LAWS(ALL)-1983-9-37

RAIS AHMAD Vs. ABDUL RAUF

Decided On September 22, 1983
RAIS AHMAD Appellant
V/S
ABDUL RAUF Respondents

JUDGEMENT

(1.) THIS appeal has been preferred by an informant against the judgment and order dated 17-11-1980 passed by the learned Judicial Magistrate Kheri, whereby he acquitted the accused respondent no. 1 of the charge under section 408 IPC.

(2.) IT will appear that the appellant Rais Ahmad lodged a written report dated 25-9-1976 with the police stating that the accused-respondent no. 1 was a servant in his firm and used to deal, inter alia, with the realisation of amount and making payments etc. On 20-9-1976 an amount of Rs. 17,000.00 was said to have been paid as price of timber by one Nitya Nand Goyal to Abdul Rauf, respondent no. 1. The said accused-respondent was directed by the informant to deposit the said amount in the State Bank of India and have a draft in the name of Divisional Forest Officer, Bahraich, prepared. When the respondent no. 1 did not return till the evening the informant went to the bank only to find that the money had not been deposited at the bank nor any draft had been prepared in favour of the Divisional Forest Officer. After waiting for about five days a first information report was lodged on 25-9-1976.

(3.) LEARNED counsel for the appellant has urged that the accused respondent no. 1 had himself filed a complaint against the informant, his father, brother and others sometime after tie filing of the police case against him and in that complaint the accused-respondent had admitted that Rs. 17,000.00 were paid to him by one Nitya Nand but he had retained this amount towards his pay and other accounts and when the informant's father who was the real employer showed annoyance and threw the entire amount into the lap of the accused respondent to be taken towards his account, the accused respondent of his own, looking to the annoyance of his employer, retained only Rs. 8,000.00 and handed over Rs. 9,000.00 there and then. The learned Magistrate has referred to this aspect of the matter and discussed the evidence and consequently it cannot be said that the matter has been overlooked. He has, however, observed that looking to these averments the informant's father should have been produced by the prosecution particularly when the prosecution was in possession of the certified copy of the complaint several months before the evidence was recorded in the case. The informant's father, however, did not come in the witness box.