STATE Vs. K P JAIN AND

JUDGEMENT

(1.) SRI S.P. Jain is Chair -man of Aligarh Electric Supply Company Ltd. and Sri K.P. Jain is Managing Director thereof. Sri K.S. Kohli was appointed Receiver of the aforesaid Company in the month of July 1972 by the District Magistrate of Aligarh. The Receiver counted the cash in the Chest of the Company on 31st of July 1972 according to the directions of the District Magistrate and detected a shortage of Rs. 2,67,744.16 Paise. He submitted his report to the District Magistrate on the same day. The Receiver recorded the statement of Sri Shyam Sunder Saxena Cashier of the Company and forwarded the same along with his report to the District Magistrate. The Cashier stated that the cash which was found short was not available with him because that was taken away by the Managing Director Sri S.P. Jain. F.I.R. was lodged at Police Station Banna Devi on 5 -8 -1972. The case was investigated and after completing the investigation charge -sheets were submitted against Sri S.P. Jain, the Chairman and K.P. Jain the Managing Director of the Company. They were tried in two Sessions Trials. They pleaded not guilty. The prosecution examined only one witness Sri Shyam Sunder Saxena (P.W.1) the Cashier of the Company against whom the F.I.R. was lodged. The Investigating Officer was not produced, charge -sheets submitted by him have been proved by Rajeshwar Dayal Constable who had seen the Investigating Officer reading and writing. The learned Judicial Magistrate on a consideration of the entire evidence arrived at the conclusion that the charges under Section 409, I.P.C. were not proved beyond doubt against the accused appellants S.P. Jain and K.P. Jain. He consequently acquitted them of all the charges. The State has felt aggrieved and preferred these appeals. All these four appeals can under these circumstances be conveniently disposed of by a single judgment. This judgment would, therefore, govern all these four appeals.

(2.) THE fact that Sri S.P. Jain was Chairman and K.P. Jain was Managing Director of Aligarh Electric Supply Company Ltd. is proved from the deposition of Sri Shyam Sunder Saxena (P.W.1) and goes unchallenged by the defence.

(3.) SRI Saxena (P.W.1) has deposed that the aforesaid shortage in the Chest of the Company was caused because that amount was with S.P. Jain. He has deposed that the aforesaid amount was handed over by him to the accused in small amounts on different dates after obtaining slips from them. He has admitted in examination -in -chief that he did not hand over these amounts to the accused for purposes of the Company. The amount which he has spent on the directions of the accused is also included in the amount which was found to be short. He does not say to have spent the money for the purposes of the Company. Surprisingly enough Sri Saxena (P.W.1) has admitted in his very examination -in -chief that these amounts which he paid to the accused are not entered in the cash book and no explanation for the same has been offered. He has admitted in his examination -in -chief that he used to make entries in the Cash Book whenever he used to make any payment on prescribed voucher and used to obtain receipt for having made the payment. The prescribed voucher used to be signed either by the Secretary or by the Chairman of the Company. It is clear from his deposition that the disputed payments have not been made on prescribed vouchers after proper entry in the cash book and after obtaining receipt for payment under the signatures of the Secretary or the Chairman. As I have mentioned above no explanation has been offered by the Cashier for having made the payments as he says to the accused without following the prescribed procedure for payment of money from the Chest of the Company. The Cashier (P.W.1) has deposed in detail the dates when he paid several amounts to both the accused. So the crucial question which arises for determination is whether the amounts which the Cashier says to have paid to the accused for purposes not connected with the affairs of the Company without following the prescribed procedure for payment of money from the Chest of the company, amounts to entrustment of the money to the accused and whether the accused have committed criminal breach of trust in respect thereof.