JUDGMENT Arun Kumar Goel, J. :- State has filed this appeal against the judgment passed by the learned Sessions Judge (Forest), Shimla dated 16th June, 1992. While allowing the appeal, respondent who was charged, tried as well as convicted for offence under Section 408 I.P.C. to undergo 3 years simple imprisonment as well as to pay fine of Rs. 3,000/-by the Sub Divisional Judicial Magistrate, Theog, has been acquitted. 2. Prosecution case against the respondent was that while he was working as a servant i.e. Salesman of Dhamandri Multipurpose Co-operative Society in the year 1984-85, was entrusted with the property i.e. stocks of different articles which he misappropriated by dishonestly converting for his own use and thus committed the offence of breach of trust punishable under Section 408 I.P.C. After conclusion of the case trial Court found the respondent guilty and convicted him, as aforesaid, and in default of payment of fine, he was ordered to undergo further simple imprisonment for 3 months. 3. So far respondent being the servant i.e. Salesman of the Society is concerned, there can hardly be any dispute which fact is not even disputed by the respondent. In addition to this, it is also proved on record that respondent was working as Salesman in the Society during the relevant period i.e. 1 -7.1984 to 30.6.1985, the period to which this case realities to. 4. Audit was carried out by Devi Singh (PW-2) who was working as Inspector, Co-operative Societies Audit in the office of Assistant Registrar Co- operative Societies, H.P. Shimla for the year 1984-85 in the month of August, 1985 and copy of the Audit report has been proved by this witness on record as Ex. PA. In this background complaint was lodged by said Devi Singh (PW-2) with the police of Police Station, Theog vide Ex. PC and on its basis F.I.R. Ex.PW-5/A came to be registered by the police. Specimen signatures/ hand writings of the respondent were taken and sent for comparison to the Government Examiner of Questioned Documents and R.K. Jain (PW-7), Assistant Government Examiner of Questioned Documents Shimla has proved such documents as well as the opinion given after examination of all those documents. 5. Another relevant fact that needs to be noted here is that in Ex.P-3 Ledger of the Society respondent has admitted the liability against him to the extent of Rs. 49,673.50 as on 29th October, 1985. 5. Another relevant fact that needs to be noted here is that in Ex.P-3 Ledger of the Society respondent has admitted the liability against him to the extent of Rs. 49,673.50 as on 29th October, 1985. Further question that needs to be considered in this case is whether after having proved the respondent serving the aforesaid Society as its Salesman as also having admitted his liability to the extent noted above whether commission of offence within the meaning of Section 408 stood proved or not. 6. After having proved the entrustment, unless by cogent and reliable evidence it was established that the person charged had dishonestly misappropriated or converted or dishonestly used or disposed of the entrusted property, the offence of criminal breach of trust is not made out. That being so, it is clear that element of dishonesty has to be specifically proved. There can be numerous reasons for the shortages being there and/or the property entrusted to a servant being not properly accounted for, a servant in a given situation can be negligent or having forgotten to either make the deficiency good or to have accounted for the goods/articles entrusted to him. 7. Besides this, misappropriation by the person charged for the offence of breach of trust, misappropriation by him for his own use as well as and/or use in violation of any legal direction or any legal contract with dis- honest intention had got to be established. Such misappropriation has i: be with intention to cause wrongful loss to another as well as to gain by unlawful means something to which the beneficiary is not legally entitled to. In this view of the matter, it is clear that the offence of breach of trust though includes a remedy under Civil law, yet in the absence of menserea or criminal intention would not justify initiation of criminal proceedings against the person so charged. That being so mere failure of the respondent to discharge his admitted liability to the extent acknowledged by him in Ledger Ex. P-3 in no case can be said to establish dishonesty on his part in the absence of other circumstances. This further leads to the conclusion that simply because the respondent failed to either deposit the amount for the liability whereof he acknowledged it vide Ex.P-3 will not be sufficient to hold that the offence of criminal breach of trust stood proved. 8. This further leads to the conclusion that simply because the respondent failed to either deposit the amount for the liability whereof he acknowledged it vide Ex.P-3 will not be sufficient to hold that the offence of criminal breach of trust stood proved. 8. Matter in the case under consideration can be viewed from another angle also, it is admitted case of the prosecution that respondent acknowledged his liability to the extent of Rs. 46,673.50 ps. in favour of Dhamandri Multipurpose Co-operative Society. Simply because he did not discharge his liability or failed to deposit the amount liability where for he acknowledged, therefore, it cannot be said that it is a case of criminal breach of trust and it stands proved. In order to bring home the guilt in such a situation also unless it is known by reliable evidence that the respondent with dishonest intention while working as serant of the said Society had misappropriated the amount or the goods, still no offence under Section 408 I.P.C. can be said to have been made out against him. 9. In support of what has been discussed above, reference can usefully be made to a few decisions of this Court, namely 1992(1) Current Criminal Reports 468, State of Himachal Pradesh v. Retu Raj; 1991(2) S.L.C. 73, State of Himachal Pradesh v. Chiranji Lal and 1997(2) C.L.R. 250, State of Himachal Pradesh v. Kalu Ram. 10. Learned Assistant Advocate General in support of this appeal further urged that from the record of the Society, which has in the Land of the respondent, it has been proved to the hilt that the respondent while working as a servant of the aforesaid Society had misappropriated the goods. According to him statements of Devi Singh (PW-2) Inspector and R. K. Bhardwaj (PW-4), Naib Tehsildar-cum-Executive Magistrate, before whom specimen writing/signatures vide Ex.PW-4/A to Ex.PW4/K were obtained and in the face of the opinion of R. K. Jain (PW-7), Assistant Government Examiner of Questioned Documents, Shimla it was proved that the records were in the hand writing of the respondent. Evidence of PWs4 and 7 cannot be taken into account. As and writing and signatures of the respondent were obtained during the pendency of the investigation by the police when admittedly no judicial proceedings were pending against him in the court of law. Evidence of PWs4 and 7 cannot be taken into account. As and writing and signatures of the respondent were obtained during the pendency of the investigation by the police when admittedly no judicial proceedings were pending against him in the court of law. In this behalf when reference is made to Sections 45 and 73 of the Indian Evidence Act, 1872, it is clear that specimen writing/signatures could be directed to be obtained by the court for the purpose of enabling it to compare those which are stated to have been written/made by such person. That being so, during the course of pendency of the case of accused cannot be forced to give his specimen writing/signatures. Respondent having not objected to such taking of his specimen signatures/writing would not make such acts admissible to be read in this case. That being so it does not advance the prosecution case in any manner. For supporting this view reference can usefully be made to the judgment of the Honble Supreme Court reported in (1994) 5 S.C.C. 152, Suk-hvinder Singh & Ors. v. State of Punjab and to a decision of this Court in Criminal Appeal 257 of 1991, Sukh Ram v. State of H. P., decided on 8th August. 1997. It may also be appropriate to mention here that parties were not at variance regarding another fact that arbitration proceedings are in progress which have been initiated by the Society against the respondent, though mere pendency of such proceedings does not debar the initiation/launching of criminal proceedings is a case is made out under law. For the reasons detailed hereinabove that is not the situation in the case under consideration. 11. Another reason for not accepting the prosecution case is that the view taken by the lower appellate Court is one of the two possible views on examination of the entire evidence produced by the prosecution during the course of trial. That being so it is by now well settled that the view favourable to the accused, respondent in the present case, needs to be followed. This proposition of law has been by now well settled. ( See AIR 1973 S.C. 2773, Kali Ram appellant v. State of H. P. Respondent). 12. That being so it is by now well settled that the view favourable to the accused, respondent in the present case, needs to be followed. This proposition of law has been by now well settled. ( See AIR 1973 S.C. 2773, Kali Ram appellant v. State of H. P. Respondent). 12. Besides this, on examination of the entire prosecution case it cannot be said that while allowing the appeal and consequently acquitting the respondent, the judgment of the appellate Court below can be termed to be perverse which needs interference in this appeal. As already noticed, there is no evidence to even remotedly suggest that the respondent converted and/or appropriated for his own benefit the goods of the Society with an dishonest intention. In the absence of such a evidence the view taken by the appellate court below deserves to be upheld and it is ordered accordingly. 13. As a consequence of the aforesaid discussion this appeal being devoid of any merit calls for no interference which is accordingly dismissed. Respondent is on bail, his personal -and surety bond is ordered to be discharged. It is made clear that any observation made in this judgment will not prejudice the case of either of the parties in arbitration or in any other proceedings. -