STATE OF HIMACHAL PRADESH Vs. KAMLESH KUMAR

JUDGEMENT

(1.) THIS appeal by the State is directed against the judgment, dated 03.03.2003, delivered by the learned Additional Chief Judicial Magistrate, Kasauli, District Solan in Criminal Case No. 75/2 of 2000/92, whereby he acquitted the accused persons of having committed offences punishable under Sections 409 and 420 read with Section 34 of the Indian Penal Code.

(2.) BRIEFLY stated, the facts of the case are that on 23.10.1987, respondentKamlesh Kumar was working as Manager and respondent Mohan Lal was working as Cashier in the Jogindera Central Co operative Bank, Branch at Dharampur. The allegation of the prosecution is that on this date, one Chet Ram deposited a sum of Rs. 600/ in the account of Samol Cooperative Society, which had an account in the Branch of the Bank at Dharampur. This amount was received by one of the two aforesaid officials, but was not actually reflected in the accounts of the Society and on this basis a complaint was made to the police by the General Manager of the Jogindera Central Cooperative Bank that this amount had been embezzled by the aforesaid two officials. The police investigated the matter and the receipt No. C003082, Ex. PW5/B was sent to the Examiner of Questioned Documents, who opined that the said receipt bore the signatures of the two accused and on this basis, the accused were charged with having committed the offence aforesaid. This is the only allegation against the accusedrespondents.

(3.) THE learned trial Court has held that assuming that this amount was received by the accused persons in the capacity of public servants and was not deposited in the Bank, it is apparent that when they came to know about it, they immediately deposited the same in the Bank. This by itself does not amount to embezzlement. THE Bank itself had approached the police for withdrawal of the case and from the facts on the record, it is apparent that the prosecution has miserably failed to prove any dishonest intention on the part of the accused. This is the sine quo non for proving the offence of embezzlement. As far as the offence punishable under Section 409 IPC is concerned, this is not made out from the facts of the case.