JUDGMENT : Barman, J. - The four acquitted persons are Assistant Cashier, Treasury Sarkar and two Accountants of State transport Office, Rourkela. They were charged for alleged criminal breach of trust in respect of two sums of money, namely of Rs. 2495-10 nP. alleged to have been so misappropriated on December 13, 1961 and of Rs. 2973-79 nP. (less Rs. 1413-45 nP. which was ultimately returned) on August 3, 1962. 2. The charge as framed by the learned trial Magistrate is that the four accused persons between December 13, 1961 and August 3, 1962 at Rourkela, being public servants in the employment of State Transport Service and in such capacity enterusted with the cash of Rs. 4055-44 nP. committed criminal breach of trust in respect of the said property in furtherance of the common intention of them all and thereby committed an offence punishable u/s 40934 Indian Penal Code. 3. All the accused Respondents denied the charge. Their respective defence is as hereinafter stated. 4. The defence of the accused Cashier Rajkishore Singh Samanta is that he handed over both the items of money to the accused Treasury Sarkar Rabinarayan Samanta along with the respective chalans for remittance into the treasury. 5. The accused Treasury Sarkar Rabinarayan totally denied the charge of alleged breach of trust in respect of the first item of Rs. 2495-10 nP. As regards the second item, his case is that the accused Cashier Rajkishore gave him Rs. 1413.45 nP. a chalan Ext. 7 for Rs. 2 )73-79 nP. on August 4, 1962 and asked him to go to the treasury. The accused Cashier promised that he would go to, the treasury with the balance amount. The accused Treasury Sarkar also said that he waited till 4 p.m. at the treasury, but the accused Cashier did not turn up; then he (Treasury Sarkar) came to office and found that the office was closed. He further said that the following day August 5, 1962 (which was a Sunday), he returned the said amount of Rs. 1413 45 nP. and the chalan to the District Transport Manager. He further said that the District Transport Manager asked him to be a witness and on his dictation the, accused Treasury Sarkar wrote the written report Exhibit 6. 6. 1413 45 nP. and the chalan to the District Transport Manager. He further said that the District Transport Manager asked him to be a witness and on his dictation the, accused Treasury Sarkar wrote the written report Exhibit 6. 6. The accused Senior Accountant Bofat Khan and the accused Junior Accountant Abdul Aslam both admitted in defence to the effect that neither of them had to handle cash and denied the charge of alleged misappropriation of the moneys by them. 7. The main questions are Firstly, was there entrustment of the moneys with any of the accused persons? If so with whom? Secondly, was there breach of trust by such accused persons so entrusted with the moneys? The answer to the questions will require some acquaintance with the set-up, rules, practice and procedure which were in vogue in the State Transport Office at Rourkela at the time as discussed hereunder. 8. The set-up and procedure at the Rourkela State Transport office at the time, so far as relevant, as stated by the District Transport Manager as P.W. 1, was this: There was a District Transport Manager and also an Assistant Transport Manager. In the accounts section there was a Senior Accountant, namely accused Bofat Khan. Under him there was a Junior Accountant, namely accused Syed Abdul Aslam. There was an Assistant Cashier, namely accused Rajkishore Singh Samanta. There was also a Treasury Sarkar, namely accused Rabinarayan Samanta. The daily collection of amounts used to be made by Co accused Cashier Rajkishore who used to maintain a daily hand book known as cashier's hand book. He kept the money collected by him in an iron chest of double lock system of which a key used to remain with the accused Cashier and another key used to remain with the Assistant Transport Manager. The Cashier and the Treasury Sarkar together were to deposit the collection with chalan in the treasury on the next day. The duty of the Treasury Sarkar was to assist the Cashier in carrying the deposits to the bank and to carry the chalan. It is said that it was also the duty of the Treasury Sarkar to carry the bill and encash it. The treasury chalan along with the amount sought to be deposited used to be taken by the Treasury Sarkar before the chalan was presented at the treasury. It is said that it was also the duty of the Treasury Sarkar to carry the bill and encash it. The treasury chalan along with the amount sought to be deposited used to be taken by the Treasury Sarkar before the chalan was presented at the treasury. The usual practice is that the Treasury Sarkar goes to deposit but whenever the amount is heavy the Cashier accompanies him. 9. The precautions to be observed for the fetching or carrying of money as laid down by the Government of Orissa, Finance Department, Ext. H are these (omitting immaterial portions): 2. S.R. 37(VIII) of the Orissa Treasury Code leaves it to the discretion of the head of the Department to satisfy himself that adequate precautions are observed for the fetching and carrying of money and he may issue such instructions in the matter as he considers necessary. Subject to the provision of the rule the Heads of Departments may consider adopting the following precautionary measures in the matter. (a) A sum over Rs. 200 should be regarded as large sum for the purpose of the above rule and for sums exceeding Rs. 2,500 a clerk or accountant should accompany the peon. (b) For sums exceeding Rs. 2,500- and not exceeding Rs. 10,000- the Accountant should be accompanied by a clerk and a peon. 10. As regards keeping accounts, the evidence of the Senior Auditor P.W. 4 is that as per the rules, the Cashier enters the details of remittance to the treasury in the cashier's band book after the amount is actually remitted and the treasury chalan is received by him; the Cashier receives the chalan, makes entry in the cashier's band book and then sends the same along with the cashier's band book for the entry to be made by the accountant in the accountants cash book after verification of both. The day's collection is to be deposited on the next following working may as required by the rules. It is said that the practice of maintaining a personal hand book by the Cashier for obtaining the signature of the person to whom the Cashier hands over any money for treasury remittance was not in vogue at the time at Rourkela. The Senior Auditor said that he had pointed out this lacuna to the Zonal Manager about non-maintenance of a personal hand book by the Cashier for obtaining signature. 11. The Senior Auditor said that he had pointed out this lacuna to the Zonal Manager about non-maintenance of a personal hand book by the Cashier for obtaining signature. 11. The circumstances in which the first item of defalcation of Rs. 2495-10 nP. in December, 1961 came to be detected in July, 1962 were these :In July, 1962 the Senior Auditor verified the accounts of the Rourkela Unit for the year 1961.62. He, verified the entry in the collection cash book Ext. 2(2) and found that the chalan No. 15, as noted in, Ext. 2(2), was not traced. He asked the accused Cashier Rajkishore and accused Senior Accountant Bofat Khan to produce the said chalan but they did not. Since the Senior Auditor became suspicious he verified the treasury deposit schedule maintained at the subtreasury office at Uditnagar and found that the sum of Rs. 2495-10 nP. had not been remitted on December 13, 1961 under the alleged chalan No. 15. Thereafter the Auditor brought this-fact to the notice of the Transport Controller, Orissa, at Cuttack. 12. As regards the second item of defalcation of money in August 1962 as aforesaid, the circumstances in which it came to light were these: In about this time and of July and early in August, 1962-the alleged deflection of the first item, which came to be detected as hereinbefore stated, was under investigation and scrutiny by the State Transport officials. The evidence of the Accounts Supervisor P.W. 5 is that. On August 5, 1962, which was a Sunday, at about 10 a.m. in the morning accused. Treasury Sarkar produced before the District Transport Manager the chalan Ext. 7, cash of Rs. 1413-45 nP. and gave his written report addressed to the District Transport Manager Ext. 6 explaining the position. The Accounts Supervisor said that he took the accused Treasury Sarkar to the District Transport Manager who was then alone in his office. The District Transport Manager asked the accused Treasury Sarkar regarding the chalan under which money was to be deposited into the treasury on August 3, 1962. It was then that the accused Treasury Sarkar had produced all those before the District transport Manager. 13. The law on the point is well settled by several decisions of the Supreme Court which have also been consistently followed by Division Bench of this Court in several cases Shreekantiah Ramayya Munipalli Vs. The State of Bombay. It was then that the accused Treasury Sarkar had produced all those before the District transport Manager. 13. The law on the point is well settled by several decisions of the Supreme Court which have also been consistently followed by Division Bench of this Court in several cases Shreekantiah Ramayya Munipalli Vs. The State of Bombay. Krishan Kumar Vs. The Union of India. Jaikrishnadas Manohardas Desai and Another Vs. The State of Bombay. State of Orissa v. Sarat Chandra Patnaik ILR 1963 Cutt. 817 and State of Orissa v. Prafulla Kumar Santra 291 C.L.T. 499.; ILR 1963 Cutt. 197. 14. What the court has to keep in mind in deciding a case of criminal breach of trust are certain undisputed basic principles, namely, these: It is not necessary or possible in every case to prove in what precise manner the accused person has dealt with or appropriated the property entrusted to him. The question is one of intention and not a matter of direct proof but giving a false account of what he has done with the property received by him may be treated as strong circumstance against the accused person. In the case of a servant charged with misappropriating the moneys of his master, the elements of criminal offence of misappropriation will be established if the prosecution proves that the servant received the moneys, that he was under a duty to account to his master and had not done so. If the failure to account was due to an accidental loss, then the facts being within the servant's knowledge, it is for him to explain the it loss. It is not the law that the prosecution has to eliminate all possible defences or circumstances which may exonerate the accused; if these facts are within the knowledge of the accused then he has to prove them; of course the prosecution has to establish prima facie case in the first instance; it is enough to establish facts which give rise to a suspicion and then by reason of Section 106 of the Evidence Act to throw the onus on the accused to prove his innocence. If under the law it is not necessary or possible for the prosecution to prove the manner in which the moneys had been misappropriated, then the failure of the prosecution to prove facts it set out to prove, the manner of misappropriation or the identity of the property would be of little relevance. It must also be kept in view that the burden resting on the accused is as in civil proceedings, namely, that the preponderance of probability may constitute sufficient ground for a verdict in his favour. The test is whether or not the defence version of the case is reasonably probable. 15. This leads us to the consideration of the two items of alleged misappropriation of money and the connection therewith of the accused persons or any of them. 16. Re: Item No. 1 alleged misappropriation of Rs. 2495.10 nP. On December 13, 1961. What is the position? The entry in the cashier's hand book Ext. 1(2) clearly shows that the sum of Rs. 2495. 10 nP. In question had been received by the accused Cashier. That the prosecution had in the first instance proved that the amount was entrusted to the accused Cashier. It was proved that the accused Cashier had made the entry showing the receipt of the amount. The defence plea of complete denial is negatived by evidence. His plea is that he bad brought out the said amount from the chest and handed over the same to the accused Treasury Sarkar along with the chalan for remittance to the treasury. The accused Cashier did not produce any evidence in support of his defence nor did he otherwise show that his defence is reasonable probable. The accused Cashier sought to rely on a note of the District Transport Manager Ext. C purporting to warn the Senior Accountant against his sending the Cashier to the treasury inspite of his repeated instructions not to send the Cashier to the treasury. The defence point is that this shows that the Cashier is supposed to have accompanied the Treasury Sarkar to the treasury with the money. This argument is not convincing fact none of the circumstances on which the accused Cashier relies are sufficient to prove that he had parted with the money or with his dominion over the money. Indeed we are not prepared to bold that the explanation of the accused Cashier is even reasonably probable. 17. This argument is not convincing fact none of the circumstances on which the accused Cashier relies are sufficient to prove that he had parted with the money or with his dominion over the money. Indeed we are not prepared to bold that the explanation of the accused Cashier is even reasonably probable. 17. The fact that the entry in collection cash book Ext. 2(2) is in the hand-writing of the accused Cashier is by itself an incriminating circumstance against him. It was the duty of the accountant to maintain collection cash book Ext. 2. It is intriguing that the entry Ext. 2(2) is in the hand-writing of the accused Cashier. The Senior Auditor P.W. 4 is definite that Ext. 2(2) is in the hand-writing of the accused Cashier thought it was the duty of the accountants to maintain Ext. 2. The Senior Auditor said that he is acquainted with the hand-writing of the accused Cashier and that he is definite that the entries in the collection cash book Ext. 2(1) and Ext. 2(2) are in the hand writing of the accused Cashier and not in the hand-writing of any of the other accused persons. The evidence of P.W. 7 Assistant Transport Manager of the time is that he had scrutinized chalan No. 15 before he signed. In answer to a direct question put by court to the witness he replied that he had seen the chalan No. 15 before putting his signature. It is significant that the said chalan has since disappeared and has not been produced. It is thus clear that chalan No. 15 as entered in Ext. 2(2) collection cash book was forged. 18. As regards the two accused accountants, in view of the position that neither of them had to handle cash, there is no question of the moneys in question having been entrusted to either of them. In fact they had nothing to do with cash. The evidence of the District Transport Manager is that it is a fact that the accused accountants did not handle cash. In this context, their duty begins after the chalan comes back from the treasury; then it is their duty to check the chalan and make appropriate entries in the collection cash book Ext. 2. The evidence of the District Transport Manager is that it is a fact that the accused accountants did not handle cash. In this context, their duty begins after the chalan comes back from the treasury; then it is their duty to check the chalan and make appropriate entries in the collection cash book Ext. 2. Thus, there was no necessity for either of the two accused accountants to handle cash, and there was no opportunity for them for committing breach of trust in respect of the moneys as alleged. 19. In the ultimate analysis, we are satisfied that the accused Cashier Rajkishore is guilty of criminal breach of trust in respect of the first item of money in question. As regards the other three accused persons, we find that they are not guilty of the charge of alleged breach of trust against them. 20. Re: Item No. 2 alleged misappropriation of the balance amount, namely Rs. 1560-34 nP. out of Rs. 2973.79 nP. On August 3, 1962. On August 3, 1962 the accused Cashier bad withdrawn cash of Rs, 2973.79 nP. from iron chest in the presence of the Assistant Transport Manager P.W. 6 for its remittance to the treasury under chalan Ext. 7. Accordingly an entry in the cashier's hand book Ext. 3(2) was made by the accused Cashier purporting to show remittance to the treasury. The chalan Ext. 7 dated August 3, 1962 is also in the hand-writing of the accused Cashier. The chalan was not presented to the treasury nor the amount deposited either on August 3, 1962 or on August 4, 1962. About this time the earlier misappropriation of December 13, 1961 which was detected in July 1962 was under scrutiny. On August 4, 1962 the Assistant Transport Manager P.W. 6 demand from the accused Cashier the chalan in support of the remittance of Rs. 2973.79 nP. The accused Cashier failed to produce the chalan. The accused Cashier did not then complain that the accused Treasury Sarkar had not returned the chalan alter deposit. The following day on August 5, 1962 the accused Treasury Sarkar produced Rs. 1413.45 nP. before the District Transport Manager P.W. 1 and the Assistant Transport Manager P.W. 6 with chalan Ext. 7. The Treasury Sarkar said that the accused Cashier sent him to treasury with, only Rs. 1413'45 nP. The following day on August 5, 1962 the accused Treasury Sarkar produced Rs. 1413.45 nP. before the District Transport Manager P.W. 1 and the Assistant Transport Manager P.W. 6 with chalan Ext. 7. The Treasury Sarkar said that the accused Cashier sent him to treasury with, only Rs. 1413'45 nP. on August 4, 1962; that the accused Cashier promised to come to the treasury with the balance amount but as the accused Cashier did not turn up, he (Treasury Sarkar) returned without depositing, as the balance was not handed over to him; so the money could not be deposited in the treasury on August 4, 1962. The accused Treasury Sarkar also submitted a written report to this effect Ext. 6. The accused Cashier's plea is that he handed over to the accused Treasury Sarkar the entire amount under chalan Ext. 7 which is denied by the accused Treasury Sarkar as aforesaid. 21. It is admitted that the accused Cashier had withdrawn the money from the iron chest. Therefore the accused Cashier was entrusted with the money. It is for him to prove that he had banded over the entire amount to the accused Treasury Sarkar. The prosecution relies on the written report of the accused Treasury Sarkar Ext. 6 explaining that the accused Cashier had handed over to him only Rs. 1413.45 nP. with the chalan Ext. 7 for the entire amount of Rs. 2973.79 nP. The accused Treasury Sarkar had explained the circumstances in which the deposit could not be made at the treasury on August 4, 1962 all as stated in his written report. 22. In the absence of anything to show that the accused Cashier's alleged plea of his having handed over the entire money to the accused Treasury Sarkar is reasonably true, the accused Cashier must be held to have converted to his own use the balance amount of Rs. 1560.34 nP. amounting to criminal breach of trust within the meaning of Section 405 Indian Penal Code. 23. As regards the accused Treasury Sarkar there is no evidence of entrustment of the balance money Rs. 1560.34 nP. The charge against the Treasury Sarkar is that the entire money and the chalan were entrusted with the accused Treasury Sarkar. The Treasury Sarkar partly admitted that he had received Rs. 1413.45 nP. and the chalan Ext. 7 which both he returned to the State Transport officials as aforesaid. 1560.34 nP. The charge against the Treasury Sarkar is that the entire money and the chalan were entrusted with the accused Treasury Sarkar. The Treasury Sarkar partly admitted that he had received Rs. 1413.45 nP. and the chalan Ext. 7 which both he returned to the State Transport officials as aforesaid. Even ignoring the statement of the accused Treasury Sarkar u/s 342 Code of Criminal Procedure, his written report Ext. 6 is a substantive piece of evidence. 24. The contention of Mr. H. Kanungo, learned Counsel for the accused Treasury Sarkar, in substance is this: If the Treasury Sarkar's written explanation Ext. 6 is accepted as reasonably true, then there is no case against the Treasury Sarkar. In the said report the Treasury Sarkar had explained the circumstances in which a sum of Rs. 1413.45 nP. only was handed over to him by the accused Cashier, and he also explained why the deposit of the money could not be made under the chalan Ext. 7 because the balance was not handed over to him by the Cashier. Alternatively, it was argued, on behalf of the accused Treasury Sarkar, that assuming his written explanation Ext. 6 is not acceptable as false then the prosecution has no other evidence against the accused Treasury Sarkar. There is no evidence to show that any portion of the said sum of Rs. 2973.79 nP. under chalan Ext. 7 was handed over to the Treasury Sarkar. In either case, therefore, there is no proof that the accused Treasury Sarkar is guilty of misappropriation of money as alleged. We must, therefore, hold that the prosecution has failed to prove that the accused Treasury Sarkar had committed breach of trust in respect of the said amount as alleged. 25. On the question of alleged joint liability, the prosecution relied on Section 34 of the Indian Penal Code in support of the charge that both the accused Cashier and the accused Treasury Sarkar entrusted with the second item of cash committed criminal breach of trust in respect of the said property in furtherance of the common intention of them both and thereby committed an offence punishable u/s 40934 Indian Penal Code. 26. 26. The essence of liability u/s 34 is to be found in the existence of a common intention animating the offenders leading to the doing of a criminal act in furtherance of the common intention and presence of the offender sought to be rendered liable u/s 34 is not, on the words of the, statute, one of the conditions of its applicability. The leading feature of Section 34 is "participation in action". To establish joint responsibility for an offence, it must of course be established that a criminal act was done by several persons; the participation must be in doing the act, not merely in its planning. A common intention a meeting of minds to commit an offence and participation in the commission of the offence in furtherance of that common intention invite the application of Section 34. But this participation need not in all cases be by physical presence. In offences involving physical violence, normally presence at the scene of offence of the offenders sought to be render liable on the principle of joint liability may be necessary, but such is not the case in respect of other offences where the offence consists of diverse acts which may be done at different times and places. A charge framed against the accused person u/s 409 read with Section 34 is but a convenient form of giving notice to him that the principle of joint liability is sought to be invoked. Section 34 does not create an offence; it merely enunciates a principle of joint liability for criminal acts done in furtherance of the common intention of the offenders. This aspect of the legal position in the context of Section 34 has been clarified by their Lordships of the Supreme Court in Jai Krishna das Manohar das Desai and Anr. v. State of Bombay 1. 27. With regard to item No. 2, namely, alleged misappropriation of the balance amount under chalan Ext. 7 on August 3, 1962, the prosecution case is that in the present case common intention of the Cashier and the Treasury Sarkar to I misappropriate the money is to be inferred from the circumstances hereinafter stated. 28. The amount Rs. 2973-79 nP. was taken out by the accused Cashier from the iron chest in the presence of the Assistant Transport Manager P.W. 6 for its remittance to the treasury under chalan Ext. 7. 28. The amount Rs. 2973-79 nP. was taken out by the accused Cashier from the iron chest in the presence of the Assistant Transport Manager P.W. 6 for its remittance to the treasury under chalan Ext. 7. The accused Cashier entered the amount immediately he brought out from the iron chest in the cashier's hand book Ext. 3(2) mentioning that the amount was brought out by him on August 3, 1962 for being remitted to the treasury. The chalan Ext. 7 itself shows that it was ready by August 3, 1962 and it was passed by the treasury on the same date August 3, 1962. According to rules and practice which were to be followed as hereinbefore discussed, it was for both the Cashier and the Treasury Sarkar together to go to the treasury as in the present case the amount exceeded Rs. 2,500. 29. According to practice, the chalan for depositing money in the treasury along with the amount to be so deposited is sent to the treasury in the early hours of the day. Chalans are normally accepted at the treasury counter from 10-30 a.m. to 120.00. The treasury officers try to pass the chalans till the closing hour of the bank to receive chalans for the day. Therefore, the chalan Ext. 7 was presented in the early hours of August 3, 1962 between 10.30 a.m. and 12 a.m. and the chalan must have been passed before closing hour of the bank. So the Chalan was passed on August 3, 1962 from the iron chest of the State Transport Office was not deposited at the treasury on August 3, 1962. According to the prosecution, the explanation of the accused Treasury Sarkar is not acceptable there is no evidence in support of his alleged explanation. 30. The accused Treasury Sarkar's conduct is also otherwise suspicious for these reasons: The accused Cashier was handing over charge on suspension on August 4, 1962 because of the detection of the misappropriation of the first item of cash which had taken place in December 1961. On August 4, 1962 the said previous alleged defalcation was under scrutiny. By August 4, 1962 the Assistant Transport Manager P.W. 6 came to know that the second item of cash Rs. 2973-79 nP. had not also been deposited in the treasury. On August 4, 1962 the said previous alleged defalcation was under scrutiny. By August 4, 1962 the Assistant Transport Manager P.W. 6 came to know that the second item of cash Rs. 2973-79 nP. had not also been deposited in the treasury. The evidence of the Assistant Transport Manager P.W. 6 is that on August 4, 1962 while he was checking the cash books in charge of the accused Cashier for taking over charge from him the Assistant Transport Manager demanded the chalan in support of the remittance of Rs. 2973.79 nP. but the accused Cashier failed to produce that chalan nor could he give any explanation. It was thus that the Assistant Transport Manager came to know that the said amount had not been deposited. The witness further said that the accused Cashier was suspended on the same date August 4, 1962. The entry in the cashier's hand book Ext. D shows that the handing over and taking over charge was done in the presence of the Assistant Transport Manager at 5 p.m. on August 4, 1962. The same night at 8 p.m. the District Transport Manager sent a report to Rourkela police station in writing (Ext. 5) which was treated as First Information Report mentioning therein both the items of misappropriation on December.13, 1961 and August 3, 1962. 31. It was riot until the following morning on August 5, 1962 (which was a Sunday) that the accused Treasury Sarkar came to the office and returned Rs: 1413.45 nP. with the chalan Ext. 7 saying that this was the money which the accused Cashier had given to him and also submitted his written report Ext. 6 explaining the circumstances as stated therein. 32. From all these circumstances the prosecution sought to make out a case that the accused Cashier and accused Treasury Sarkar had common intention of misapproprising that money on August 3, 1962; that it was in the furtherance, of this common intention that the accused Cashier had withdrawn the money and the accused Treasury Sarkar got the chalan passed and had planned to misappropriate or convert to their own use the said money. The plan, however, did not ultimately materialise; it failed. The plan, however, did not ultimately materialise; it failed. The prosecution case is that it was in the predicament in which he found himself placed that the accused Treasury Sarkar produced his share of the booty on the morning of August 5, 1962 although it was a Sunday. It is also suggested by the prosecution that it is not that the accused Treasury Sarkar of his own produced the chalan Ext. 7 and the said sum of Rs. 1413-45 nP. The evidence of the Account Supervisor P.W. 5 is that he took the accused Treasury Sarkar with him to the District Transport Manager who was then alone In his office. The District Transport Manager confronted the Treasury Sarkar regarding the chalan under which money was to be deposited in the treasury on August 3, 1962. It was not until then the Treasury Sarkar produced the money and the chalan Ext. 7 before the District Transport Manager. 33. All these arguments by the prosecution, relaying on circumstantial evidence, were successfully repelled by a simple answer in defence that, assuming all these circumstances are true, even no, the prosecution has failed to establish that the accused Cashier and the accused Treasury Sarkar had participated in the alleged criminal act of misappropriation of the money. 34. We are of opinion that assaulting all the circumstances are true, even so the prosecution failed to establish common intention of the Cashier and the Treasury Sarkar to misappropriate the money as alleged. There is no evidence of participation in action which is essential for conviction u/s 34. 35. It is also not a case where the Cashier and the Treasury Sarkar can be said to have been jointly entrusted with the cash or with any dominion over the cash. There is no question of their joint dominion over the cash. 36. In this view of the position, we are not satisfied that it is a case for conviction u/s 40934 Indian Penal Code. 37. As regards the two accused accountants, as already discussed under item No. 1 they did not handle cash. Their duty was to check the chalan after the money was deposited in the treasury and put their signatures in the relevant books of account. There is no evidence of entrustment of the money in question with either of them. Therefore they are not guilty of the charge against them. 38. Their duty was to check the chalan after the money was deposited in the treasury and put their signatures in the relevant books of account. There is no evidence of entrustment of the money in question with either of them. Therefore they are not guilty of the charge against them. 38. So, we hold that the accused Cashier Rajkishore Singh Samanta is guilty of the charge of criminal breach of trust in respect of both the items of money. The prosecution having failed to prove the charge against the accused Treasury Sarkar Rabinarayan Samanta, he is given benefit of doubt. The two accused accountants Bofat Khan and Syed Abdul Aslam having been found not guilty, they both are acquitted of the charge against them. 39. In the result therefore: (a) The order of acquittal of the accused Cashier Rajkishore Singh Samanta passed by the learned Magistrate is set aside; he is convicted u/s 409 Indian Penal Code and sentenced to imprisonment for two years and a fine of Rs. 2000; in default of payment of the fine to a further period of imprisonment for six months in addition, both the sentences to run consecutively. We were inclined to award much higher sentence but under the law we could not award higher sentence than the maximum punishment which the trial Magistrate could have passed. The Government Appeal, 80 far as the accused Rajkishore Singh Samanta "is concerned, is accordingly allowed. (b) The order of acquittal of the other three accused persons Rabinarayan Samanta, Bofat Khan and Syed Abdul Aslam passed by the learned Magistrate is confirmed; the Government Appeal, so far as these other three accused persons are concerned, is dismissed. Misra. J. 40. I agree. Final Result : Dismissed