ORDER :- This criminal revision arises out of a conviction of the applicant Suwalal under Section 265, I. P. C. 2. The applicant was at the relevant time manager of the Ginning Factory owned by one Madanlal, situated in Tarana. On 16-12-58, the S. I. Police Makansingh paid a surprise visit and found the weight of a maund contained an additional weight weighing about ¼th of a seer, so that every time cotton was purchased from the villagers, the owner would get ¼th seer more for the p. ice paid for a maund. 3. The applicant did not dispute that the maund weight contained the additional weightage. His contention was that it was the practice and every person who came to sell cotton knew about it and also knew that they were being paid for this additional weight also. 4. The Courts below however did not accept this contention that the villagers knowingly sold their cotton with this additional weight. 5. The other contention that was raised by the applicant was that he was only a manager and neither the person who was weighing the cotton nor had he gained any benefit out of it and therefore he could not come within the mischief of Section 265, I. P. C. This contention was also rejected by the Courts below on the ground that as a manager he had the knowledge of the cotton being purchased on this additional weight, and therefore convicted the applicant as stated under Section 265, I. P. C. 6. Section 265, I. P. C. reads as follows : "Whoever fraudulently uses any false weight of false measure of length or capacity or fraudulently uses any weight or any measure of length or capacity as a different weight or measure from what it is, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine or with both." It will be clear from the above definition that the prosecution must prove 3 essential ingredients amongst others (1) A weight or measure is a false one (2) that the accused used such a weight or measure (3) that he did so fraudulently. 7. It cannot be disputed that there was an additional weight attached to the maund. The applicant had also not challenged it. But the prosecution, according to me, has failed to show that he used it fraudulently. 7. It cannot be disputed that there was an additional weight attached to the maund. The applicant had also not challenged it. But the prosecution, according to me, has failed to show that he used it fraudulently. There has been no complaint from the villagers that they were defrauded. It is also not known why the police all of a sudden entered the premises. The information on the basis of which the police entered and made the search is not on record. There is only a vague allegation that to the villagers they pay only the price of a maund while accept cotton weighing more than that. It was incumbent on the prosecution to examine any villager or any cotton seller to say that the applicant did so. On the other hand the applicant led evidence to show that, that was the practice in cotton dealers. D. W. 1 Badrinarayan who is the member of the Mandi Committee says that always more cotton are weighed, according to the practice. D. W. 2 Jaganath who himself is a weigh-man in other Ginning Factory says that it is a practice according to the Mandi Committee that for every 40 seers, ¼th seer is added. It is also not unusual as will appear in common dealings of so many articles that they always count more than what is described. Therefore it is not unusual to have such a practice even in cotton dealings. The most surprising fact is that no witness has come forward to say that he was cheated in this manner. After all the prosecution had also to discharge its burden to show that the additional weight was kept attached in order to defraud the sellers. Not only that, the weight kept tied with the maund shows that it was a permanent measure. Excepting a vague statement of Mathralal P. W. 1 that the sellers of cotton never knew of this, there is absolutely no evidence on behalf of the prosecution. It will not therefore be proper to hold that the measure was used fraudulently. 8. The other defence of the applicant has also to be considered . There is no evidence to show that this applicant himself had used the weight. He has been described as the manager of the Ginning Factory. It is nowhere said that it was his duty as a manager to check the weights. 8. The other defence of the applicant has also to be considered . There is no evidence to show that this applicant himself had used the weight. He has been described as the manager of the Ginning Factory. It is nowhere said that it was his duty as a manager to check the weights. Moreover at the time when the police entered the Ginning Factory this applicant was found in the office and he was sent for. There is no evidence that he has used this weight. It is in evidence that there is a weigh-man for this purpose. The weigh-man has been doing it under the instructions from his master Madanlal, the owner of the Factory. So if the weights were used fraudulently, it must have been done by the weigh-man at the instructions of his master. This inference I am drawing because the prosecution has not shown that the manager had any thing to do with the measurement. Neither the weigh-man nor the owner has been prosecuted. If any body has been benefited in this transaction, it is the owner. Therefore there is reason to believe that if the weigh-man had used this false weight, it might be at the instance of the owner. No body has stated that the manager had asked the weigh-man to use it, nor is there any evidence to show that at any time the cotton was weighed in his presence. It will therefore not be proper to say that the applicant had used this weight. 9. From the above discussion it is clear that the prosecution has failed to establish the 2nd and 3rd ingredient of S. 265, I. P. C. against the applicant. He is therefore entitled to an acquittal. 10. The result is that the revision petition is allowed and the applicant is acquitted. Fine, if paid, be refunded to him.