JUDGMENT Richards and Tudball, JJ. - Kadir Bakhsh was charged u/s 409, Indian Penal Code, on two counts with criminal misappropriation of certain money entrusted to him. The learned Magistrate convicted and sentenced the accused to six months' rigorous imprisonment on each charge to run concurrently. The learned Sessions Judge reversed the finding of the Magistrate and acquitted the accused. Government has appealed. Most of the facts connected with the case are practically undisputed. The accused is a process-server. He received on the 25th of September 1909, from the Munsif's Court, Rs. 26-8-0 as diet-money for witnesses and then again he received Rs. 18 on the 13th of October, 1909. The first summonses should have been returned on the 5th of October and the second lot on the 22nd of November. The accused did not return the summonses until the 9th of December, 1909, when he returned them unserved, but without the money. He stated that the money was lost. Between the 16th of December, 1909, and the 17th of December, 1909, the accused made good the money. The evidence showed that there were decrees out against the accused- which he was apparently unable to satisfy. The evidence also showed that the accused when asked to return the summonses stated that some of them had been served and some of them This statement of the accused was untrue, because the summonses were all finally returned unserved. The evidence further showed that until the summonses were returned unserved the accused never made any report of the loss of the money either to the police or to his own superior officer. The learned Sessions Judge says in dealing with the case:--"His defence was that he had lost the money while suffering from severe illness, but he failed to explain why he did not report the alleged loss to the police or his own superior officer. No satisfactory explanation is given as to this omission. On the other hand the prosecution has not produced any evidence to establish conclusively that he had misappropriated the money to his own use. There were two decrees out against him at that time, but it has not been shown that he used that money for payment of those decrees. No satisfactory explanation is given as to this omission. On the other hand the prosecution has not produced any evidence to establish conclusively that he had misappropriated the money to his own use. There were two decrees out against him at that time, but it has not been shown that he used that money for payment of those decrees. The prosecution ought to have shown by some evidence that the amount with the embezzlement of which he has been charged had in reality been appropriated by him to his own use and that his defence was groundless. "In our opinion the learned Sessions Judge is quite wrong in the proposition which we understand him to lay down in this paragraph of his judgment. There is no doubt that if the accused had shown that he had really been robbed of the money he would not be guilty of the offences with which he is charged. It is also true that if the evidence for the defence coupled with the surrounding circumstances and the statement of the accused himself created a doubt in the learned Sessions Judge's mind as to the guilt of the accused, the latter would be entitled to get the benefit of that doubt. But it is entirely wrong to suggest that it lay on the prosecution to prove the actual mode of misappropriation of the money. They were not called upon to prove that he applied this money in the discharge of the decreed against him or in any other way. When they proved that he had not returned the money in accordance with his duty when he returned the summons unserved, the Crown had proved their case, and it lay on the accused to prove his defence. We might refer the learned Judge to the provisions of section, 114 of the Indian Evidence Act. The learned Judge himself seems to have altogether disbelieved the story of the alleged loss, which is unsupported by any evidence. No doubt some evidence was given that the accused was ill. But it by no means follows that because the accused was ill, he was robbed of the money. We think on the evidence that the conclusion arrived at by the learned Magistrate was right and that arrived at by the learned Sessions Judge was wrong. No doubt some evidence was given that the accused was ill. But it by no means follows that because the accused was ill, he was robbed of the money. We think on the evidence that the conclusion arrived at by the learned Magistrate was right and that arrived at by the learned Sessions Judge was wrong. On the other hand, when we come to consider the question of punishment, we think that we ought to take into consideration the good character which the accused has borne, also the fact that he made good the money which he had misappropriated, and that it is possible also that he will lose his office, and taking all these matters into consideration we do not intend that the accused should be kept any longer in jail. We allow the appeal and finding the accused guilty of two offences u/s 409, Indian Penal Code, we sentence the accused to six weeks' rigorous imprisonment on each count, the sentences to run concurrently. As the accused has already served more than six weeks pending the appeal to the Sessions Judge, the result of order will be that the re-arrest of the accused will be unnecessary and the bail bond will be discharged.