EXECUTIVE ENGINEER Vs. STATE OF UTTARAKHAND & ANOTHER

JUDGEMENT

(1.) Respondent no. 2, in present criminal revision, was convicted, on the basis of a complaint filed by Uttarakhand Power Corporation Ltd. (for short here-in-after referred to as UPCL) by learned Addl. Chief Judicial Magistrate, Haldwani, vide order dated 01.07.2009. While convicting respondent no. 2, under Section 409 IPC, he was directed to undergo a year's rigorous imprisonment along with a fine of Rs. 3,000/-. The convict (respondent no. 2 herein) assailed such order in the court of learned Sessions Judge, Nainital, in criminal appeal. Learned Sessions judge, allowed the criminal appeal and set aside the judgment and order passed by learned Magistrate, vide order dated 25.05.2011. Aggrieved against the same, the department (Executive Engineer, Electricity Store Division, UPCL, 132 K.V. Sub-Station Haldwani, Nainital) has preferred present criminal revision.

(2.) Respondent no. 2 was working as Store Keeper in Electricity Store Division, Kashipur, District Nainital. A physical verification of store was conducted from 04.05.1992 to 09.05.1992. During verification 09 items were found missing and an entry was made in measurement book to that effect. Items no. 11, 12, 13, 14 and 15 were shown as on loan and the measurement book was duly signed by PW3 O.P. Srivastava, PW1 Sahdev Singh and the accused (respondent no. 2). Similarly, items no. 1, 2, 4 and 9 were shown as on loan, according to PW3, PW1 and the accused. 15 additional items were also found during physical verification around about Rs.6,062/-. The missing articles, as entered in the measurement book, were given on loan which clearly shows that either Form 8B was filled by the accused or the material given on loan was given as per the orders of the superiors or in grave exigency. On 05.06.1992, after one month of physical verification, PW1 lodged an FIR against the accused. There was no whisper in the contents of the FIR regarding misappropriation. Ironically, a departmental inquiry was also conducted against PW1 for missing articles. Monetary value of the missing articles was Rs.3,26,064/-. During the course of investigation, the Junior Engineer concerned and other officials, who took the missing articles on loan appropriated the articles of Rs. 2,77,144/- and articles amounting to Rs.48,950/- remained un-appropriated due to the death of Mr. Pandey, Jr. Engineer (defence taken by accused in his statements under Section 313 Cr.P.C.). PW3, in his cross-examination, has admitted that in special circumstances, the articles were also given by the storekeeper on oral instructions and subsequently, after receiving, indent invoice was made, articles accounted for, were being regularized. He has also admitted that the nine articles which were found less in store during verification were given on loan by the accused which was dully endorsed by PW1 Sahdev Singh, Asstt. Engineer. The I.O. neither deposed during trial, nor the case diary was made available. It is admitted to the parties that the I.O., despite best efforts of the court, did not appear to depose in support of the prosecution story. This fact is admitted to learned Magistrate, who has written so at internal page 21 of the judgment. Whole trial appears to have proceeded on the erroneous assumption that a misappropriation of article amounting to Rs.3,26,064/- was done by the accused. PW2 Girish Kumar Asthana, Sr. Accountant, UPCL, deposed that the invoice of articles amounting to Rs. 2,77,144/- were appropriated by the department and the same amount was decreased from the amount shown on loan. PW1, in his statement, deposed that the verification was conducted on a routine basis and not on any complaint made by any one. Moreover, in his cross-examination PW1 has also admitted that on the instructions from the higher officials, the Store Keeper could give articles to anyone.

(3.) Precisely speaking, it is a case of shortfall of items in physical verification. The value of missing articles, which were taken on loan, was largely appropriated. Part thereof remained un-appropriated due to death of a Junior Engineer.