Jammu, March 16: In CRAA No.02/2017 titled State of J&K Vs. Javaid Najeeb ud Din & another after hearing both sides, HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE ordered as:-
1) The instant appeal is directed against the judgment dated 18.11.2015 passed by learned Special Judge, Anti-corruption, Kashmir, Srinagar, whereby the respondents herein have been acquitted of the charges for offences under Section 5(2) of the J&K Prevention of Corruption Act and Section 120-B and 409 RPC.
2) Before coming to the grounds of appeal, let me give a brief background of the facts leading to the filing of the instant appeal. 3) FIR No.72/1997 for offences under Section 5(2) of the J&K Prevention of Corruption Act and Section 120-B and 409 RPC came to be registered with Police Station Vigilance Organization, Kashmir, and investigation of the case was set into motion.
After investigation of the case, a charge sheet came to be filed against the respondents herein by the prosecuting agency i.e. appellant herein.
4) As per the contents of the charge sheet, the accused/respondent No.1 during his posting as Assistant Director, Information, Leh, entered into a criminal conspiracy with accused/respondent No.2, where-under a Panasonic fax machine was purchased for an amount of Rs.62,000/- and a Canon Xerox machine was purchased for an amount of Rs.1,25,000/- by accused/respondent No.1 for the office use from accused/respondent No.2. According to the prosecution case, the accused/respondent No.1 paid only a sum of Rs.1,25,000/- to the accused/respondent No.2 which constituted Rs.13,000/ over and above the market price of both machines taken together as were supplied by him & other matters related to.
An enquiry was conducted by District Treasury Officer, Leh, who submitted his report and on the basis of 3 CRAA No.02/2017 the said report, the Director, Information, referred the matter to Vigilance Commissioner, where-after a case came to be registered, investigation was conducted and finally challan was laid before the trial court.
The accused/respondents were charged for offences under Section 5(2) of PC Act, 120-B and 409 RPC. The accused denied the charges and claimed to be tried.
The prosecution examined as many as twenty-three witnesses to prove the charges against the accused/ respondents whereas accused/respondents examined one witness in defence. The statements of the accused/respondents under Section 342 Cr. P. C were recorded by the learned trial court wherein the accused, besides claiming that there was no admissible evidence against them, contended that the case against them is absolutely false and frivolous.
The learned trial court, after discussing the evidence on record, came to the conclusion that the charges against the accused/respondents are not established and, accordingly, they have been acquitted of the charges in terms of the impugned judgment.
The appellant-State has assailed the impugned judgment of the learned trial court on the grounds that the evidence has not been appreciated properly by the learned trial court; that the learned trial court has failed to appreciate the fact that the prosecution had been able to prove that the quotations invited by accused/respondent No.1 were fake; that the learned trial court has failed to appreciate that once the entrustment of money to accused/respondent No.1 was established, it was not for the prosecution to prove the precise mode of its misappropriation by the said accused but it was for the accused to account for the same and that the impugned judgment is against the facts and the law.
I have heard learned counsel for the parties and I have also gone through the grounds of challenge, the impugned judgment and the record of the trial court......
There can be no dispute to the fact that the prosecution has established that the accused/respondent No.1 had received a sum of Rs.62,000/ from the Cashier, PW(2). The question arises as to whether in the facts and circumstances of the case, mere proof of receipt of said amount by the accused/respondent No.1 and in the absence of any explanation on his part would entail conviction of the said accused/respondent for offence under Section 409 RPC.
It is true that once the entrustment is proved, it is for the accused to account for the same. This proposition is based upon the spirit of the provisions contained in Section 106 of the Evidence Act, which reads as under:- “106. Burden of proving fact especially within knowledge:- When any fact is especially within the 11 CRAA No.02/2017 knowledge of any person, the burden of proving that fact is upon him.”...........
Unfortunately, the prosecution in this case has not led any evidence to show that the amount in question was not delivered by the accused/respondent No.1 to accused/respondent No.2. In fact, even the Investigation Agency has not assembled any material to show that the money was not tendered by accused No. 1 to accused No. 2.
So in the facts and circumstances of the instant case, the prosecution was required not only to prove the entrustment of money to accused/respondent No.1 but it was further incumbent upon them to prove that he had not delivered the same to accused/respondent No.2, the supplier......
For the foregoing discussion, the view taken by the learned trial court in the impugned judgment appears to be plausible in the light of the evidence on record and the findings recorded by the said court do not appear to be manifestly erroneous or contrary to evidence on record. In these circumstances, it is not open to this Court in exercise of its appellate jurisdiction to interfere with the judgment of acquittal recorded by the learned trial court.
For the foregoing reasons, I find that there is no merit in this appeal. The judgment of acquittal recorded by the learned trial court is, therefore, upheld and the appeal is dismissed.
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