SRI HARIHAR SAHOO Vs. RABINARAYAN DHAL

JUDGEMENT

(1.) THE Appellant filed complaint case bearing ICC Case No. 64 of 1984 (T.R. No. 21 of 1988) in the court of Learned Judicial Magistrate 1st Class, Nayagarh (in short "the Magistrate") alleging misappropriation of certain stock of Khamarsahi Service Co -operative Society (hereinafter referred to as the "Society") by the Respondent who was working as Sales -man in the retail out -let of that Society. Learned Magistrate after considering the allegation, statement, etc. took cognizance of the offence under Section 408 of the Indian Penal Code and summoned the Respondent to face the trial. The Respondent appeared and took the plea of complete denial. To prove the allegation of misappropriate, the Appellant -complainant examined witnesses and proved certain documents. The Respondent did not examine any one, but produced some cancelled money receipts in his defence. Learned Magistrate after considering these evidence came to hold that the entrustment and misappropriation of stock was not established against the Respondent and accordingly, acquitted him of the charge under Section 408 of the Indian Penal Code. Aggrieved, the Appellant has filed this appeal to set aside that order of acquittal.

(2.) MR . Pratyusha Ranjan Patnaik, Learned Counsel for the Appellant submits that the Trial Court did not appreciate the evidence and circumstance put forth by the Appellant and basing on certain irrational interpretation of law and facts recorded the order of acquittal. He specifically indicates that when the admission of the Respondent was there on the documents Exts. 1 and 2, there was no scope of disbelieving the allegation that the Respondent was working as salesman in the society and that he had misappropriated articles worth Rs. 1467.36 paise. Learned Counsel emphatically submits that the evidence on record clearly prove the charge under Section 408 of the Indian Penal Code and, therefore, the Respondent should be convicted for the said offence.

(3.) THE specific allegations of the complainant -appellant was that the Respondent was working as sales man in the society and when the stock of the society was checked on 26.3.1984, shortage of stock worth Rs. 1467.36 paise was found. It was also alleged that after this detection, Respondent deposited Rs. 200/ - and gave an undertaking in writing to refund the rest amount. To establish this charge, the Secretary of the Society -P.W. 1, Branch Manager of the Central Co -operative Bank, Nayagarh -P.W. 2 and the Branch manager of the Main Branch of the Co -operative Society -P.W. 3 were examined. These witnesses stated that the Respondent was working as salesman in the Society and that during the verification, shortage of stock to the tune of Rs. 1467.36 paise was found and the Respondent deposited Rs. 200/ -. The undertaking and the verification -sheet were marked as Exts. 1 and 2 respectively.