STATE OF MAHARASHTRA Vs. SHAIKH NASIR SHAIKH SAHEBLAL

JUDGEMENT

(1.) The appellant-State has challenged the acquittal of the present respondent-accused in Criminal Appeal No.22 of 2002, by judgment and order dtd. 25/10/2004, whereby the learned Additional Sessions Judge, Ahmednagar (hereinafter referred to as "the learned appellate court") acquitted the respondent of the offence punishable under Sec. 409 of the Indian Penal Code.

(2.) According to the prosecution case, the informant- Auditor Eknath Baburao Shirke was auditing the accounts of Malhar Nimbodi Vividh Karyakari Seva Sahakari Society Limited for the period from 01/07/1987 to 30/06/1992. During the aforesaid period, the respondent-accused was working as the Secretary of the said society. When the Auditor called upon the respondent-accused to produce cash amounting to Rs.88,030.70 for verification, the respondent failed to produce the same. Thereafter, the Auditor lodged a complaint dtd. 02/08/1994 against the respondent, alleging misappropriation of the said amount. Consequently, a crime came to be registered against the respondent for the offence punishable under Sec. 409 of the Indian Penal Code. The learned trial Judge, after conducting the trial, convicted the respondent-accused for the offence punishable under Sec. 409 of the Indian Penal Code, observing that since the accused had submitted an application for discharge after repaying the aforesaid amount along with interest, aggregating to Rs.96,057.00, during the period from 03/05/1993 to 04/02/1994, he had thereby admitted his guilt.

(3.) The learned A.P.P. submitted that the deposit of the allegedly misappropriated amount by the respondent-accused clearly indicates his guilt and therefore, the learned trial court rightly convicted him. However, according to the learned A.P.P., the appellate court, i.e. the learned Additional Sessions Judge, Ahmednagar, erroneously drew an inference that mere filing of a discharge application after depositing the aforesaid amount cannot be treated as an admission of guilt by the respondent-accused.