STATE OF U P Vs. RUKAM PAL SINGH

JUDGEMENT

(1.) THE State has challenged the order of acquittal passed by Sri N.C. Pushkar, the then Judicial Magistrate, Sadar, Mathura on 8 -9 -1981 in Criminal Case No. 1003/IX of 1980. The accused respondent has been acquitted of the charge of Section 409 IPC levelled against him. The accused respondent was the Assistant Sale Officer II in U.P. State Agro Industrial Corporation Ltd. at Raya godown from 14 -11 -1973 to 29 -12 -1973. He sold fertilizer worth Rs. 34,463.09P. during this period but deposited only Rs. 4037.50P in State Bank, Raya against the said sale. He thus committed embezzlement of Rs. 30,425.59P. It came to light on 30 -11 -1973 when he was transferred and the charge was assumed by his successor Palku Ram. The Accountant G.B. Tiwari P.W. 6, on gaining knowledge of embezzlement, got the FIR lodged by the Branch Manager Gajendra Singh Yadav P.W. 1 on 13 -12 -1974. Consequent upon the lodging of the FIR, a case was registered and investigated whereafter the charge -sheet was filed against the accused respondent. At the trial, the prosecution examined six witnesses whereas four witnesses were examined by the defence too.

(2.) THE defence of the accused respondent was that though he had received the questioned amount by sale of fertilizer, but he had made over the same to the Accountant G.B. Tiwari P.W. 6 and had even made a report in this behalf to S.S.P., Agra before the lodging of the FIR of this case.

(3.) WE have heard Sri M.C. Joshi, learned A.G.A. in support of the appeal and Sri Kamal Krishna, amicus curiae in opposition thereof. The submission of learned A.G.A. is that the receipt of the amount in question was admitted to the accused respondent and he did not deposit the same. As such he was guilty of embezzlement. Gajendra Singh Yadav, Branch Manager P.W. 1 stated in his cross -examination that the accused respondent was transferred from Raya on 29th or 30th December, 1973. He did not know whether he had made a report to S.S.P., Agra and to the Manager of the corporation about having paid the amount to the Accountant G.B. Tiwari in the presence of S.P. Upadhyay DW 2 and complaining that the accountant was not giving receipt of the same. Obviously, his knowledge was based only on record. It came down from the statement of G.B. Tiwari, Accountant P.W. 6 that on detecting the non -deposit of the amount in question by the accused respondent in the Bank, he had placed the matter before the Branch Manager with his note. He expressed his ignorance whether the accused respondent had, earlier to the lodging of the FIR, made an application to S.S.P., Agra on 12 -1 -1974 that he had deposited that amount with him. The disturbing and sad feature of the case is that this witness was not interrogated by the Investigating Officer about the case put forth by the accused respondent that he had deposited the amount in question with him. Nor any probe was made by the department. He was not questioned at all. It was a fact that in his bail application before the Sessions Judge, the accused respondent had averred that he had paid the amount in question to the Accountant G.B. Tiwari and that he did not give receipt to him. The application to S.S.P. (Ext. Kha -1) making the same allegation was also made by the accused respondent earlier to the lodging of the FIR. The evidence of payment of amount in question to the Accountant G.B. Tiwari P.W. 6 has been given by S.K. Sharma DW -1, S.P. Upadhyay DW -2 as well as by the accused respondent Rukam Pal Singh himself as DW -4. The Accountant G.B. Tiwari P.W. 6 admitted that he had no enmity either with these witnesses or the accused respondent. The accountant was the superior officer of the accused respondent. Admittedly, it is not disputed that the sale amount could be deposited either at Agra or Mathura. It cannot be brushed aside lightly that earlier to the lodging of the FIR, the accused had made a report to the S.S.P. that he had paid the amount to the accountant. It being so, the matter required through probe from this angle. Though it came to the notice in the department as well as of Investigating Officer, but neither the department made any probe into the controversy from this aspect of the matter nor the Investigating Officer thought it proper even to interrogate the accountant. The Investigating Officer was not also produced as a witness and the accused respondent was deprived of an opportunity to cross -examine him as to what were the circumstances for not investigating the contention put forth by him and for not interrogating the accountant. The fair play required that G.B. Tiwari. Accountant should have been made a co -accused in view of the specific contention of the accused respondent, which had been taken even earlier to the lodging of the FIR.