STATE OF H.P. Vs. MOHAN LAL

JUDGEMENT

(1.) THIS appeal by the State is directed against the judgment dated 7.6.1999 delivered by the learned Judicial Magistrate Ist Class (II), Shimla, in Cr. Case No. 7/2 of 1993, whereby he acquitted the accused of having committed an offence punishable under Section 409 IPC.

(2.) BRIEFLY stated the facts of the case are that accused Mohan Lal was posted as Incharge of Retail Shop, Himachal Pradesh State Civil Supplies Corporation Ltd, (for short HPSCSC) Auckland from 5.5.1989 to 21.2.1990. According to the prosecution, PW -2 Mohinder Singh Jinta, Sales Supervisor of HPSCSC conducted the inspection of retail shop in January, 1990 and found extraordinary shortage of essential commodities. Accused Mohan Lal was transferred to the Head Office and Lachmi Nand, Incharge of the Sales Depot of Housing Board Colony, Jakhu was directed to take over the charge of the Sales Depot at Auckland, Shimla. According to the prosecution, the accused person avoided handing over the charge and, therefore, Sh. Lachmi Nand in the presence of Sh. Ashok Kumar Gupta, Assistant Manager, HPSCSC, Shimla, was handed over the charge on 21.2.1990. Thereafter, Sh. Rasal Singh, Accountant, Area Office, Shimla was directed to conduct the audit of the stock/funds of the said depot and submit the audit report for the period 1.4.1989 to 21.2.1990. This audit report was examined by PW -3 Suresh Chopra, Accounts Officer, and it was found that the accused had misappropriated and embezzled goods to the tune of Rs. 60,795.98 paise. According to the prosecution, the accused had sold the stock of the essential commodities, such as Levy sugar, Rice, Wheat, Atta, Edible Oils etc. in the open market in black and for his personal gain and deprived the Card holders of their right to get ration of subsidized rates during this period.

(3.) THOUGH in the complaint, it was stated that the accused took over the charge of Auckland Depot on 5.5.1989 and he was transferred to Auckland Depot, Shimla on 26.4.1989, the audit report is for the period 1.4.1989 to 21.2.1990. The audit report had to be from the period 5.5.1989 and not from 1.4.1989. The accused cannot be directed to explain the shortage, if any, from 1.4.1989 to 5.5.1989. The audit was conducted by Sh. Rasal Singh, who has not been examined. He was the most important witness and it was he alone who could have proved the audit report. The audit report has been proved in the statements of PW -1 and PW -3 but not by the author of the audit report. Therefore, the audit report cannot be used against the accused.