ORDER P.K. Jain, J.
1. Aggrieved by the judgment and order dated 12-5-1995 passed by III Addl. Chief Judicial Magistrate, Aligarh acquitted the respondent of the charge under Section 409, I.P.C, the State has filed this appeal.
2. Heard learned A.G.A. and Sri I.M. Khan, learned counsel for the respondent.
3. In the year 1983 the respondent was working as Assistant Cashier in the U.P. State Road Transport Corporation and was posted at Aligarh. On the night between 11/12-12-1983 between 9.00 to 1.00 p.m. he was on duty as Assistant Cashier and was incharge of the cash at the Aligarh Depot, of the U.P.S.R.T.C. A sum of Rs. 1,57,317.40 paise was allegedly embezzled by him during this period. It is the case of the prosecution that the respondent was on duty between 9.00 p.m. to 1.00 p.m. and thereafter he went away after locking the cash coffer and cashiers room .On 12-12-1983 when he returned to duty at about 9.00 a.m. he reported to the Station Incharge that the aforesaid sum was missing from the cash coffer. After the matter was reported to the Adhikshak, he lodged the report dated 12-12-1983 on the basis of which a case under Section 409, I.P.C. was registered. After usual investigation the respondent was charge- hseeted to stand trial under Section 409, I.P.C. The trial Court framed the charge under Section 409, I.P.C. which was denied by the respondent.
4. In his statement under Section 313, Cr.P.C. the respondent admitted to be on duty during the aforesaid period but he stated that he did not embezzle the money. On 12 -12-1983 when he reached the office, he found that cash was stolen from the coffer and Sri Manak Singh, Station Superintendent, under pressure of higher officers, lodged a false report in order to save his skin. He also denied to have been entrusted with any money by Mohd. Idrish Khan, the Assistant Cashier, from whom he had taken the charge. He further stated that when he came to the office in the morning, he found the coffer open and, therefore, reported the matter to the proper authorities.
5. The prosecution, in support of its case, examined PW 1 Satya Prakash Arya, Senior Accountant, PW 2 Manak Singh, Station Incharge, PW 3 Ashok Kumar Jain, Regional Manager, PW 4 Ashok Kumar Duva, Kshetriya Pravandhak, PW 5 Mohd. Idrish Khan, PW 6, Shankar Lal, PW 7 Satya Pal Singh and PW 8 Dharam Veer Singh, S.I. The respondent did not examine any witness in his defence.
6. The trial Court, after consideration of the evidence, came to the conclusion that the possibility of theft was not ruled out and hence allegations of embezzlement was not proved beyond doubt and secondly prosecution was barred by Section 197, Cr.P.C. The trial Court, therefore, acquitted the accused respondent of the charge under Section 409, I.P.C.
7. The learned A.G. A. contends that the finding of the trial Court that embezzlement was not proved beyond doubt is against the weight of evidence on record and further that the Court below has committed error in holding, that the prosecution of the respondent was barred as required by Section 197, Cr.P.C.
8. Learned counsel for the respondent contends that the findings of fact are correct and, therefore, no interference is called for in the judgment and order of the trial Court.
9. There is no dispute that respondent had taken charge from Mohd. Idrish Khan (PW 5) who was only duty on 11-12-1983 upto 8.00 p.m. Although the accused respondent denied in his statement under Section 313, Cr.P.C. to have received any amount from Mohd. Idrish but Mohd. Idrish has categorically stated in his statement that while he handed over the charge to the accused, he had handed over to him a sum of Rs. 1,31,000/- which was collected in five shifts prior to the accused coming on duty. It would appear from the evidence that a sum of Rs. 26253.65 p. were received by the respondent himself on 11-12-1983 as cash collection deposited by the Bus Conductors. Although during cross-examination PW 5 has admitted that he did not obtain any signatures of the accused while handing over the charge and entrustment of the balance in the cash box but there is no suggestion to the witness that the cash of Rs. 1,31,000/- and odd was not entrusted to the accused. The entry of Rs. 26253.65 p. is in the handwriting of the accused himself. PW 1 has stated that the entry dated 11-12-1983 in the shiftwise in the detailed collection register with regard to receipt of Rs. 26253.65 p. was in the handwriting of the accused. There is no suggestion to this witness that this entry is not in the handwriting of the accused. Thus, the entrustment of approximately Rs. 1,31,000/- and odd is established beyond doubt.
10. The question, however, is whether there is cogent and reliable evidence with regard to embezzlement and the possibility of theft is ruled out from the evidence on record. It is established beyond doubt that during the period from 9.00 p.m. on 11-12-83 till the time the shortage in the cash box was detected, the accused was incharge of the cash box. Hence, only when the possibility of theft by somebody is ruled out, the accused could be convicted of the offence under Section 409, I.P.C. In this regard the evidence of PW 2 Manak Singh and PW 5 and PW 7 Mohd. Idrish Khan and Satya Pal Singh is relevant: It is undisputed fact that the cash coffer was operated by two keys out of which one remained with the Assistant Cashier and it passed from one Assistant Cashier to other Assistant Cashier who was on duty and the other key remained with some other authority. The cash coffer could be operated only with the help of two keys, one of which remained in the possession of the Assistant Cashier and the other which remained in possession of other higher official of the Department. Accounting to the statement of PW 2 Manak Singh" who was senior station Incharge at the relevant time, there were two sets of the keys which normally remained with Cashier and in the absence of Cashier the same remained with Assistant Cashier or with senior Station Incharge. He has stated that at the relevant time he was Station Superintendent whereas Senior Station Incharge were Sri Y.P. Singh and Sri G.P. Singh, Y.P. Singh was incharge of accounts and the second key remained with Senior Station Incharge. He, how-ever, stated that on the date of incident the second key was in possession, of Assistant Cashier, Muzaffar Abbas accused. The witnesss has further admitted that the second set of the keys of the coffer from which the money was missing was lost prior to the present incident. He has also stated that a report about other set of keys was already sent although he did not remember if the report was sent to the higher authorities or to the police. He has also stated that according to the rules both the key holders (cashiers) responsible for cash used to upon and lock the coffer. He further admitted that if the keys went in wrong hands then duplicate keys could be prepared. He denied the suggestion that it was his duty to get the coffer double locked. P.W.4 Ashok Kumar Duva has stated in his deposition that there are two sets of the keys of coffer. One of the keys of the set remained with the cashier and the other key by which the coffer was double locked remains with the Station Superintendent but he does not know as to who was actually having the other key. Thus, according to this witness the second key by which the coffer is double locked should remain with the Station Superintendent. Admittedly at the relevant time P.W.2 Manak Singh was Station Superintendent. P.W.5 has also stated this fact that on the date of incident it was the duty of Manak Singh to get the coffer double locked. P. W.7 Satya Pal has also stated that one of the keys of the coffer remained with the Assistant Cashier although according to him the other key by which the coffer was double locked was at the relevant time with Sri S. K. Dubey Cashier.
It has also come in evidence that on the date of incident Sri. S. K. Dubey was absent from duty without any leave being sanctioned to him. After lodging of the first information report an application for leave was found but no leave was sanctioned to him. There is no evidence on record about handing over of the second key to respondent Muzaffar Abbas and there is also no evidence on record to the effect that the coffer was double locked when the accused left the office in the night after locking the coffer and the cash room. In this view of the evidence the trial Court held that the possibility of duplicate keys having been prepared cannot be ruled out, and the possibility of theft also cannot be ruled out. Although the evidence shows that the accused and other cashiers as well as the Station Incharge/Station Superintendent were highly negligent in performing their duties and were not following the rules relating to the handling of the coffer but in view of the above evidence it is not established beyond doubt that there was no possibility of theft. The Court below, therefore, rightly held that possibility of theft was not ruled out and, therefore, the accused could not be convicted under Section 409, I.P.C. There is no error in this finding of the trial Court.
11. As regards the second ground regarding sanction to prosecute, in my view, the trial Court's view is erroneous. Under Section 197 Cr. P.C. sanction to prosecute is required only when the government servant is removable by the State Government or with the prior sanction of the State government. Sub-clause (1) of Section 197 Cr. P.C. reads as follows :-
197. Prosecution of Judges and public servants.- (1) when any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government;
Provided that where the alleged offence was committed by a person referred to in Clause (b) during the period while a Proclamation issued under Clause (1) of Article 356 of the Constitution was in force in a State, Clause (b) will apply as if for expression "State Government" occurring therein, the expression "Central Government" were substituted.
12. A bare perusal of this section shows that before the accused can challange his prosecution on the ground of want of sanction, he has to show that he was a public servant not removable from the office except by or with the prior sanction of the Government. In the instant case there cannot be dispute that the accused was a public servant but there is nothing on record to show that he could be removed from his office only by the Government or with the prior sanction of the Government. Hence sanction was not necessary.
13. In view of the discussions, made above, 1 do not find any merit in this appeal.
14. Appeal is hereby dismissed.