JUDGMENT : V. Gopalaswami, J. - This revision is preferred against the judgment of the Second Additional Sessions Judge, Berhampur, in Criminal Appeal No. 57 of 1985 (54/85 GDC) confirming the order of the Judicial Magistrate, First Class, Digapahandi, convicting the Petitioner u/s 406, I.P.C. and sentencing him thereunder to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1, 000/- in default to undergo rigorous imprisonment for a further period of six months. 2. The prosecution case may be briefly stated as follows: At village Chudangapur (within Patpur Police Station in Ganjam district) on 27.8.1979 at about 11 A.M. to 11.45 A.M., the vigilance party raided the mill premises of one Chinary Krishnamurty Subudhi in presence of witnesses and found 99 bags of Hira cement stocked in the said premises in violation of the relevant provisions of the Cement Control Order and so Vigilance P.S. Case No. 21 of 1971 u/s 7 of the Essential Commodities Act was registered against the said Chinari Krishnamurty subudhi, In the said vigilance case, the Investigating Officer seized the said 99 bags of cement and gave the same in the zima of the Petitioner Subudhi Sahu. During the course of the investigation of the said vigilance case, said Chinari Krishnamurty Subudhi died, After his death, the Collectors District Magistrate, Ganjam, ordered the said seized bags of cement to be confiscated to the State. In pursuance of that order several attempts were made to obtain the 99 bags of cement from the Petitioner, but in vain. Hence, ultimately C.R. Case No. 12 of 1981 had to be instituted against the Petitioner u/s 406, I.P.C. 3. The accused pleaded that the cement bags in question were never kept in his zima and the case was falsely foisted against him. He did not examine any witness in support of his plea. 4. Besides exhibiting several documents, the prosecution has examined in all ten witnesses to prove its case. P.Ws. 1 and 2 were examined as witnesses to the seizure of 99 bags of cement from the mill premises of the said Chinari Krishnamurty Subudhi as well as to prove that the said 99 bags of cement were kept in the zima of the present accused-Petitioner P.W. 4 Sri M.P. Sahu was the Inspector of Vigilance, who seized the 99 bags of cement in question in the presence of P.Ws. 1 and 2 and allegedly kept the same in the zima of the accused-Petitioner. P.W. 3 took over the charge of-the Vigilance Squad Office at Digapahandi from P.W. 4 on his transfer. P.W. 6 is one of the Investigating Officers and he is also the informant in the present case. P.W. 9 is the Inspector of Supplies who claims to have accompanied P.W. 6 when he went to the Petitioner and demanded of him to return the 99 bags of cement. In the year 1980 P.W. 6 was the Bench Clerk to the Collector. P.W. 8 was an Assistant in the office of the Chief Judicial Magistrate, Ganjam. P.W. 10 claims to have taken charge of the investigation of this case from P.W. 6. 5. Out of the list of witnesses examined by the prosecution, P.Ws. 1, 2 and 4 are the most material witnesses as they were examined to prove that the 99 bags of cement seized from the mill premises of Chinari Krishnamurty Subudhi were kept in the zima of the present accused-Petitioner. So at the outset, their evidence merits careful scrutiny. P.W. 1 Raghunath Patro and P.W. 2 Ankala Hari are residents of village Chudangapur within Patpur Police Station. Their evidence shows that on 27.8.1979 at about 11 A.M. to 12 noon on being called by the Vigilance Inspector, they went inside the mill and found several cement bags kept inside a rice mill P.W. 1 stated that the Vigilance Inspector seized the said cement bags under the seizure list, Ext. 1, wherein he signed and his signature is marked as Ext. 1/1. P.W. 2 does not expressly state about the seizure of the cement bags, but admits his signature Ext. 1/2 in the seizure list of cement bags, P.W. 1, deposed that he cannot say in whose zima, the seized cement bags were kept. P.W. 2 did not state as to the person in whose zima the seized cement bags were kept. While both P.Ws. 1 and 2 admitted their signatures in the zimanama Ext. 2/2, they denied having any knowledge of the contents of the said zimanama. Both P.Ws. 1 and 2, were declared hostile and were confronted with their statements before the Investigating Officer that the seized cement bags were kept in the zima of the accused-Petitioner and both of them denied having made any such statement before the Investigating Officer. 2/2, they denied having any knowledge of the contents of the said zimanama. Both P.Ws. 1 and 2, were declared hostile and were confronted with their statements before the Investigating Officer that the seized cement bags were kept in the zima of the accused-Petitioner and both of them denied having made any such statement before the Investigating Officer. Hence it is seen that P.Ws. 1 and 2 do not support the prosecution case that the seized cement bags were kept in the zima of the present accused-Petitioner. 6. So P.W. 4 is the only remaining witness who was examined to state about the cement bags in question being kept in the zima of the accused-Petitioner. So his evidence merits careful consideration. The evidence of P.W. 4 shows that on 27.8.1979, in the presence of local witnesses, he went to the mill premises of Chinari Krishnamurty Subudhi and found 99 bags of Hira cement. He deposed that he seized the said cement bags under the seizure list, Ext. 1. He further deposed that he called the present Petitioner Subudhi Sahu and gave 99 bags of cement in his zima under the zimanama, Ext. 2/2, and he proves his own signature, Ext 2/3, as well as the signature of the Petitioner, Ext. 2/4, in the said zimanama. P.W. 4 has not stated in his chief- examination as to the manner in which the 99 bags of cement were given in the zima (custody) of the Petitioner. It is only in cross-examination, P.W. 4 stated that the accused counted the cement bags in his presence and took possession of the same. P.W. 4 admits that he wrote the zimanama. P.W. 4 does not come out with any explanation as to why the zimanama was net scribed by the Petitioner himself P.W. 4 claims in his evidence that he read over and explained the zimanama to the Petitioner, but in the zimanama it was not stated that the same was read over and explained to the Petitioner long before the date of examination of P.W. 4, P.Ws. 1 and 2 were examined and they denied having any knowledge of the contents of the zimanama, Ext. 2/2 while admitting their signatures therein. Yet, P.W. 4 does not state on oath anything about the presence of P.W. 1 or P.W. 2 at the time the cement bags were given in the zima of the Petitioner. 1 and 2 were examined and they denied having any knowledge of the contents of the zimanama, Ext. 2/2 while admitting their signatures therein. Yet, P.W. 4 does not state on oath anything about the presence of P.W. 1 or P.W. 2 at the time the cement bags were given in the zima of the Petitioner. When P.Ws. 1 and 2 categorically denied their knowledge of the contents of the zimanama written by P.W. 4, while admitting their signatures therein, it was the bounden duty of the prosecution to elicit through P.W. 4 that P.Ws. 1 and 2 signed in Ext. 2/2 only after knowing the contents thereon. When P.W. 4, who was competent to depose on this aspect, does not speak anything about it, the version of P.Ws. 1 and 2 that they were made to sign in the zimanama without knowing the contents thereof, goes unchallenged. 7. P.W. 4 stated in his cross-examination that three police constables had accompanied him to the spot of seizure on 27.8.1979 None of the said constables have signed in the zimanama. When P.Ws. 1 and 2 refused to support the prosecution case regarding the cement bags being kept in the zima of the Petitioner, the prosecution ought to have examined at least one of those constables to prove that the cement bags were given in the zima of the Petitioner. P.W. 4 further admitted that many other people were at the spot when the cement bags were seized and kept in the zima of the Petitioner, but none of them was examined as witnesses in this case to corroborate the version of P.W. 4 regarding the cement bags being kept in the zima of the Petitioner. The charge against the Petitioner is u/s 406, I.P.C. and so the prosecution was welt aware that the entrustment of the 99 cement bags with the Petitioner on the relevant date, must be duly proved. It was P.W. 4, who seized the cement bags in the vigilance case and so he was responsible for keeping the same in safe custody and in that view of the matter, he cannot be said to be a disinterested witness as he is bound to have a tendency to show that he had duly discharged his responsibility. It was P.W. 4, who seized the cement bags in the vigilance case and so he was responsible for keeping the same in safe custody and in that view of the matter, he cannot be said to be a disinterested witness as he is bound to have a tendency to show that he had duly discharged his responsibility. But peculiarly enough, though official witnesses and independent witnesses were available, the prosecution did not choose to examine any one of them to corroborate the version of P.W. 4 on the aspect of the entrustment of the cement bags with the Petitioner. So the non-examination of such material witnesses would affect the bona fides of the prosecution and more so as there is no acceptable explanation from the side of the prosecution for such non-examination. In the facts of the present case, the non-examination of material witnesses without adequate reasons would certainly cast a serious reflection on the fairness of the trial See Habeeb Mohammad Vs. The State of Hyderabad, and Karnesh Kumar Singh and Others Vs. The State of Uttar Pradesh, . 8. The seizure of the cement bags was made at the mill premises of village Chudangapur. The Petitioner was a resident of a different village Ambagaon. There is nothing in the evidence of P.W. 4 to suggest as to what prompted P.W. 4 to choose the Petitioner, out of all the persons, to be the zimadar of the seized cement bags. If really the Petitioner had counted the cement bags and took delivery of the same as alleged by P.W. 4 in cross-examination it is difficult to believe that he would have omitted to state about it before the Investigating Officer as admitted by him (P.W. 4) in his cross examination. P.W. 4 admitted in his cross-examination that he did not lock the door where the cement bags were lying. He further admitted in cross-examination that at the time of giving the zima of the bags they were in the house of Ch. Krishnamurty Subudhi and the said house was in possession of Ch. Krishnamurty Subudhi. When P.W. 4 had no hesitation to leave the cement bags in the house of the said Krishnamurty Subudhi, he should have as well made the said Krishnamurty Subudhi, the zimadar of the said bags. Krishnamurty Subudhi and the said house was in possession of Ch. Krishnamurty Subudhi. When P.W. 4 had no hesitation to leave the cement bags in the house of the said Krishnamurty Subudhi, he should have as well made the said Krishnamurty Subudhi, the zimadar of the said bags. It is difficult to understand as to how the Petitioner of a different village could have taken care of the 99 cement bags lying in the house of Krishnamurty Subudhi and in any event, there is nothing in the evidence of P.W. 4 which explains this anomalous situation. 9. For holding a person guilty of criminal breach of trust, Section 406, I.P.C. requires that one of the main ingredients to be proved is entrusting the person with property or with any dominion over property, Normally entrustment will arise whenever something, whether it is money or any other thing is given to some person with some direction as to how it should be dealt with, In the present case, there is absolutely nothing in the evidence of P.W. 4 regarding any specific positive direction given to the accused at the time when the 99 bags of cement were said to have been kept in the zima of the accused. 10. On a careful analysis of the entire evidence of P.W. 4 as discussed above, I find that the nature of his evidence is such that the same cannot be safely relied on for coming to a finding that the cement bags in question were entrusted to the Petitioner. 11. It is in the evidence of P.W. 4 that he handed over the charge of the investigation of the vigilance case to P.W. 3 on his transfer on 18.1.1980. P.W. 2 stated that he received the letter dated 21.3.1980 from the C.S.O. for the sale of the seized cement and to deposit the sale proceeds as the seized cement was ordered to be confiscated to the State. P.W. 2 stated that he received the letter dated 21.3.1980 from the C.S.O. for the sale of the seized cement and to deposit the sale proceeds as the seized cement was ordered to be confiscated to the State. The evidence of P.W. 3 shows that on 11.4.1980 he went to Ambagaon to meet the Petitioner and "to call the zimadar accused-Subudhi Sahoo but he was absent on that day and so he issued a notice on 11.6.1980 to the accused to produce the seized cement bags From the above evidence of P.W. 3, it is evident that P.W. 3 showed no anxiety for obtaining the seized bags of cement in Spite of the letter of the C.S.O. dated 21.3.1980 directing their sale. It is highly significant that P.W. 3, in his chief examination, makes a bald statement that the accused appeared before him on 18.6.1980 but did not produce any cement and thus P.W. 3 does not volunteer to state as to what took place between them on 18.6.1980. It is left to the defence to question P.W. 3 about it, when he latter stated that the accused had told him (P.W. 3) that he would produce the cement bags subsequently. If he had really stated so, P.W. 3 would not have omitted to state about it before the Investigating Officer and the same is a material omission which lends support to the defence suggestion that the accused stated before him (P.W. 3) that the cement bags were not with him but that the same were with the persons from whom they were seized. If really the accused had told P.W. 3 that he would produce the cement bags subsequently as alleged by him, he would have definitely taken prompt steps for their product ion. P W. 3 stated that on his transfer, he made over the charge of the case to P.W. 6 on 18.7.1980. The very fact that though P. W, 3 was in charge of the case for a month subsequent to 18.6.1980 and yet he took no steps for production of the cement bags as revealed from his evidence, is another strong circumstance to suggest that P.W. 3 was not speaking the truth when he stated in cross-examination that the Petitioner told him that he would produce the cement bags subsequently. 12. 12. P.W. 5 was the Bench Clerk in the office of the Collector, Ganjam, and he proves Exts. 6 and 7. Ext. 7 refers to the order of the Collector-cum-District Magistrate, Ganjam, directing the sale of the 99 bags of seized cement. Ext. 6 shows that copies of the orders of the Collector were sent to Shankarnarayan son of Ch. Krishnamurty Subudhi, the accused in the vigilance case. It is highly significant that a copy of the said order was not sent to the Petitioner, even though according to the prosecution, the Petitioner was allegedly the zimadar of the cement bags by that day. The seized 99 bags of cement were of considerable value. It is in the evidence of P.W. 4 that he made a prayer to the Chief Judicial Magistrate on 11.9.1979 to pass necessary orders to direct the A.C.S.O., Berhampur, to sell the seized 99 bags of cement. From Ext. 7 it is seen that by 21.3.1980 the Collector had ordered the sale of the seized 99, bags of cement. So if the 99 bags of cement were to be in the zima of the Petitioner as alleged by the prosecution, they would have taken prompt steps to obtain the same from him and in the event of his refusing to deliver the same, prompt steps should have been taken for prosecuting him. Even though p, W. 4 proposed to sell the cement bags as on 11.9.1979 and the order of the Collector directing the sale of cement was dated 21.3.1980, and though according to the prosecution, unsuccessful attempts were made by P.W. 3 to secure bags of cement in June, 1980, yet surprisingly the first information report in the case was lodged against the Petitioner only on 19.5.1981 after inordinate delay, In the facts of the present case the inordinate delay in lodging the first information report is also fatal to the prosecution case and more so as there is no acceptable explanation for the same. 13. P.W. 6 has stated that "on 14.9.81" (evidently a mrstake for 14.9.80') he served a notice, Ext. 9, on the accused through the Constable P.W. 7 demanding of him to produce the seized cement kept in his zima by 15. 9. 1980. The accused pleaded that no such notice was served on him at Ambagaon. On a perusal of the notice. Ext. 9, on the accused through the Constable P.W. 7 demanding of him to produce the seized cement kept in his zima by 15. 9. 1980. The accused pleaded that no such notice was served on him at Ambagaon. On a perusal of the notice. Ext. 9, it is seen that P.W. 6 gave the date as "9.9.80" under his signature. The prosecution has not explained as to how the notice. Ext. 9, bears the date 9.9.80 under the signature of P.W. 6 when he claims that the notice was served on 14.9.80. P.W. 6 admitted in cross-examination that there is a correction of the date as 15.9.80' in the body of the notice, Ext. 9, and the same was not attested. In the above circumstance, the service of notice Ext. 9 on the accused on 14.9.1980 is not free from doubt Ext. 9 reads that on several previous occasion also the accused was demanded to produce the cement bags, but he refused to do so and so a last chance was being given to the accused to produce the cement bags on 15.9.80 by 1. P.M. failing which the threatened action would be taken against him. But peculiarly enough, the F.I.R. in the case was lodged against the accused only on 18.5.1981. The evidence of P.W. 6, a Vigilance Sub-Inspector and the Inspector of Supplies P.W. 9, shows that on 24.7. 1980 they went to the village of the accused for the purpose of selling the 99 bags of cement kept in the zima of the accused. Both of them have stated that the accused was absent at the time. P.W. 9 stated that on 24.7.1980 they went to the village of the accused in pursuance of the order of the B.D.O. to sell the cement, but P.W. 6 does not refer to any such order of the B.D.O. nor does the prosecution produce any such order before the Court. P.W. 6 admits that he has no documentary evidence to prove that he and P.W. 9 went to the village of the accused on 24.7.1980. It is in the evidence of P.W. 7 that the village of the accused is 4 to 5 K.Ms. from Digapahandi. So the accused was within the easy reach of the police and the vigilance squad of Digapahandi. So if there were to be any truth in the version of P.Ws. It is in the evidence of P.W. 7 that the village of the accused is 4 to 5 K.Ms. from Digapahandi. So the accused was within the easy reach of the police and the vigilance squad of Digapahandi. So if there were to be any truth in the version of P.Ws. 6 and 9 that they went to the village of the accused on 24.7.1980 for contacting the accused and for the sale of 99 bags of cement, but could not find him on that date, they could have very easily contacted him within few days thereafter, but the evidence of P.W. 6 reveals that after 24.7.80 he took no further action for obtaining the seized bags of cement till 14.9.1980 when he claims to have issued the notice Ext. 9, and such inaction on the part of P.W. 6 is another suspicious feature of the prosecution case. 14. P.W. 6 lodged the F.I.R. Ext. 10 against the accused in the case on 18.5.1981 On a perusal of the F.I.R. it is section that by that date he knew that P.Ws. 1, 2 and 4 are the most material witnesses in the case. P.W. 6 has also investigated into the base and examined P.W. 4 on 28.6.1981. But peculiarly enough P.W. 6 did not examine either P.W. 1 or P.W. 2, even till 18.6.1981, the date when P.W. 6 handed over the charge of the case to P.W. 10. The non-examination of P.Ws. 1 and 2 by the Investigating Officer, even though he was in charge of the case till 5.6.1981 raises a serious doubt about the veracity of P.W. 4 when he claimed that P.Ws. 1 and 2 were the witnesses when the cement bags were kept in the zima of the accused and more so, as there is no acceptable explanation for such non-examination of P.Ws. 1 and 2 by P.W.6. This circumstance lends support to the version of P.Ws. 1 and 2 that in their presence the zima of the 99 cement bags was not given to the accused. 15. On a careful reading of the judgments of the Courts below, in the light of the evidence on record, I find that the approach of both the Courts below to the evidence on record is most superficial. 1 and 2 that in their presence the zima of the 99 cement bags was not given to the accused. 15. On a careful reading of the judgments of the Courts below, in the light of the evidence on record, I find that the approach of both the Courts below to the evidence on record is most superficial. There can be no doubt that where the interests of justice demand, the finding of the Courts, which normally deal with the facts of the case, may be re-opened and may even be reversed by the High Court. See Arjuna Lal Misra Vs. The State. On a careful scrutiny of the evidence on record it is seen that it suffers from a number of serious infirmities as pointed but earlier that it is not capable of sustaining the conviction of the Petitioner u/s 406, I.P.C. and therefore, allowing such conviction to stand would result in miscarriage of justice. 16. In the result, the order of conviction and Sentence passed by the Courts below against the Petitioner u/s 406, I.P.C. is hereby set aside and accordingly the revision is allowed. Final Result : Allowed