Decided on July 12,1991

RITU RAJ Respondents


D.P.SOOD,J. - (1.) ORDER of acquittal recorded by the Sub Divisional Judicial Magistrate Kandhaghat, District Solan, in Crl. Case No. 134/2 of 83, on September 30, 1985, in favour of the respondent for the commission of an offence under Section 209 of the Indian Penal Code, is under challenge by State of Himachal Pradesh through this appeal.
(2.) THE prosecution case in nutshell is that Himachal Pradesh Civil Supplies Corporation had opened its retail shop at Chail on 10.11.1981 where the accused was posted as a salesman on 8.12.1981. Annual Physical Verification of various retail shops including the aforesaid shop at Chail was fixed by the Managing Director, Himachal Pradesh Civil Supplies Corporation, Shimla, in March 1983. Shri V.K. Garg PW 4, Accountant in the office of the Area Manager, H.P. State Civil Supplies Corporation, Solan, was deputed to conduct the annual physical verification of this retail shop also. On conducting the physical verification of the shop under the charge of the respondent on March 30 and 31 of 1983, for the period of 1.4.1982 to 31.2.1983, he found heavy shortages of various commodities valuing at Rs. 41,00.05 which he detailed in his report Ex. PW 4/B. The accused was apprised of the above said shortages towards the liquiditation of which he deposited on amount of Rs. 10,227.30 on different occasions during the period April 1982 to July 1983. The balance of Rs. 30,872.75 remained unpaid and as such the Area Manager, Solan, lodged the instant complaint of misappropriation to the District Superintendent of Police, Solan, on 19.7.1983, for the registration of a criminal case against the respondent. To the charge under section 409, IPC, the accused-respondent pleaded not guilty and claimed to be tried. In his statement under section 313 of the Cr.P.C. he admitted his appointments salesman vide letter Ex. PW 1/A dated 8.12.1981. He also admitted that PW 4 Shri V.K. Garg did inspect the retail shop and conducted annual audit and prepared inspection report Ex. PW4/A but he categorically denied that any physical verification of various commodities lying in the shop was ever carried out by said witness. He further admitted that he deposited an amount of Rs. 10,227.30 but he showed his ignorance about the shortages allegedly found in the retail shop. Apart from it, regarding two letters Ex. PW 1/C and Ex. PW I/D respectively acknowledging his liabilities pursuant to the shortages referred to above, he contended that the same were written by his under pressure from the higher authorities. Further regarding the duties specified in Memo Ex. PW 1/B and also qua his responsibility to maintain the record of the retail shop, he stated that he did not receive and duty chart from the Managing Director concerned at any time. In fact, according to him there was no shortage in the retail shop. However, his higher authorities pressurized him to make good the deficiency of various commodities found short during the inspection and consequently to deposit the money thereof.
(3.) THE court below acquitted the respondent by holding that delay in lodging the FIR proved to be a fatal to the prosecution case and secondly though entrustment of various commodities covering period from 1.4.1982 to 31.3.1983 stood established by the prosecution but mens rea to misappropriate the same was altogether missing in the instant case.;

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