STATE OF GUJARAT Vs. SURESHCHANDRA BECHARLAL DAVE

JUDGEMENT

(1.) The chargeagainstthe respondent-accused was that the accused working as Chairman of one Jayprada Co-operative Housing Society Ltd. on or around 4-12-1978 had withdrawn Rs. 4,375/- from the bank and adding Rs. 785/- being the amount of cash on his hand, misappropriated the total sum of Rs. 5,375/- and thereby committed offence punishable under Section 408 of the Indian Penal Code. The respondent-accused pleaded not guilty to the charge and sought for trial in the matter. After hearing the Ld. P.P. for the State and Ld. Advocate for the accused, the Ld. Chief Judicial Magistrate passed the impugned judgment of acquittal.(Para 2)

(2.) The learned A.P.P. for the State submitted that the accused had admitted by writing at Exh. 15 that he had with him the amount of Rs. 4,375/- withdrawn from the bank as also some cash on hand and he was also required to deposit his own instalment and by adding such amount of instalment and the amount on hand to the amount of Rs. 4,375/-, he had made up the amount of Rs. 5,375.37 for being deposited in the bank for the total instalment amount of the society. He had handed over that amount to his peon for seeing that the amount was deposited in the account of the society in the concerned bank.

(3.) The writing is dated 21st March 1979 whereas the endorsement of the investigating officer in the margin bears dt. 10-1-1979. From this, it has been observed that on 10-1-1979 when the investigating officer made the endorsement on such writing dated 21-3-79 could ever have been in existence. In the alternative, it has been observed that if there was such a writing, date '21st March 1979' must have been written later. The Ld. Magistrate has proceeded to presume that the writing must be of 21st March 1979. If that was so, the writing could not have any connection with the transaction with regard to which the accused was charged. Explaining this writing, it has been submitted on behalf of the appellant that there was a possibility on the part of the investigating officer to commit an error in writing the date. This argument cannot be accepted for the simple reason that there is no evidence of the investigating officer to explain the error alleged to have been committed by him. Be that it may, even if it is assumed that such a writing was made by the accused in respect of the transaction with regard to which the accused was charged, it has to be read as a whole. If on 10-1-1979, the investigating officer had an occasion to make an endorsement about he having taken possession of the writing, during the course of investigation, the writing must have seen light of the day, sometime prior to 10-1-1979. Now Exh. 18 is dated 4-12-1978. Therefore, the intervening period is about 35-36 days. This means that as soon as it was brought to the notice of the accused that the amount of total instalment of Rs. 5,375/- in all, was not deposited in the account of the society, with the concerned bank, he must have given in writing what actually, according to the accused, must have happened. Therefore, at the earliest the accused came out with the explanation that he had handed over the total amount to his peon in order to see that the amount was deposited in the account of the society with the concerned bank. If that was so, then the necessary ingredient of the offence as defined under Section 408 of the I.P.C. is missing. (Para 4)