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Judgment
P.K. Misra, J.—This is an application u/s 482, Code of Criminal Procedure, to expunge certain adverse remarks contained in the judgment in ICC Case No. 95 of 1987.
The petitioner who was the accused before the trial Court was charged under Sections 408 and 418, Indian Penal Code, on the allegation that he had misappropriated certain amount. The trial Court on discussion of the evidence came to hold :
".......... I find the accused has received money from different dealers as per the above said money receipts to the effect of Rs. 27,158,37 P., but he has not accounted for the same in any manner such as making entry in the cash book, making deposits in the Bank etc. The accused is liable to account for the same to the Company....."
Subsequently, relying upon the decision of this Court reported in 1985 CLJ 1401 (A.P. Mishra etc. v. State of Orissa), the trial Court found that the accused cannot be convicted as no physical verification of cash had been made and ultimately concluded :
"Thus in absence of direct evidence regarding entrustment and misappropriation of cash and in absence of physical verification of cash I am not inclined to convict the accused particularly in face of the decision of our own High Court".
After observing as aforesaid, the trial Court further observed in paragraph-13 :
"Hence I hold that though the accused is accountable to give account of the cash received by him and it appears he has misappropriated the money as an employee of the firm, yet in view of the above decision I do not convict him......."
The learned counsel appearing for the petitioner submits that the observation of the trial Court as contained in paragraph-13 to the effect "..... and it appears he has misappropriated the money as an employee of the firm" should be expunged as the said observation runs counter to the judgment of acquittal.
After having heard the learned counsel for the petitioner as well as the learned counsel appearing for the opposite party, I am of the opinion that the aforesaid observation to the effect "...... and it appears he has misappropriated the money as an employee of the firm" cannot be allowed to continue in the judgment, as the said observation runs counter to the judgment itself whereunder the accused was acquitted. Therefore, the said observation shall stand expunged from the judgment of the trial Court.
The Criminal Misc. Case is accordingly allowed to the above extent.