JUDGMENT G.F. Couto, J. - The appellant herein and one Pritipal Singh had been charged of offences punishable under Sections 120-8 and 401 of the IPC and also under Sections 5 (1) (c) and 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act, 1947. The learned Special Judge, Margao, by his Judgment dated 28th January, 1986, acquitted the accused Pritipal Singh but was pleased to convict the appellant herein for offences punishable under Section 409 IPC and Sections 5 (1) (c) and 5(1) (d) read with Section 5 (2) of the Prevention of Corruption Act, 1947. 2. The prosecution case has been that Pritipal Singh was the Deputy Manager, acting as Divisional Manager, of the Marketing Division of the National Textile Corporation at Ahmedabad and the appellant was the Manager-in-Charge of the show room of the National Textile Corporation at Daman. Both Pritipal Singh and the appellant entered into a criminal conspiracy during the period commencing in April. 1979 and ending in April, 1980 with the object of misappropriating controlled cloth received at the show room of the National Textile Corporation at Daman from the Marketing Division, Ahmedabad, for sale to the public, and for the purpose of obtaining by corrupt means, pecuniary advantage of such misappropriation. It is further the case of the prosecution that the show room of the National Textile Corporation, Daman, comes under the Marketing Division of the National. Textile Corporation, Ahmedabad and the said show room is used to get controlled cloth from the said Marketing Division for sale to the public. The daily sale proceeds were required to be deposited within 24 hours in a non-operative account of the National Textile Corporation in the Dena Bank, Daman. The show room was also required to send a monthly statement of transactions made during the previous month to the Marketing Division at Ahmedabad, showing in detail the sales of cloth made during the respective month. During the year 1979-1980, controlled cloth was sent by the Marketing Division, Ahmedabad to the show room at Daman through 22 challans. Out of the said 22 consignments, 40 bales of controlled cloth were sent to Daman show room by the Marketing Division, Ahmedabad, through Rohini Enterprises. These consignments were not delivered at Daman on directions given by the appellant in conspiracy with the said Pritipal Singh and were instead taken delivery of at Vapi. Out of the said 22 consignments, 40 bales of controlled cloth were sent to Daman show room by the Marketing Division, Ahmedabad, through Rohini Enterprises. These consignments were not delivered at Daman on directions given by the appellant in conspiracy with the said Pritipal Singh and were instead taken delivery of at Vapi. The said 40 bales of cloth were booked to Narol, Ahmedabad, in consignments of 10 bales each, by the appellant under fictitious names of M/s. Bharat Textiles, Vapi, M/s. Vijay Textiles, Vapi, M/s. Rohini Textiles, Vapi, M/s. Narottam Textiles, Vapi, showing the consignee as self. The accused Pritipal Singh has met one Lalchand Dalal at Ahmedabad before the arrival of the said consignments in Daman and asked Dalal to sell the controlled cloth as per his instructions. Dalal managed to sell the said 40 bales of controlled cloth for a consideration of Rs. 1,60,000/- which was paid by him to the accused Pritipal Singh after getting a commission of Rs. 800/- Thereafter, neither Pritipal Singh, nor the appellant paid the said amount to the National Textile Corporation and, as such, both of them obtained pecuniary advantage by corrupt means. It is also the case of the prosecution that during the month of March, 1980, the show room of Daman purported to sell controlled cloth worth Rs. 40,169.65 p. and in pursuance of the criminal conspiracy between the two accused, the appellant did not deposit the said amount in the account of the National Textile Corporation in Dena Bank, Daman. Also on 31st March, 1980, the show room of Daman ought to have been in possession of controlled cloth, worth about Rs. 26.935/- and not cloth worth only Rs. 6.210.54 p. Therefore, there was a misappropriation on account of the said criminal conspiracy, to the tune of Rs. 20,724.50 p. The total amount of misappropriation is of Rs. 60,894.15 p. but was later on paid back to the National Textil Corporation, Marketing Division, Ahmedabad in five installments all by deductions from the pay of the appellant. 3. The learned Special Judge discussed the evidence adduced by the prosecution in detail and arrived at the finding that the prosecution has failed to establish the existence of a conspiracy between the appellant and Pritipal Singh. Therefore, he held that no case had been proved against the said Pritipal Singh and consequently acquitted him. 3. The learned Special Judge discussed the evidence adduced by the prosecution in detail and arrived at the finding that the prosecution has failed to establish the existence of a conspiracy between the appellant and Pritipal Singh. Therefore, he held that no case had been proved against the said Pritipal Singh and consequently acquitted him. However, as regards the appellant, the learned Judge held the view that the evidence on record was clearly showing that the aforesaid 40 bales of cloth had been despatched from the Marketing Division, Ahmedabad to Daman and that the appellant instead of receiving the said bales at Daman had directed the driver of the truck to unload the said bales in a godown at Vapi. The learned Judge also held that the evidence was sufficient to prove that there was a misappropriation to the tune of Rs. 20,724.50 p. as on 31st March, 1980 controlled cloth worth Rs. 26,935.04 p. was to be in the show room and on physical verification, cloth worth only Rs. 6,210.54 p. was found. On the basis of such evidence the learned Judge convicted the appellant, as already said, under section 409, I.P.C. and sections 5(1)(c) and 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947. 4. Mr. B.P. D'Souza, the learned counsel appearing for the appellant, does not dispute that in the light of the admitted facts and the other evidence it is true that the prosecution has succeeded in establishing that 40 bales of cloth had been sent from the Marketing Division, Ahmedabad to the show room at Daman through Rohini Enterprises and that the appellant instead of receiving the said consignment at Daman, had directed the truck driver to deliver the said consignment at some place at Vapi. He also admitted that on 31st March, 1980, controlled cloth worth Rs. 26,935.04 p. was to be in the said show room, but only cloth worth Rs, 6,210.50 p. had been found. However, the learned counsel contended that it has been the case of the appellant that this had been done under the instructions of Pritipal Singh, who had appointed him to work in the show room at Daman and further, had put him in charge' of the said show room. The learned counsel then contended that, as can be seen from the evidence given by the appellant under section 315 Cr. The learned counsel then contended that, as can be seen from the evidence given by the appellant under section 315 Cr. P.C., Pritipal Singh had impressed upon the appellant that there was need of showing that the show room at Daman was having sufficient sales, for otherwise the show room would be closed. Further, that Pritipal Singh bad also ordered him to mallipulate the account books so as to show that there were sales. To that effect, the consignments sent from the Marketing Division, Ahmedabad, were to be returned to Pritipal Singh, who, in his turn, would send its value, which was to be entered in books of accounts, but on dates prior to the effective receipt thereof. The appellant had followed these instructions. Now, according to Mr. D'Souza, these facts in no way establish per se that the appellant has committed any of the offences for which he was convicted. In fact, as regards the offence punishable under section 409, the learned counsel contended that the prosecution has not brought on record, leave alone proved, evidence to the effect that the appellant has acted in the manner mentioned above with dishonest intention. The dishonest intention is one of the ingredients of the offence punishable under section 409 and consequently, in the absence of such evidence, no conviction under the said section was warranted. He also contended that the ingredient of the offences under the Prevention of Corruption Act had not been proved. 5. Section 409 of the I.P.C deals with criminal breach of trust by a public servant or by a banker, merchant or agent. It provides that whoever being in any manner entrusted with property or with any dominion over property in his capacity of a public servant, or in the way of his business as a banker merchant, factor, broker, attorney or agent commits criminal breach of trust in respect of that property shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. It is thus clear that for being liable under section 409 of the Indian Penal Code, it is necessary to commit a criminal breach of trust. Now, criminal breach of trust is defined in section 405. It is thus clear that for being liable under section 409 of the Indian Penal Code, it is necessary to commit a criminal breach of trust. Now, criminal breach of trust is defined in section 405. It provides that whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust." It is apparent from the wording of the above section, that one of the ingredients of the offence is the dishonest intention in misappropriating, using or disposing the property in violation of any law or any contract or dishonest intention on the part of a person on account of whom another wilfully suffers such things. 6. In view of the above definition of criminal breach of trust by a public servant or agent and of the criminal breach of trust, it is necessary in the case at hand to see whether the prosecution has brought on record any evidence establishing the dishonest intention of the appellant in doing the acts abovementioned. I may say, at the threshold that no such evidence was at all produced and it is apparent that the prosecution has not even attempted to prove such dishonest intention. In fact, the whole exercise done by the prosecution was to prove that consignments of the cloth had been sent from the Marketing Division, Ahmedabad to the show room at Daman and that the appellant, instead of making genuine sales of the said cloth, had, on the contrary, not only abstained from taking delivery of the said consignments at Daman, but had deviated them to Vapi and to other places. At no stage, the prosecution attempted to prove that the appellant has benefited in any manner with his unusual activities. Then, no attempt was made also to show that the version of the facts given by the appellant to the effect that Pritipal Singh had forced him to act in that unusual manner was false. At no stage, the prosecution attempted to prove that the appellant has benefited in any manner with his unusual activities. Then, no attempt was made also to show that the version of the facts given by the appellant to the effect that Pritipal Singh had forced him to act in that unusual manner was false. The prosecution only tried to prove through P.W. 10 Dayal that Pritipal Singh had an under standing with the said witness for the sale of cloth which would be supplied by him. The prosecution also tried to prove that on account of that understanding 40 bales, of cloth had been banded over by Pritipal Singh to the said Dalal who, in his turn, had sold it to different parties receiving a commission, of Rs. 800/- from the said Pritipal Singh. However, it may be pointed out that the witness Dalal turned hostile and therefore, some contradictions between the statement given by him in Court and before the Police held been brought on record. But the fact remains that the statement of the said witness Dalal has no independent corroboration and the said witness having turned hostile, it is rather difficult to rely on his evidence to support a conviction. That apart, it is also pertinent to note that the learned trial Judge disbelieved the story of the prosecution that the appellant had entered into a conspiracy with Pritipal Singh for the purpose of misappropriating the cloth from the Daman show room. As a result of this, the learned trial Judge recorded an acquittal of the said Pritipal Singh. The prosecution chose not to appeal against the said acquittal and the result of this is that the prosecution appears to have accepted as correct, the finding of the learned trial Judge. Now, if the evidence of the witness Dalal had been considered, then, in the light of the remaining evidence it was impossible to accept a judgment of acquittal of the aforesaid Pritipal Singh. Thus, once the prosecution accepted as correct the acquittal of Pritipal Singh, it necessarily follows that the prosecution is barred from relying on the evidence of Dalal for the purposes of proving that there was a benefit accrued to the appellant as a result of his activities in the show room. 7. Realizing the weakness of the prosecution case, Mr. Thus, once the prosecution accepted as correct the acquittal of Pritipal Singh, it necessarily follows that the prosecution is barred from relying on the evidence of Dalal for the purposes of proving that there was a benefit accrued to the appellant as a result of his activities in the show room. 7. Realizing the weakness of the prosecution case, Mr. Bhobe has forcefully argued that irrespective of that aspect of the case, the evidence on record supplies sufficient material to establish beyond any reasonable doubt that the activities of the appellant in the show room were illegal. He submitted that as per the procedure it was the duty of the appellant not only to enter the cloth sent to him by the Marketing Division, Ahmedabad in the stocks of the show room, at Daman, but also to truthfully show the sales made. None-the less, it is an admitted position that the appellant did not enter the consignment of 40 bales of cloth in the stocks of the show room and, on the contrary, directed the driver of the truck to deliver them at Vapi. Then, he deliberately fabricated, falsely, books of account showing sales that never existed and payments that also never existed. Then, he made the refund of the money found short at a later stage. 8. Undoubtedly, the evidence on record indicates beyond reasonable doubt that the running of the Daman show room was most irregular. It also gives cause to strong suspicion that something illegal was going on for the purpose of misappropriating property belonging to the Marketing Division of Ahmedabad. It appears from the evidence that a vast racket was functioning and that members of the staff of the Marketing Division, Ahmedabad as well as of the show room at Daman, were involved in it. But suspicion, however strong, is not a substitute for evidence and that evidence, as already said, has not come forth as to establish that there was intention on the part of the appellant to misappropriate, in his benefit, the property belonging to the Marketing Division, Ahmedabad. But suspicion, however strong, is not a substitute for evidence and that evidence, as already said, has not come forth as to establish that there was intention on the part of the appellant to misappropriate, in his benefit, the property belonging to the Marketing Division, Ahmedabad. So also, no reliable evidence has been brought on record by the prosecution to establish that Pritipal Singh has ordered the appellant to return the bales of cloth in the manner it was done for any dishonest intention, namely for dishonestly misappropriating or converting to his own use, the said cloth or that he dishonestly had used or disposed that property in violation of any direction of law or of any contract. In the absence of such evidence, it cannot be said that the appellant has, at least, wilfully suffered the said Pritipal Singh to dishonestly misappropriate the said property or dishonestly used or disposed the said properly. This being the position, there is undoubtedly great force in the submissions of Mr. RP. D'Souza. In fact, the prosecution having failed to prove one of the main ingredients of the offence punishable under Section 409, no conviction for that offence was warranted. Equally, Mr. D'Souza is right when he submits that the prosecution has not established in these circumstances, any offence under the provisions of the Prevention of Corruption Act. 9. The result, therefore, is that this Appeal succeeds and consequently, the impugned Judgment dated 28th January, 1986 is set aside. The conviction of the appellant under Section 409 IPC and Section 5(1)(c) and 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 and the sentence passed against him to undergo one year of R.I. and to pay a fine of Rs. 500/- is accordingly quashed and set aside. The bail bond stands cancelled. Appeal allowed.