IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Misc M- 34651 of 2009
Date of decision: 8.12.2009
Ram Sarup ...Petitioner
Versus
State of Punjab and anr ...Respondents
Present: Mr RK Chauhan, Advocate for the petitioner.
S.S.SARON, J.
This petition under Section 482 CrPC has been filed
seeking quashing of the orders dated 9.9.2009 (P2) passed by the learned
Additional Sessions Judge (Ad hoc) Fast Track Court, Hoshiarpur and
20.9.2005 (P1) passed by the learned JMIC Hoshiarpur, whereby the
accused (respondent-2) has been discharged for the offence under Section
379 IPC. A further prayer is made for framing charges against accused-
respondent-2 after setting aside the orders – P1 and P2.
The petitioner lodged a complaint against respondent-2 for the
offence under Section 379 IPC. It was alleged that the petitioner is running
M/s Punjab Feed Bhandar and M/s Punjab Khad Store, Dabidda Ahrana and
is a licensed dealer of insecticides and also a Commission Agent.
Respondent-2 was an employee of M/s Sibia Feed, Ludhiana. On 1.6.1998,
respondent-2 was deputed by M/s Sibia Feed, Ludhiana to collect its
payment from the petitioner after returning the cheque. Respondent-2 came
to the petitioner on 1.6.1998 and demanded payment pertaining to the
Cr Misc M- 34651 of 2009 2
company. The complainant-petitioner gave him a cheque amounting to Rs
16150/- and made a cash payment of Rs 1100/- to him. The accused-
responent-2 was sent back to the complainant-petitioner with the request to
return the abovesaid cheque and bring cash from the petitioner. The
accused-respondent-2 came to the petitioner and mentioned the intention of
his employer and handed-over the cheque and a Ruqa. The complainant-
petitioner requested accused-respondent-2 to come on 2.6.1998 and he
would make the payment on that day as the cheque would be cleared from
the Bank. The complainant-petitioner reached the shop at 10 a.m. on
2.6.1998 where accused-respondent-2 was already present. The petitioner
requested the accused to take the cheque and get it encashed from the Bank
and take the payment but the accused insisted that the petitioner should
accompany him to the Bank and get the cheque encashed himself. The
complainant and respondent-2 came to State Bank of India, Court Road,
Hoshiarpur, on the scooter of the complainant at about 12 Noon. The
complainant-petitioner withdrew cash amounting to Rs 90,000/- from the
Bank account No.20646 in the presence of accused-respondent-2 and came
out of the Bank. The complainant took out Rs 10,000/- out of the total cash
of Rs 90,000/- and handed over the same to respondent-2 in the presence of
one Vipin Kumar Jain. The remaining cash of Rs 80,000/- was placed in the
Dicky of the scooter in the presence of respondent-2 and Vipin Kumar Jain
aforesaid. Respondent-2 then requested the petitioner to drop him at the
Bus Stand, Hoshiarpur as he wanted to go to Ludhiana immediately. The
petitioner agreed and leaving Vipin Kumar Jain there, the petitioner and
respondent-2 went to Bus Stand. After dropping respondent-2 at the Bus
Stand, the petitioner went to Prabhat Chowk. There the petitioner parked his
scooter in front of the Varandah of the Punjab Agro Industries where
Cr Misc M- 34651 of 2009 3
Malkeet Singh and DP Singh were sitting in the Varandhah and were
watching the petitioner. When the petitioner opened the Dicky which was
not intact, rather was somewhat defective and he found the cash amounting
to Rs 80,000/- missing. The complainant-petitioner then went to Bus Stand
to locate respondent-2. It is alleged that only respondent-2 had sat on the
pillion of the scooter on the way to Bus Stand. The complainant-petitioner
did not stop the scooter on the way. The respondent-2 was seen sitting on
the pillion by Vipin Kumar Jain and was seen alighted from the scooter by
Avtar Singh and Nirmal Singh. Thereafter, the complainant-petitioner went
on contacting accused-respondent-2 but he could not reach Ludhiana
upto 7 p.m. on 2.6.1998. Thereafter, the complainant approached the Police
but the Police did not register a case and on giving an affidavit, the Police
lodged case FIR 105 dated 7.6.1998 at PS City Ludhiana for the offence
under Section 379 IPC. The Police neither interrogated the accused nor
recorded statement of any witness and the case was sent up as untraced by
the Police. Accordingly, the petitioner filed a complaint in which the
impugned orders P1 and P2 have been passed.
The complainant in pre-charge evidence, examined 7 witnesses
including himself as PW7. On the basis of the evidence and material on
record, the learned JMIC vide order dated 20.9.2005 dismissed the
complaint. Aggrieved against the same, the petitioner filed a revision
petition which has been dismissed vide impugned order dated 9.9.2009
(P2). Aggrieved against the said order, the present petition has been filed by
the petitioner under Section 482 CrPC seeking quashing of the orders P1
and P2.
Learned counsel for the petitioner has contended that the case
against respondent-2 has been clearly established and he has been
Cr Misc M- 34651 of 2009 4
discharged only on the ground that the recovery of Rs 80,000/- has not been
effected from respondent-2. It is also contended that the facts and
circumstances would show that except for respondent-2, nobody else could
have committed the theft of the amount as it was taken while the petitioner
was dropping respondent-2 to Bus Stand, Hoshiarpur.
After giving my thoughtful consideration to the contentions of
the learned counsel for the petitioner and perusing the record, I find no
merit in the same.
Both the Courts below have, after summoning respondent-2 and
subjecting the complainant’s witnesses to cross examination, has
discharged accused-respondent-2. The learned JMIC Hoshiarpur in his order
dated 20.9.2005 has held that the contention of the complainant that the
amount of Rs 80,000/- was stolen by accused-respondent-2 while sitting on
his scooter has not been fully proved as it was incumbent upon the
complainant to prove that the amount of Rs 80,000/- was taken from the
possession of the complainant by the accused dishonestly and without his
consent. It was observed that there was no direct evidence that the accused
had stolen the amount. The learned Additional Sessions Judge (Ad hoc)
Fast Track Court, in his order dated 9.9.2009 (P2) has observed that none of
the witnesses has deposed that an amount of Rs 80,000/- was stolen by the
accused in their presence or that they ever witnessed the theft of the amount.
The witnesses had simply deposed that an amount of Rs 90,000/- was
withdrawn by the complainant-petitioner from State Bank of India and Rs
10,000/- was paid to accused-respondent-2 and the complainant left him at
the Bus Stand at his request and when he came back, he found that the
amount of Rs 80,000/- kept by him in the Boot of his scooter was missing.
Cr Misc M- 34651 of 2009 5
However, there was no direct evidence to the effect that the amount of Rs
80,000/- was stolen by respondent-2.
In respect of establishing a guilt in a criminal case, the facts
and circumstances of the case are to be proved beyond shadow of doubt and
unlike in a case of civil liability, the guilt of the accused cannot be fastened
on mere preponderance of probabilities. Both the Courts below having
concurrently held that there is no direct evidence to show that respondent-2
had committed the theft of Rs 80,000/-, the same cannot be established on
mere preponderance of probabilities. The fact that respondent-2 was riding
pillion on the scooter and the amount of Rs 80,000/- was lying in the Boot
of the scooter, cannot by itself be said to be such a circumstance to show
that only respondent-2 could have stolen the amount. This is more so for the
reason that the recovery has not been effected.
Learned counsel for the petitioner has placed reliance on the
case of Madhu Yadav v. State of Bihar 2002(2) RCR (Cr) 769 (SC) to
contend that mere non-recovery of stolen goods would not entitle an
accused to acquittal. However, in the said case, oral evidence had formally
established the theft and in the said circumstances mere non-recovery of
stolen goods, it was held, would not entitle an accused to acquittal. In the
present case, the oral evidence has not remotely established the theft.
Therefore, non-recovery of the stolen cash would show that the allegations
are even otherwise not corroborated. As such, the ratio of the said judgment
in Madhu Yadav’s case is inappropriate to the facts and circumstances of
the present case.
Keeping in view the aforesaid position, there is no ground to
interfere with the concurrent orders P1 and P2 passed by the Courts below.
Accordingly, this petition is dismissed.
Cr Misc M- 34651 of 2009 6
8.12.2009 ( S.S.SARON ) ASR Judge