JUDGMENT B. D. Singh, J. This appeal by Basudeo Mandal Secretary of Hajipur Multipurpose Co-operative Society (hereinafter to be referred to as the Society) is directed against the judgment and the order of Additional Sessions Judge, Dumka, convicting the appellant under section 408 of the Indian Penal Code (hereinafter to be referred to as the 'Case') and imposing sentence of seven years rigorous imprisonment and fine of Rs, 1,500/-. 2. The prosecution case in brief was that although Jagernath Sah (P.W. 5) was the Treasurer, whose duty was to deal with the cash relating to the Society, the appellant used to keep the cash with himself without any authority. On 29-6-1964 the Society got Rs.15,805/- as a loan from Rajmahal Central Co-operative Bank Limited for distribution of loan among the members of the Society. The said amount was duly entered in the cash book of the society, and the disbursement of Rs.16,965/- was also shown in the register, but in fact the said amount was not actually disbursed and the appellant misappropriated the said amount. On 3rd of October, 1965, the cash book showed a balance of Rs. 2,732,.34 P. out of which Rs. 2,500/- was shown as transferred but in fact the said amount, namely Rs. 2,500/- was also misappropriated. On 23rd of November, 1964 the appellant received Rs. 1,500/- from Rajmahal Central Co-operative Bank for distribution of loan to the members of the Society, but the said amount was not entered in the cash register, nor it was disbursed. On 2nd of March, 1965, Rs. 2,144/- was shown as cash balance but the said amount was not produced before the supervisor, nor he deposited it in the Central Co-operative Bank Rajmahal. The appellant showed expenditure of Rs. 500/- on 15th of January, 1965, as remuneration to Ram Charitar Mandal, Manager, of the Society. According to the prosecution, Ram Charitar Mandal is the brother of the appellant and he never acted as a Manager. On 22nd of June, 1964, the appellant had a cash balance of Rs. 3,900.95 P. but by producing false and forged documents the appellant obtained a loan of Rs. 1,500/- from the Central Co-operative Bank, Rajmahal. The further prosecution case was that the appellant had realised Rs. 151/- by eleven receipt but he concealed the said amount and misappropriated it. On 22nd of June, 1964, the appellant had a cash balance of Rs. 3,900.95 P. but by producing false and forged documents the appellant obtained a loan of Rs. 1,500/- from the Central Co-operative Bank, Rajmahal. The further prosecution case was that the appellant had realised Rs. 151/- by eleven receipt but he concealed the said amount and misappropriated it. Thus according to the prosecution, the appellant had misappropriated a sum of Rs.20,512.53 P. on the -basis of various items referred to above, which came to light on the inspection of the various registers made by Ramesh Tripathi (P.W. 6), who was supervisor of the Co-operative Societies, Sahebganj Block. P.W. 6 first submitted report dated the 17th January, 1965 (Ext.9) to the Assistant Registrar, Co-operative Societies, Sahebganj. The Assistant Registrar in his turn directed P.W. 6 in his letter dated the 21st of January, 1965 (Ext.10) to seize all the records of the Society immediately, and to produce before him, for further necessary action in the matter. Thereafter, P.W. 6 submitted a report (Ext.15/1) dated the 5th of July, 1965, complaining against the appellant and also requesting the Assistant Registrar to take up legal action against the appellant. Subsequently, the Assistant Registrar, Co-operative Societies under his memo dated 6.9.1965 (Ext. 1) permitted P.W. 6 to file first information report against the appellant. Thereafter P.W. 6 lodged first information report (Ext. 15) before the Officer-in-charge, Sahebganj Police Station on 29.8.1965, which was recorded by Tulsi Narain Singh (P.W. 9), who after examining witnesses and after completion of the investigation submitted charge sheet under sections 409, 467, 420 and 468 of the Indian Penal Code against the appellant. After the usual enquiry under Chapter XVIII of the Code of Criminal Procedure the appellant was committed to the Court of Sessions to face his trial under sections 409 and 467 of the Code. Before the sessions court as many as nine witnesses, including those whom I have already mentioned, were examined by the prosecution to establish its case. On behalf of the appellant none was examined as a defence witness. Before the sessions court as many as nine witnesses, including those whom I have already mentioned, were examined by the prosecution to establish its case. On behalf of the appellant none was examined as a defence witness. However, the defence of the appellant in brief, which emerged from the statement made under section 342 of the Code of Criminal Procedure and from the suggestion of the various prosecution witnesses, was that he was innocent and whatever amounts the appellant had withdrawn from the Bank, were duly disbursed and nothing was misappropriated by him, and his further defence was that he had not committed any forgery, and the major portion of the amount were given to the various loanees who were members of the society. 3. The learned Sessions Judge after considering the evidence on the record held that the prosecution had failed to establish the charge under Section 467 of the Code against the appellant and he was of the view that the offence under section 409 of the Code was not attracted against the appellant. However, he convicted the appellant under section 408 of the Code and imposed the sentence of seven years' rigorous imprisonment and a fine of Rs.1,500/- as mentioned above. 4. Mr. Indu Shekhar Pd. Sinha, learned counsel for the appellant has challenged the judgment and order of the Sessions Judge convicting the appellant under section 408 of the Code. According to the learned counsel, the prosecution has failed to establish that the appellant had misappropriated any amount of the society. Learned Counsel referred to the various details regarding the amount of Rs. 20512.53 P. alleged to have been misappropriated by the appellant. Item No.4 mentions fictitious disbursement of loan 'as shown in the cash book on 7.7.1964, Rs. 16,965/-. Learned counsel contended that out of the said amount, Rs. 15,805/- was no doubt withdrawn by the appellant from the Central Co-operative Bank, Rajmahal on 29.6.1964 and the entire amount, namely, Rs. 16,965/- was distributed to the various loanees, who were the members of the society. This part of the defence, learned counsel urged, is supported even by some of the prosecution witnesses. He referred to the evidence of Jagarnath Sah (P.W. 5) who stated in his examination-in-chief that the appellant and previous supervisor of the societies as well as the deponent had gone to Bank in order to get the money amounting to Rs. This part of the defence, learned counsel urged, is supported even by some of the prosecution witnesses. He referred to the evidence of Jagarnath Sah (P.W. 5) who stated in his examination-in-chief that the appellant and previous supervisor of the societies as well as the deponent had gone to Bank in order to get the money amounting to Rs. 15,805/- withdrawn. He stated that the appellant had withdrawn it but at the very time the appellant had distributed the loans. Learned counsel submitted that no doubt this witness was declared hostile by the prosecution but it is well established that on such evidence the accused as well as the prosecution can rely and the court can come to its own conclusion. In this connection, learned Counsel drew my attention to the evidence of Babulal Pas wan P.W. 7. From his evidence, it appears that he was one of the loanees. He stated in his evidence clearly that the loan was distributed among all. Learned counsel pointed out that this witness was not declared hostile. His evidence clearly indicated that the loans were distributed among the loanees. Another loanee was Bhagwan Thakur (P.W. 8). He also stated in his evidence that appellant had distributed the amount to various persons and at the time of distribution an officer of the society was present there: This witness also it may be noted, was declared hostile but as mentioned above no doubt the appellant also can rely on part of his evidence, which may be favourable to him. The learned Sessions Judge in this regard observed in paragraph 12 of his Judgement that the persons connected in the Hajipur Multipurpose Cooperative Society as members or office bearers were not inclined to support the prosecution. It appeared from the evidence of P.W. 8 that the appellant was a big man that is the reason why those witnesses, namely, P.Ws. 5, 7 and 8 turned against the prosecution, was not far to seek but this was left to imagination. He further observed that in that case the oral evidence adduced by prosecution was not of much importance. The matter related to accounts, and the case would have to be decided mainly on documents, but I find that the learned Session Judge further observed in paragraph 14 of the Judgement that due to some confusion the whole cash book was not marked. The matter related to accounts, and the case would have to be decided mainly on documents, but I find that the learned Session Judge further observed in paragraph 14 of the Judgement that due to some confusion the whole cash book was not marked. In the cash book he, however, found a list of 99 persons to whom loans were alleged to have been distributed but the learned Sessions Judge 'held that if that loan was taken into evidence for the benefit of the appellant, it appeared that it was a mere list of persons to whom a debt was to be, advanced or alleged to have been, advanced. According to him that could not prove disbursement of the money as alleged by the appellant. 5. In my opinion, if the oral evidence adduced on behalf of the prosecution, is eliminated, one is left with the cash book, Volume 1 which has been referred to by the learned Sessions Judge, the entire contents of the said cash book was not marked as exhibit. Instead, the closing balance on the back of page 31 of the said cash book was marked as Ext. 16, so also the endorsement of Ramesh Tripathi (P.W. 6), the supervisor, was marked as Ext. 17/1 at page 32. It is obvious that the entire contents of the cash book was not marked as exhibit due to the fault of the prosecution. It is well established that the accused should not be allowed to suffer due to the negligence or any fault committed by the prosecution. The benefit has to be given on that account to the appellant. That apart in the said cash book, I find the names of 99 loanees written beginning from page 27 to page 32 which the learned Sessions Judge has considered as a list of those persons as pointed out earlier P.Ws. 5, 7 and 8 were some of the loanees. The name of P.W. 5 is under serial 90 at page 30 of the cash book, whereas the name of P.W. 7 finds place in serial 29 at page 20, whereas the name of P.W. 8 is under serial 8 at page 27 of the cash book and they have supported the case of the appellant that the amount was disbursed and they had also received the amount. Even if the evidence of P.Ws. Even if the evidence of P.Ws. 5 and 8 is excluded on the ground that they were declared hostile, there is no reason to' exclude the evidence of P.W. 7, who was not even declared hostile by the prosecution. Learned Counsel in this connection has also submitted that the Sessions Judge has erred in declaring hostile the P.Ws. 5 and 8. From the ordersheet, it appears that no reasons were assigned as to why they were declared hostile. According to the learned counsel, it was incumbent upon the learned Sessions Judge to have indicated the reasons in the ordersheet for making such declaration. In order to support his contention, learned counsel relied on a Bench decision of this court in Emperor Vs. Suar Gola, AIR 1934 Pat 533 where Noor and Luby, J.J. while dealing with the provisions contained under section 154 of the Evidence Act, observed that discretion allowed by section 154 should not be exercised without sufficient reason, and the reason should be stated because by offering a witness, a party is held to recommend him as worthy of credence, and so it is not in general open to him to test the witness's credit or impeach his truthfulness. 6. In my opinion; this statement of the learned Counsel is well founded. I find from reference to the ordersheet of the learned Sessions Judge that on 11.6.1968, the learned Sessions Judge in the ordersheet simply wrote, P.W. 5, Jagernath Sah examined. He was cross-examined with the permission of the Court by the prosecution and then by the defence and discharged. Similarly on 12.6.1968, the learned Sessions Judge in his order sheet mentioned, P.W. 8 Bhagwan Thakur examined in Chief, cross-examined by the prosecution with the permission of the court and then by the defence and discharged. Obviously he has not stated any reason for declaring them hostile. Hence, I find that in any view of the matter all those three witnesses supported the case of the appellant so far the disbursement of the loan was concerned. Learned counsel in this connection has also submitted that the prosecution, therefore, had failed to establish the charge of misappropriation against the appellant. There is no evidence on the record which might have lent support to the prosecution version. In order to find support to his statement, learned counsel relied on another Bench decision of this court in Harekrishna Mahatab Vs. There is no evidence on the record which might have lent support to the prosecution version. In order to find support to his statement, learned counsel relied on another Bench decision of this court in Harekrishna Mahatab Vs. Emperor, AIR 1930 Pat 209 where Fazal Ali and Davle, J.J., while dealing with the provisions contained under section 406 of the Code observed that it was neither necessary nor possible in every case of criminal breach of trust to prove in what precise manner the money was spent or appropriated by the accused, since by law even temporary retention, provided it was dishonest, was an offence. But where there was no direct evidence of misappropriation and one was left to surmise as to what use was made by the accused of money, one ought to require clearer evidence of dishonest intention then in a case where there was direct evidence to prove that the money was appropriated by the accused for a particular use which was inconsistent with his position as a trustee of the money. Their Lordships further observed that in cases of Criminal breach of trust failure to account for the money proved to have been received by the accused or giving a false account as its use was generally considered to be a strong circumstance against the accused. But accused must not be convicted on it alone. It was only an indication or piece of evidence pointing to dishonest intention and must be considered along with other facts of the case. Learned Counsel on the basis of above observation that in the instant case the prosecution had not led evidence to show as to what was the dishonest intention on the part of the appellant and what had happened to those moneys which were withdrawn by the appellant from the Bank. No direct or indirect evidence was led so much so that in the present case, the learned Sessions Judge has rightly found that the appellant had not committed any forgery, which impliedly he accepted that the prosecution had not been able to establish any act of forgery in the accounts maintained by the appellant. If cash book is not held to be forged, what is stated in the book should be considered as genuine. If cash book is not held to be forged, what is stated in the book should be considered as genuine. Learned Counsel also advocate that in the instant case .there is further evidence on the record to establish that the disbursement was duly made. The amount, namely, Rs. 15,805/- as stated earlier relating to item no. 4 was withdrawn from the Bank on 29.6.1964. There is usual practice as well as the rule that unless the money so withdrawn is duly disbursed, no further amount would be withdrawn from the Bank. According to the prosecution own case Rs. 1,500/- relating to item no. 3 mentioned in the F.I.R. was withdrawn from the Bank by the appellant on 23.11.1964. Learned Counsel in this regard referred to the evidence of P.W.4, Kameshwar Pd. Ojha, the Assistant Manager of Central Co-operative Bank, Rajmahal during the relevant time who stated in his evidence that there is rule that only when the old loan is duly disbursed, the new loan is given to the society. That also according to the learned counsel indicated that the appellant had duly disbursed the amounts of Rs. 15,805/- which he had withdrawn from the Bank on 29-6-1964. In my opinion, this also lends support to the defence version so far item No.4 is concerned. Regarding the claim of the prosecution for withdrawal of Rs. 1,500/- by the appellant on 23-11-1964 mentioned in item No.3 in the first information report, which I have just referred; learned counsel contended as in the case of the amount contained under item No.4 that the prosecution has not led any direct evidence to establish that the appellant has misappropriated the said amount of Rs. 1500/-. It was incumbent upon the prosecution to have led direct evidence as held in Harekrishna Mahatab Vs. Emperor, AIR 1930 Pat 209. On the other hand, on behalf of the appellant to explain his conduct he obtained ten affidavits from the loanees to whom the appellant had disbursed the amount as loan and had filed those affidavits before the learned Sessions Judge. The relevant portion of affidavit of Dhirnath Mandal, one of the ten persons who had sworn affidavits reads as :- "1. That I am a member of the Multipurpose Coperative Society Ltd., Hajipur under Sahibganj Block, P.S. Sahibganj, District S.P. 2. That I received S.T. loan amounting to Rs. The relevant portion of affidavit of Dhirnath Mandal, one of the ten persons who had sworn affidavits reads as :- "1. That I am a member of the Multipurpose Coperative Society Ltd., Hajipur under Sahibganj Block, P.S. Sahibganj, District S.P. 2. That I received S.T. loan amounting to Rs. 200/- from Shri Basudeo Mandal, Secretary of the Society aforesaid mentioned in the month of November 1964. 3. That the following persons who are also members of my Society have also received S.T. loan from the said Secretary as detailed below:- 1. Rampratap Mandal Rs. 200/- 2. Sunder Mandal Rs. 200/- 3. Bhudeo Paswan Rs. 100/- 4. Chulhai Mandal Rs. 100/- 5. Ramlakhan Mandal Rs. 200/- 6. Jageshwar Mandal Rs. 100/- 7. Lukha Mandal Rs. 100/- 8. Bouku Mandal Rs. 100/- 9. Baija Mandal Rs. 200/- Similar is the affidavit of the other nine persons. The learned Sessions Judge in his order dated 7-9-1964 in this connection observed "defence does not want to examine any witness: instead ten affidavits are filed with a prayer that these should be read in evidence under section 510A Cr. P.C., In my opinion, such affidavits can not be treated as law. However, their admissibility will be considered further at the time of judgment. Let those be kept on record." The learned Sessions Judge in his judgment while dealing with matter and interpreting with the provisions contained under section 510A of the Code of Criminal Procedure held, that the disbursement of the loan was not a formal matter: on the contrary it touched the very merit of the prosecution case and was an important fact in regard to the defence also. It was strange that the accused did not produce those persons or other debtors in court to prove the advance of loan nor applied for their attendance. Prosecution had no benefit of cross-examining those persons who swore affidavits and, therefore, those affidavits could not be treated as defence in the case in support of the defence. Learned counsel drew my attention to the provisions contained under section 510A of the Criminal Procedure Code which reads as :- "The evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any enquiry, trial or other proceedings under this code. Learned counsel drew my attention to the provisions contained under section 510A of the Criminal Procedure Code which reads as :- "The evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any enquiry, trial or other proceedings under this code. The Court may, if thinks fit, and shall on the application of the prosecution or the accused, summon and examine any such person as to the facts contained in his affidavit. Learned counsel contended that the affidavits given by the ten persons were really a sort of explanation and it should have been treated as formal as in the instant case disbursement of Rs. 1,500/- was among only ten persons. There may be cases if the amount would have been larger, there would have been a large number of loanees, for instance there may be one thousand. In that case the appellant was not expected that he would call all the one thousant persons as defence witnesses to support his case as that would have been merely repetition. The appellant had merely to give explanation that really he had distributed the said item to the various loanees. Therefore, the appellant obtained affidavits from those persons to explain his conduct that in fact even though he had not entered the amount in the cash book, he had actually distributed the amount among the ten loanees. The learned counsel emphasised that those affidavits were admissible under Section 510A, as the evidence was of a formal character. In order to find the meaning of word- ‘formal', learned counsel referred to the Oxford English Dictionary, Volume IV, reprinted in 1961 at page 461 to 462. The meaning of word ‘formal' therein is mentioned inter alia, of or pertaining to Form, in various senses. Pertaining to the form or constitutive essence of a thing; essential, opposed to material. That is a matter of routine only not of substantial import. 7. In my opinion, this submission of the learned counsel that the evidence of all those loanees would have been of formal character, is not acceptable, their evidence could not have been considered of a formal character. That is a matter of routine only not of substantial import. 7. In my opinion, this submission of the learned counsel that the evidence of all those loanees would have been of formal character, is not acceptable, their evidence could not have been considered of a formal character. Learned counsel submitted that even if it is assumed that it was not of a formal character, the learned Sessions Judge ought to have decided that matter as a preliminary point. If the appellant would have come to know that those affidavits were not finally taken into evidence by the learned Sessions Judge, he would have prayed for summoning them or would have examined them as defence witness but instead the learned Sessions Judge postponed the final decision till the date of the judgment and thereby a prejudice was caused to the appellant. 8. This submission of learned counsel is sound. In my opinion it was incumbent on the facts and circumstances of the case for the Learned Sessions Judge to have decided about those affidavits as a preliminary point. Moreover, if he was not satisfied with those affidavits, he himself would have summoned those persons, who had sworn affidavit to ascertain the truth in the ends of justice, particularly when the learned Sessions Judge himself said that the contents of the entire cash book due to certain confusion could not be marked exhibit, and he had also eliminated the evidence of witnesses led on behalf of the prosecution, as he had observed as mentioned earlier that the case would be decided mainly on the documents. In my view it was incumbent upon the appellant also to have filed application for summoning those ten persons who had sworn affidavits. It may be noticed that the appellant has admitted that he had withdrawn the money from the Bank. It is also admitted fact that the said amount of Rs. 1500/- was not entered in the cash book. Learned counsel, however, relying on A.I.R. 1930 Patna page 209 Supra contended that only because the same was not entered in the cash book, it can not be inferred that the appellant had misappropriated the amount. According to the learned counsel, the prosecution ought to have led direct evidence to show that the appellant had dishonestly misappropriated the said amount. Learned counsel, however, relying on A.I.R. 1930 Patna page 209 Supra contended that only because the same was not entered in the cash book, it can not be inferred that the appellant had misappropriated the amount. According to the learned counsel, the prosecution ought to have led direct evidence to show that the appellant had dishonestly misappropriated the said amount. In the absence of such evidence, the appellant could not have been convicted on a charge of misappropriation or embezzlement of the said amount. He had drawn my attention to A.I.R. 1930 Patna page 209 at page 215 where Fazal Ali, J., who delivered the judgment for the court, observed that "the failure to account may in some cases be due to, among other things, mere stupidity, bad legal advice, a disinclination to retract a foolish lie once told or even a perverse attitude taken by the accused that he is not liable to account, while there may be other evidence in the case pointing to the accused having acted quite honestly. In such a case the accused cannot be convicted even though he may have failed or omitted to account for the money received by him." 9. In my opinion, the above observation of his Lordship has to be read along with the earlier observation made at the same page and in the same paragraph wherein he observed that in exercise of criminal breach of trust the failure to account for the money proved to have been received by the accused or giving a false account as to its use is generally considered to be a strong circumstance against the accused.” Besides, I find that the contention of the learned counsel is not supported in some later Bench decision of this court wherein 1930 Patna page 209. =11 P.L.T. page 319 was referred and explained. Reference may be made to Emperor Vs. Chaturbhuj Narain Choudhary, AIR 1936 Pat 350 where, Beever and Rowland, J.J. had an occasion to deal with the provisions contained under sections 405 and 409 of the Code. Rowland, J. who delivered the judgment for the court observed at page 352 : "To establish a dishonesty therefore it is not necessary that the prosecution should establish an intention to retain permanently the property misappropriated. Rowland, J. who delivered the judgment for the court observed at page 352 : "To establish a dishonesty therefore it is not necessary that the prosecution should establish an intention to retain permanently the property misappropriated. An intention wrongfully to deprive the owner of the use of the property for a time and to secure the use of the property for his own benefit for a time, may be sufficient. It was so held in 8 Bom L.R. 951 Emperor Vs. Chhagan Lal. At the hearing we were shown a large number of decisions on cases in which the presecution had established irregularities of one kind or another, retention of trust property, omission to account, false accounting, and in which such irregularities had been held to amount or not to amount to criminal breach of trust. It will serve no useful purpose to examine the facts of all those decisions in the attempt to arrive at a rule enabling one to say that this Or that overt act or this or that irregularity in conduct will or will not amount to criminal misappropriation or breach of trust. I am quite unable to deduce any such hard and fast rule from the decision, and I do not think that there is any such rule. The principle to be followed is, if I may say so with respect, correctly laid down in two decision: one of this court in Harekrishna Mahtab Vs. Emperor, a case ending in acquittal: and the other in 6 Lah. 257 which ended in conviction. In the former of these cases Fazal Ali, J., said: It is not necessary or possible in every case of criminal breach of trust to prove in what precise manner the money was spent or appropriated by the accused, because under the law even temporary retention is an offence provided that it is dishonest; but the essential thing to be proved in case of criminal breach of trust is whether the accused was actuated by dishonest intention or not. As the question of intention is not a matter of direct proof, the courts have from time to time laid down certain broad tests which would generally afford useful guidance in deciding. whether in a particular case the accused had mens rea for the crime. As the question of intention is not a matter of direct proof, the courts have from time to time laid down certain broad tests which would generally afford useful guidance in deciding. whether in a particular case the accused had mens rea for the crime. So in cases of criminal breach of trust the failure to account for the money proved to have been received by the accused or giving a false account as to its use is generally considered to be a strong circumstance against the accused. We should however not lose sight of the principle and make a universal formula of what is after all only an indication of or a piece of evidence pointing to dishonest intention." The other Bench decision of this court wherein A.I.R. 1930 Patna page 209 corresponding to 11 P.L.T. page 319 (Supra) was referred and distiguished is, Bindeshwari Pd. Jayasawal Vs. Emperor, A.I.R. 1949 Pat. 69, wherein it was observed "failure to render satisfactory account is generally considered to be a strong circumstance against the accused. 10. Since in the instant case the appellant could not get opportunity to examine those ten persons from whom he had obtained affidavits at one stage, on the evidence on the record, I was intending to remand the case, but because of the error committed by the learned Sessions Judge in not deciding that matter as a preliminary point, now I consider that it would be a great hardship on the appellant if it is sent back for giving him opportunity to examine those persons as defence witnesses. It may be recalled that the case was initiated on 28-9-1965 when the F.I.R. was lodged and all the documents and the papers were seized from the possession of the appellant by P.W. 6 on 25-1-1965 and 24-6-1965 vide Exts. 11 and 11/1. Therefore, as I have observed earlier the prosecution also should have taken care to get those documents duly exhibited and should have established dishonest intention on the part of the appellant on the basis of other facts but they have not done so. In that circumstance I give benefit of doubt to the appellant so far' this item No.3 is also concerned. 11. As regards item No.6 mentioned in the first information report relating to the payment of remuneration to Shri Ram Charitar Mandal amounting to Rs. In that circumstance I give benefit of doubt to the appellant so far' this item No.3 is also concerned. 11. As regards item No.6 mentioned in the first information report relating to the payment of remuneration to Shri Ram Charitar Mandal amounting to Rs. 500/- is concerned, the learned trial court judge, has already found in favour of the appellant in paragraph 21 of his judgment, wherein he held that there was no reliable evidence that the appellant had dishonestly paid Rs. 500/- to his brother. It was no doubt true that Ram Charitar Mandal was the brother of the appellant, but from that could not be said that the amount paid by the appellant was dishonest misappropriation. Learned counsel submitted that if items No.3, 4 and 6 are held in favour of the appellant, there is no other item shown on the record of the case to establish that the appellant had misappropriated any amount. Learned counsel referred to the cash balance which is mentioned in items 1 and 2 in the first information report. Item No. 1 amounts to Rs. 232.34 P. whereas item No.2, mentions Rs. 2,180.44 P. Item No.3 as mentioned ealier is Rs. 1,500/- whereas out of the amount of Rs. 16,965/- as mentioned earlier only Rs. 15,805/- was received by the appellant from the Bank. The appellant also accepts item No.4 mentioned in the first information report as Correct and item No. 5 relates to realisation of receipts 1 to 11 amounting to Rs. 151/-. The total of these amounts towards credit side comes to Rs. 18,858.78 P. which the appellant had received on behalf of the society. On the debit side the appellant as held earlier had duly disbursed among the loanees Rs. 16,965/- relating to item No.4. It was also given benefit of doubt to the appellant that he had disbursed Rs. 1,500/- to the ten persons who had sworn affidavits relating to item No.3. The learned Sessions, Judge as mentioned earlier had already found in favour of the appellant relating to the payment made to Ram Charitar Mandal amounting to Rs. 500/- relating to item No.6. Regarding item No. 7 amounting to Rs. 26.25 P. and item no. 8 amounting to Rs. 990/- in the first information-report itself, credit has been given to the appellant as the appellant had already deposited those amounts in the Bank. 500/- relating to item No.6. Regarding item No. 7 amounting to Rs. 26.25 P. and item no. 8 amounting to Rs. 990/- in the first information-report itself, credit has been given to the appellant as the appellant had already deposited those amounts in the Bank. The total of these amounts on the debit side comes to Rs. 19, 981. 25 P. Therefore, taking the credit and the debit sides into accounts as mentioned above, no amount of the society was due against the appellant, on the contrary the appellant had overspent Rs. 112. 47 P. from his own pocket on behalf of the society. From the discussion with regard to the various items referred to above, in my judgment it is clear that the conviction of the appellant cannot be sustained. Learned counsel has also submitted before me that the learned Sessions Judge has erred in convicting the appellant under section 408 of the Code. According to him, the appellant was not a public servant. He was merely an 'Honorary Secretary of a Society for doing some limited purpose as provided in the Bihar and Orissa' Co-operative Societies Act, 1935. In order to substantiate his contention, he has relied on a Bench decision of this court in State of Bihar Vs. Amulya Ratan Pathak, A.I.R. 1969 Pat. 173 where S.N.P. Singh and K.B.N. Singh, J.J. observed at page 180. in paragraph 19 that "the trial court has found that the respondent, while acting as the secretary of the society, was a public servant as mentioned in the charge. It is doubtful, however, whether an office bearer of a co-operative society is a public servant, while discharging his duties as such. There is no doubt, however, that the respondent was acting as an agent of the Bank. That being so, he is clearly liable for an offence under section 409 of the Indian Penal Code." 12. Reliance was also placed on a later decision of Calcutta High Court, in Shanti Ranjan Bhattacharya Vs. The State, A.I.R. 1970 Cal 557 where Dutt and Sarma Sarkar, J.J. had referred A.I.R. 1969 Patna 173 and relied while dealing with section 19 of the Bengal Co-operative Societies Act, 1940. Reliance was also placed on a later decision of Calcutta High Court, in Shanti Ranjan Bhattacharya Vs. The State, A.I.R. 1970 Cal 557 where Dutt and Sarma Sarkar, J.J. had referred A.I.R. 1969 Patna 173 and relied while dealing with section 19 of the Bengal Co-operative Societies Act, 1940. In paragraph 3 at page 558, it was observed "There is, therefore, no doubt that a co-operative society though registered under the Co-operative Societies Act does not become, because of Section 19 of the Act, a Corporation established by or under the Cooperative Societies Act and in that view of the matter the Secretary of a Co-operative Society is not a public servant under the twelfth clause of Section 21 of the Indian Penal Code." In paragraph 9, it was observed "Even with regard to the tenth clause there is some difficulty, namely, the petitioner is working only in the interest and for the benefit of a particular society and not for the common secular interest of any particular village or town or district. This view was also taken in several cases of which mention may be made to the case of A.I.R. 1958 Mysore 82, where it was held that the President of a Co-operative Society is not a public servant under the tenth clause of Section 21 of the Indian Penal Code". The relevant provisions of the Bengal Co-operative Societies Act 1940 on this point is similar to that of the provision in Bihar and Orissa Co-operative Societies Act. Therefore, the observation made above equally applies in the case of the appellant who is also the Secretary of the Society mentioned above, In that view of the matter, in my opinion he cannot be considered as a public servant. His conviction could not have been under section 408 of the Code. He should have been convicted if at all, under section 406 of the Code. However, since I have already held that the prosecution had failed to establish the charge against him, the appellant can not be convicted even under section 406 of the Code. 13. In the result, the appeal is allowed and the conviction and sentence imposed upon the appellant are set aside. The appellant is therefore, also discharged from the bail bonds. Appeal allowed.