent. Sum was obtained by the Samiti Sewak Moolchand and it was his duty to deposit the entire amount in the bank and relative entry was to be made in the cash book. In such Societies where the President or Chairman is an elected person who, is not much literate then, it is not for him to inspect the cash book of Samiti Sewak. It was the duty of the higher officers who, had control over the Society and it was necessary to get the audit of such cash books etc. It is no where proved by the 5 Criminal Appeal No.862 of 1997 prosecution that the respondent obtained any portion of the sum received from the various members. Under such circumstances, if the respondent had appended his signatures on various receipts then by such overt acts it cannot be said that the respondent was the person who defalcated the sum.
10. On the basis of the aforesaid discussion, it is clear that the learned Chief Judicial Magistrate has rightly acquitted the respondent from the charges of offence punishable under Section 409 of I.P.C because the amount was entrusted to the respondent in a technical manner. Actually it was entrusted to Samiti Sewak, Moolchand and therefore, no breach of trust was caused by the respondent. Under such circumstances, there is no basis by which an interference can be made to the judgment of acquittal passed by learned Chief Judicial Magistrate. Consequently, the present appeal has no force and it is liable to be dismissed. Hence the appeal filed by the State is hereby dismissed. Judgment passed by the Chief Judicial Magistrate, Raisen is hereby upheld.
11. Copy of the judgment be sent to the trial Court with its record for information. (N.K.Gupta) Judge 16/07/2012 bina