Judgment S.K.Chattopadhyaya, J. 1. The State of Bihar being aggrieved by the judgment and order of acquittal passed by the learned 1st Additional 4 Sessions Judge, Hazaribagh dated 29-1-1990 passed in Criminal Appeal No. 126 of 1988, has moved this Court under Sec. 378(5) of the Code of Criminal Procedure. 2. Initially the State of Bihar through G.P. Ojha, the then Chief Engineer of Public Health Division, Hazaribagh filed an application under Sec. 378(5) of the Code of Criminal Procedure with a prayer to grant leave to appeal against the Impugned order. It appears that while calling for the lower Courts records, by an order dated 15-5-1990, it was directed that maintainability of this application will be considered at the time of admission. After appearance of the respondent, when the case was listed on 14-5-1991, a learned Single Judge of this Court observed that the State has filed this appeal, but it is not in that fashion. The Court directed to correct the same By an order dated 16-5-1991 again the court directed the office to correct the title page of this case as It was then being treated as Government Appeal. On 17-5-1991 this appeal was admitted and though before that the respondent had already appeared, bailable warrant of arrest was issued for his appearance, If and when necessary. 3. The respondent, Ram Singh was charged and tried for the offence under Secs. 408 and 409, IPC on the allegation that being a Cashier In Public Health Department was entrusted with cash and accounts, committed criminal breach of trust In respect of a sum of Rs. 58,760.13 paise. On verification, cash remittance made into the treasury it came to light that amount of 10,000, 10,000 and 11,000 shown remitted into the treasury on 14-3-1978, 20-31978 and 23-3-1978 respectively, have not been deposited in the account of the treasury in the State Bank of India, Hazaribagh. It was alleged that Ram Singh was entrusted with the duties of cash and maintenance of day-to-day cash and other connected records, fraudulently defalcated the said Government money by not depositing the same in the Bank and thus committed breach of trust. He did not handover the charge of his cash duty and other relevant records which was under his custody. Charge was amended subsequently on the allegation that Ram Singh had misappropriated further sum of Rs. 58,000 and odd. 4. He did not handover the charge of his cash duty and other relevant records which was under his custody. Charge was amended subsequently on the allegation that Ram Singh had misappropriated further sum of Rs. 58,000 and odd. 4. The learned Judicial Magistrate, 1st Class, by his judgment and order dated 26-41988 convicted the respondent under Secs. 408 and 409 of the Penal Code and sentenced him to undergo rigorous imprisonment for two years under Sec. 408 and three years under Sec. 409 and also sentenced him to pay a fine of Rs. 50 on both counts. 5. The order of trial Court was impugned by Ram Singh in Criminal Appeal No. 126 of 1988 and the court of appeal below did not concur with the findings of the Magistrate, allowed the appeal. Hence this appeal by the State. 6. Mr. M.S. Lal, learned counsel appearing, on behalf of the State, has contended that the court of appeal below has committed an illegality in reversing the judgment of conviction without proper appreciation of the evidences on record. According to him, when the trial Court, after perusal of the evidences, has come to a finding that the accused being in charge of keeping, disbursing, depositing and drawing the cash of his department being a cashier, has committed the offence of criminal breach of trust and as such, committed an offence tinder Sec. 408 as well as being a public servant under Sec. 409 of the Penal Code, the appellate Court should not haw acquitted the appellant. 7. Mr. Ramawatar Sharma, learned counsel appearing on behalf of the respondent, countering the argument of Mr. Lal, has submitted that the learned Magistrate having found that the prosecution has not been able to prove the allegation of misappropriation of the amount by Ram Singh by not producing cash book etc., has committed grave illegality in convicting the respondent under Secs. 408 and 409 of the Penal Code only on the ground that he is a public servant, being cashier of the department. Secondly, it is contended that the learned appellate court has taken into consideration of the fact that by not producing material documentary evidences the allegation of entrustment and its defalcation by the respondent have not been proved. According to him, in an appeal against acquittal the High Court will be loath in interfering with the findings arrived at-by the appellate court. According to him, in an appeal against acquittal the High Court will be loath in interfering with the findings arrived at-by the appellate court. In order to appreciate the rival contention, let me consider the evidences on records. G.P. Ojha, examined as PW 7, his stated in paragraph 13 that defalcation of the amount can be ascertained only by looking to the cash book and remittance book and not otherwise. The learned Magistrate has found that none of these books has been filed. Arjun Kumar Sinha, clerk in the treasury, was examined as PW 8, who deposed that on 14-3-1978 only Rs. 690 were deposited. On 20-3-1978 Rs. 37.54 paise were deposited through two challans. On 23-3-1978 Rs. 3,00,000 were deposited by the Executive Engineer but the Magistrate found that no challan showing deposit of Rs. 11,000 was filed by the prosecution. The specimen signature of Ram Singh was sent for examination to Forensic Science Laboratory Patna but, though report was received, the same was not produced before the court. The Magistrate relied on a photostat copy of the letter alleged to have written by Ram Singh, which was brought by his wife alongwith a sum of Rs. 5000 and given to G.P. Ojha. On the basis of the photostat copy of the letter, which was not legally proved, but was marked as Ext. X/1 for identification, the Magistrate has presumed that Ram Singh has accepted his guilt by paying back the money in part. He has taken into consideration the conduct of the respondent by sending this amount of Rs. 5000 through his wife to G.P. Ojha and this circumstance has led the Magistrate to presume that he was entrusted over the defalcated amount. On the other hand, the learned lower appellate Court, after scrutinising the evidences, has - found that cash book and treasury remittance book, which could have been the best evidence for proving the case of entrustment, haw not been produced by the prosecution and as such, entrustment and its defalcation was not proved. 8. It is now well settled that Sec. 409 can be invoked only if it can be shown that the accused being in any manner entrusted with property or with dominion over property in his capacity. as public servant committed criminal breach of trust in respect of that property. 8. It is now well settled that Sec. 409 can be invoked only if it can be shown that the accused being in any manner entrusted with property or with dominion over property in his capacity. as public servant committed criminal breach of trust in respect of that property. Sec. 405 defines criminal breach of trust and an essential ingredient of this offence is that the accused being in any manner entrusted with property or with 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. 9. In the case of Sardar Singh V/s. State of Haryana, their Lordships set aside the order of conviction under Sec. 409 of the Penal Code holding that though the appellant was admittedly entrusted with the receipt-book or in any event with dominion over it, but there is no evidence to establish that he dishonestly misappropriated the receipt-book or converted it to his own use or dishonestly used or disposed of the receipt-book 10. The case of the respondent, in the instant case, in my considered opinion, is on better footing. There is no allegation that the amount which was entrusted with the respondent was misappropriated by him in any manner. Both the courts below haw found that the prosecution, by withholding cash book and treasury remittance books have failed to prove the allegation of entrustment against the respondent. Moreover, both the courts below have concurred in one point that the prosecution have failed to produce those two vital documentary evidences and according to Sri G.P. Ojha (PW 7), defalcation of the amount can be ascertained only by looking to the cash book and treasury remittance book and not otherwise. 11. In the case of Chittaranjan Choudhary V/s. State of Bihar, their Lordships of the Apex Court have observed that where the defence is founded on a relevant and vital document seized from the custody of the accused and not deliberately produced, conviction of the accused cannot be sustained. 12. 11. In the case of Chittaranjan Choudhary V/s. State of Bihar, their Lordships of the Apex Court have observed that where the defence is founded on a relevant and vital document seized from the custody of the accused and not deliberately produced, conviction of the accused cannot be sustained. 12. It is curious that in the instant case whole prosecution case was rested on those two vital documents, namely, cash book and treasury remittance book but the same were not produced before the court for the reasons best known to the prosecution. In such circumstances. I am of the opinion, that the learned court of appeal below has correctly held that the prosecution has failed to prove the allegation made against the respondent beyond all reasonable doubts. I find no error in. the judgment and order of the learned court of appeal below. 13. In the result, I find no merit in this appeal, which is accordingly dismissed. The respondent is discharged from his bail bond.