2017 PLP 865 (YLR)

The above titled appeal has been filed against the order passed by Judicial Magistrate 1st Class Pattika Naseerabad dated 15.12.2014, whereby respondent has been acquitted in offence under section 409, A.P.C.

2. Facts of the case are that Regional Officer Utility Stores Corporation Muzaffarabad filed an application for registration of a case against Munir Sulehria, respondent, on 21.02.2010 whereupon Police Station Kahori registered FIR No.09/2010 against the accused-respondent in offence under section 409, P.C. After due investigation, the case was submitted before the Court below on 08.07.2010. The prosecution listed 05 witnesses in column 06 of challan form. The statements of all the prosecution witnesses were recorded and after trial, the Court below acquitted the accused in offence under Section 409, P.C., hence, the instant appeal.

3. A preliminary objection was raised on behalf of the accused-respondent that order of acquittal by the trial Court was passed on 15.12.2014 and appeal has been filed on 09.02.2015 which is barred by limitation. In this context, it has been argued on behalf of the appellant that the trial Court announced the oral judgment on 15.12.2014 and the appellant filed an application for copy of the judgment on 22.12.2014. Learned counsel for the appellant has relied on a certified copy of application for obtaining copy of the impugned judgment which shows that he filed the application on 22.12.2014. A copy of the impugned judgment shows that copy of the judgment was delivered to counsel for the complainant on 26.01.2016. It may be mentioned here that Copying Officer has not mentioned the date of receipt of the application and date of preparation of copy of the impugned judgment. In these circumstances, period of filing an application for obtaining copy of the impugned judgment from 22.12.2014 to 26.01.2016 has to be excluded from the period of limitation. After such deduction, the appeal is found within the period of 30 days.

4. So far as merits of the case are concerned, learned counsel for the appellant has vehemently opposed the impugned judgment by stating that the accused-respondent embezzled an amount of Rs.3,78,077/- from Utility Store Bheri (MZD-17). He further stated that the accused-respondent returned an amount of Rs.50,000/- when embezzlement was discovered. In his view, the case has been proved beyond any shadow of doubt but the Court below in sheer violation of law has acquitted the accused-respondent without any legal justification.

5. A perusal of the impugned judgment in the light of record of the Court below shows that Malik Faisal Ayub Regional Officer Utility Stores Corporation Muzaffarabad lodged an FIR with Police Station Kahori on 21.02.2010 by contending that Munir Ahmed Sulehria son of Yousuf Sulehria was transferred as incharge Utility Store Bheri with effect from 27.03.2009. During surprise audit/handing taking, an amount of Rs.3,74,795.25/- was found short/embezzled by him. It was, therefore, requested to register an FIR against the accused and to recover the embezzled amount. Muhammad Maqbool, Investigation Officer, appeared before the Court on 21.12.2011 and stated that complainant did not submit any audit report at the time of registration of the FIR. He further stated that the complainant was responsible to submit audit report during process of investigation but he failed to file the same. Even, he did not file the audit report on repeated demands during investigation process. It is worth mentioning that the complainant has also appeared as witness before the Court and stated that he did not submit any audit report to the investigation officer, however, he further stated that the accused deposited an amount of Rs.50,000/- with him.

6. The respondent is alleged of embezzlement of an amount of Rs.3,78,077, which was entrusted to him as incharge Utility Store Bheri. It has been alleged in the FIR that shortage/ embezzlement of amount was found during a surprise audit. It is proved from record that complainant did not file any audit report along with the FIR and even failed to submit any record of audit report during the process of investigation. Offence under section 409, P.C. is not a case of simple theft; rather it is a breach of criminal trust. The complainant has himself relied that the embezzled amount was found short during audit but the most important document of surprise audit was never brought on record. Investigation Officer as prosecution witness has also stated that despite repeated demands, the complainant did not substantiate his claim with any audit document. In these circumstances, the Court below was left with no option but to acquit the accused-respondent of the charge under Section 409, P.C. Upshot of the above discussion is that the appeal is dismissed and the order of acquittal is upheld. HBT/4/HC(AJ&K) Appeal dismissed.