JUDGMENT : N.K. Das, J. - The Petitioner has been convicted u/s 400, Indian Penal Code and has been sentenced to undergo R.I. for one year and to pay a fine of Rs. 2,000.00, in default to undergo R.I. for two the months. 2. Prosecution case is that the Petitioner was the Cashier from 1968 to 1973 in the Lift Irrigation Division, Bhubaneswar. One Sri S.N. Mohanty who was a co-accused with the Petitioner was the Executive Engineer, during that period. The Deputy Accountant General, Orissa in his letter No. 1930 dated 14-11-1973 reported to the Managing Director, Lift Irrigation Corporation, Orissa, Bhubaneswar (P.W. 1) regarding defalcation of Government money in the office of the Executive Engineer, Lift Irrigation. On the basis of that Ext. 1, information was lodged by P.W. 1 in the Capital Police-Station alleging defalcation of Rs. 33,904.86 paise by the Petitioner as well as the Executive Engineer, Lift Irrigation. It was alleged that the amount of Rs. 9962.40 pais though shown to have been remitted into the Treasury on 29-12-1972 as per cash book and on 11-1-1973 as per the Remittance Book of the Division, during the local inspection by the audit party and on further investigation it was found that the amount was not deposited into the Treasury and was mi appropriated by the Petitioner and the Executive Engineer. On a scrutiny of the entries in the Cash Book and Remittance Book, it was further found by the audit party that the following amounts though shown in the Cash Book to have been remitted to the Treasury on the dates mentioned against each had not been deposited in the State Bank of India. (1) 29-3-1972 Rs. 3,032.65 (2) 29-4-1972 Rs. 3,864.25 (3) 25-8-1972 Rs. 9,165.50 (4) 29-6-1972 Rs. 6,880.60 (5) 29-12-1972 Rs. 9,962.40 Thus, it is alleged that a total sum of Rs. 33,904.86 was mis-appropriated both by the Petitioner and the Executive Engineer. The Executive Engineer has been acquitted and the Petitioner has been convicted. The plea of the Petitioner was that he was not the Cashier nor he was dealing with money and one Dharanidhar Das, Treasury Peon (P.W. 3) whom the money was entrusted was to deposit the same in the Bank. 3. Prosecution examined as many as 12 witnesses and exhibited a 54 documents. The defence examined five witnesses and also produced about fifteen documents. Relying on the testimony of P.Ws. 3. Prosecution examined as many as 12 witnesses and exhibited a 54 documents. The defence examined five witnesses and also produced about fifteen documents. Relying on the testimony of P.Ws. 1, 10 and 13 it has been held that the Petitioner was dealing with the cash. It has been found by the appellate Court that on various dates the Petitioner received the amounts from various persons and remitted the same to the Treasury under the signature of the Executive Engineer. The entries have been proved by P.W. 10 to have been made by the Petitioner and thus it has been believed that the Petitioner was entrusted with the money. As regards the amount of Rs. 3032.65 (Item No. 1) it has been found that the said money though remitted to the Treasury was not deposited in the Bank. As regards Item No. 2, it has been found that the amount has been shown in the Cash Book and remitted to the Treasury but not deposited in the Bank. So also is the case relating to Item Nos. 3 and 4. The plea of the Petitioner is that the amounts were entrusted to P.W. 3, the Treasury Peon but to he Petitioner. 4. From the evidence of the P.W. 10, the Divisional Accountant, it is revealed that as per rules in Form No. 51 which is an important document, the Divisional Accountant gives a monthly statement in respect of receipts and payments made to the Treasury and the Bank. From Ext. 33, it appears that by the end of June 1973, there is an excess deposit in the Bank to the tune of Rs. 7,91,710.51 paise The period of incumbency is from 1968 to 18-4-1973 and it is alleged that the amount has been mis-appropriated during that period. But from the statement of the Divisional Accountant upto the end of June 1973 it appears that there is an excess deposit in the Bank. It is clear from the evidence of the prosecution witnesses that no post of a Cashier has been sanctioned and there is no appointment as Cashier. From the evidence of P.Ws. 1, 2, 10 and 13 it appears that nobody was appointed as a Cashier and no officer takes charge of the cash. It is only alleged that there are two keys, one with the Petitioner and the other with the Engineer. From the evidence of P.Ws. 1, 2, 10 and 13 it appears that nobody was appointed as a Cashier and no officer takes charge of the cash. It is only alleged that there are two keys, one with the Petitioner and the other with the Engineer. Therefore, I hold that the prosecution has failed to establish that the Petitioner was the Cashier at the relevant time but the prosecution has shown that the Petitioner was handling the cash or in other words was dealing with the cash. Relying on the testimony of P.Ws. 2, 10 and 18 prosecution has tried to show that the Petitioner was in charge of the iron chest containing cash. The evidence to this effect is based only on the fact that one key remains with the Petitioner. There is no evidence to show at any time that both the keys were available with the Petitioner. The successor (P.W. 13) to the Petitioner has stated that on 1-4-1973. be took charge as the Cashier but nobody made over any charge to him. It has also not been put to the Petitioner in his statement u/s 313, Code of Criminal Procedure that he was the Cashier and was in-charge of the cash and he handed over the cash to P.W. 13. 5. Prosecution case is that the five items stated above were received by the Petitioner. Chalans were sent to the Treasury. The Treasury passed the chalans asking the Bank to accept the same and thereafter the money was not deposited. Exts. 21, 23, 25, 27 and 29 are the respective chalans. Out of the five items, there is no evidence on behalf of the prosecution to prove the receipt of the amount in respect of the amount of item Nos. 3, 4 and 5. An attempt has been made to prove receipt of the money under items 1 and 2. Prosecution has therefore, failed to prove as to who received the money under item Nos. 3, 4 and 5. There is no evidence that the Petitioner received the money and, as such, it cannot be said that he was entrusted with the money. No original receipt to the payees has been produced nor any of them has been examined. Prosecution has relied only on the counter foils. In this counter-foils, the Executive Engineer has signed -as the Receiving Officer. There is no evidence that the Petitioner received the money and, as such, it cannot be said that he was entrusted with the money. No original receipt to the payees has been produced nor any of them has been examined. Prosecution has relied only on the counter foils. In this counter-foils, the Executive Engineer has signed -as the Receiving Officer. In absence of any proof that the money was actually paid to the Petitioner and prima facie the Executive Engineer signing the receipts to be the Receiving Officer, it cannot be said that the money way directly entrusted to the Petitioner. The pass books in which the amounts were deposited from time to time in order to show deposit were not produced in Court. P.W. 10 is the Treasury Sarkar. He gives prevaricating statements before the Investigating Officer as well as in Court. From his evidence it appears that the Petitioner has never gone with him to the Treasury and he is the person who has gone to the Treasury with chalans even he has caused chalans above Rs. 500/-. In all these chalans, namely, Exts. 21,23,25,27 and 29, P.W. 3 is the tenderer. It is more probable that the Treasury Sarkar was handling the money. No specific question was put to the Petitioner to explain if he actually received the money under the aforesaid five items and did not deposit the same. 6. As per rules, the Executive Engineer is the Drawing & Disbursing Officer who is in-charge of the cash and the registers relating to the cash. He has to verify the cash at the end of every month. It appears from the judgment of the appellate Court that he has verified the cash in respect of each items of the alleged misappropriated money and has given a certificate in his own hand after verifying the cash voucher, all expenditures and payments made to the Bank. It is clear from the evidence of P.Ws. 2 and 10 that the Executive Engineer has given the certificates after verifying the deposits made in the Bank. As no follow up action has been taken in the matter, it is apparent that everything was regularised. As per the rule, the Division Accountant (P.W. 10), is to verify all these documents. It is clear from the evidence of P.Ws. 2 and 10 that the Executive Engineer has given the certificates after verifying the deposits made in the Bank. As no follow up action has been taken in the matter, it is apparent that everything was regularised. As per the rule, the Division Accountant (P.W. 10), is to verify all these documents. If there was absence in deposit it would have been pointed out by the Divisional Accountant but the Executive Engineer has not pointed out at any time absence of any such deposit. If the Executive Engineer who is responsible or the loss has been acquitted, it is preposterous to entangle the Petitioner. It has been held by the appellate Court that the Divisional Accountant is the pivot so far the working of the Account Section is concerned and it is not understood as to how without his knowledge such embazzlement occurred. This has been confirmed by the evidence of P.W. 2. This Divisional Accountant (P.W. 10) has stated in his statement Ext. 13/3 that there was an excess of nearly about eight lakhs of rupees in deposit and that statement is made after verification of the deposits in the Bank. The Treasury pass-book is maintained in the Division and the Treasury Officer after verifying the deposits in the Bank signed the entries but I have already stated that those pass books had not been produced, P.Ws. 4 and 5 who are persons of the Bank and the audit officers have not helped the prosecution in any way. P.W. 4 states that he has no knowledge about the deposits or any deposit concerned in this case and he cannot say if the omission of the seals might of accidental as this matter was dealt in the Cash Section and he is not concerned with that P.W. 5, the Audit Officer on whose report the F.I.R. is based has stated that he cannot say whether disputed items were actually credited to the Bank or not. It has been held in Dadero v. The State of Maharashtra AIR 1974 S.C.C. 338, that if there is admission of signature made by the accused below the deposit in the books of account, mere admission would not be sufficient to conclude that the amount was handed over to him and other oral evidence is necessary to prove entrustment. It has been held in Dadero v. The State of Maharashtra AIR 1974 S.C.C. 338, that if there is admission of signature made by the accused below the deposit in the books of account, mere admission would not be sufficient to conclude that the amount was handed over to him and other oral evidence is necessary to prove entrustment. Mere entries without any oral evidence as to the nature of business and the mode of keeping accounts, is not sufficient to prove entrustment. The aforesaid facts coupled with the excess of deposit in the Bank to the tune of about eight lakhs of rupees clearly show that the prosecution has not been able to establish entrustment to the Petitioner of the aforesaid five items. If entrustment fails, the question of mis-appropriation is of no avail. It is contended by the learned Standing Counsel that the Petitioner was handling cash and, as such, it is for him to say what happened to the aforesaid five items of money. It is also contended by the learned Counsel for the Petitioner that it is for the prosecution to show that when there has been excess of amount in the bank, the prosecution should have established that the said excess amount of deposits does not include the five items of money which are allowed to have been entrusted to the Petitioner and he has not deposited the same. As I have clearly held that the prosecution has failed entrustment and in that case it is for the prosecution to establish that the excess amount found in the Bank did not include the five items of money in dispute but the prosecution has failed to establish the same. On the aforesaid analysis, held that the Petitioner cannot be held to be guilty for offence u/s 409, Indian Penal Code and his conviction cannot sustainable. 7. In the result, the revision is allowed. The conviction and sentence passed against the Petitioner are set aside and he is acquitted of the charge. The judgments of the Courts below are set aside. Fines, if paid, be refunded to the Petitioner. Final Result : Allowed