Partial deposit towards audit-found shortage by entrusted salesman does not admit guilt of criminal breach of trust; prosecution must prove dishonest misappropriation or personal use beyond doubt, especially with unaccounted damaged stock and absent physical verification.

JUDGMENT :

Sandeep Sharma, J.

Instant criminal appeal filed under Section 378 of Code of Criminal Procedure, lays challenge to judgment of acquittal dated 06.09.2007 passed by learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala, District Kangra, H.P. in Criminal Appeal No.6-J/2005/2003, whereby learned Court below, while setting aside the judgment of conviction and order of sentence dated 20/23.09.2003 passed by learned Additional Chief Judicial Magistrate, Jawali, District Kangra, Himachal Pradesh, in Criminal Case No.57-II/95/93, acquitted the respondent-accused (hereinafter ‘accused’) from offence punishable under Section 408 of Indian Penal Code.

2. Precisely, the grouse of the appellant/State, as has been highlighted in the appeal and further canvassed by Mr. Vishal Panwar, learned Additional Advocate General representing the appellant, is that learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala, District Kangra, H.P., committed a grave error, while ignoring confessional statement Ext. P-8, which was duly proved by the prosecution by examining accused. He states that prior to the recording of the confessional statement, accused, after having admitted his guilt, deposited a sum of Rs.46,000/- with the society, as such, there was no occasion, if any, for the learned Court below to acquit the accused.

3. To the contrary, Mr. Ajay Sharma, learned Senior Advocate for the accused, while supporting the impugned judgment of acquittal recorded by learned Appellate Court, vehemently argued that bare perusal of statements recorded by the prosecution witnesses clearly reveals that no amount was embezzled by the accused in his capacity as a salesman, rather certain items stored in the shop were spoiled and were thereafter removed. He stated that as per statements given by the prosecution witnesses though audit party took into consideration value of certain articles, which were never sold, but were removed being damaged and liability qua the same was imposed upon the accused. Mr. Sharma, stated that though bare perusal of Ext. P-8 suggests that accused had deposited Rs.46,000/- towards loss, but that cannot be treated as an admission, if any, on his part qua the alleged offence.

4. Having heard learned counsel for the parties and perused material available on record vis-a-vis reasoning assigned in the impugned judgment of acquittal dated 06.09.2007 passed by learned Appellate Court, this Court finds no illegality or infirmity in the same, as such, no interference is called for. FIR Ext. PW-7/A came to be lodged against the accused on the basis of complaint Ext. PW1/A made by Assistant Registrar Cooperative Societies on 01.08.1992, wherein he alleged with regard to embezzlement of amount to the tune of Rs.1,24,718.32 in Sihal Agriculture Cooperative Society (in short “Society”). During investigation, Police found that accused had been working as a salesman with the society since the year 1987. During audit of the society, it transpired that sum of Rs.1,24,718.32 had not been deposited by the accused after conducting the sale of articles entrusted to him. After registration of FIR, society by way of resolution removed the accused from service, but before that accused deposited sum of Rs.46,000/- towards the loss, which subsequently came to be termed as confessional statement and was exhibited as Ext. P-8. After completion of investigation, police presented challan in the competent Court of la