SRI PREMANANDA DAS Vs. PURENDRA PANDA

JUDGEMENT

(1.) THIS is an appeal against the order of acquittal recorded by Learned J.M.F.C., Jagatsinhpur in I.C.C. No. 313 of 1978.

(2.) THE present Appellant filed the aforesaid complaint case alleging criminal breach of trust and misappropriation by the Respondent during his incumbency as Secretary of Ambasal Service Co -operative Society. It was specifically alleged that the Respondent as Secretary of the Society was entrusted with the records, Registers, cash and valuables of the Society but out of the said assets he misappropriated an amount of Rs. 17,119.36 paise. Basing on the allegation Learned J.M.F.C., Jagatsinhpur took cognizance of the offence Under Section 408, Indian Penal Code. The complainant examined 6 witnesses including himself and produced some documents before charge. Basing on such evidence charge Under Section 408, Indian Penal Code was framed. The Respondent denied the charge and pleaded not guilty where upon Learned Magistrate directed the complainant to produce himself and his witnesses for cross -examination after charge. Three of the witnesses, namely, P. Ws 1,3 & 6 were cross -examined and discharged. P. Ws. 2, 4 & 5 however failed to appear on the date fixed for their cross -examination and complainant prayed for adjournment. The said prayer was rejected, evidence of P. Ws. 2, 4 & 5 were expunged and prosecution evidence was closed. Since Learned J.M.F.C. felt that the remaining prosecution evidence did not prove entrustment of cash or property of the Society to the accused Respondent, he recorded an order of acquittal. The said order is under challenge in this appeal.

(3.) MR . A. Deo, Learned Counsel appearing for the Respondent on the other hand argues that production of the witnesses for cross -examination after charge was the responsibility of the complainant -Respondent and when despite several adjournments, he failed to produce himself, PWs 2 & 4, Learned J.M.F.C. had no alternative than to reject the prayer for adjournment and to expunge the evidence of P. Ws 2,4 & 5. Supporting the impugned judgment Mr. Deo argues that the evidence on record in no way establishes entrustment of cash or properties of the Society to the Respondent and therefore, the order of acquittal is legally justified. He also offered an argument that the order relating to rejection of prayer for adjournment and expunction of the evidence of P. Ws 2, 4 & 5 having not been challenged in a revision, the said issue cannot now be agitated in the appeal.