STATE OF MAHARASHTRA Vs. HANUMANT KESHAV PISAL

JUDGEMENT

(1.) THIS is an appeal filed by the State of Maharashtra against acquittal of the Respondent (original accused) passed by the judgment of the Additional Chief Judicial Magistrate, Pune dated 29th November 1984 of the charge of section 408 of the Indian Penal Code in Criminal Case No.10154 of 1978.

(2.) THE charge framed against the Respondent was that while he was acting as the Secretary of Co-operative Society known as Alande Vibhag Sahakari Milk Society at Bhor has been entrusted with an amount of Rs. 500/-, Rs. 450/- and he committed breach of trust by transferring the said amount in his name for his own use whereby committed an offence under Section 409 of the Indian Penal Code. Originally, the learned Magistrate has convicted the Respondent and sentenced him to suffer Simple Imprisonment for two months and to pay a fine of Rs. 500/- and in default also to suffer two months Simple Imprisonment. On an appeal filed by the Respondent the Additional Sessions Judge, Pune by his order dated 26-4-1981 set aside the conviction and remanded the matter back to the learned Magistrate to have a fresh trial in the light of the observations made therein. It is after this remand that the judgment, which is assailed in this appeal has been passed by the learned Magistrate.

(3.) IT has come out in evidence that the kird (day book) based on which charges, has been framed was itself prepared by P. W. No.1 at the instance of P. W. No.2 and therefore P. W. No.2, as observed by the courts below, both lower court and trial court, has to be treated as an accomplice. P. W. No.1 himself has admitted that the kind was prepared after considering the audit of the society. Therefore, their evidence did not inspire any confidence. The Courts below has considered the statement made by the Respondent Under Section 313 of Cr. P. C. wherein he has referred a letter which he has written to the Chairman to the effect that the Chairman agreed to make good of the amount found due to the society though Chairman has denied the signature of the letter. As rightly observed by the Courts below the conduct of Shri Ganaba Bandai is not beyond any pale of doubt. He ought to have prosecuted along with the Respondent and Respondent was made only a scape goat for the misappropriation of the fund of the society committed by the Chairman P. W. No.2. The lower court also found which has confirmed by the lower appellate court that the entrustment of the amount of the Respondent has not been properly established by the prosecution. The court below has taken up a stand that the letter purported to have been written by the Chairman, when produced before the Court, it is for the Chairman to disprove that letter. Apart from this, we noticed that Exh. 17 which is a letter written by the Respondent to the Chairman wherein he sought to own the liability of Rs. 6,500/- including the amount covered by the prosecution. He categorically stated that he is liable to pay this amount and is prepared to pay this amount and to remit in the society with interest. In the light of this letter it can clearly say that no offence Under Section 408 of I. P. C. is said to have been committed by the Respondent. A reading of section 408 of I. P. C. "dishonest intention is essential to establish the guilt of the accused. " The Respondent says that the amount has been paid to the Chairman and the Chairman failed to remit the amount. Therefore at any stretch of imagiantion, one cannot assume that the Respondent has committed a criminal breach of trust as defined under Section 405 of the I. P. C. In view of this, we have to fully endorse the view expressed by the trial court in acquitting the Respondent and we do not find any ground to interfere in the acquittal of the Respondent. In the result, the appeal fails and it is dismissed. Appeal dismissed. .