Uma Nath Singh and Harsh Kumar, JJ.
1. We have heard learned Counsel for parties and perused the records of criminal appeal. This appeal has been filed against the judgment and order dated 13.1.1982 passed by Judicial Magistrate-I, Muzaffar Nagar, in Case No. 984 of 1980, registered u/s 409 I.P.C.
2. Brief facts of the case giving rise to filing of this criminal appeal are that accused Akhil Bhuwan had transferred on 28.10.1971, Sixteen Tonnes Ammonium Sulphate, worth Rs. 6884 to Assistant Agriculture Inspector, Kaserva Kala, vide Bill No. 12/3547. An entry was made in store ledger but later on it was cancelled, and in place of Assistant Agriculture Inspector, name of one Shyam Singh was substituted as purchaser. However, there is no such receipt on record. On 8.6.1972 also, Twenty One Tonnes of Urea (45%) of Rs. 19740/- and Four Tonnes of Urea (46%) of Rs. 3886/- (thus, in total Rs. 23576/-) vide Bill No. 25/3547 were again sent to Assistant Agriculture Inspector, Kaserva. However, it was not found to be billed and entered in the record of transferee godown. Thus, there was a misappropriation of Rs. 30,460/- in the aforesaid both transactions. That apart, on 31.7.1972, at the time of handing over of the charge of godown, a deficiency of 475 Kg Urea (45%), plus 440 Kg. and 900 Grams (46%) of urea was also detected. That apart, a shortage of 40 Kg of DAP, worth Rs. 1013.17/- was also found.
3. During the verification of stock, a total amount of Rs. 33014.11 was found to have been misappropriated.
4. Regarding the charge against accused Vedpal Singh, it was mentioned that on 8.6.1972, he was posted as Assistant Agriculture Inspector, Kaserva, when accused Akhil Bhuwan had sent 21 Tonnes Urea (45%) and 4 Tonnes Urea (46%) of the value of Rs. 23576/-. As regards allegation against accused Raj Singh, he was also found to have remained posted as Assistant Agriculture Inspector, Kaserva. On material date, namely 28.10.71, accused Akhil Bhuwan had sent 16 Tonnes of Ammonium Sulphate of Rs. 6884/-.
5. After investigation, charges were put up against the accused persons. However, all three accused denied the charges and claimed trial. Learned Magistrate, after appreciation of evidence has come to the conclusion that there is no plausible evidence whatsoever to fix the criminal liability against any of three accused persons. Now, the State is before us in appeal.
6. Learned Counsel for State submitted that there is serious error in appreciation of evidence by the learned Magistrate. The prosecution case, according to him, is fully supported by the testimony of official witnesses as also the report of handwriting expert. Moreover, in their statements recorded u/s 313 Cr.P.C., accused are not able to explain and answer the allegations made against them. But that nevertheless, the Court while believing in their section 313 statements, has recorded acquittal by the impugned judgment.
7. Shri Rajul Bhargav, learned Counsel, appears for accused Akhil Bhawan, and Shri P.K. Singh, learned Counsel, represents accused Vedpal. We are informed that accused Raj Singh, died during the pendency of appeal. Thus, this appeal abates qua accused Raj Singh.
8. Learned Counsel, Shri Rajul Bhargav, in answer to the submission on behalf of State, contends that the judgment of learned Trial Magistrate is founded on correct premises after careful appreciation of evidence. Shri Bhargav, submits that PW-1 Akhilesh Chandra Srivastava in the cross examination has stated that if the fertilizer or any such article is stored for over six months, then there is a chance of loss of 5% of the quantity. He also pointed out from the evidence that transfer of fertilizer from one godown to another is not permissible, except with the prior permission of the District Agriculture Officer. Learned Counsel referred to statement of Ishwar Singh, PW-2. This witness has also stated that without the permission of competent authority, no fertilizer quantity can be transferred from one godown to another. Moreover, whenever any fertilizer is sold to a private shop it is always against the cash payment. It is not by way of issuance of a bill. Shri Bhargav also submits that in Bill No. 3547 the date is mentioned as 8.6.72. P.W.2 has admitted that on the bill, the date mentioned appears to be 28.6.72 although accused Akhil Bhuwan has mentioned the date as 8.6.72 below his signature. It is only because the date appeared as 28.6.72 that he repeated the date 28.6.72 in his statement. It is also his statement that Rameshwar Dayal was never posted with him.
9. Ahmad Raza Khan, PW-4 has stated that accused Akhil Bhuwan Prakash, had submitted a balance sheet for the year 71-72 in his office, which bore the signature of this witness. In the balance sheet, the accused has shown Bill No. 12/3547 dated 28.10.71. regarding transfer of 16 Tonnes of Ammonium Sulphate fertilizer to Assistant Agriculture Inspector, Kaserva, but the same was later scored and substituted by name of one Shyam Singh. Shri Bhargwa also referred to testimony of PW-8 in support of the contention that the bill of despatch of fertilizer by Akhil Bhuwan bore the signatures of accused Vedpal and Raj Singh, which were later scored. Learned Counsel has also referred to statement of accused Vedpal u/s 313 Cr.P.C. with particular reference to question No. 6 that on 8.6.72 he had received the consignment under his handwriting and signature. That question has been simply denied by the accused. Accused Raj Singh in his statement u/s 313 Cr.P.C. vide answer to question Nos. 3 and 4 has though admitted his signatures but has also explained that they were obtained fraudulently.
10. Shri P.K. Singh, learned Counsel, appearing for accused Vedpal also supported the contentions of Shri Bhargava and further submitted that learned Magistrate has not found any material to indict any of the accused persons and fix criminal liability u/s 409 I.P.C. It is also his argument that the defence witnesses produced by the accused persons are the officials. They have not supported the prosecution case and have rather turned up in the witness box to the rescue of accused persons. It is his further submission that there is a limited scope of interference u/s 378 Cr.P.C. and unless there is gross illegality on the face of judgment, the Appellate Court is not required to interfere and re-appreciate the evidence.
11. On due consideration of rival submissions, it is evident that PW-1 is not only the informant but he is the one who also initiated departmental inquiry. His authority to hold departmental inquiry after lodging the F.I.R. was questioned and criticized by the defence. Therefore, his evidence, even if otherwise acceptable, cannot be relied without a pinch of salt. But we don't find anything substantial in the statement to lend support to the prosecution case. He has only stated that the transfer of fertilizer from one store to an
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other cannot be done without the permission of competent authority. The report of handwriting expert also does not hold with certainty that the signature in question had been made by accused Vedpal. That apart, when two views are possible on appreciation of evidence, one taken by the Trial Court in recording acquittal has to be accepted by the Appellate Court as the probable view. Besides, out of three accused, one is dead and the remaining two before us, are said to be about 65 years of age. Moreover, the Trial Court has rightly held that there has been attempt by all of the officers to shield the accused persons and in the process, despite careful scrutiny of evidence, it was not possible to fix criminal liability on any of them. Thus, this State Appeal is dismissed.