BHASKAR BHATTACHARYA, J. ( 1 ) THIS is an appeal against order of acquittal passed by the learned Judicial Magistrate, 1st Class at mayabunder thereby vindicating the accused, a Government Cashier, of the charge under Section 409 of the Indian Penal Code. ( 2 ) THE prosecution case may be summarized thus : (a) The accused was entrusted with the job of Cashier from january, 1990 at the concerned office at Rangat. In course of his duty as such, he used lo keep the official money in a chest made of iron placed in the office room. The said chest could be locked by joint operation of two different keys. The key No. 1 was given to the accused while key No. 2 was in the custody of Deputy Education Officer ("deo"), who is de facto complainant and P. W. 12. The key No. 1 was required to be used first for the purpose of closing and then key No. 2 should be operated. If both the keys are so used, the chest cannot be opened unless both the keys are again applied. However, the chest could also be closed with the help of key No. 1 only and in such a situation, for opening the same, there was no necessity of taking help of key No. 2. But. at any rate, the chest could not be closed or opened at the instance of key No. 2 alone. (b) The duplicate of key No. 1 and key No. 2 were kept in the treasury and later those were shifted to the strong room of the office of the Deputy Commissioner at Port Blair vide letter no. 4-3/deo/mb/77/1270 dated October 6, 1980. (c) On April 3, 1990 at about 9. 15pm while the de facto complainant was in front of his quarter; the Supervisor of physical Education informed him that the nightwatchman viz. K. Natarajan reported to him that at about 8. 30 PM when Shri natarajan went for night duty and opened the doors of the office room, he found that the chest was not locked. The complainant along with the said Supervisor rushed lo the office in no time and found that the Cashier along with some other persons stood outside the office room. 30 PM when Shri natarajan went for night duty and opened the doors of the office room, he found that the chest was not locked. The complainant along with the said Supervisor rushed lo the office in no time and found that the Cashier along with some other persons stood outside the office room. On entering the room he found that the chest was locked and the accused told him to do something as a sum of Rupees three lakh was missing. (d) The PW. 12 asked the accused to verify the cash once again and after such verification the accused told him that there was a deficit of Rs. 3. 00. 000/- and a sum of Rs. 1. 32. 400/- was still lying in the chest. There was no sign of tampering with either the cash chest or the lock of doors. (e) Although the usual practice was that after verification of cash those should be kept in chest and the same should be locked by key No. 1 first by the Cashier and followed by key No. 2 by the DEO, such practice was followed upto February. 1990 regularly. In the month of March, 1990 the accused did not submit the cash book to PW. 12 for verification on the plea that there was a "difference of pages 41 to 42" which he should reconcile and then he would put up the cash book before PW. 12. The accused did not produce the cash book before P. W. 12 from March, 1990 till the date of incident i. e. April 3. 1990. The PW. 12 used the second key upto February, 1990. 34 Witnesses were examined on behalf of the prosecution and out of those, PW. 11 and PW. 28 became hostile. The accused pleaded "not guilty" but did not offer any evidence on his behalf. ( 3 ) THE learned court below by the order impugned herein, as mentioned above, acquitted the accused of the charge on the ground of benefit of doubt. ( 4 ) BEING dissatisfied, the State has come up with the present appeal under Section 378 of the Code of Criminal Procedure. ( 3 ) THE learned court below by the order impugned herein, as mentioned above, acquitted the accused of the charge on the ground of benefit of doubt. ( 4 ) BEING dissatisfied, the State has come up with the present appeal under Section 378 of the Code of Criminal Procedure. ( 5 ) AFTER hearing the learned counsel for the parties and after going through the material on record we find that the learned trial Judge has inter alia, recorded the following reasons in support of his conclusion :"no witnesses has spoken that the cash has been taken by the accused. There is no evidence to show how the money has been misappropriated by the accused. Practically there is no allegation against the accused about dishonest misappropriation of money as 'metis rea' (sic) behind it. PW. 34 who is one of the I. O. of this case at the time of cross examination admitted that the cash amount of this case is not recovered from any person or from any place. Analyzing the evidence, I found that nobody saw that the accused had taken (sic) cash and nothing is recovered from the custody of the accused. It is settled principle of law that so long as the money has not been recovered either from the person or from the house of the accused it cannot be said that accused had an intention of causing wrongful gain by taking the said amount. In this respect, I am relying upon one observation, which is a division Bench observation of Hon'ble Bombay High Court (1998 cri. L J 3771) in respect of offence under Section 403/405/408 of the IPC. In that case also, the money has not been recovered. Their lordships observed, that there was no criminal breach of trust. Guided by this observation, I firmly hold that no criminal breach of trust has been constituted in this instant case. " ( 6 ) WE are afraid, we cannot approve the aforesaid reasoning as the basis of acquittal in a case under Section 409 of the Indian Penal Code. As pointed out by the Supreme Court in the case of J. M. Desai and Anr. " ( 6 ) WE are afraid, we cannot approve the aforesaid reasoning as the basis of acquittal in a case under Section 409 of the Indian Penal Code. As pointed out by the Supreme Court in the case of J. M. Desai and Anr. vs. State of bombay, reported in AIR 1960 SC 889 , to establish a charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion. The principal ingredient of the offencc being dishonest misappropriation or conversion vhich may not ordinarily be a mattt, of direct proof entrustment of property and failure, in breach of an obligation, to account for the property if proved, may in the light of other circumstances, justifiably and to an interference of dishonest misappropriation or conversion. ( 7 ) IF the prosecution can establish by giving evidence that at the relevant point of time, the Cashier alone was in possession of the key of the safe and that no other person than Cashier had the scope of opening the safe with the help of any duplicate key, the Cashier had a duty to account for cash in the safe and where is unable to account or renders an explanation for his failure to account which is untrue, he must either have been party or privy to the extraction of cash from the safe notwithstanding the fact that no money has been recovered from him or no positive evidence is forthcoming to show that he misappropriated the money. (See S. R. Verma's case, reported in 1972 Cri. L. J. 1202 ). ( 8 ) WE are, however, quite conscious of the position of law that even if the reasoning for acquittal by the court below is wrong, this court will not convert the order to one for conviction unless the prosecution can prove that at the relevant time the accused was the only person who was armed with the key of the chest and that no other person was in a position to open the same with any duplicate key. We accordingly, invited the learned counsel for the parties to make submission on the aforesaid point on the basis of materials on record. We accordingly, invited the learned counsel for the parties to make submission on the aforesaid point on the basis of materials on record. ( 9 ) HOWEVER, having heard the learned Counsel for the parties and after going through the materials on record, we are of the definite view that the prosecution in this case has failed to establish the aforesaid condition. ( 10 ) THE reasons of our such conclusion are detailed below: the prosecution has come out with a definite case that the accused took over the charge as Cashier in the month of January, 1990 arid at that time key No. 1 was handed over to him. It also reveals from evidence that the chest in question had. double lock operation system and the key No. 2 was in the custody of DEO, the PW. 12. The prosecution alleges that the key No. 2 was used by PW. 12 upto february, 1990 and thereafter the lock, was operated through the key No. 1 by the accused alone. The prosecution has admitted the existence of duplicates of both the keys and it tried to establish that both the duplicates were kept in the Treasury and later those were shifted to the strong room of the office of the Deputy Commissioner at Port Blair vide letter No. 4-3/deo/mb/77/1270 dated October 6, 1980. The said letter has been marked as Ext. 1g at the instance of pw. 18. the Tehsildar on Special Duty in the office of the Deputy commissioner at Port Blair. We find from Ext. 1g that some stamp papers, eight sealed envelopes and one empty trunk were sent by the sub-Treasury Officer, Mayabunder to the Treasury Officer. Port Blair. There is no indication in the said letter as regards the contents of the sealed envelope. The said PW. 18 has admitted in cross-examination that he did not function as a Sub-Treasury Officer at Mayabunder and whatever he deposed in court regarding correspondence between sub-Treasury Officer at Mayabunder and Deputy Commissioner at port Blair, were based "after seeing the documents" ( 11 ) HE further admitted that in Ext. 1g there is no mention of duplicate keys of DEO office at Rangat and by looking at Ext. 1g he could not say what articles in sealed papers were sent to Deputy Commissioner's office. ( 12 ) THE PW. 1g there is no mention of duplicate keys of DEO office at Rangat and by looking at Ext. 1g he could not say what articles in sealed papers were sent to Deputy Commissioner's office. ( 12 ) THE PW. 18 thus having failed to prove that the duplicates of key no. 1 and key No. 2 were really lying in the strong room at Port Blair, the prosecution brought Shri R. P. Mathur the successor of PW. 12 as pw. 26 who was holding the post of DEO at the time of trial to prove the self-same fact. In cross-examination, the said PW. 2b made the following statements :"as per record I have deposed that duplicate keys were lying with the strong room at Port Blair. After taking over charge I wrote a letter for clarification as to existence of duplicate keys in the strong room at Port Blair but i did not get any reply in the matter. The entire occurrence took place in our office prior to my joining. At the time of alleged occurrence I was posted as Principal at Diglipur. For that I have no personal knowledge about the incident. " ( 13 ) THE aforesaid statements clearly point out that even at the time of trial, the then DEO was not aware of the exact whereabouts of the duplicate keys which according to the prosecution were in the strong room at Port Blair. ( 14 ) ULTIMATELY, the prosecution failed to produce those duplicate keys before the court justifying its assertion that those are really preserved in the strong room at Port Blair. ( 15 ) THUS, from the materials on record, it is firmly established that existence of duplicates of key No. 1 and key No. 2 is admitted by prosecution but it is not known who is in possession of those keys. ( 16 ) IT has also been proved that there was no sign of breaking or tampering with lock by any violent method and it necessarily follows that the chest was opened with the aid of either key No. 1 in possession of the accused or by the duplicate key No. 1. ( 16 ) IT has also been proved that there was no sign of breaking or tampering with lock by any violent method and it necessarily follows that the chest was opened with the aid of either key No. 1 in possession of the accused or by the duplicate key No. 1. ( 17 ) THEREFORE, we are unable to come to any definite conclusion that apart front the accused no other person was in a position to open the chest by using the duplicate key No. 1 so as to apply the principles laid down by the Supreme Court in the cases mentioned earlier. ( 18 ) AT this stage we also cannot lose sight of conduct of PW. 12, the de facto complainant who was holding key No. 2. In examinalion-in-chief he avowed that key No. 2 was used up to February, 1990. But in answer to questions put to him by court he stated that on April 3. 1990 be used the key No. 2 in the morning for opening the lock although in the same breath he admitted that he did not use key No. 2 on March 29, 1990, March 30, 1990, March 31, 1990, April 1, 1990 and April 2, 1990. If key No. 2 was really not used on April 2, 1990 there was no occasion for using the said key on April 3, 1990 at the time of opening the lock. It is, therefore, clear that he made a deliberate false statement before the Court. ( 19 ) MOREOVER, although PW. 12 has admitted that it was his duty to open and close the cash-chest with his key No. 2 when cash is put in chest or taken out therefrom, no reasonable explanation has come from him for non-performance of such duty. ( 20 ) THE said PW. 12 has alleged that the cashbook was not placed before him from March 1990 as there was discrepancies in pages 41 and. 42 of the cash book. But in cross-examination he has admitted that from march 1, 1990 till April 2, 1990 he took no action against the accused for not putting up the cash book before him. He further admitted that the cash book was complete upto March 26, 1990 "in the sense that all the entries therein are complete in all sense". But in cross-examination he has admitted that from march 1, 1990 till April 2, 1990 he took no action against the accused for not putting up the cash book before him. He further admitted that the cash book was complete upto March 26, 1990 "in the sense that all the entries therein are complete in all sense". ( 21 ) IN any event, if there was any irregularity in the cashbook it was his duly to take immediate step and such irregularity in the cash book, if any. cannot absolve him of his duty to use key No. 2 for such a longtime. ( 22 ) MR. Kar, appearing on behalf of the respondent in this connection has drawn our attention to the statement of PW. 12 in examination-in-chief at pages 80-81 of the Paper Book where he stated that the accused although was appointed in 1989 took charge of the post of Cashier on january 11, 1990 vide his order No. 14 dated January, 11 1990 and that during the said period apart from PW. 12 none else was the Cashier. By relying upon such statement Mr. Kar contends that from the date of appointment of the accused in the year 1989 fill January 11. 1990 the date of assumption of charge by the accused. PW, 12 was acting as cashier and both key No. 1 and key No. 2 were in his possession and at that time he had ample opportunity to manufacture a duplicate key of key No. 1. He submits that the PW. 12 was in possession of a manufactured duplicate key No. i and by dint of such key he opened the chest. Mr. Kir contends that lor the above reasons he did not use key No. 2 front March 1990 so that the blame of misappropriation ran be placed upor, t. he accused. Mr. Kar. in this connection, draws our attention to the answer given by PW. 12 in cross-examination at page 113 of the Paper Book where he stated that there was no possibility of a duplicate key of the lock being made as the lock is of Godrej make. Although we are unable to come to any conclusion on such allegation of manufacture of duplicate key on the basis of the materials on record, but such possibility cannot be totally ruled out. Although we are unable to come to any conclusion on such allegation of manufacture of duplicate key on the basis of the materials on record, but such possibility cannot be totally ruled out. ( 23 ) ON consideration of the entire materials on record, we are therefore, of the view that the prosecution has failed to make out a case of criminal breach of trust against the accused beyond reasonable doubt. ( 24 ) THE accused, in our opinion, should get the benefit of doubt. ( 25 ) WE, therefore, although do not approve the reasons assigned by the learned court below, but maintain the order of acquittal for the reasons mentioned above. Appeal dismissed. No costs. Appeal dismissed.