STATE OF GUJARAT Vs. DABHI GOVINDJI MASANGJI

JUDGEMENT

(1.) BY virtue of this appeal under section 378 of the Code of Criminal Procedure, 1973 [hereinafter referred to as 'Cr. P.C.'] the State of Gujarat has challenged the judgment and order dated 30/9/1997 rendered by the learned Judicial Magistrate First Class, Kalol in Criminal Case No. 134 of 1991. The learned Magistrate by virtue of the impugned judgment and order was pleased to acquit the respondent accused for the offences punishable under sections 409 and 468 of the Indian Penal Code [IPC].

(2.) THE case of the prosecution, in nut shell, is that the respondent accused was serving as leave reserved Talati -cum -Secretary at village Serisha, Taluka Kalol from 2/3/1989 to 20/6/1989. That to recover the land revenue, irrigation charges and other chages, etc., are the relevant duties of Talati -cum -Secretary. It is the case of the prosecution that on 4/4/1989 one Masangji Sonaji Thakarda met the accused and paid to the accused Rs.6,952 -89 paise; whereupon the accused issued irrigation receipt no. 17779 dated 4/4/1989 in token of receipt of s.6,952 -89 paise from said Masangji Sonaji. However, as per the case of the prosecution, in the duplicate receipt as well as triplicate receipt of said original receipt, the accused mentioned only Rs.1,900/ - and thereby the accused said to have committed offence of criminal breach of trust and defalcation of Rs.5,052 -89 paise and thereby committed offences punishable under sections 409 and 468 of the IPC. Circle Inspector Mr. M A Prajapati, who was direct superior of the accused, paid his inspection visit of village Serisha on 27/9/1989 and when the Circle Inspector verified relevant records maintained by the accused, he found out the abovestated irregularities. The Circle Inspector reported the incident in writing to Taluka Development Officer [TDO] Laljibhai Hirjibhai. Thereupon the TDO Laljibhai Hirjibhai filed police complaint against the respondent accused for the above offences. His compliant was registered and the Investigating Officer, during the course of investigation, recorded the statements of witnesses. Ultimately the Investigating Officer filed charge -sheet against the accused in the Court of the learned Magistrate for offences punishable under sections 409 and 468 of the IPC.

(3.) ON behalf of the appellant State, learned APP Mr. Mengde submitted that the impugned judgment and order delivered by the learned Magistrate is contrary to law and evidence on record. That the learned Magistrate did not properly appreciate and evaluate the oral and documentary evidence adduced by the prosecution. That it is established not only by the oral evidence, but even by documentary evidence that the accused received Rs.6,952 -89 paise from one Masangji Sonaji on 4/4/1989 and original receipt of the aforesaid amount was issued by the accused to said Masangji, but in the duplicate and triplicate receipts only Rs.1,900/ - were shown as received from Masangji Sonaji. That it has come in evidence that subsequently the accused by virtue of Challan deposited only Rs.1,900/ - in the Treasury. That it has come in evidence that hand writing and signature in the original receipt as well as duplicate and triplicate receipts are of the accused. That it has been proved beyond reasonable doubt that the accused committed defalcation and criminal breach of trust to the tune of Rs.5,052 -89 paise. Despite such cogent and convincing evidence on record, the learned Magistrate erred in discarding such evidence and acquitting the accused. That learned Magistrate committed serious error in holding that the prosecution failed to prove its case against the accused because the disputed documents were not sent to hand -writing expert. That in fact it was not at all necessary and even legally it is not required. That despite the fact that there is sufficient evidence on record regarding entrustment of aforesaid amount by the witness Masangji to the accused, yet the learned Magistrate erred in holding that the prosecution failed to prove the entrustment. Therefore, it was submitted that the appeal be allowed and the impugned judgment and order passed by the learned Magistrate be set aside and the respondent accused be appropriately punished for the offences punishable under sections 409 and 468 of the IPC in accordance with law.