The prosecution is not obliged to prove the precise mode of misappropriation, and failure to account for entrusted property can lead to an inference of misappropriation.

JUDGMENT :

1. Through the medium of above titled two appeals, the appellant has called in question judgment dated 05.09.2005 passed by the learned Special Judge Anti Corruption Jammu, whereby the appellant has been convicted of offence under Section 409 RPC and Section 5(2) of the J&K Prevention of Corruption Act and sentenced to rigorous imprisonment for one year in both the offences. In addition thereto, the appellant has also been sentenced to pay a fine of Rs. 1.00 lac for conviction under Section 5(2) of the J&K Prevention of Corruption Act.

2. As per the prosecution case, an enquiry was ordered by Deputy Commissioner Rajouri (PW-3) into the allegations made by the appellant/accused, who was working as a salesman with Cooperative Society, Darhal. The appellant/accused had alleged that he had paid an amount of Rs. 93070/-vide two receipts one for Rs. 53070/-and other for Rs. 38000/-to the Supervisor of the Society namely Sh. Mohd. Yaqeen (PW-6). Upon enquiry made by Assistant Commissioner, Development Rajouri, Sh. Iqbal Sadiq(PW-2), it was found that the two receipts had been tampered with and the appellant/accused had retained sale proceeds in respect of fertilizer and other consumer items while working as salesman. The enquiry officer further attributed negligence to PW Mohd. Yaqeen, the Supervisor and concluded that he had failed to exercise supervision and control over the working of appellant/accused and it was recommended that misappropriated amount be recovered from the appellant/accused and PW Mohd. Yaqeen in equal proportions.

3. The aforesaid enquiry report was forwarded by Deputy Commissioner, Rajouri (PW-3-A. K. Wani) to Superintendent of Police, Vigilance for appropriate action and on the basis of this report, FIR No. 15 of 1982 for offences under Sections 409, 467, 468 and 120-B RPC and 5(2) J&K Prevention of Corruption Act came to be registered with the then Vigilance Organization Jammu and the investigation of the case was set into motion.

4. During course of the investigation, the relevant record of the Cooperative Society was seized and statements of the witnesses under Section 161 Cr.P.C. were recorded. The Accounts Officer of Vigilance Organization Jammu prepared his report on the basis of the seized record. After concluding the investigation, it was found that the appellant/accused, while performing his duties as salesman of the Cooperative Society Darhal, had misappropriated various sale items like cloth, rice, stationery, fertilisers, karyana etc. It was found that for the period with effect from 01.07.1980 to 30.06.1981, misappropriation to the tune of Rs. 68,645.47/-had taken place and for the period with effect from 01.07.1981 to 29.06.1982 misappropriation to the tune of Rs. 91,006.76 had taken place. Two separate challans for the aforesaid two spells of period were laid before the learned Special Judge. It is pertinent to mention here that as per the challans filed by the Investigating Agency against the appellant/accused only offences under Section 409 RPC and Section 5(2) of the Prevention Act were found established against the appellant/accused whereas offences under Sections 467, 468 and 120-B RPC were dropped.

5. On 18.01.1996 charges for offences under Section 5(2) of the Prevention of Corruption Act and Section 409 RPC were framed against the appellant/accused in both the challans. After framing of the charges against the appellant/accused in both the cases, his plea was recorded. The appellant/accused denied the charges and claimed to be tried. Accordingly, the prosecution led evidence in support of the charges. After completion of the prosecution evidence, the statement of appellant/accused under Section 342 Cr.P.C. was recorded in both the cases. The appellant/accused did not lead any evidence in defence. The learned Special Judge after hearing the parties and on the basis of evidence on record, passed a common judgment, which is impugned herein. By virtue of the said judgment, the appellan