In a criminal trial for misappropriation, reliance on insufficient proof and procedural errors (failure to afford the accused an opportunity to explain) requires acquittal, as reasonable doubt undermines the prosecution's case.

JUDGMENT :

Sashikanta Mishra, J.

The Appellant challenges the judgment dated 3rd February, 2003 passed by learned Special Judge Vigilance, Sambalpur in T.R. Case No.19/1993 convicting him under Section 13 (2) read with (1)(c) of the P.C. Act and Section 409 of I.P.C. and sentencing him to undergo R.I. for one year and to pay fine of Rs.5,000/-, in default to undergo R.I. for three months on each count for the aforementioned offences. The sentences were directed to run concurrently.

2. The prosecution case, briefly stated, is that on 19^th April 1990, an F.I.R. was lodged by the Inspector (Vigilance), Sambalpur before the S.P. (Vigilance) stating that during an inquiry it was found that the Appellant was posted as Junior Engineer, N.H. Sub- division at Boinda from 2^nd May, 1984 to 8^th April, 1988 and in such capacity he had taken charge of the store of the Sub-division. On 9^th April, 1988 he left Boinda on transfer to Pallahara but did not make over charge of the store and kept the same under lock. On 28th March, 1989 he made over charge of the store to his successor, Rama Chandra Sahu. At that time several materials valued at Rs.70,000/- approximately were found to be short, which could not be accounted for. On such report, Sambalpur Vigilance P.S. Case No.5/1990 was registered and investigation was taken up. Upon completion of investigation and receipt of sanction for prosecution, charge sheet was submitted and the accused put to trial.

3. The Appellant took the plea of denial. He also took the specific plea that the shortage of materials was already there since the time he took over charge from his predecessor.

4. To prove its case, the prosecution examined 9 witnesses and exhibited 23 documents. The prosecution also proved 4 material objects. Defence examined 4 witnesses and proved 5 documents.

5. The trial court, on consideration of the evidence on record held that out of 11 items the accused could account for 10 but could not account for one item i.e., 29 kgs. of 16 M.M. Dia M.S. Rods. The Trial Court therefore, held the accused guilty of misappropriation of the said M.S. Rods and convicted and sentenced him accordingly.

6. Heard Mr. H.K.Mund, learned counsel for the Appellant and Mr. M.S. Rizvi, learned Addl. Standing Counsel for the Vigilance Department.

7. Assailing the impugned judgment, learned counsel for the Appellant raised the following grounds;

(i) The charge framed against the accused-Appellant was contrary to law resulting in prejudice.

(ii) The Trial Court grossly erred in relying upon the charge report Ext.10 in the absence of proof of the book balance.

(iii) The Trial Court completely ignored the entry in Ext.10 showing excess of 731 kgs. of various sizes of M.S. Rods and thereby of the reasonable possibility of the rods in question being included therein.

(iv) The Trial Court completely ignored the fact that the store in question was used even during the absence of the Appellant.

(v) The order of conviction is bad in law because the accused was never given a chance to explain the alleged shortage of the materials in question during his examination under Section 313 of Cr.P.C.

On the above grounds, it is contended that the order of conviction cannot be sustained.

8. Per contra, Mr. M.S.Rizvi has argued that the objection relating to the charge was never raised at the appropriate stage and in any case, the appellant has not proved by cogent evidence as to how he was prejudiced thereby. On merits, it is submitted by Mr. Rizvi that here is clear proof of entrustment of the materials and the failure of the Appellant to account for the same, which proves