RAMESHWARLAL KHAITAN Vs. RAM KUMAR JOSHI

JUDGEMENT

(1.) THIS is an appeal by leave against the order passed by the Sessions Judge of Puri acquitting the Respondent who was prosecuted' in the Court of the Magistrate, First Class, Puri, for offences under Sections 468 and 409 Indian Penal - Code and sentenced to imprisonment by that Magistrate.

(2.) THE complainant Rameshwarlal Khaitan (p.w. 1) (Appellant) has a grocery shop at Pipli in Puri district. He alleged that he entrusted the shop with the Respondent and the latter was in charge of the goods in that shop with effect from 2nd November 1956. The Respondent was said to have been entrusted with goods worth Rs. 4308 -7 -1. It was alleged that when the shop was under the management of the Respondent he misappropriated certain sums of money, made forged entries in the Registers and thus put the complainant to heavy loss. In the charge it was stated that the accounts, exts. 1, 2, 4 and 5 were forged by the Respondent between 7 -11 -1956 and 39 -1957. It was alleged that between 2 -11 -1956 to 17 -1l -1956 the Respondent committed criminal breach of trust in respect of goods worth Rs. 4308 -7 -3 and also in respect of cash amounting to Rs. 975 -4.3. The lower appellate court rightly pointed out that there was absolutely no evidence of criminal breach of trust of money. The offence of criminal breach of trust in respect to goods is based mainly on ext. 5, but it was admitted by P.W. 1 himself that ext. 5 does not bear the signature of the Respondent nor has he made any endorsement to the effect that these articles were entrusted to him. On the other hand ext. A which is an entry made in ext. 5, is admitted to be in the handwriting of the complainant's son Motilal a youth aged 18 to 20 years. The Respondent took the plea that he was only holding a subordinate position as a servant in the shop, that the entire control and management was with the complainant and his son Motilal and that he was merely writing out the accounts under their direction and also purchasing articles for the shop when required. In view of this plea it was obvious that the most important witness in this case was the complainant's son Motilal. He was, however withheld from the witness box. The complainant however wanted to make it appear as if Motilal was merely a petty salesman of the shop and that the real management of the shop was with the Respondent. This plea of the complainant was rightly rejected by the lower appellate court. P.W. 2 frankly admitted in cross -examination that he could not say in whose charge the shop was, and in what capacity the accused was working there, though he admitted that Motilal and another son of the complainant named Ghanashyam also used to remain in the shop. P.W. 4 also admitted that the complainant's son used to remain in the shop and weigh the articles. P.W. 7 further added that Motilal sometimes used to purchase articles for the shop from other persons, and he had seen both Motilal and the accused in the shop on some occasions. P.W. 8's evidence is of a similar type. Apart from the evidence of these prosecution witnesses two defence witnesses, namely d.ws. 1 and 2 have stated that some transactions in the shop were entered into by Motilal himself. Some goods were taken on credit as deposed to by d.w. 2 and some payments were also made by him.

(3.) THE complaint also has been making varying statements as to the value of the goods entrusted with the Respondent. Thus, though in the charge it was stated that only Rs. 975.4 -3, in cash, was misappropriated, nevertheless, in the petition of complaint it was stated that Rs. 12,000/ - was misappropriate and while giving evidence in Court the complainant stated that the total value of goods misappropriated would be Rs. 10,000/ -. But he had to admit in cross -examination that he had no clear idea about the income and expenditure of the shop.