- (1.) A. S. Tripathi, J. This revision is filed against the judgment and order dated 1-12-1986 passed by IInd Addl. District and Sessions Judge, Varansi discharging the opp. party No. 1 for the offences under Sections 409 and 120-B, I. P. C. and under Sec. 5 (2) of the Prevention of Corruption Act.
(2.) LEARNED Sessions Judge, Varansi however, proceeded with the charges under Section 409, I. P. C. and Section 5 (2), Prevention of Corruption Act. The prosecution had alleged that the opp. party No. 1 was Assis tant Engineer in IIIrd Sub-Division and Incharges of Central Store Workshop and Pigs Division, Varanasi for the period March 1993 to June 1993. The opp.-party No. 2 Sri B. P. Tripathi was the Drilling Fore-man/junior Engineer in Vth Sub- Division and he was looking after the work of Central store It was allaged that one Leda Pig Machine was under the supervision of Vth Sub-Division directly under the charge of one Sri B. P. Singh, Assistant Engineer. It was alleged that Sri B. P. Singh without any indent alongwith Opp. party No. 1 purchased articles for the repairs of the Machine. It is further alleged that the measurement was done by the opposite party No. 2 B. P. Tripathi. It is also alleged that Sri B. P. Tripathi opposite party No. 2 had taken away some of the articles to Gorakhpur alongwith the Machine which were not availale at the time of verification. It was a case of embezzle ment punishable under Section 409, I. P. C and opposite party No. 1 Sri S. P. Misra was also involved and therefore, the charge under Section 120-B, I. P. C. was also made out against him. However, a charge under Section 5 (2), Prevention of Corruption Act was levelled. The learned Sessions Judge held that the aforeside articles were directly under the charge arid control of the opposite party No. 2 alone. Accordingly, only opposite party No. 2 B. P. Tripathi was charged under Section 409, I. P. C. and Section 5 (2), Prevention of Corruption Act. The learned Sessions Judge, Varanasi after assessing the entire evidence held that no charge was made out even prime, fade against the opposite party No. 1 Sri S. P. Misra, for offences under Sections 409, 120-B, I. P. C. and also under Section 5 (2), Prevention of Corruption Act.
(3.) I have heard learned A. G. A. appearing for the State and learned counsel appearing for the opposite parties and perused the record. It is admitted that Sri S. P. Misra opposite party No. 1 was incharge of Central Store and Central workshop during the period in question. It is further admitted that there was only one Leda Pig Machine for the whole of the Varanasi region. The responsibility of maintenance of the Machine was that of Central Workshop. The opposite party No. 2 B. P. Tripathi alone was attached with the operation of the said Machine throughout the Division. It was further held by the learned Sessions Judge, Varanasi that Sri B. P. Tripathi opposite party No. 2 was attached to the Central Store for some time and was also worked for some time as Junior Engineer under Sri S. P. Misra opposite party No. 1. The measurement book used for recording measurement of supplies and works under the central store and the same was used by Sri B. P. Tripathi opposite party No. 2. It is further clear on record that the purchases were made on the basis of the works order. The payments were made by Sri S. P. Misra opposite party No. 1 on the basis of the entries made in the Book. This payment were made only on the certificate given by Sri B. P. Tripathi opposite party No. 2 who was Junior Engineer of the Central Store and Workshop. The learned Sessions Judge, Varanasi had found that the alleged pay ments were made by the opposite party No. 1 on the certificate issued by opposite party No. 2 Sri B. P. Tripathi and there was no question of conspi racy. Whatever allegations were they were made mainly against the opposite party No. 2. The learned Sessions Judge had examined the evidence in detail and rightly found that there was no prima facie case made out against opposite party No. 1 and he was accordingly discharged. The learned Sessions Judge had rightly held that the articles purchased by the opposite party No. 1 were entered in the Stock Register after physical verification. There was found to be an entry of these items in this register. It was further found by the learned Sessions Judge that Sri B. P. Tripathi opposite party No. 2 was transferred alongwith the said machine to Gorakhpur in April 1974 and had taken away all the parts of the Machine. That was evident from the prosecu tion evidence itself being paper No. 16-K. a. It was a letter dated 6-3-79 written by Executive Engineer, Gorakhpur to Investigating Officer of the case. This letter shows that the alleged articles were taken by the opposite party No. 2 to Gorakhpur and opposite party No. 1 had no control over the same thereafter. Therefore, learned Sessions Judge, Varanasi rightly found that opposite party No. 1 could not be held responsible for these articles which were already entered in the stock register and kept in the store which was in the charge of opposite party No. 2.;