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PETITIONER: NARINDRA KUMAR JAIN

       Vs.

RESPONDENT: THE STATE OF MADHYA PRADESH

DATE OF JUDGMENT:       10/05/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (5)   594        1996 SCALE  (5)7

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      This appeal  by special  leave arises from the judgment of the  Division Bench of the Madhya Pradesh High Court made in  Criminal   Appeal  No.1394  on  October  15,  1986.  The Magistrate has  acquitted the appellant of the charges under Sections 420  and 409  IPC and  other offences but on appeal the High  Court convicted the appellant for an offence under Section 409  IPC and  sentenced him  to undergo imprisonment till the  rising of  the Court,  and a  fine of Rs.500/-. In default of  the payment  of the  fine, he  was  directed  to undergo six months’ rigorous imprisonment. Since the learned counsel for  the appellant had raised a question whether the deficiency is  within 5% of the total quantity and since the Court had not gone into that question, we directed the State to produce the entire record. Pursuant thereto, the evidence has been  made part  of the  record and  we  have  carefully scanned the evidence.      The charge  against the appellant is that he was posted as Manager  of Kisan  Rice Mills,  Sarngarth between January 29, 1968  to October 30, 1973. During the said period, while he was in custody and management of the huge stocks of paddy entrusted to him, it was found that 1,500 quintals paddy was unaccounted for.  Consequently, the charge came to be framed against him  in the  Court of  the Chief Judicial Magistrate for  the   aforesaid  offences.   As  stated   earlier,  the Magistrate acquitted  him of  the charges but the High Court convicted him  for the offences under Section 409 IPC. After elaborate consideration  of the evidence, the High Court has recorded as under:      "In  our   opinion   the   evidence      discussed above clearly establishes      that 1,500 qtls. of paddy was found      short  in   the  stock   which  was      verified in  the  presence  of  the      accused. It is true that only 5% of

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    bags were  weighed out of the total      quantity  present.  That,  however,      has been  the matter  employed  and      the  accused   never   raised   any      objection to  it. In  any case, the      accused has  admitted the  shortage      vide Ex.P-13  and  his  explanation      have been  that it  was due  to the      fact  of   the  paddy  drying.  The      documents  proved   and  the   oral      evidence discloses that he had made      false entries  and showed  a  false      transfer of  this quantity of paddy      to  Baramkela   society.   In   our      opinion, the  evidence  establishes      beyond doubt  that the  accused had      misappropriated  1500  quintals  of      paddy entrusted to him."      This finding  of the High Court gets amply support from the evidence  of the  witnesses. We are totally in agreement with the  said  finding.  The  witnesses  are  disinterested official witnesses.  They have  no axe  to grind against the appellant. PW-1 has explained that he had physically got the stock verified  every year and noted the deficiency. He also stated that  it was  done in  the presence of the appellant- accused. PW-2  also has  spoken with reference to the record of the  maintenance and  he was  in custody  of  the  record thereof. Under  these circumstances,  the  evidence  clearly establishes that  the appellant  has failed  to account  for 1,500 quintals  of paddy  entrusted to  him. Therefore,  the conviction of  the  appellant  under  Section  409  is  well justified. Though  we find  that the sentence imposed by the High Court  was inadequate  but at this distance of time, it will not be necessary to give any notice for the enhancement of the sentence.      The appeal is accordingly dismissed.