Criminal Appeal No. 414 of 2000. Case: Raghunath Dhondu Vani and Anr Vs Ilahi Babulal Mujavar and Anr. High Court of Bombay (India)
| Case Number | Criminal Appeal No. 414 of 2000 |
| Counsel | For Appellant: K. C. Sant, Adv. and For Respondents: P. R. Patil, S. N. Kendre, Additional Public Prosecutor |
| Judges | S. P. Davare, J. |
| Issue | Indian Penal Code (45 of 1860) - Section 408 |
| Citation | 2012 CriLJ 1345 |
| Judgement Date | November 15, 2011 |
| Court | High Court of Bombay (India) |
Judgment:
-
Heard learned respective Counsel for the parties.
-
The present appeal has been preferred by the appellant (original complainant), challenging the judgment and order of acquittal dated 29th February, 2000, rendered by the learned Judicial Magistrate (First Class), Pachora, in Regular Criminal Case No. 133 of 1991, thereby acquitting the respondent No. 1 (original accused) for the offence punishable under Section 408 of Indian Penal Code.
-
The appellant No. 1 and respondent No. 1 are referred to as per their original status i.e. complainant and accused, respectively.
-
Briefly stated, the facts of the case are that the complainant is Accountant of the firm carrying on business under the name and style, Bajoriya Oil Refinary, Pachora; whereas the accused was working as Cashier in the said firm for about 6 - 7 years till 1-9-1991. There were two other sister firms, namely, Adarsha Engineering and Oil Millers, and Bajoriya Fats and Proteins. The accused used to maintain accounts of aforesaid all three sister concerns, and also used to disburse salary to the workers. In the said context, the accused was entrusted with the amounts from time to time in connection with business of the said firms and during his tenure, he gained confidence of the complainant by his conduct. Hence, relying upon the accused, the complainant also entrusted with him the amounts from time to time. However, it is alleged that the accused dishonestly misappropriated amount of ' 1,25,000/- and left the service on 1-9-1991.
-
It is also alleged that the complainant came to know about alleged defalcation of the amount when the accused was called upon to submit account on or before 13th February, 1991, but the accused failed to comply with the same. It is the case of the complainant, that on 22nd February, 1991, accused voluntarily made confession in writing and admitted his guilt, and further assured the complainant to repay the whole amount on or before 1-8-1991, and requested the complainant not to take severe action against him. However, the accused failed to repay the said amount in spite of written assurance. Hence, the complainant was constrained to file complaint against the accused, before the learned Judicial Magistrate (First Class), Pachora, on 12-11-1991, under Sections 408 and 420 of Indian Penal Code, since according to the complainant, the accused had swallowed the amount and utilized the same for his own purpose. Accordingly, process came to be issued against the accused under Sections 420 and 408 of Indian Penal Code on 10-12-1991. The accused appeared in the said proceeding and evidence before the charge was recorded, and finding sufficient evidence to frame the charge against the accused, learned Judicial Magistrate (F.C.), Pachora, passed order on 1-11-1999, for framing charge against the accused. Accordingly, charge came to be framed against the accused on 5-11-1999, under Exhibit 44, for the offence punishable under Section 408 of Indian Penal Code. The accused pleaded not guilty to the charge framed against him and claimed to be tried.
-
To substantiate the charge levelled against the accused, the complainant examined as many as two witnesses, as mentioned below:
(1) PW 1 Raghunath s/o Chondu Wani i.e. complainant - Accounts Manager in Bajoriya Oil Refinery, and
(2) PW 2 Bhavanishankar s/o Babulal Bajo-ria - Partner of Bajoriya Oil Refinary.
-
The defence raised by the accused is that the confessional statement was got written from him under the duress and threat, and under the pressure of initiation of Police action against him, and the complainant has made scapegoat of the accused in order to suppress the illegal transaction, and accordingly, the accused claimed to be innocent and prayed for acquittal. However, the accused neither examined himself nor examined any defence witness in support of his defence.
-
Considering the oral and documentary evidence on record, and after scrutinizing the same, learned Judicial Magistrate (F.C.), Pachora, acquitted the accused for the offence punishable under Section 408 of Indian Penal Code, by way of judgment and order dated 29th February, 2000, delivered in Regular Criminal Case No. 133/1991. Being aggrieved and dissatisfied by the said judgment and order of acquittal, the complainant has filed the present appeal assailing the same, and prayed for quashment thereof, and urged that the accused be convicted and sentenced for the offence with which he was charged.
-
Before adverting the submissions advanced by the learned Counsel for the parties effectively, it is necessary to deal with the material evidence adduced/produced by the complainant, and in the said context, coming to the deposition of PW 1 Raghunath Wani, who has stated that he was working in Bajoriya Oil Refinary, as Accounts Manager, since 1945, and Adarsha Engineers and Fabricators and Oil Millers, and Bajoriya Fats and Proteins Pvt. Ltd. were sister concerns of the said Company, and he was looking after accounts of all the three concerns. The accused was serving as Cashier in Bajoriya Oil Mill from 1984 to 1991, and he used to maintain accounts of all the said three concerns, as well as, he used to accept the money and disburse the payments to the labourers and employees. He has stated that initially the accused worked well for a period of two years, and thereafter slowly started misappropriation of the amounts.
-
PW 1 Raghunath Wani has further stated that PW 2 Bhavanishankar is the partner of Bajoriya Oil Mill and other concerns. Bhava-nishankar demanded accounts from the accused on 21-1-1991, but the accused informed that the amount of ' 1,25,000/- was short. Hence, again accused was asked to submit detail accounts till 13-2-1991, and at that time, the accused confessed that the aforesaid amount was actually falling short and requested time to make good thereof till August 1991. PW 1 Raghunath Wani has further stated that the accused offered possession of his house and landed property to adjust the said amount. However, the accused could not repay the said amount till August 1991, and hence, notice was issued to him, dated 9-9-1991 (Exhibit 29) which was duly served upon him. He has further stated that thereafter accused came to the employer and requested not to terminate him and expressed his willingness to pay the...
To continue reading
Request your trial