JUDGMENT : J.K. Mohanty, J. - This revision is directed against the judgment of the Sessions Judge, Balasore in Criminal Appeal No. 45 of 1976 maintaining the order of conviction and sentence of the accused-Petitioner order Sections 394/114. Indian Penal Code passed by the S. D.J.M. Nilgiri. 2. The prosecution case is that accused-Petitioner Jadunath Das was the Secretary of the Shyamsundarpur Service Cooperative Society Ltd. (hereinafter called the Society) of which P.W. 3 was the President. One of the functions of the Society was to bring loan from the District Co-operative Central Bank (hereinafter called the Bank) and advance the money to its members for agricultural purposes. On 17-5-1973 the Petitioner and P.W. 3 went personally to Nilgiri Branch of the Bank and received Rs. 27,240/- and both of them returned to the Society Office in the evening at about 7 p.m. The money was kept in an Almirah in the office of the Society. In the night, P.W.- 3 the President, the accused-Petitioner and P.W. 5 Harekrushna Mahakud, the peon of the Society, slept in the office of the Society keeping watch over the cash. At about 2 a. m. two persons having covered their face with some black materials pushed open the door and came inside the room and the accused-Petitioner handed over the cash to them. The peon of the Society (P.W. 5) identified the two persons wearing the black mask to be Sadhu Prasad Das and Kartika Chandra Das, who are brothers of the accused-Petitioner. On the next day the accused-Petitioner lodged a written report (Ext. 20) at the Nilgiri Police Station stating therein that at about 2 a.m. in the night some dacoits broke open the door and took away the entire money from the Almirah. Police took up investigation during which it was revealed that the removal of the cash from the office of the Society was a collusive act of the accused-Petitioner and his brothers. So the Petitioner, and the accused Sadhu Prasad Das and Kartik Chandra Das (since acquitted) were arrested. While the accused persons were in custody, accused Sadhu Prasad Das led the police and gave recover of Rs. 26,900/- for different parts of their house and the same was seized by the police. The I.O. seized in all Rs. 30.025/- from the house of the accused persons (vide Exts. 2 and 18). While the accused persons were in custody, accused Sadhu Prasad Das led the police and gave recover of Rs. 26,900/- for different parts of their house and the same was seized by the police. The I.O. seized in all Rs. 30.025/- from the house of the accused persons (vide Exts. 2 and 18). In consequence of the information received from the accused persons while in custody, in the night of 18/19-5-1973, the I.O. discovered a leather bag (M.O.V.) and a plastic Bag (M.O.I) in which the money had been kept in the Almirah of the Society. As Harekrushna Mahakud, the peon of the Society (P.W. 5), had been assaulted by the miscreants, he was sent for medical examination and was examined by the Medical Officer of Kishorepur P.H.C (P.W. 9), who found one abrasion 6" x 4" with swelling just below the left nipple. Police also seized some incriminating articles and documents in course of investigation and submitted charge-sheet against the accused persons. The three accused persons were tried in the Court of the S.D.J.M., Nilgiri. Charges under Sections 457 and 394, Indian Penal Code were framed against accused Sadhu Prasad Das and Kartik Chandra Das and charges under Sections 457/114 and 394/ 114 were framed against accused-Petitioner Jadunath Das. 3. The plea of the accused persons were a complete denial. On behalf of the prosecution in all 12 witnesses have been examined and several documents have been exhibited. The accused persons have not examined any witness in their defence. The learned Magistrate convicted accused Sadhu Prasad Das and Kartik Chandra Das under Sections 457 and 394, Indian Penal Code and sentenced them to undergo R.I. for one year and three years respectively, the sentences to run concurrently. The accused-Petitioner was convicted u/s 394/114, Indian Penal Code and was sentenced to undergo R.I. for three years. He was, however, acquitted of the charge u/s 457/114. Indian Penal Code. The learned Magistrate further directed that out of the cash seized, the amount due to the Bank be returned. In appeal, the Sessions Judge, Balasore acquitted accused Sadhu Prasad Das and Kartik Chandra Das, but maintained the conviction and sentence of the accused-Petitioner. 4. Mr. He was, however, acquitted of the charge u/s 457/114. Indian Penal Code. The learned Magistrate further directed that out of the cash seized, the amount due to the Bank be returned. In appeal, the Sessions Judge, Balasore acquitted accused Sadhu Prasad Das and Kartik Chandra Das, but maintained the conviction and sentence of the accused-Petitioner. 4. Mr. D.S. Nanda, learned Counsel appearing for the Petitioner, submits that the aforesaid Sadhu Prasad Das and Kartik Chandra Das, who are alleged to have committed the offences under Sections 394 and 457, Indian Penal Code, having been acquitted the accused-Petitioner cannot be convicted under Sections 394/114, Indian Penal Code; that in view of the finding of the Courts below that the accused in his capacity as the Secretary was in custody of a sum of Rs. 27,240/- (the amount alleged to have been stolen from the Almirah of the Society) and the said amount having been made over to the police on the next day, the question of dishonest removal of the money does not arise; and that in any view of the matter, the prosecution has failed to prove the case against the accused-Petitioner. 5. Admittedly in this case the Petitioner was the Secretary of the Society and on 17-5-1973 Rs. 27,240/- was drawn from the Bank and the amount was kept in the Almirah of the Society by the accused-Petitioner under lock and key. This amount admittedly was the property of the Society. That night P.Ws. 3 and 5 and the accused-Petitioner slept in the room and during the night there was theft of the said amount from the Almirah. It is also not disputed that police seized Rs. 30,025/- (Vide Exts. 2 and 18) from different parts of the house of the accused persons (Petitioner and his two brothers) shortly after the commission of the theft. This recovery was made at the instance of accused Sadhu Prasad Das, brother of the accused. 1 here was recovery of some incriminating articles like Plastic Bag (M.O.I). Leather Bag (M.O.V) and Cash Receipt Book (M.O.VI) at the instance of the accused persons. It is also clear from the evidence of P.Ws. 3 and 5 that when the culprits pushed open the door and came inside the room, accused-Petitioner Jadunath Das handed over the entire sum of Rs. 27,240/- to the culprits by opening the Almirah without being threatened or molested. It is also clear from the evidence of P.Ws. 3 and 5 that when the culprits pushed open the door and came inside the room, accused-Petitioner Jadunath Das handed over the entire sum of Rs. 27,240/- to the culprits by opening the Almirah without being threatened or molested. The two accused persons Sadhu Prasad Das and Kartik Chandra Das were identified by P.W. 5 only. But the appellate Court gave the benefit of doubt to those two accused persons and acquitted them, as he was of the view that it was not possible for P.W. 5 in that night to identify those accused persons. 6. To bring a person within the purview of Section 114, Indian Penal Code the abetment must be complete apart from the mere presence of the abettor. It is necessary first to make out the circumstances which constitute abetment, so that, "if absent", he would have been "liable to be punished as an abettor", and then to show that be was present when the offence was committed. Previous concert is an essential factor in the constitution of the offence of abetment u/s 114, Indian Penal Code. The mere presence of a person will not render him liable for the offence committed. He must be sufficiently near to give assistance, and there must be a participation in the act. Now the question arises as to whether the accused can be found guilty as an abettor u/s 114, Indian Penal Code when the two persons, who were accused of the principal offences under Sections 457 and 394, Indian Penal Code have been acquitted. Learned Additional Standing Counsel appearing for the State cites Jamuna Singh v. State of Bihar AIR 1975 S.C. 553, wherein it has been held: It cannot be held in law that a person cannot ever be convicted of abetting a certain offence when the person alleged to have committed that offence in consequence of the abetment has been acquitted. The question of the abettor's guilt depends on the nature of the act abetted and the manner in which the abetment was made. u/s 107, Indian Penal Code a person abets the doing of an act in either of three ways which can be: instigating any person to do an act; or engaging with one or more person in any conspiracy for the doing of that act; or intentionally aiding the doing of that act. u/s 107, Indian Penal Code a person abets the doing of an act in either of three ways which can be: instigating any person to do an act; or engaging with one or more person in any conspiracy for the doing of that act; or intentionally aiding the doing of that act. If a person instigates another or engages with another in a conspiracy for the doing of an act which is an offence, he abets such an offence and would be guilty of abetment u/s 115 or Section 116, Indian Penal Code, even if the offence a betted is not committed in consequence of the abetment. The offence of abetment is complete when the alleged abettor has instigated another or engaged with another in a conspiracy to commit the offence. It is not necessary for the offence of abetment that the act abetted must be committed. This is clear from Explanation 2 and illustration (a) thereto, to Section 108, Indian Penal Code. The principle of la w is also settled that a person may be convicted of abetment of an offence even if he is charged with the substantive offence and vice versa, if the facts relied upon could have supported a charge for that offence. This view finds support in the Note of AIR SC. 1973 (2 of 1974), Vol. 2 at page 660 and Bhagat Ram Vs. State of Punjab Sambasiva Mudali and Others Vs. Emperor, . Mr. Nanda, learned Counsel appearing for the Petitioner, cited Faguna Kanta Nath Vs. The State of Assam in support of his contention that the accused persons, who are alleged to have committed the offence under Sections 394 and 457, Indian Penal Code having been acquitted the accused-Petitioner cannot be convicted as an abettor. But this decision does not help him. Rather it supports the view that even if the offence is not committed, the abettor can be punished under certain circumstances. It has been held in that case: According to Section 107 a person abets the doing of a thing when he instigates any person to do a thing or engage with one or more other person or persons in any conspiracy for the doing of that thing or intentionally aids, by any act or illegal omission the doing of that thing. In either of the first two cases it is immaterial for the conviction of the abettor whether the person instigated commits the offence or not or the persons conspiring together actually carry out the objects of the conspiracy. In the case of abetment by aid a person can be said to abet by aiding only when by the commission of an act be intends to facilitate the commission of the offence and does facilitate the commission thereof. Therefore where a person is charged with abetment by aid of an offence u/s 161 and the person charged with the offence is acquitted on the ground that he had not committed the offence no question of intentionally aiding by any act or omission the commission of that offence arises. Therefore, whether the acquittal is right or wrong the conviction of the abettor also cannot be allowed to stand in the circumstances. 7. In this case both the Courts have held that two culprits took away the sum of Rs. 27,240/- from the offence of the Society and the accused-Petitioner Jadunath Das gave this money to the culprits by opening the Almirah. This is substantiated by the evidence of p. ws. 3 and 5. On the next day the amount was recovered from the house of the accused persons at the instance of accused Sadhu Prasad Das, the brother of the accused-Petitioner. It is also clear from the evidence of P.W. 4 that the accused Sadhu Prasad Das led the pollee and the witnesses and money was discovered in consequence of such information. The Plastic Bag (M.O.I). Leather Bag (M.O.V) and Cash Receipt Book (M.O.VI) were also discovered by the police at the instance of the accused persons and were seized. P.W. 3 has stated that the Secretary (Petitioner) did not allow him to take the cash with him to his home and kept the same under lock and key in the Almirah of the Society. P.W. 5 has stated that earlier the accused-Petitioner told him that he would commit dacoity of the loan cash of the Society and asked him not to divulge this fact to anybody. He (Petitioner) also threatened that in case he (P.W. 5) divulges the same, he would chop up his (P.W. 5) head. P.w. 5 has also identified these two accused persons. But this has not been accepted the appellate Court. He (Petitioner) also threatened that in case he (P.W. 5) divulges the same, he would chop up his (P.W. 5) head. P.w. 5 has also identified these two accused persons. But this has not been accepted the appellate Court. The evidence of P.W. 5 on the above aspect, no doubt cannot be accepted on its face value. But the circumstance of the prior concert of the accused-Petitioner with the culprits be they are his brothers or anybody else is clear from his conduct. He has prevented P.W. 3 from taking the cash and kept the money in the Almirah and handed over the amounts to the culprits without any protest or any threat from them. On the next day the money was recovered from the house of the accused persons at the instance of accused Sadhu Prasad Das, the brother of the accused-Petitioner. The other incriminating articles were also recovered at the instance of the accused persons. From the above circumstance, I am inclined to believe that at least Sadhu Prasad Das, the brother of the accused-Petitioner, was one of the culprits, who have committed theft of them money in the night of 17-5-1973 and the accused Jadunath Das handed over the money to them. As Sadhu Prasad Das has already been acquitted and the case is or the year 1973, at this stage, I do not think it proper to send the case back for re-hearing of the appeal. However, I am not satisfied that no force or violence was used or any hurt was caused to P.W. 5 by the culprits as alleged. P.W. 3, out of fear, might have fallen down from the cot and it is hard to believe that P.W. 5 offered any resistance so as to be assaulted, as according to him, be was on the know of the fact that the money will be removed by the accused-Petitioner. The culprits just pushed open the door and the accused-Petitioner was waiting for them and banded over the cash to them after opening the Almirah. The next contention of Mr. Nanda that the accused being in custody of the cash cannot commit theft is not tenable. The accused-Petitioner has lodged F.I.R. in the police station intimating that some dacoits had forcibly taken away cash from the Almirah of the Society. The next contention of Mr. Nanda that the accused being in custody of the cash cannot commit theft is not tenable. The accused-Petitioner has lodged F.I.R. in the police station intimating that some dacoits had forcibly taken away cash from the Almirah of the Society. This rather shows that having dishonestly caused removal of the cash, he lodged a false report before the police in order to hoodwink everybody. The amount was recovered only after the police searched the house of accused-Petitioner and his brother Sadhu Prasad Das have recovery of the money. It is not the case that the money was kept by the Petitioner in his house and handed over the same suo motu. From the facts and circumstances established in this case, it is clear that accused-Petitioner handed over the money by opening the Almirah in pursuance of prior concert. 8. In the aforesaid analysis, I hold that the Petitioner is guilty of an offence u/s 379/114 and not u/s 394/114, Indian Penal Code. Regarding the sentence, Mr. Nanda submits that the Petitioner is a young- graduate of 26 years of age; that the entire money has already been handed over on the next day; and that in the facts and circumstances of the case, the sentence of imprisonment already undergone will meet the ends of justice. I am also inclined to accept the submissions of Mr. Nanda. Therefore, while convicting the accused-Petitioner under Sections 379/114. Indian Penal Code. I feel that the period of imprisonment already undergone with a fine of Rs. 200/-, in default to undergo R.I. for one month will serve the ends of justice. With the aforesaid modification, the revision is dismissed. Revision dismissed. Final Result : Dismissed