STATE Vs. MOHAMMAD AKBAR SHAH

JUDGEMENT

(1.) Four Challans were registered against respondent/accused at Police Station Daver Gurez on allegation that as Manager of JandK Bank Branch Daver Gurez during 30-7-1975 to 31-7-1978 he embezzled various amounts of the creditors of the Bank by falsification of accounts and cheating. The amounts were misappropriated. Acts of criminal breach of trust were attributed to accused. F.I.R. 10, 14, 16 and 17 were registered. Investigation culminated in sending up accused to stand trial. Charges were framed against accused under Section 409/420/467, R.P.C. Accused pleaded not guilty and opted for trial. Prosecution evidence was recorded. The trial Court/Judicial Magistrate, Baramulla by a common judgment dated 2-9-1985 acquitted the accused of the charges. Against the acquittal order this appeal has been preferred.

(2.) The judgment and order of acquittal is impugned mainly on the ground that the trial Magistrate did not apply its mind to the facts and circumstances of the case. The judgment is not recorded as envisaged by law. The evidence has not been even discussed. The appeal has been admitted way back on 18-10-1991. At the outset Government Advocate concedes that there is hardly any evidence or material to sustain the conviction. He also canvasses that having regard to the age and the fact-situation of the case, no fruitful purpose could be served to keep the appeal on board.

(3.) On request of the counsel for the parties, the matter is heard and record examined. We have examined the evidence minutely. We find that the evidence is not conclusive. Though some witnesses have given evidence which is inculpatory in patches, but even so, their depositions are open ended. Yet other witnesses statements are more exculpatory than inculpatory in nature. The cases are based mainly on the statement of Sh. P. N. Khosa, the then Regional Manager of the Bank, who conducted the inspection of the Daver Gurez Branch of the Bank. It speaks more of administrative lapses than criminal act of misappropriation, cheating etc. There is evidence to show that the accused remitted the money/interest, but the same was not accepted on the ground that the currency notes were torn out. Charging of interest on overdraft accounts allegedly not crediting the same under relevant head of the Bank, in FIR 16/78 is not positively and conclusively established. The record as also the oral evidence does not show that the amount was misappropriated and that the petitioner committed criminal breach of trust thereto, moreso, when it is in evidence that the cashier and other employees of the Bank were in-charge of records and responsible for the entries. Similarly, the alleged misappropriation of Rs. 4956/- deposited by "Gurez Supply and Sales Co-operative Societies" in their current deposit Branch of the Bank, by accused, in FIR 17/78, is not proved on record. The Ledger and Pass Book entries are existing. The other record has not come forth to substantiate the charge. Then the other employees of the Bank were in-charge of records and responsible for making entries, in absence of any expert evidence as to the handwriting, signature and relevant entries on records, accused cannot be said to have dishonestly cheated, misappropriated and converted to his own use the amount when cogent and credible evidence has not forthcome on record.