STATE OF MAHARASHTRA Vs. LAXMILAL SHANKARLAL TRIVEDI

JUDGEMENT

(1.) This appeal against acquittal is filed by State Government under Section 378 of the Criminal Procedure Code, challenging the judgment and order passed on 21.12.1998 by Chief Judicial Magistrate, Nagpur in Regular Criminal Case No. 125 of 1995 acquitting respondent of offence punishable under Section 409 of Indian Penal Code. Case of prosecution is that from 01.04.1983 till 17.05.1983 respondent was on medical leave and there was a seal on godown with his signature. He had not handed over charge to any body. As day to day work was being hampered, on 28.05.1983 as per orders of Head Office seal was removed and panchanama of finished goods in the godown was prepared. Available goods were found short and loss was worked out at Rs. 54,256/-. Audit also confirmed the shortage. Police complaint was then filed by Managing Director Shri Barahate. Learned Additional Public Prosecutor Ms. Jachak submits that total 10 witnesses were examined and P.W. 2 proved panchanama of finished goods as also absence of respondent. She contends that in this situation when seal was removed in presence of Vigilance Officer Shri V.N. Hambarde, there was no need to examine that person. P.W. 5 brought on record the fact that he worked with respondent and P.W. 8 then proved shortage of finished goods on the basis of documents. She contends that this material evidence has been lost sight of.

(2.) Shri C.N. Deshpande, learned counsel for the respondent states that there was no shortfall in audit held on 31.03.1983. The complaint speaks of shortfall for a period from 01.04.1983 to 17.05.1983 when admittedly respondent was on leave. Seal of godown was not broken in presence of his client and as such the shortage as alleged is not established.

(3.) The trial Court framed point, whether during period from 01.04.1983 to 17.05.1983 the prosecution has proved any misappropriation and answered it in negative. In paragraph 17 it has considered evidence about removal of seal and opening of godown. Some inconsistency in evidence has been noted and story is found doubtful. Question was whether seal was a wax seal or a paper seal and whether that seal was put by respondent. Panchanama Ex. 30 revealed that it was only paper seal on lock with signature of respondent and lock was broken. It found that P.W. 2 Bhaiyalal Bokade was working as Senior Clerk who witnessed visit of Shri Hambarde and Shri Randive for inspecting godown and finding out shortage. He pointed out that Hambarde had broke open the lock. Trial Court found that all this was done during the period when respondent was on leave and godown was opened on 28.05.1983 behind his back. It also found that there was no material to demonstrate that accused alone had dominion over the property during said period. Report Ex. 43 lodged by Shri Barahate, Managing Director shows that respondent worked as in-charge of finished goods till 17.05.1983. He has further urged that audit report submitted by internal audit wing revealed misappropriation for the period from 01.04.1983 to 17.05.1983. He has also stated that respondent employee was under suspension after 17.05.1983.