JUDGMENT 1. -This criminal appeal has been filed by the State of Rajasthan against the judgment of acquittal dated 12.1.1993 passed by learned Additional Civil Judge and Additional Chief Judicial Magistrate No. 3, Udaipur (hereinafter referred to as `the trial Court') in Criminal Regular Case No. 8/84 whereby the trial Court found accused-respondents not guilty of offences under sections. 408 read with Section. 120-B Indian Penal Code and acquitted them. 2. I have heard learned Public Prosecutor and learned counsel for the accused-respondents. Perused the judgment impugned and record of the trial Court. 3. On 21.10.1975, PW-3 Paras Ram lodged a first information report with the Police Station, Dhan Mandi, Udaipur with the allegation that the accused-respondents, who are employees of Udaipur Sahakari Thok Bhandar Ltd., have committed an offence of criminal breach of trust punishable under sections. 408 Indian Penal Code on the basis of audit report Ex.P/4. After investigation, police filed challan against the accused-respondents for offences under sections. 408 read with Section 120-B Indian Penal Code and they were put to trial. 4. Prosecution examined PW-1 Mohammed Hussain, PW-2 Fakir Mohd., PW- 3 Paras Ram, PW-4 Nathu Lal, PW-5 Bal Govind, PW-6 Babu Lal, PW-7 Shyam Sunder, PW-8 Sangram Singh, PW-9 Krishna Gopal and PW-10 Govind Singh. PW-1 Mohammed Hussain did not support the prosecution case. PW-2 Faquir Mohammed had produced Ex.P/1 stock register and cash book. PW-3 Paras Ram was Executive Officer. He proved Ex.P/1 stock register and FIR Ex.P/2. PW-4 Nathu Lal has stated that a D.O. Letter was written by one Babu Lal to S.P., Udaipur for initiating criminal proceedings against the accused- respondents. He proved FIR Ex.P/2, PW-5 Balgovind proved Ex.P/3, production of cash book, ledger register and stock register etc. PW-6 Babu Lal has stated that on 10.10.1975, he wrote a D.O. Letter Ex.P/4 to S.P., Udapur and requested him to initiate criminal proceedings against the accused-respondents on the basis of audit report. Along with the said D.O. letter, audit reports of fair price shop 10-A, 10-B and 11-B, which were prepared by PW-10 Govind Singh Mehta, were forwarded. PW-7 Shyam Sunder has stated that on 22.11.1975, he was posted at Sahakari Upbhokta Thok Bhandar, Udaipur as Executive Officer. On 22.11.1975 he sent the concerned record to the S.H.O. vide letter Ex.P/4. He stated that he certified the copy of order of appointments of accused- respondents, which is tagged in Court file. PW-7 Shyam Sunder has stated that on 22.11.1975, he was posted at Sahakari Upbhokta Thok Bhandar, Udaipur as Executive Officer. On 22.11.1975 he sent the concerned record to the S.H.O. vide letter Ex.P/4. He stated that he certified the copy of order of appointments of accused- respondents, which is tagged in Court file. He pleaded ignorance regarding the original record. He stated that he does not remember as to whether the original record was seized and sent to the police or not. The original record was not produced in the Court, which shows that certain record was produced in the Court but the relevant original record was not produced. The statement of this witness was deferred for want of record but ultimately the same could not be produced and proved. PW-8 Sangram Singh has stated that on 21.10.1975, he was posted at Police Station, Dhan Mandi as S.H.O. He received Ex.P/4 from PW-3 Paras Ram. He stated that on receipt of the record, he had registered a case and proved Chak FIR Ex.P/5. He stated that he seized Ex.P/1, P/3, article-1 cash book, article-2 & 3 stock register of Ward No. 10- A and 10- B, article-4 cash book of Ward No. 10, article-5 account register, article-6 cash book of Ward No. 11-B. PW-9 Krishna Gopal proved Ex.P/6 and P/7 bill No. 1601-1700. PW-10 Govind Singh, Regional Audit Officer, Udaipur stated that on 10.10.1975, he was Co-operative Inspector. He sent the report on 22.9.1975 to Co-operative Society regarding audit of shops No. 10-A & 11-B. He conducted checking of the record and stock. He also proved audit report Ex.P/8, forwarding letter Ex.P/9, admit report of Ward No. 10-A & B Ex.P/8 and Ward No. 11-B Ex.P/10. The statements of accused-respondents were recorded under sections. 313 Criminal Penal Code who denied the allegations levelled against them. 5. On appreciation of documentary as well as oral evidence produced by the prosecution, the trial Court came to the conclusion that the prosecution has failed to establish the guilt of the accused-respondents beyond reasonable doubt and accordingly, the accused-respondents were acquitted of the charges levelled against them. 6. I have carefully gone through the oral as well as documentary evidence produced by the prosecution. 7. 6. I have carefully gone through the oral as well as documentary evidence produced by the prosecution. 7. To constitute an offence of criminal breach of trust, it is essential that the prosecution must prove that the accused were entrusted with the property or the accused had dominion or power over the said property. Not only this, the prosecution has also to establish that the property so entrusted to the accused persons, was misappropriated with a dishonest intention or dishonestly converted or used or disposed of in violation of the entrustment made to them. So far as offence under sections. 408 Indian Penal Code is concerned, it is for the prosecution to prove firstly that the accused-persons were clerks or servants employed by the employer and were entrusted with the property in the capacity of the clerk or servant and as such, they had dominion or power over the property and committed criminal breach of trust in respect of said property, then and then alone the offence under sections. 408 Indian Penal Code is constituted. In the instant case, prosecution has failed to produce any reliable evidence before the trial Court that the accused-respondents were employed by the employer Co-operative Society as clerks or servants. The prosecution has also failed to prove that they were entrusted with the properties for which allegation of criminal breach of trust is levelled against them. The prosecution has not produced any reliable evidence to show that the accused-respondents were entrusted with the property owned by the employer and in that manner, they had a dominion or power over the said property in the capacity of clerks or the servants of the employer. They dishonestly misappropriated or converted or used or disposed of the property so entrusted to them. From the statements of various prosecution witnesses, it is noticed that original record was not produced before the trial Court. 8. I have carefully gone through the record of the trial Court. Neither the appointment letter of the accused-respondents as clerks or servants of the Co-operative Society nor any document showing entrustment of property to the accused-respondents has been produced and proved. Even the prosecution did not produce the original ledger book, cash book and other relevant documents on which the prosecution could have relied to bring home the guilt of the accused-respondents. The prosecution has mainly relied on the audit report. Even the prosecution did not produce the original ledger book, cash book and other relevant documents on which the prosecution could have relied to bring home the guilt of the accused-respondents. The prosecution has mainly relied on the audit report. Certain certified copies are found on the record but they have not been tendered in evidence by the prosecution. The trial Court discussed the entire evidence in detail in a well reasoned judgment and reached to the conclusion that the prosecution has failed to prove the essential ingredients for constituting offences of Secs. 408 r/w Section 120-B IPC. There is not an iota of evidence showing any conspiracy between the accused to commit the offence of criminal breach of trust. It is settled law that in a case of misappropriation, two factors, which are of paramount importance, have to be proved. Firstly, the factum of entrustment and secondly, the factum of misappropriation. In the instant case, the prosecution has failed to prove entrustment of the property to the accused-respondents. This Court in State of Rajasthan v. Kesar Singh, 1969 RLW 235 held that in case of criminal breach of trust, a distinction has to be drawn between the persons having control or general charge over the property and persons given entrustment of the property. If it is found that the property is missing, without further proof, a person to whom the property has been entrusted, will be liable for accounting the same. Whereas in the case of a person having supervisory or general control over a certain property, he would be liable only when it is shown that he misappropriated it or was a party to criminal breach of trust committed in respect of it by any other person. 9. Having considered the entire evidence, I am of the considered opinion that there is no error in the judgment of the trial Court. The prosecution has failed to prove the guilt of the accused persons beyond reasonable doubt and, therefore, the trial Court rightly found them not guilty and acquitted them extending the benefit of doubt.In this view of the matter, I find no merit in this appeal. Accordingly, it fails and is dismissed. The bail bonds and surety bonds of the respondents are discharged.Appeal dismissed *******