2015 ALL MR (Cri) 1319
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A. R. JOSHI, J.
The State of Maharashtra Vs. Prakash Shrinivas Ghalsasi & Anr.
Criminal Appeal No.20 of 2004
3rd November, 2014.
Petitioner Counsel: Smt. V.S. MHAISPURKAR
Respondent Counsel: Mr. VINOD SANGAVIKAR, U.R. MANKAPURE
Penal Code (1860), S.406 - Criminal breach of trust - Appeal against acquittal - Allegation that stock of poultry feed and other chemicals purchased by company was misused and sold by its employee - Disputed material was seized from person to whom it was sold - In order to establish offence u/S.406 IPC, prosecution is required to establish its manufacture by a particular company, its purchase by complainant company, its custody by accused employee and then its sale to person concerned - Initial three links as to manufacture, sale and custody by accused, not established cognately - Even stock register was not produced though admittedly each and every product was bearing batch number - Further, recovery of articles not made at instance of accused - Thus, case against accused not established - Acquittal proper. (Paras 5, 6)
JUDGMENT
JUDGMENT :- Heard rival submissions on earlier date and also today on this Criminal Appeal preferred by the State challenging the judgment and order of acquittal of the present respondents dated 7.10.2003 in Regular Criminal Case No.309 of 1997.
2. By the impugned judgment and order, both the present respondents were acquitted of the offence punishable under Section 406 read with Section 34 of IPC.
3. The case in nutshell is as under:
Some cattle feed and other chemicals used in poultry were being manufactured by one Sunrise Pharmaceuticals firm run by PW-1 Ramesh. One Sukhdeo Mane a poultry owner (PW-4) and also another company by name Shrikrishan Feeds were the purchasers of said poultry products. Sometime in May, 1997 Shrikrishna Feeds purchased various poultry feed chemicals and medicines. In the month of May, 1997 on two occasions said medicines were purchased. Thereafter about a month later Sukhedo Mane (PW-4) approached Sunrise Pharmaceuticals and met PW-2 the owner of the said firm. Said Sukhdeo Mane offered PW-2 to purchase some poultry feed material in boxes / bottles and in lieu asked for some other material known as mineral mixture. Noticing the said bottles and boxes which were eight in number, PW-2 entertained a doubt that they were in fact manufactured by their company and how said Sukhdeo Mane was selling them back to the manufacturer. Accordingly on getting more information as to whom said stock was sold, he found that it was sold to another customer Shrikrishna Feeds and as such he made a telephone call to the office of Shrikrishna Feeds and narrated the things. Thereafter at Shrikrishna Feeds enquiries were made and it was found out that the stock of poultry feed and other chemicals purchased from Sunrise Pharmaceuticals have been misused and sold by the present respondent No.1. According to the case of the prosecution said respondent No.1/original accused No.1 was the employee of Shrikrishna Feeds and was incharge of the stocks. As such, knowing the activities of the respondent / accused No.1, Harshakumar Sawant an officer from Shrikrishna Feeds filed a complaint to the police which is Exhibit-28. As such, enquiries were made by the police and said Sukhdeo Mane was brought to the police station. He produced eight bottles/bags and which were taken charge of under the panchnama in which PW-1 panch Vitthal Vaidya took part. Said panchnama (Exhibit-24) was before the Court. Admittedly it is not a panchnama under Section 27 of the Evidence Act and it was the panchnama regarding the articles produced by PW-4 Sukhdeo Mane. On the strength of FIR lodged by PW-2, investigation was conducted and statements of witnesses were recorded. After completion of investigation, charge sheet was filed against the present respondents.
4. During the trial total five witnesses were examined. Finding the evidence led before the trial Court deficient to attract the provisions of Section 406 read with Section 34 of IPC, the trial Court acquitted both the accused / present respondents of the said charges. Being aggrieved by the said judgment and order, present appeal came to be filed.
5. In order to establish the charge of Section 406 of IPC, it was incumbent upon the prosecution to establish that the material which was seized under panchnama (Exhibit-24) was the material initially manufactured by Sunrise Pharmaceuticals run by PW-2. Secondly, it was required to be established that the same material was sold by Sunrise Pharmaceuticals to Shrikrishna Feeds and thirdly that it was given in the custody of the present respondent - accused No.1 and fourthly that the respondent - accused No.1 had sold the same articles to PW-4 Sukhdeo Mane. It must be said that said link as to manufacture of said articles by Sunrise Pharmaceuticals and purchase of the same by Shrikrishna Feeds has not been cognately established. Moreover there is nothing brought on record during the substantive evidence of PW-3 Harshkumar Sawant of Shrikrishna Feeds that the said stock was given in custody by the present respondent - accused No.1. Even the stock register was not produced though admittedly each and every product was bearing batch number etc... Further more as mentioned earlier it is not a case that said articles, which were seized under the panchnama Exhibit-24, were recovered at the instance of the respondents.
6. As such, considering the effect of the substantive evidence, the trial Court came to the conclusion as to non establishment of the case against both the accused and rightly so in the considered view of this Court looking to the evidence brought before the trial Court. In the result, there is nothing to entertain the present appeal and to view the case in different perspective so as to convict the respondent - accused Nos.1 and 2 for the offence punishable under Section 406 read with Section 34 of IPC. In the result, there is no merit in the present appeal preferred by the State challenging the acquittal. Hence, Criminal Appeal is accordingly dismissed and disposed of. Bail bonds of both the accused stand cancelled.