JUDGMENT : B.K. Behera, J. - Challenge in this revision is to the judgment and order passed by Mr. K.M. Subudhi. Additional Sessions Judge. Bhubaneswar, maintaining the judgment and order passed by the Additional Chief Judicial Magistrate, Bhubaneswar, convicting the Petitioner u/s 409 of the Indian Penal Code accepting the case of the prosecution that the Petitioner having been entrusted with the bank draft bearing No. 7039706 dated 24-12-1969 (Ext. 7) for a sum of Rs. 9,000/- payable as compensation for the death owing to an accident of Adityanath Misra, an Assistant Bridge Inspector of the South Eastern Railway, Khurda Road, which had been sent to the Deputy Labour Commissioner-cum-Commissioner for Workmen's Compensation, Government of Orissa, Bhubaneswar, encashed the bank draft on July 17, 1970 in the State Bank of India at Bhubaneswar on the basis of a letter of authority (Ext. 8/1) of the Deputy Labour Commissioner-cum-Commissioner for Workmen's Compensation (P.W. 4) containing the signature (Ext. 8/2) of the Petitioner therein which had been attested by P.W. 4 vide Ext. 8/3 after his own signature (Ext. 8/4) was taken by the State Bank of India authorities and compared with the attested signature (Ext. 8/2) which tallied and misappropriated this amount without showing the drawal in the office papers and in the process, committed criminal misappropriation of the amount with the intention to cause wrongful gain to himself and wrongful loss to the State. The sentences passed against the Petitioner to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 2,000/- and in default of payment thereof, to undergo rigorous imprisonment for a further period of six months for his conviction u/s 409 of the Indian Penal Code were maintained by the appellate Court. 2. Mr. R. Mohanty, the learned Counsel for the Petitioner, has submitted that in order to constitute an offence of criminal breach of trust punishable u/s 409 of the Indian Penal Code, the prosecution must prove both entrustment and criminal misappropriation and in the instant case, neither of these two elements had been established and therefore, the order of conviction cannot be sustained. Mr. A. Rath, the learned Additional Standing Counsel, has, however, submitted that the evidence would substantiate the findings of the trial and appellate courts that having been entrusted with the bank draft for Rs. Mr. A. Rath, the learned Additional Standing Counsel, has, however, submitted that the evidence would substantiate the findings of the trial and appellate courts that having been entrusted with the bank draft for Rs. 9,000/-, the Petitioner did encash the amount and then failed to account for it and committed criminal misappropriation. 3. There can be no doubt from the evidence of the Head Assistant (P.W. 1), the Diarist (P.W. 2) the Grade II Assistant (P.W. 3) who succeeded the Petitioner in August, 1971 and the Deputy Labour Commissioner (P.W. 4), all functioning in the office of the Labour Commissioner, Bhubaneswar at the relevant time that P.W.4 was the Commissioner under the Workmen's Compensation Act and the Petitioner had been working as the Bench Clerk and was in charge of the compensation seat. He was thus a public servant within the meaning of Section 21 of the Indian Penal Code and the learned Additional Sessions Judge ought not to have recorded that in all probability, the Petitioner was a public servant. 4. The evidence of P.Ws. 1 and 2 would clearly show that the bank draft in question had been received in the office on 18-5-1970 on which day the Petitioner was not present in the office and P.W. 2, the Diarist had made the entry (Ext. 1), on that day regarding its receipt he handed it over to the Head Assistant (P.W. 1) who signed the entry, as per Ext. 1/1, showing the receipt of the bank draft by him. The appellate court, without reasonable care, had recorded in, the judgment that Ext. 1/1 was signature of the Petitioner. It would be seen from the evidence of P.W. 1 that he had handed over the bank draft to the Petitioner w hen he came to the office. 5. Both the trail and appellate courts have concurrently found not only on the basis of the evidence of P.W. 4, but also on the evidence of the State Bank officers (P.Ws. 6, 7 and 8) that the Petitioner, after being entrusted with the bank draft for encashment, did encash and receive the amount from the State Bank of India and their evidence would show that this encashment had been made on July 17, 1970. 6, 7 and 8) that the Petitioner, after being entrusted with the bank draft for encashment, did encash and receive the amount from the State Bank of India and their evidence would show that this encashment had been made on July 17, 1970. As has been submitted before me, encashment of the bank draft was normally the work of the Treasury Sarkar attached to the office of the Labour Commissioner, but the fact remains that P.W. 4 had entrusted the draft to the Petitioner and as his own statement recorded u/s 313 of the Code of Criminal Procedure would show the Petitioner had been encashing such drafts on the basis of the letters of authority and this would appear from his answer to question No. 19. Ext. 7 is the bank draft containing Ext. 7/1, the official seal of P.W. 4. Speaking about entrustment of the bank draft to the Petitioner for encashment, P.W. 4 had testified thus: ...This is my endorsement and signature on cheque marked Ext. 7. Ext, 7/1 is my official seal. I had entrusted this cheque to the accused for encashment in the bank. This is the signature of the accused Ramkrishna Tripathy. This bank draft given to the accused was followed by a letter of authority from me. This letter was in all probability typed by the typist of my office. I perused the contents and found them to be correct and then J signed it. This is letter marked Ext. 8. Ext. 8/1 is my signature (objected and overruled). The accused signed this letter of authority in my presence and I attested the same. This is the signature of the accused marked Ext. 8/2 with date. This is my signature which I put in token of attestation marked Ext. R/3. This is another signature of the accused marked Ext. 8/4 put at the bottom of the letter of authority. Generally, the Dealing Asst. was authorised by me to encash the cheques in the bank on the strength of a letter or authority issued by me. I cannot say whether the amount under the cheque was encashed. This amount was never received in our office. So this case has not yet been finalised. Nothing substantial had been brought out in the cross-examination of this witness to discard his testimony that the bank draft had been entrusted to the Petitioner for encashment. I cannot say whether the amount under the cheque was encashed. This amount was never received in our office. So this case has not yet been finalised. Nothing substantial had been brought out in the cross-examination of this witness to discard his testimony that the bank draft had been entrusted to the Petitioner for encashment. When the Petitioner was asked about it (question No. 18), he gave an answer that he did not remember if the bank draft had been entrusted with him, as many years had passed he had not specifically denied the entrustment of the bank draft with him. The Petitioner had not denied his signature (Ext. 8/2) taken by P.W. 4 which was attested by him while issuing the letter of authority and Ext. 8/4, the signature taken at the State Bank of India, which according to the Bank authorities, tallied with Ext. 8/2. Although the State Bank of India officers could not possibly identify the Petitioner to be the person who had encashed the amount, P.W. 4 had properly Identified Ext. 8/4 to be the signature of the Petitioner. There could thus be no doubt from the evidence that the Petitioner had signed as per Ext. 8/4 at the State Bank of India after which the token was issued and the bank draft was encashed. 6. There was the evidence of P.W. 6, the Manager of the Personnel Division in the State Bank of India, that Ext. 10 was the true copy of the Payment Register containing the signature of the then Branch Manager as per Ext. 10/1. P.W. 7, the Record Keeper in the State Bank of India at Bhubaneswar, had testified that in 1975, a police officer visited the Bank and saw the Payment Registers. He had proved the seizure list, Ext. 11. P.W. 8 was another officer of the State Bank of India and he had testified that Ext. 8 was the authority slip produced before him with the bank draft (Ext. 7) by the authorised person Shri Ramakrishna Tripathy. He ascertained the name of the authorised person who signed before him as per Ext. 8/4 and as in his opinion, the attested signature (Ext. 8/2) in the letter of authority tallied with the signature (Ext. 8 was the authority slip produced before him with the bank draft (Ext. 7) by the authorised person Shri Ramakrishna Tripathy. He ascertained the name of the authorised person who signed before him as per Ext. 8/4 and as in his opinion, the attested signature (Ext. 8/2) in the letter of authority tallied with the signature (Ext. 8/4) taken before him after comparison, he issued the token to that person and mentioned the token number on the, body of the bank draft as per Ext. 7/2. As his evidence would show, the money was paid on the very date the bank draft was presented for encashment with the letter of authority and from the 'Paid Cash Seal' dated the 17th July, 1970, he could say that it had been paid on that day. He had, no doubt, stated that he had no personal knowledge regarding the actual payment of the amount mentioned in the bank draft in this case, but from the aforesaid seal affixed to the bank draft and the letter of authority, he could say that the amount had been paid on 17-7-1970. In the very nature of things, he could not say at the time of his deposition as to who actually was Ramakrishna Tripathy and as indicated by me earlier, it would be unreasonable to expect the bank officers to identify a person who had received the money in 1970 in the court at the time of recording their evidence in 1976 unless they had personal acquaintance with the person especially as they would be dealing with a large number of such transactions every day. 7. The fact that the bank draft was seized on 12-8-1974, whereas the letter of authority was seized on 25-3-1975 in the course of investigation would not be of much consequence and could not cast any suspicion on the bona fides of the prosecution. No doubt, P.W. 4 had made an endorsement on the bank draft that the amount had been received by him in full when he sent it with the letter of authority for encashment, but from this, it could not be assumed that P.W. 4 had received the amount. As would appear from his evidence, this formality would have to observed while sending a bank draft for encashment. As would appear from his evidence, this formality would have to observed while sending a bank draft for encashment. I thus find that there is clear and cogent evidence against the Petitioner that he had encashed the amount of Rs. 9,000/- on the basis of the bank draft and the letter of authority on 17-7-1970. Thus the case of entrustment had been established by the prosecution. 8. As would appear from the evidence of P.W. 4 and the other officials functioning in the office of the Labour Commissioner and the Labour Commissioner (P.W. 11), no steps were taken and no enquiry was made as to what happened to the money for which the bank draft had been handed over to the Petitioner for encashment and it was only after complaint was made on behalf of Susila Misra, the widow of the deceased who was to receive the compensation amount, a long time thereafter that the matter came to light and a report by the then Deputy Labour Commissioner-cum-Commissioner for Workmen's Compensation was lodged. Ext. 6 was the signature of the Deputy Labour Commissioner in that report. It was on its basis that the investigation was taken up in the course of which the facts came to light and it was found out at the stage of investigation that the Petitioner, having encashed the amount, had not accounted for it and had misappropriated the amount. 9. The trial court, after coming to the conclusion that the Petitioner had encashed and received Rs. 9,000/-, observed that he did not explain how he dealt with the money and on the other hand had taken a plea of complete denial and so the only conclusion could be that he had converted the money to his own use and had committed criminal breach of trust in respect of such amount. The learned Additional Sessions Judge, after finding that the Petitioner had received the amount, observed that he had not given any explanation about its disposal and he jumped to the abrupt conclusion: "So he has certainly misappropriated the amount." 10. For a conviction for criminal breach of trust, the prosecution must prove two essential facts: (1) the factum of entrustment and (2) the factum of misappropriation of the entrusted property See Janeshwar Das Aggarwal Vs. State of Uttar Pradesh. For a conviction for criminal breach of trust, the prosecution must prove two essential facts: (1) the factum of entrustment and (2) the factum of misappropriation of the entrusted property See Janeshwar Das Aggarwal Vs. State of Uttar Pradesh. It is true that in a case of this nature where entrustment is admitted or proved, it would be for the accused person to account for the money entrusted with him and the prosecution may not be in a position to establish as to how the accused person has misappropriated the amount and converted the same to his own use, but the evidence and the circumstances of the case must warrant a conclusion that the accused, in order to cause wrongful gain to himself or wrongful loss to another has committed misappropriation of the amount. As observed by the Supreme Court in the case of Krishan Kumar Vs. The Union of India it is not necessary or possible in every case to prove in what precise manner the accused person has dealt with or appropriated the goods of his master. 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 goods received by him may be treated as a strong circumstance against the accused person. In the case of a servant charged with mis-appropriating the goods of his master, the element of criminal offence of misappropriation will be established if the prosecution proves that the servant received the goods that he was under a duty to account to his master and had not done so. In Jaikrishnadas Manohardas Desai and Another Vs. The State of Bombay their Lordships of the Supreme Court have laid down: ...to establish a charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion. The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if proved, may in the light of other circumstances justifiably lead to an inference of dishonest misappropriation or conversion. The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if proved, may in the light of other circumstances justifiably lead to an inference of dishonest misappropriation or conversion. Conviction of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the property entrusted to him, or over which he has dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an inference of misappropriation with dishonest intent may readily be made. 11. In yet another decision of the Supreme Court reported in Shri Rabindra Kumar Dey Vs. State of Orissa speaking for the Court observed: Having regard to the stand taken by the parties, the matter lies within a very narrow compass. So far as the entrustment of Rs. 10,000/- is concerned that is undoubtedly admitted by the Appellant, and the only explanation given by him is that he had returned the money to the Nazir after his return from the village Balichandrapur and he had also directed the Nazir not to deposit the money in the treasury. If once the explanation of the accused is disbelieved, or proved to be absolutely false, then it is quite natural that he must be presumed to have retained the money with himself for a period of six months. Although the onus lies on the prosecution to prove the charge against the accused, yet where the. entrustment is proved or admitted it will be difficult for the prosecution to prove the actual mode or manner of misappropriation and in such a case the prosecution would have to rely largely on the truth or the falsity of the explanation given by the accused.... 12. In the instant case, the Petitioner had neither admitted nor denied to have received the amount from the State Bank of India when asked about it and he had avoided by saying that he could not remember about it because of lapse of time. The prosecution has by clear, cogent and acceptable evidence, established that the Petitioner did encash the bank draft and did receive Rs. The prosecution has by clear, cogent and acceptable evidence, established that the Petitioner did encash the bank draft and did receive Rs. 9,000/- from the State Bank of India. The Petitioner had while under examination by the trial court, stated that whenever encashment was made by him on the basis of a letter of authority, he used to make over the amount to the officer issuing the letter of authority. He had not placed any material to show that he had handed over Rs. 9,000/- to the Deputy Labour Commissioner who had issued the letter of authority. The Petitioner had even gone to the length of denying that he had been working on the Bench Seat as the Bench Clerk although there was clear evidence about it. There was the evidence of P.W. 3 that when he succeeded the Petitioner in the Compensation Seat, the latter did not make over charge to him in spite of his request for which he intimated to the higher authorities and he had to take delivery of the charge in presence of the Assistant Labour Officer and at that time, the documents and files which were being dealt with by the Petitioner had been kept in an almirah under lock and key and the key had been retained by the Petitioner. It would also appear from his evidence that there were a number of missing files of which no information was given by the Petitioner to P.W. 3. The evidence of P.W. 3 was that the Deposit Register (Ext. 5) was being maintained by the Petitioner showing encashment of the bank drafts and excepting two entries made by him (P.W. 3), all the entries had been made by the Petitioner and the encashment of Rs. 9,000/- on the basis of the bank draft in question had not been entered by the Petitioner. A list of missing files had been prepared in the office as per Ext. 2 and that list included Case No. 2 of 1970 relating to the compensation payable in the concerned case. This would undoubtedly establish that after encashing Rs. 9,000/- on the basis of the bank draft in question had not been entered by the Petitioner. A list of missing files had been prepared in the office as per Ext. 2 and that list included Case No. 2 of 1970 relating to the compensation payable in the concerned case. This would undoubtedly establish that after encashing Rs. 9,000/- the Petitioner did not account for it and did not make an entry in the Deposit Register which he was required to do and without payment of the money to the Deputy Labour Commissioner who had issued the letter of authority for encashment of the bank draft, committed criminal misappropriation in order to cause wrongful gain to himself. The defence taken by the Petitioner is manifestly false and cannot be accepted. The aforesaid circumstances appearing in the evidence justifying an inference of criminal misappropriation had not been taken due note of by the learned Additional Chief Judicial Magistrate who tried the Petitioner and even the appellate court lost sight of these aspects and made no discussion about these telling circumstances against the Petitioner while corning to the conclusion that the Petitioner had committed criminal misappropriation. The documents relied on by the defence would not, in any manner, affect the truth of the prosecution case. 13. For the aforesaid reasons, I find that the order of conviction is well-founded. The sentences passed against the Petitioner cannot be said to be severe. 14. In the result, the revision fails and the same is dismissed. The order of conviction and sentences passed against the Petitioner is maintained. Final Result : Dismissed