The central legal point established is the requirement for the prosecution to prove embezzlement and the non-applicability of Section 409 IPC due to the accused not being considered a public servant.

ARVIND SINGH SANGWAN, J.

1. Present revision petition is filed challenging the judgment dated 23.10.2013 passed by the trial Court, acquitting respondent No.2-accused in FIR No.277 dated 14.12.2002 under Section 409 of the Indian Penal Code (for short ‘IPC’), registered at Police Station Tanda as well as the judgment dated 17.12.2014 passed by the lower appellate Court, vide which the appeal filed by the petitioner was also dismissed.

2. Brief facts of the case are that on a written complaint given by Joginder Pal, Assistant Registrar, Co-operative Society, Dasuya, against respondent No.2-accused Gian Singh, the aforesaid FIR was registered with the allegations that during the period 1992 to 1993, the accused was posted as Secretary of the Co-operative Agriculture Service Society, Alampur and he was entrusted with Rs.3,76,710/- and instead of depositing the said amount in the account of the Co-operative Society, he misused the same. On the basis of the complaint, an inquiry was conducted and thereafter, the FIR was registered against the respondent-accused. On completion of the investigation, report under Section 173 Cr.P.C. was submitted and the trial Court framed charge under Section 409 IPC.

3. In support of its case, the prosecution examined PW1 Gurdip Singh, Inspector Audit Co-operative Society, who deposed that he had conducted the audit of the society for the period 01.04.1992 to 31.03.1994 and found that there was embezzlement of an amount of Rs.3,95,851.10/-, as per the cash book and other record of the society and the same was committed by the accused Gian Singh. This witness further stated that he has submitted a report to the Audit Officer of the Co-operative Society and thereafter, an inquiry report dated 24.09.1997 was submitted by the said Audit Officer against accused Gian Singh.

4. PW2 Shangara Singh deposed that he had taken the loan from the society and has returned the same through accused Gian Singh and he had made entries in his passbook, however, the statement of this witness was deferred to enable him to bring the passbook, but this witness never turned again. PW3 Charanjit Singh, Secretary of the Co-operative Society, Alampur also deposed on the same lines. PW4 Sukhwant Kaur, PW5 Baldev Singh and PW6 Lakhwinder Singh were the villagers, who stated that they had paid the amount to accused Gian Singh and the same was not deposited in the account of society. Thereafter, statement of the accused under Section 313 Cr.P.C. was recorded, in which he denied all the incriminating evidence put to him. In his defence, respondent No.2-accused examined Malkiat Singh, Inspector Audit as DW3, Jatinder Singh as DW4 and Gurdev Singh as DW5. These witnesses proved on record the audit report pertaining to the period 05.07.1982 to 31.03.1992 as well as some relevant record of the society and daily register. DW5 Gurdev Singh stated that recovery amount of Rs.10,56,000/- was kept in suspense account, as per day book Ex.DW5/A.

5. Thereafter, the trial Court vide its judgment dated 23.10.2013 acquitted the respondent-accused of the charge under Section 409 IPC. The appeal filed by the petitioner was also dismissed by the lower appellate Court vide judgment dated 17.12.2014.

6. Learned counsel for the petitioner has submitted that the finding recorded by both the Courts below, that the prosecution has failed to prove on record the cash book, passbook etc. relating to the record of the society for relevant period and therefore, no embezzlement is proved, is incorrect, in view of the fact that the prosecution witnesses have proved on record the documents and as per the audit report Ex.PW1/C, an amount of Rs.3,95,851/- was found due against the respondent-accused. It is further submitted that the Courts below have not appreciated the document Ex.PW1/C, which is having 17 heads giving all the details of the embezzled amount, on the basis of which the audit was conducted and the Courts below have wrongly disbelieved this docume