Prem Dayal vs State Of Himachal Pradesh

FIR NUMBER,"13/1989 dated 14.3.1989, u/Ss 120-B, 408, 420, 465, 468, 471, 477A, IPC at P.S

Parwanoo,

Criminal Case Number,"43/2 of 2000/91 before JMIC, Kasauli, Distt. Solan

AND

Case No.2FT/10 of 2005 before Addl. Sessions Judge, Fast Track Court, Solan

PW-10 Shri Garish Sharma, who was also working as Clerk-cum-cashier in Punjab National Bank from 1983 to 1990, testified in similar terms.",

PW-18 Shri R.L. Premi, who was also posted in PNB from 1986 to March 1989, corroborated the complainant's case.",

The prosecution also examined Chartered Accountants Shri Rajiv Ahuja, PW-9, and Shri G.K. Jain, PW-16. They also found shortages of funds in",

the accounts.,

Shri Rajan Jain, Managing Director of the company, also testified as PW-1 and stated the bungling in accounts.",

The investigator had obtained specimen handwriting of the Executive Magistrate. He had obtained specimen handwriting signatures on 1.4.1989 as,

per Section 73 of the Indian Evidence Act. It was for the Court to direct any person present in Court to write any words or figures to enable the Court,

to compare the words or figures so written with any words or figures alleged to have been written by such person.,

It is well settled that the Executive Magistrate could not have obtained specimen handwriting then, and as such, this evidence is meaningless.",

Thus, undoubtedly, the prosecution proved beyond reasonable doubt that there was a bungling of the company's accounts. It is also proved beyond",

reasonable doubt that the portion of pay in slips with the company was tampered with to show higher and actual deposit. In contrast, the money",

deposited in the bank was usually 1/10th of such entries. All the three accused were suspects. Based on similar evidence, Sarvesh was acquitted by",

the learned Trial Court, and judgment of his acquittal had attained finality. Be that as it may, the evidence proved against the petitioner only shows that",

he worked as a cashier in the company. There is no evidence of who was supervising the bank deposits and, in whose custody, the pay-in slips were",

present. Furthermore, who had tampered with the pay-in slips is also not proved because of the lack of evidence.",

To prove the offence of criminal conspiracy punishable under Section 120B, IPC, it is settled that a person cannot enter into a conspiracy with",

himself. In this case, the other two accused stand acquitted and were not convicted, and judgment of their acquittal has attained finality.",

A perusal of the evidence proved by the prosecution does not prove the entrustment of the money to the convict. A person can misappropriate,

only that amount that is entrusted to him. Thus, to make out an offence punishable under Section 408, IPC, the foremost requirement is to prove that",

the property was entrusted to such person. However, there is not even an iota of evidence to prove the entrustment of alleged money to the convict-",

petitioner.,

To prove the offence of forgery punishable under Section 465, IPC, in the counter-foils which were retained with the company, tampering had",

taken place, and after that, none had rechecked it. Secondly, to prove such forgery, it was essential to prove that who did it, but, in this case,",

handwriting specimen is not legally admissible.,

The counterfoils which the company retained are not proved to be tampered with by the petitioner. Consequently, the ingredients of Section 471,",

IPC, are also not made out.",

To prove the offence of falsification of accounts punishable under Section 477-A, IPC, there is no evidence that the petitioner was writing the",

accounts for the bank. No one has stated that he had written the cash book or other ledgers. Even if he had occasionally done so, the same had to be",

cross -checked by the concerned person of M/s. A.B Tools Pvt. Ltd. Furthermore, initially, three persons were suspects and were arraigned as",

accused. For this reason, the investigator found the involvement of all the three accused and not the petitioner alone. Thus, to conclude that it was the",

accused alone and none else guilty of falsifying the accounts is not legally proven.,

The appreciation of evidence mentioned above and application of relevant law establishes that the evidence proved by the prosecution is,

insufficient to convict the petitioner. He may or may not be guilty, but the difference between may and must is huge in Kali Ram Vs. State of",

Himachal Pradesh, AIR 1973 SC 2773, a three Judges Bench of Hon’ble Supreme Court, held that the difference between maybe and must be is",

enormous.,

Given above, it cannot be said that the accused and nobody else was responsible for the said bungling of the accounts, and thus, the accused is",

entitled to the benefit of the doubt.,

Hence, for all the reasons mentioned earlier, the petition is allowed, and the judgment of conviction and sentence passed by the learned Trial Court,",

which was affirmed by the learned Additional Sessions Judge, Solan (HP), is set aside. The convict is acquitted of the charged offences. Bail bonds",

are discharged. The petitioner shall be entitled to claim the refund of the fine, if deposited. All pending applications, if any, are also closed.",