STATE OF GUJARAT Vs. KANTILAL M. ACHARYA

JUDGEMENT

(1.) The present appeal arises out of judgment and order of acquittal dated December 30, 1983, passed by the learned Chief Judicial Magistrate, Mehsana, in Criminal Cases No. 2 of 1979. The learned Chief Judicial Magistrate, Mehsana, by the Judgment under appeal acquitted the respondent-accused for the offence punishable under Section 409 of the Indian Penal Code.

(2.) It is the prosecution case that as per the receipt issued, an amount of Rs. 8241.11 ps. was recovered from the various persons whereas Rs. 238.71 ps. was deposited as per the office copies of the receipts and thus the accused having dominion over Rs. 8002.40 ps., committed criminal breach of trust in respect of the said sum. Accordingly, the Deputy District Development Officer, Mehsana, lodged a complaint against the accused on November 11, 1974 for the offence punishable under Section 409 of the Indian Penal Code.

(3.) The applications of the various peasants at Exhs. 288 to 291 were not shown to the respective peasants and therefore they are rightly held to be inadmissible in evidence. These applications, therefore, would not obviously support the prosecution case. The complainant, Bansidhar Jivanlal Pathak. has deposed in his evidence that he has recorded the statements of the various persons at Exhs. 206 to 236 from whom he recovered the receipts wherein more amount is alleged to have been collected by the accused. These receipts are produced at Exhs. 237 to 287. In his earlier deposition, the complainant had also produced such 51 receipts at Exhs. 69 to 109. It was alleged that those receipts were signed by the accused. However, the prosecution witnesses Prabhudas Shankardas Exh. 294, Ambalal Revabhai Exh. 296, Ishwarbhai Shankarbhai Exh. 297, Haribhai Hirabhai Exh. 298, Joitabhai Hirabhai Exh. 299, Bababhai Joitaram Exh. 302, Shivabhai Dungarbhai Exh. 303, Mafatbhai Rambhai Exh. 304, Naranbhai Hirabhai Exh. 305 and Ambaram Bhudarbhai Exh. 306 were not shown the receipts which are alleged to have been recovered from them by the Block Development Officer. It is, therefore, clear that there is no reliable evidence in respect of the receipts where it is alleged that the accused collected more amount than due and misappropriated the same. Similarly, as per the earlier deposition of Bansidhar Jivanlal Pathak, Exh. 12, which was recorded on January 15, 1977, the receipts Exhs. 69 to 119 were recovered from the various agriculturists and the same were in possession of Mr. Pathak till January 15, 1977. It is, therefore, clear that the receipts in question were not recovered in police investigation by drawing necessary panchnama and in absence thereof, it cannot be said that there is independent and reliable evidence in respect of those receipts. The prosecution has thus failed to prove the entrustment-element in respect of Rs. 8002.40 ps.(Para 6)