State of Himachal Pradesh vs Ram Singh

Surinder Singh, J.—The challenge in this appeal is to the acquittal of the respondent for the offence punishable u/s 408 of the Indian Penal Code, in Criminal Case No.237/2 of 1997, decided on 27.10.2004, by the State.

Heard and gone through the record.

The allegations against the respondent, hereinafter to be called as ''the accused'' are that in the year 1993-94, he was working as collection agent of the Social Finance & Commercial Company, Paonta Sahib and had been collecting money from its members regularly which was required to be deposited with the concerned official of the Company in their respective accounts. The case of the prosecution is that with effect from 30.6.1993 to 29.6.1994, the accused had collected money from 36 creditors after making the relevant entries in their pass-books, but in turn he deposited lesser amount to the finance company, misappropriated a sum of Rs. 45,007/-, which was converted into his own use by him as an agent of the finance company. On coming to know about this illegality, the Company issued notices to him. He is alleged to have confessed his guilt and did not repay the amount, as such FIR was lodged against him for the offence aforesaid.

Police prepared the Challan and finding a prima facie case, the Court charge-sheeted the accused for the aforesaid offence.

To prove its case, the prosecution examined its witnesses, but none of the creditors supported its case. The prosecution now heavily banks upon the undertaking Ext.PW1/C given by the accused to re-deposit the amount which was also deposited later by him with the finance company. Even the perusal of the records shows that an amount of Rs. 9,000/- was deposited by him, as per his reply dated 11.9.1993 Ext.PW1/B even before issuing of the demand notice. Further, the original ledger with respect to the deposited amount was also not produced.

Admittedly, the accused had deposited the entire amount with the finance company, but according to the learned Deputy Advocate General, Shri P.M. Negi, it was a case of a temporary embezzlement.

It is a settled law that for a conviction for temporary misappropriation what is most essential to be proved is not only the retention of money over the period, but also the criminal intention behind it. Unless such mens rea is established, the offence would not be taken to have been committed.

As already pointed out above, even before the demand notice, the accused had deposited the amount and the balance amount was deposited by him. None of the creditors had come forward that the money so handed over to the accused was not deposited in their accounts maintained by the finance company. Even they had gone to state to the extent that they have received the money so deposited. Therefore, in the absence of criminal intention behind retention, if any, of the money the acquittal of the accused cannot be converted into conviction. I find no fault in the judgment of acquittal of the accused in the instant case. As such, the appeal is dismissed.

The respondent is discharged of his bail bonds entered upon by him at any time during the proceedings of this case.

Send down the record.