Judgment : SWAMIDURAI, J. ( 1 ) THE petitioner is the only accused in C. C. No. 10645 of 1986 on the file of the learned Additional Chief Metropolitan Magistrate, Egmore; Madras. She was prosecuted for an offence punishable under Section 408 I. P. C. and found guilty, convicted and sentenced to undergo simple imprisonment for three months and to pay a fine of Rs. 100/- in default to undergo simple imprisonment for one week. ( 2 ) THE prosecution has examined P. Ws. 1 to 5 and marked Exs. P. 1 to P. 125. The accused has not examined any witness nor marked any exhibits on her side. ( 3 ) THE accused is alleged to have misappropriated a sum of Rs. 11,406. 35 without depositing them into the Bank. The accused was an assessor in the Tamil Nadu Electricity Board at Cheput and she is alleged to have mis-appropriated the said amount collected by her from the consumers between 25. 9. 1984 and 11. 6. 1985. P. W. 1 called for an explanation from the accused. On 2. 7. 1986 the accused deposited a sum of Rs. 5,000/- in the office at Arumpakkam. P. W. 1 gave Ex. P. 93 report on 9. 7. 1986. On 16. 7. 1986, the accused deposited a sum of Rs. 6,436. 35/- in the office at Arumpakkam under Ex. P. 94 and P. 95. Ex. P. 96 arc the rules of the Tamil Nadu Electricity Board. On the report given by P. W. 1, P. W. 5 Central Crime Branch Inspector of Police registered a case in Cr. No. 715/86 under Section 408 I. P. C. against the accused. Ex. P. 125 is the First Information Report. P. W. 5 examined P. W. 1, and recorded a statement and also examined P. Ws. 2 and 3 on 20. 9. 1986 and recorded a statement. On 22. 9. 1986 at 11. 30 a. m. he seized the account books in connection with the misappropriation done by the accused and those account books are Exs. P. 20, P. 97 to Ex. P. 116, Exs. P. 117 to P. 119 and Exs. P. 120 to P. 123. The Sub Inspector of Police, prepared a mahzar under Ex. P. 124 in which P. W. 4, Srinivasan had attested. P. 20, P. 97 to Ex. P. 116, Exs. P. 117 to P. 119 and Exs. P. 120 to P. 123. The Sub Inspector of Police, prepared a mahzar under Ex. P. 124 in which P. W. 4, Srinivasan had attested. P. W. 5 produced the account books before the lower court and she filed the charge sheet on 8. 10. 1986. ( 4 ) WHEN the accused was questioned under Section 313 Cr. P. C. , the accused denied the charge and pleaded not guilty and further submitted that the Inspector of Assessment had taker I away the money and cheated the petitioner. ( 5 ) LEARNED counsel for the petitioner contended that it is not the duty of the assessor the revision petitioner herein to deposit the monies collected from the consumer into the Bank. He pointed out from Ex. P. 96, which is the Modified System of Card Billing Rules and which is provided in Rule 10 (5) and 15 (1) (G), that it was the duty of the Inspector alone to arrange for the deposit of money in the bank. According to him these rules reveal that the Assessor, the revision petitioner herein who collected the amount need not go to the Bank after collecting the amount, but entrust the same to the Inspector, who in turn will arrange to send it to the Bank through some other assessor. He pointed out that the Inspector of Assessors was not at all examined in this case and so that an adverse inference has to be taken due to his non-examination. Learned counsel for the petitioner also pointed out that the amount was repaid by the petitioner under protest without prejudice to her rights to defend her case and that the lower Court took it in the wrong sense that the petitioner had impliedly admitted the guilt. The duty of the assessor is to go to the consumers houses to take meter reading, to make entries in the white card available with the consumers, to prepare receipts, to collect the amount, to make entries in the C. R. C. Book, to send the money to the bank for deposit along with the challan, to prepare disconnection list of persons who have not paid and to send the records to there venue unit. These works will be checked and supervised by the Inspector of Assessors of the connected section. These works will be checked and supervised by the Inspector of Assessors of the connected section. P. W. 1 Subramaniam, the First Information in this case speaks about the duties of the assessors and the details about the period of collections and the. amount collected and misappropriated. P. W. 2 Sugavanam is the Accountant in Revenue Unit who speaks about the failure to record the collection amount in CRC Book and short remittance. He has turned hostile. P. W. 3 Veeraraghavan also turned hostile. P. W. 4 Sundaram speaks about handing over of records to the police. He further says that he does not know anything about this case. In spite of it, he was not treated as hostile. P. W. 5 Vasanthi is the Sub Inspector of Police. She speaks about the investigation. The charge against the accused is that from May 1984 to April, 1985, the petitioner as assessor of the Electricity Board, Chetput Section having been entrusted with a sum of Rs. 11,406. 35 committed the offence of criminal breach of trust in respect of the said amount. The defence is that the accused had entrusted the said amount under Ex. P. 96 with Vedachalam the Inspector of Assessors and that he had to make. arrangement for remitting the amount into the Bank. But it appears that he had not done so and the petitioner has been charged falsely. The period of breach of trust is from 25. 9. 1984 to 11. 6. 1985 since P. W. 1 has deposed that there is no misappropriation between April, 1984 to September, 1984. The relevant records relate to the period from 25. 9. 1984 to 11. 6. 1985 under Exs. P. 4 to P. 75. There is short remittance of Rs. 112. 75 between 17. 7. 1984 and 6. 4. 1985 as per Exs. P. 76 to P. 92. During this period, there is no breach of trust in respect of the cheques and there is no misappropriation of the same since the amounts were paid only by cheques. ( 6 ) LEARNED counsel for the petitioner submitted that the amount of Rs. 11,406. 35 is aggregated amount of entire period inclusive of cheques also. Unfortunately, the prosecution has included the amount paid by cheques also and therefore, it is not clear as to what was the exact amount that was misappropriated by the petitioner. ( 6 ) LEARNED counsel for the petitioner submitted that the amount of Rs. 11,406. 35 is aggregated amount of entire period inclusive of cheques also. Unfortunately, the prosecution has included the amount paid by cheques also and therefore, it is not clear as to what was the exact amount that was misappropriated by the petitioner. There is no alternation of charge with reference to the actual period. On 18. 6. 1986, a latter was sent to the accused to pay the amount and the F. I. R. was registered on 17. 7. 1986. The evidence of P. W. 1 is that the entire amount had been deposited by the accused on 2. 7. 1986 and 16. 7. 1986. On 17. 7. 1986, the Sub Inspector of Police, Vasantha the investigating officer registered a case in Cr. No. 715/86 under Section 408 I. P. C. and that charge sheet was filed on 26. 9. 1986. It is the evidence of P. W. 1 that it is the duty of the Assessor to collect the amount and deposit the same in the bank. But when confronted with Ex. P. 96, amended rules, P. W. 1 admitted that the Inspector of Assessors has to deposit the amount. It is the defence version that the Inspector has taken away the amount. P. W. 1 admitted that the petitioner gave a complaint against the Inspector of Assessors. P. W. 5, the Investigating Officer has also admitted that the Inspector of Assessors, namely, Vedachalam was not interrogated. Unfortunately, the Investigating Officer has not made the said Vedachalam as an accused, nor was he cited as a witness in order to clear the doubt. Learned counsel for the petitioner submitted that the accused had lost an opportunity of cross-examining the said Vedachalam. P. W. 1 admitted that the entries relating to collector of Rs. 6,000/-was made by somebody in C. R. C. Book. But the accusation is that the accused failed to record or recorded smaller amounts. It is the case of the prosecution that the accused alone prepared the disconnection list. But the disconnection list was not produced before the lower court even though it is stated on the side of the prosecution that the accused had prepared it and sent it to the Junior Engineer. That disconnection list would show the list of persons who have failed to pay the consumption charges. But the disconnection list was not produced before the lower court even though it is stated on the side of the prosecution that the accused had prepared it and sent it to the Junior Engineer. That disconnection list would show the list of persons who have failed to pay the consumption charges. P. W. 1 admitted in his evidence that the disconnection list was sent to the Junior Engineer. The non-production of the disconnection list before the lower court would affect the case of the prosecution prejudicially as it would alone show as to who are the persons who have not paid the consumption charges and how much the accused collected from the consumers. Learned counsel for the petitioner raised another contention that there are 61 counts in this case and there is violation of Section 219 Cr. P. C. He has also contended that the entrustment of the amount with the accused was not proved since no consumer was examined in this case. The lower court observed that there is no duty cast upon the Inspector of Assessors to deposit the amount in the Bank. Learned counsel for the petitioner contended that the observation of the lower court is wrong in the face of rules 10 (5) and 15 (10) in Ex. P. 96. It is the admitted case of the prosecution through P. W. 5 the investigating officer that the entire amount has been paid by the accused without prejudice to her contention. It is contended by the accused that the signatures in the receipts were not proved as that of the accused. Even in the matter of number of Inspectors in the unit, there is conflict over the same. When P. W. 1 says that there is only one Inspector, P. W. 3 says that there are two, namely, Vedachalam and Sampathkumar and P. W. 4 says that there are three Inspectors. It is seen that there were no proper check up by the investigating officer as to the number of Inspectors of Assessors. Since the prosecution has failed to examine any of the consumers, there is no evidence to show that the amounts alleged to have been misappropriated have been actually collected by the accused. P. W. 5 the Investigating Officer has admitted in her evidence that the C. R. C. Register contains the signature of some other persons and not the signature of the petitioner. P. W. 5 the Investigating Officer has admitted in her evidence that the C. R. C. Register contains the signature of some other persons and not the signature of the petitioner. The case of the prosecution is that there is misappropriation of Rs. 10,680. 60 between 25. 9. 1984 to 11. 6. 1985. But there is shortage remittance of Rs. 112,75 between 27. 7. 1984 to 6. 4. 1985. A slim of Rs. 613/- collected by cheque is also said to have been misappropriated between 18. 1984 to 12. 4. 1985 and so the total amount is Rs. 11,406. 35 p. , 7. Learned counsel for the petitioner pointed out that the charge is vague and it is not clear. According to him, there is no clear evidence as to what is the actual amount that is alleged to have been misappropriated by the accused. There is also no finding by the trial court as to the exact amount alleged to have been misappropriated. The evidence is vague that there is misappropriation between May and September, 1984. The short remittance is Rs. 112. 75 and the amount referred to by cheques is Rs. 613/ -. But on 2. 7. 1986 and 16. 7. 1986 a sum of Rs. 5,000/-and Rs. 6,406. 35 were paid. So, the amount of misappropriation is less that the amount of deposit. If the amount had been collected and if it is not entered in the book and not deposited in the bank, then it is the case of misappropriation. But the petitioner appears to have prepared pre-receipts and kept ready for issue of bills to the consumers. But when the consumers did not come and pay the money the accused would add their names in the disconnection list. Even then that list was available, it will not produced before the lower court and. the bills have also not been compared. In these circumstances, it cannot be stated that the accused has misappropriated the amount. The petitioner complained about the Inspector of Assessors and P. W. 1 also admits in his evidence that he received a reply from the accused on 14. 10. 1986 pulling the blame on Vedachalam the Inspector of Assessors. The charge of misappropriation is between May 1984 and May, 1985 of a sum of Rs. 11,406. 35. The evidence is that there was misappropriation of Rs. 10,680. 60 between 25. 9. 10. 1986 pulling the blame on Vedachalam the Inspector of Assessors. The charge of misappropriation is between May 1984 and May, 1985 of a sum of Rs. 11,406. 35. The evidence is that there was misappropriation of Rs. 10,680. 60 between 25. 9. 1984 to 11. 6. 1985. The short remittance is Rs. 112. 75 between 17. 8. 1984 to 12. 4. 1985. The amount of Rs. 613/-said to have been misappropriated is with reference to cheques. Therefore, if the total amount said to have been misappropriated is Rs. 11,406. 35, that calculation is not correct. On 2. 7. 1986, the petitioner had paid a sum of Rs. 5,000/- and on 16. 7. 1986, the petitioner had paid Rs. 6,406. 35 under Exs. P. 94 and P. 95. From the available bills in duplicate, it is not possible to consider the question of payment of bills. So, when the bills are compared with the disconnection bills, then only one can he able to say as to who are all the persons who had actually paid the amount. So unless the prosecution produces evidence from the consumers or the disconnection list, it could not be stated that the amount had been entrusted to the petitioner and that the petitioner had misappropriated the same. When the accused had thrown the blame on Inspector of Assessors, there is no reason why the prosecution has omitted to examine that witness. The receipt dated 12. 4. 1984 do not contain the signature of the accused as admitted by P. W. 1 who says that he does not know whether the signature was that of Vedachalam. P. W. 1 admitted in his evidence that a sum of Rs. 5,000/- was paid prior to the date of complaint and that the rest of the amount was paid after that 8/25/2006 complaint. But the fact is that a sum of Rs. 5,000/-was paid on 6. 7. 1986 and Rs. 6407/on 16. 7. 1986. ( 7 ) THE complaint was registered on 17. 7. 1986. The reason given by P. W. 1 for nonproduction of disconnection list before the trial court is that P. W. 1 considered it not necessary. It is also admitted by P. W. 1 the pre-receipt would contain the signature of the assessor only. 6407/on 16. 7. 1986. ( 7 ) THE complaint was registered on 17. 7. 1986. The reason given by P. W. 1 for nonproduction of disconnection list before the trial court is that P. W. 1 considered it not necessary. It is also admitted by P. W. 1 the pre-receipt would contain the signature of the assessor only. This shows that the mere signatures in the pre-receipt does not mean that the amount had been collected because they are pre-receipts. According to P. W. 1 there was only one Inspector at Chepauk Section and that proper check-up was not done. P. W. 4 admitted that he had not checked the pre-receipt book and the C. R. C. Book, since according to him, it could be done only after the receipt of disconnection list. P. W. 4 did not say anything about the same. P. W. 5 the Investigating Officer has not given any details that she had checked up the books and whether she had signed in the same for having checked up. P. W. 5 also admitted that some other person than the accused had signed the C. R. C. Book, P. W. 1 admitted that the signatures in Receipt No. 007580 to 007583 are not that of the petitioner. ( 8 ) LEARNED counsel for the petitioner contended that the entrustment should he proved for an offence under Section 408 I. P. C. and mere proof of making false entries is not enough to bring home the guilt under Section 408 I. P. C. According to him, the prosecution case has to be thrown out in view of mis-joining under Section 219 Cr. P. C. There could be only three charges within a period of twelve months. But in this case there are 61 counts. Learned counsel for the petitioner also contended that the charge of misappropriation is in respect of larger amounts. Vedachalam, the Inspector of Assessors was not examined and so that the benefit of doubt has to be given to the accused. Learned counsel for the petitioner relied upon Ex. P. 96, the rules according to which it is the duty of the Inspector of Assessment to deposit the amount and the failure on the part of the prosecution in not examining the Inspector of Assessors is fatal to the case of the prosecution. Learned counsel for the petitioner relied upon Ex. P. 96, the rules according to which it is the duty of the Inspector of Assessment to deposit the amount and the failure on the part of the prosecution in not examining the Inspector of Assessors is fatal to the case of the prosecution. Even the cheque amounts have been included in the total amount alleged to have been misappropriated and the actual amount has not been shown by the prosecution in the charge sheet and even the period has been wrongly included even though there is evidence that there is no misappropriation between April, 1984 to 25. 9. 1984 as per the evidence of P. W. 1. The prosecution has not given any satisfactory reasons for not producing the disconnection list even though the same is relevant and material in this case. The prosecution cannot take advantage of the fact that the petitioner had deposited the amount under protest and according to her, it was made only after compulsion without prejudice to her contentions. ( 9 ) LEARNED counsel for the petitioner relied upon the judgment reported in Thilak Ram v. State of U. P. for the proposition that in order to bring home the offence under Section 409 I. P. C. the prosecution has first to establish that the person charged with the offence was in any manner entrusted with the property or with any dominion over the property. The prosecution has to further establish that property has been either misappropriated or, converted to his use by the accused or that he dishonestly used or disposed 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 had made touching the discharge of such trust or he wilfully suffered any other person so to do. In this case, the prosecution has failed to establish that there was entrustment of money with the accused. Learned counsel for the petitioner also relied upon the judgment reported in Gnanasekaran v. The State, for the proposition that to bring home the guilt of the offence of criminal breach of trust under Section 409 I. P. C. the prosecution was bound to establish that the property pas entrusted to the accused and that he had misappropriated it. Learned counsel for the petitioner also relied upon the judgment reported in Gnanasekaran v. The State, for the proposition that to bring home the guilt of the offence of criminal breach of trust under Section 409 I. P. C. the prosecution was bound to establish that the property pas entrusted to the accused and that he had misappropriated it. ( 10 ) IN the result, the prosecution has not established the case against the accused under Section 408 I. P. C. and so the charge fails and the conviction and sentence are set aside and the accused/petitioner is acquired. The fine amount if paid is directed to be refunded to the petitioner. The criminal revision is allowed. The petitioner has deposited a sum of Rs. 11,406. 35 in the office of the Electricity Board and she is entitled to get refund of the same and the Electricity Board is directed to refund the same within four weeks from today. Revision allowed.