Nirmal Kumar v. U.T.Chandigarh

the accused. On the basis of this complaint a FIR was registered. During investigation the accused Ashok Singla was arrested on 12.1.1994 and suffered a disclosure statement admitting that he and his co- accused Nirmal have committed misappropriation of this amount in conspiracy with each other and he can get the money recovered. Accordingly, some part of the money recovered from him. Thereafter, accused Nirmal Kumar Verma was also arrested on 22.21994. The specimen handwritings of the accused were obtained for comparison. Statements of the witnesses under Section 161 Cr. P.C. were recorded. After receiving the report of document expert and on completion of the usual investigations the challan was filed in the Court for trial.” After hearing the learned counsel and after going through the record of the case carefully, I am of the opinion that the present petitions deserve dismissal. The prosecution case is that petitioner Ashok Kumar was working as a cashier with the complainant. All the day to day cash Criminal Revision No. 804 of 2008 (O&M) 5 transactions were noted down by petitioner Ashok Kumar on a rough sheet by depicting the opening balance brought forward from the previous day and all transactions of income and expenditure of the day were thereafter entered into rough sheet. The said entries were carried forward in the regular account books by petitioner Nirmal Kumar, Accountant. Learned Appellate Court, in para Nos. 32 to 34 of the impugned judgment, has held as under:- “32. It is also admitted fact that on 31.3.1991 the appellant prepare the kacha parcha, Ex. P-A showing a cash balance of Rs. 2,98,183.80 at the end of day. Not even this it is also undisputed fact that on the basis of Ex.P-A, the appellant, Nirmal was required to write day book, which is the starting point of all accounts, as per the entries shown in the day book but it is undisputed fact that the entries in the day book dated 31.3.1991, copy of which is Ex. PW5/B, is different as the balance brought forward in the start of the day book as well as the entries showing the income and expenditure are different, from the entries shown in the kacha parcha, Ex. PA.

33. In this regard, it will be apposite to mention over here that when the entire evidence and Criminal Revision No. 804 of 2008 (O&M) 6 incriminating circumstances was put to the appellants, when their statements under Section 313 Cr. P.C. was recorded, they have admitted the above facts but an explanation was put forward by them that the kacha parcha, Ex. PA was not only in respect of a firm M/s Jagdish Fruit Agency, which was sole proprietorship concern of the complainant, Jagdish Ahuja but it was a joint rough account of all the four firms owned by Jagdish Ahuja either in his name or in the name of his family members known as Girish Ahuja company vegetable and Fruit, Girish Ahua Kalia & company, Renu Kumari and Company and the firm of the complainant.

34. However, the above defence theory of the appellants was totally denied by the complainant Jagdish Ahuja, when he stepped into the witness box. Even otherwise, it is not possible to prepare a joint sheet of four firms there was for the different transactions and this defence of the appellant is totally baseless and has been put forward just to wriggle out of their liability.” Learned Appellate Court, in para Nos. 38 to 40 in the impugned judgment, has held as under:-

38. On the other hand, from the documentary Criminal Revision No. 804 of 2008 (O&M) 7 evidence it is proved that on 31.3.1991 there was a cash balance of Rs. 2,14,645/- at the start of the day and the same balance the appellant, Nirmal was required to mention in the day book and cash book, copy of which is Ex.PW5/B. However, the balance shown in the cash book is only 62,088 as shown as the last balance in the cash book of

30.3.1991, Ex.PW5/C. The counsel for the appellants tried to confuse the complainant by putting the entries shown in the cash book and by alleging that the balance brought forward on

31.3.1991 is as per the balance shown at the end of the day on 30.1.1991. However, this fact is not sufficient to exonerate the appellants of their liability to render true accounts to the complainant because it was not a single day fraud by the appellants but it was their continuous modus operandi to make false entries in the cash book and other accounts to embezzle the cash and since the appellant was having only the kacha parcha of 31.3.1991 with him, when he came to know about this fraud, the earlier wrong entries of the appellants could not be detected.

39. Above all even the evidence of the Criminal Revision No. 804 of 2008 (O&M) 8 transactions of 31.3.1991is sufficient to prove the offence of the appellants. A comparative perusal of the Kacha parcha, Ex.PA and the copy of cash book dated 31.31991, Ex.PW/B shows that the appellant Nirmal has not only made a wrong entries of the balance at the start of the day and the incomes received but also the expenditure incurred during the day. In the kacha parcha, Ex.PA, it is mentioned that only a sum of Rs. 29,270/- was spent during the day by the firm of the complainant. However, in the cash book he has shown a total expenditure of Rs. 51,209.50. Similarly, in the income side, he has shown the balance brought forward 62,088/-, whereas the actually it was Rs. 2,14,645.80. Similarly, against an income of Rs. 1,12,808.80/-, he had shown only a income of about 1 lakh only. He has not shown the entries of a sum of Rs. 200,5102/-, 25,456/-, which was the entries of the cash receipt by the appellant, Ashok for the sales of the day. Similarly, he has shown a entry of Rs. 32620/- being received from a fruit vendor of Nangal but this entry was not made in the cash book of 31.3.1991 but it was made in the cash book of 30.3.1991. As such, it is proved on the record Criminal Revision No. 804 of 2008 (O&M) 9 that both the appellants hatched a conspiracy to embezzle the money by taking a benefit of illiteracy of complainant by manipulating accounts books.

39. Not even this in this regard, it is categorically explained by the complainant, Jagdish Ahuja, when he stepped into the witness box, that the appellants used to make entries in the cash book and day book with the help of a pencil and they used to change the those entries later on after showing the account books to him and by this modus operandi, they used to embezzle the money. “ Learned Appellate Court, in para Nos. 44 to 45 in the impugned judgment, has held as under:-

44. Even PW-5, Vinod kumar accountant, who took over from the appellant, Nirmal Kumar has supported this fact. As such, there is nothing on record to disbelieve the statement of the complainant, which is duly corroborated and supported by the documents, which were not disputed by the appellants.

45. Above, once the appellants alleged that the kacha parcha, Ex.PA was not only for the firm of complainant known as Jagdish Ahuja and company but it was also for the other three firms Criminal Revision No. 804 of 2008 (O&M) 10 of the complainants, it was the duty of the appellants to prove this fact by showing the complete entries of Ex.PA in the account books of those four firms. When this suggestion was put by the appellants to the complainant in this regard, he has denied the suggestion and categorically stated that the kacha parcha, Ex.PA was only related with his firm. At the same time, as stated earlier, it is not possible to prepare a joint kacha parcha of four firms are different and it is also not possible to bifurcate those entries.

46. At the same time it is further alleged by the appellant that the balance in hand shown in the morning in the kacha parcha Ex. PA was the cash balance of all the three firms, which means it is undisputed case of the appellant, Ashok that the case balance shown in the kacha parcha, Ex. PA on the morning of 31.31991 as Rs. 2,14,645/- is correct and if it is so, the same balance would have been shown by the appellant in the regular day book and other account book. As such, there is no explanation on the file to explain this ambiguity, specially when a speicfic defence of joint accounts have been put forward by the Criminal Revision No. 804 of 2008 (O&M) 11 appellant from the very beginning but not substantiated. If the police has not taken into possession the accounts books of other firms, although it was required to do so, it was the duty of the appellant to summon the record of those firms and to prove their explanation but no such exercise has been taken up by the appellant fully knowing that by doing so, their explanation of the entries shown in Ex. PA will reamin unproved. If it is so, it is a case which speaks itself from the documents which are not disputed and the only conclusion, which can be drawn from these documents is that both appellants in the conspiracy with each other used to embezzle the money of the co by making wrong entries in the account books taking benefit of the illiteracy of the complainant and there is no scope to say that there is any doubt as to eh authenticity of the allegations of the prosecution in any regard. Thus, there is sufficient evidence on record to say that the conviction of the appellants by the learned trial court is well founded though for different reasons.” The reasons given by the Appellate Court, while Criminal Revision No. 804 of 2008 (O&M) 12 dismissing the appeals filed by the petitioners are sound reasons. Petitioner Ashok Kumar, when examined under Section 313 of the Code of Criminal Procedure (for short Cr.P.C.), had taken the plea that Ex.PA was a consolidated kutcha parcha qua Jagdish Fruit Agency, Gareesh Ahuja Company Vegetable Fruit, Gareesh Ahuja Kela and Reenu Kumari and Company. However, the said plea taken by the petitioner was not proved on record. Petitioner Nirmal Kumar, when examined under Section 313 Cr.P.C., took up the plea that he was managing the accounts of Jagdish Fruit Agency, Gareesh Ahuja Company Vegetable Fruit, Gareesh Ahuja Kela and Reenu Kumari and Company. Kutcha parcha Ex.PA was the consolidated one for all the said concerns. However, the petitioners had failed to establish their said plea during trial. Both the petitioners were liable for maintaining the accounts of the company and had misappropriated the funds of the company. Since the prosecution had been successful in proving its case, both the petitioners were rightly convicted by the Courts below for an offence under Sections 408/120-B IPC. Accordingly, these petitions are dismissed. November 01, 2010 (SABINA) JUDGE