SURINDER SINGH, J. - (1.) ASHWANI Kumar, Inspector, Food and Supplies, Department (under suspension) was convicted by the Court of the Judicial Magistrate 1st Class Kharar, under Section 409 IPC and was sentenced two years rigorous imprisonment and a fine of Rs. 1000/-. In default of payment of fine, the petitioner was ordered to undergo further rigorous imprisonment for six months. The who petitioner filed an appeal which was heard by the Sessions Judge, Rupnagar affirmed the verdict of the trial Court and dismissed the appeal. The present Revision Petition has been filed with a view to impugn the decision of the two Courts below.
(2.) IN brief, the prosecution case is that on July 3, 1975, a meeting was convened of the Officials of the Food and Supplies Department of Rupnagar District. After the conclusion of the meeting about 1.30 p.m. petitioner met Saran Singh Jaggi, Assistant Food and Supplies Officer. Joginder Singh and Mohan Lal Mahajan Food and Supplies Inspectors and told them that the godown which had been entrusted to his charge, had been burglared. On receipt of this information, all the aforesaid officials accompanied the petitioner to the place of the godown, its locks and doors were found intact. The records relating to the stocks in the godown revealed that there should be 360 bags of I.R. 8 variety of rice and 82 bags of ordinary Basmati Rice. The lock of the godown was then opened by means of a key which was supplied by the petitioner and on physical verification of the stock, it was found that there were only 239 bags of rice, i.e. 121 bags less than the required quantity. After noticing this fact, the party of the officials mentioned above, went back to the Headquarters and made a report Exhibit PA. The matter was looked into again by Shri Jaggi who submitted his report Exhibit PB. On the basis of this finding the matter was reported to the Police for registration of the case against the petitioner, which was done. After hearing the learned counsel for the parties I find that there are certain glaring circumstances on the record which would show that the case against the petitioner had not been proved by the prosecution. At the outset, it must be emphasised that before the petitioner could be visited with the responsibility of the alleged shortfall, it had to be established on the record that he had been entrusted with the quantity of rice as mentioned in the godown record. In this behalf, as noticed even by the lower appellate Court there is ample evidence to show that on June 16, 1975, the petitioner had been arrested in connection with another case against him under section 5(2) of the Prevention of Corruption Act. He remained in detention in that case till June 21, 1975, on which date he was released on bail. It is further in evidence that on the date of his arrest, his person had been searched and the key of his almirah had been taken into possession by the Police which had remained in their possession till it was returned to him after his release on June 21, 1975. There is no material whatsoever produced by the prosecution to show that during the period June 16, 1975 to June 21, 1975, when the petitioner had been deprived of the key of the office almirah which contained the key of the godown, no one had tampered with the contents of the godown. The lower Appellate Court has by-passed this strong circumstance in favour of the petitioner by observing that the theft in question had been reported by the petitioner for the first time on July 3, 1975, i.e., after a lapse of about two weeks of the date when he was released on bail. This would not, however, mean that he was conscious of the shortfall till that date. On the other hand, the petitioner placed on record various letters and representations addressed by him to the higher officers of the Police and his own Department bringing to their notice the theft in the godown.
(3.) ANOTHER peculiar feature of the case, in so far as the lower appellate Court is concerned, is that the learned Sessions Judge has at more than one places in the Judgment made a reference to a statement made by one Madan Lal who owns a house which has a common wall with the godown in question and a door also exists for inter-communication between the two premises. In para 13 of the judgment, extensive reference to the testimony of said Madan Lal has been made. At the time of arguments the learned counsel for the petitioner, however, pointed out that no witness by the name of Madan Lal had been produced by the prosecution and it is not understood as to how the learned Sessions Judge made a reference to such a witness and his testimony. The record of the trial Court was also checked up by the learned counsel for the State who conceded that no witness by the name of Madan Lal had been examined in this case. On account of this and the other circumstances of the case, the judgment of the lower appellate Court cannot be sustained.;