1. The State of Maharashtra has challenged validity and legality of the Judgment and order dated 27/02/2001 passed by the Judicial Magistrate, First Class, Amravati in Regular Criminal Case No.181 of 1996 Whereby the learned trial Magistrate was pleased to acquit the respondent/accused of the offence punishable under Section 409 of the Indian Penal Code.
2. Heard the submissions at the Bar.
3. The facts, briefly stated, are thus:-
On 11/02/1996, Dr. Jaya Motiramji Thorat, Medical Officer at Primary Health Center, Talvel, Taluka Chandur Bazar lodged report being C.R. No. 34 of 1996 at Chandur Bazar Police station against the respondent/accused, stating that, while the accused resumed his duties as a junior Clerk in Primary Health Center, Talvel on promotion he was entrusted with the duties of preparing payment Bills of the staff, to bring cash amount from the Bank, to keep cash with him in the cash box, distribute payment to the staff and do the administration work. The accused went to the Bank to withdrew the cash amount of Rs 25000/- on 01/02/1996. It was amount of withdrawal for Sau. Lata Mahinge from her G.P.F. Account. The accused had withdrawn the amount from the Bank, but as the daughter of Sau. Lata Mahinge had no Authority letter, the amount was not disbursed to her. The accused kept that amount in a locker as per the direction of the Medical Officer. The accused had not turned up to the Office, hence the Complainant made an inquiry with him. The accused replied that he had kept the amount in the locker. The almirah and the iron cash box was opened in the presence of the respectable persons under the panchnama dated 11/02/1996. It was revealed that the accused was possessing the amount of Rs 27,588/-, but he had kept cash of Rs. 630/- only in the cash box. It was, thus, revealed that the accused has misappropriated the sum of Rs. 26,958/-. Upon complaint, the police had investigated the matter, drew spot panchnama and under the panchnama, recovered cash sum of Rs. 26958/- from the possession of the accused. The accused was charge sheeted for the offence of Criminal misappropriation punishable under Section 409 of the Indian Penal Code. The accused pleaded not guilty to the charge and claimed trial. The prosecution had examined 9 witnesses to prove the case.
4. The accused defended the prosecution on the ground that there was mass strike of the employees during the period between 6/2/1996 to 22/2/1996. He had sent telegram for granting the medical leave. According to the accused, he was falsely implicated.
5. In order to the prove offence punishable under Section 409 of the Indian Penal Code, the prosecution is required to establish that:
a) the accused was either a public servant or a Banker, or a Merchant, or a Factor or a Broker, or an attorney or an Agent.
b) he was in such capacity entrusted with the property in question or with dominion over it .
c) and he has committed criminal breach of Trust in respect of the property.
6. The accused is, admittedly, a public servant as he was working as a Junior clerk in the Primary Health Center, at Talvel. It is in evidence that Police had prepared the panchnama in respect of the cash Box and open cupboard which was in charge of the accused.
7. Arvind Tale (PW-2), a pancha witness deposed in respect of the panchnama regarding the cash box in open cupboard which was in charge of the accused. The cupboard was already open and therefore, Police could prepare panchnama in respect of the articles found in it. Purushottam (PW-4) is also a pancha witness in respect of the Panchnama (Ex. 28 and 28.A). Another pancha witness Kisan (PW-6) was declared hostile and cross-examined, but nothing worthwhile is elicited in cross-examination from him to further the case of the prosecution. PW-7 Lata Mahinge's evidence disclosed that she wanted to withdraw a sum of Rs.25,000/- from the G.P.F. amount to meet the expenses of her daughter's marriage, and her application was granted by the complainant. The complainant required an Authority letter from her to enable her daughter to collect the amount sanctioned, as said Lata (PW-7) was transferred to another Primary Health Center at Dighi. Medical Officer Thorat had told her that her money is deposited in the Bank and in the absence of the accused, she cannot give the money. Sau.Lata also stated in the course of her cross examination that the Cash book and the Cheque book was in possession of the Medical Officer. Her evidence remained silent on the point as to whether she had received the amount from her G.P.F. or not and as to whether the accused had misappropriated it. The complainant Dr.Jaya's evidence disclosed that duty of the accused was to maintain cash account, to prepare the Pay Bills, to bring cash from the Bank, to enter cash in the cash book, pay cash to servants, to maintain account of the balance amount, to keep in safe custody etc. Witness Jayas evidence disclosed that she had received the Cheque of Rs 25,000/- from Zilla Parishad, Amravati in the name of Medical Officer, in respect of G.P.F. account of Sau. Lata Mahinge. The accused had brought cash amount from the Bank after encashment of the Cheque. According to the complainant, when he was not ready to come to the Office despite her efforts, she had called the villagers and the D.D.O. on 11/02/1996 and 15 respectable persons and the cupboard was broken in which the Cash Book register and the cash sum of Rs 630/- was found. She alleged that the accused was possessing the balance amount of Rs.25,880/-. Panchnama was prepared as per Ex.20. Witness Jaya also stated that the Cash Book register did not contain the entry of Rs 25.000/-. In her cross examination, witness Jaya admitted that all the dispensaries in the Amravati District come under D.H.O . and he had not given written order to seize the amount under the Panchnama after breaking the lock. Although, according to witness Jaya, 15 respectable persons were present at the time of Panchnama, none of them were examined in order to satisfactorily establish that the cupboard was broken open and the articles including cash amount of Rs 630/-, as alleged, were found and seized under the panchanma (Ex.20). The evidence that the cupboard was broken opened in the presence of 15 persons remained doubtful as not proved beyond reasonable doubts. Learned trial Judge also found certain unexplained omissions. The complainant has admitted during the course of her cross-examination that the complainant also stated that Lata Mahinge had accompanied with her to the house of the accused when she went to the house of the accused. Her evidence also contained a statement that Lata Mahinge was demanding the amount. However, her complaint did not contain the above statement, which appears improvements made over the First Information Report which was earliest statement made by the complainant in respect of the accusations. The improvements made, therefore, by the complainant in her testimony before the Court would not be of any help to the prosecution to prove the offence against the accused. Under these circumstances, on a careful scrutiny of the entire evidence led by prosecution, it cannot be said that the prosecution has established the evidence of criminal breach of trust beyond all reasonable doubts. In order to establish the offence of criminal breach of trust, it is salutary requirement that there must be a proof of entrustment of money with the accused. In the present case, that evidence was lacking. Therefore, in the light of the ruling in the case of RoshanLal Raina .vs. State of Jammu and Kashmir reported in AIR 1983 SC 631, the learned trial Judge has rightly arrived at the conclusion that the accused could not be held guilty of the offence punishable under Section 409 of the Indian Penal Code. Looking to the impugned judgment in the light of the evidence led on record by the prosecution, the view taken by the learned trial Judge was reasonable and probable. Under these circumstances, even if two probable views may arise - one pointing towards the guilt of the accused and the other pointing to the innocence of the accused and accepted by the trial Court, the High Court would not normally interfere with the judgment of acquittal unless the impugned judgment is wholly unreasonable or unsustainable. Bearing this principle in mind, I do not find any case made out to interfere with the order of acquittal. Hence, there is no merit in the appeal. It is, therefore, dismissed.