B. K. BEHERA, J. ( 1 ) THE order of conviction recorded against the petitioner by the trial court finding him to be guilty of the charge under section 408 of the Indian Penal Code (the Code, for short) and sentencing him to undergo rigorous imprisonment for a period of eight months and to pay a fine of Rs. 1,000/- and in default of payment thereof, to undergo imprisonment for a further period of four months by accepting the case of the prosecution that while serving as the depot man for country liquor in the Aska Co-operative Sugar Industries Ltd, the petitioner had committed criminal breach of trust between 1. 4. 1975 and 27. 11. 1975 in respect of 2340 liters out of 180669 litres of 60 U. P. country liquor and 2080 litres out of 65609 litres of 40 U. P. country liquor entrusted with him, maintained by the court of appeal has been assailed in this revision as unreasonable and illegal without evidence either of entrustment or of misappropriation. ( 2 ) MR. Kalyan Patnaik, appearing for the petitioner, has taken me through the evidence and has submitted that entrustment had not been established as alleged by the prosecution and some entries in the books of accounts and the contents of an audit report on which the prosecution based its case could not, by themselves, prove entrustment and in addition there was no evidence of misappropriation by the petitioner. Mr. M. R. Mohanty, the learned Additional Standing Counsel, has submitted that the petitioner was himself maintaining Ext. 3, the Stock Register and the entries made therein coupled with some invoices with regard to the purchase of liquor and the audit report would establish the entrustment of 1,80,669 litres of 60 U. P. country liquor and 65,609 litres of 40 U. P. country liquor and taking into consideration the sales and the balance left on the day of inspection, there had been shortage of 2340 litres, of 60 U. P, country liquor and 2080 litres of 40 U. P. country liquor. He had, however submitted that apart from some entries in the Stock Register and the documents referred to above, there was no independent evidence of entrustment of either of the two varieties of liquor with the petitioner on any occasion. He had, however submitted that apart from some entries in the Stock Register and the documents referred to above, there was no independent evidence of entrustment of either of the two varieties of liquor with the petitioner on any occasion. ( 3 ) IN a case of criminal breach of trust, the prosecution must establish the factum of entrustment and the factum of misappropriation. In Dadarao v. State of Maharashtra1, the Supreme Court has held: The High Court has rightly observed that there is no evidence of entrustment to the appellant. We have gone through the record in order to find whether there is any indirect evidence of entrustment but we see none. All that the prosecution did was to produce the books of account of the Chikhli head office and of the Buldana Branch. There is a debit entry in the books of the Buldana Branch showing that a sum of Rs. 7,000/- was given to the appellant on 10. 11. 1965 for using taken to the head office but the mere entry, unsupported by any oral evidence cannot prove entrustment. 5. 34, Evidence Act, says that entries in books of account, regularly kept in the course of business are relevant but such statements shall not alone be sufficient evidence to charge any person with liability. The prosecution did not examine anyone even to show that the books of account were regularly kept in the course of business or indeed was any attempt made to lead evidence apart from the production of book s of account to prove the entrustment of the amount to the appellant. ' ( 4 ) IN the instant case, there was no evidence that the Stock Register was being maintained duly and regularly in the course of official business. As has been submitted by the learned counsel for both the sides, there was no independent evidence of entrustment. The then Distillery Manager of the Aska Co. operative Sugar Industries (P. W. 3) had stated in his evidence that be could not say when the petitioner took charge of the depot and as to what was the quantity of liquor in the stock. He could not say how many times and what quantity of liquor bad been given to the petitioner on different occasions during his time. operative Sugar Industries (P. W. 3) had stated in his evidence that be could not say when the petitioner took charge of the depot and as to what was the quantity of liquor in the stock. He could not say how many times and what quantity of liquor bad been given to the petitioner on different occasions during his time. Although be had claimed to have verified the stock every month, he had noticed no shortage in the stock up to the end of September, 1975, as stated by him in his cross-examination. The Stock Register (Ext. 3) had been admitted in evidence while P. W. 4, then functioning as the Secretary of the factory, was under examination. The relevant entries therein said to have been made by the petitioner bad not been proved. Mr. Patnaik for the petitioner has rightly urged that while examining the petitioner under section 313 of the Code of Criminal Procedure, his attention bad not been invited to Ext. 3 which was said to have been maintained by him. This was a highly unsatisfactory feature in the case. This document had been relied upon without affording an opportunity to the petitioner to have his say. P. W. 7, the then Distillery Officer attached to the factory, had not been able to say what quantity of liquor had been issued 10 the petitioner on which date. According to him, he had never issued any quantity of liquor. His evidence would, however, give an indication that liquor was being supplied in far and the capacity of each jar was 20 litres, but be bad received complaints as to the shortage of its capacity by 1. 5 to 2 litres out of 100 litres in five such jars. P. W. 11 the Ware House Clerk of the factory, could not say from which date to which date and what quantity of liquor bad been issued by him to the petitioner. The then Sub-Assistant Registrar of the Co operative Societies at Aska (P. W. 12) had conducted the audit of the accounts of the country spirit depot of the Aska Sugar Factory and submitted his report (Ext. 7 ). This audit covered the period between 1. 4. 1975 and 30. 11. 1975. According to him, the petitioner had misappropriated a sum of Rs. 20,522. 75 paise while he had been functioning as the depot man. 7 ). This audit covered the period between 1. 4. 1975 and 30. 11. 1975. According to him, the petitioner had misappropriated a sum of Rs. 20,522. 75 paise while he had been functioning as the depot man. He had, however, stated in his cross-examination: TIJ cannot say what was the stock received by the accused and what was the stock in the band of the accused when he made over the charge to his successor. ( 5 ) P. W. 13 was the Investigating Officer who had spoken about the seizures of some documents including invoice books. He had not examined any of the persons to whom the petitioner had sold the country spirit nor had he examined the persons who had been filling the plastic jars. P. W. 14, the Cashier of the factory, had produced the Cash Book maintained in his section and had proved some counter foils and two money receipts. He had stated in his cross-examination that it was only his duty to keep the money from the vendors and to issue receipts to them and besides this, be had known nothing about the case. P. W. 15, the Assistant Accounts Officer, had testified that he bad no connection with the distillery or with the petitioner although at times, he used to check this section. He had proved some counter foils from the invoice book. ( 6 ) THERE was thus no independent evidence of entrustment and the prosecution had merely relied on some entries in the books of accounts and the audit report. ( 7 ) AS held by this Court in Okil Luha v. State of Orissa2, no order of conviction can be based merely on an audit report of an inconclusive character as an auditor notes some objections therein and until the objections are brought to the notice of the person concerned and the liability is fixed by the authorities after proper inquiry no legal culpability can be fixed. The same view has been taken by the Court in the case of State of Orissa v. Shyamsundar Rath3 where in it has been held that entries in the books of accounts, though relevant, shall not alone be sufficient evidence to charge any person with criminal misappropriation and mere entries unsupported by any other oral evidence cannot prove entrustment. The same view has been taken by the Court in the case of State of Orissa v. Shyamsundar Rath3 where in it has been held that entries in the books of accounts, though relevant, shall not alone be sufficient evidence to charge any person with criminal misappropriation and mere entries unsupported by any other oral evidence cannot prove entrustment. ( 8 ) MY attention has been invited by the learned counsel for the petitioner to rule 84 (1) of the Boards Excise Rules, 1965 which reads: p84 (1) A licensee may stock country spirit in vats in the wholesale depots; Provided that the wastage in such storing shall not exceed two per cent of the quantity of country spirit received in any consignment: Provided further that when the wastage in such storing exceeds two per cent it shall be treated as an irregularity and the licensee concerned shall be liable to the penalty prescribed therefore under the Act and under any rules made there under. ' The appellate court had not taken due note of this provision although it did refer to it. There was no acceptable evidence about misappropriation. As held by me entrustment had not been established. The charge against the petitioner must fail. ( 9 ) I thus find that although concurrent findings have been recorded by the trial and appellate courts, the findings are unreasonable and cannot be sustained in law. ( 10 ) 1 would allow the revision and set aside the order of conviction and sentences passed against the petitioner. Revision allowed. .