( 1 ) AFTER condonation of delay, the matter is coming up for admission today. ( 2 ) THE learned Additional Public Prosecutor Sri Niranjan Reddy submitted that the findings recorded by the learned Special Judge for trial of offences under Andhra Pradesh Co-operative Societies Act, Vijayawada in relation to Ex. P-2, is totally unsustainable, since misappropriating the amounts cannot be said to be part and parcel of the discharge of duties of the Secretary of a Primary Agricultural Co-operative Society and hence, the view expressed by the said Court in this regard cannot be sustained. The learned Additional Public Prosecutor also had drawn the attention of this Court to the evidence of P. W. 1 and P. W. 3 and would submit that the learned Magistrate should have accepted the evidence of P. W. 3, the enquiry officer and on the strength of the material available Exs. P-3 to P-6. The learned Magistrate should have held that prosecution had proved the case beyond all reasonable doubt. The learned counsel also pointed out to Ex. P-7, the enquiry report submitted by P. W. 3 and Ex. P-11 in this regard. Heard the learned Additional Public Prosecutor at length. ( 3 ) THIS appeal is preferred against an order of acquittal made in C. C. No. 59 of 1995, dated 08-01-1999 by the Special Court for trial of offences under A. P. Co-operative Societies Act, Vijayawada. Sub-Inspector of Police, Machavaram P. S. filed charge-sheet for an offence punishable under Section 409 I. P. C. The respondent herein accused S. V. R. Seshagiri Rao was the ex-secretary of the Primary Agricultural Co-operative Society, Machavaram from 03. 09. 1980 to 30. 10. 1981 and he was authorized to collect the loan amounts from loanees and debit the same in the bank and maintain cashbook. It is also the case of the prosecution that the said society was audited during the year 1981-82 and several irregularities were noticed which were brought to the notice of D. R. Co-operative Societies and ordered an enquiry under Section 52 of the A. P. Co-operative Societies Act 1964 (hereinafter referred to as Act) by appointing an enquiry officer. Enquiry officer was of the opinion that accused misappropriated an amount of Rs. 6,199-70 ps. Enquiry officer was of the opinion that accused misappropriated an amount of Rs. 6,199-70 ps. And basing on such report, sanction order to prosecute the accused was issued and Divisional Co-operative Officer, Narsaraopet gave a compliant against accused to police and Crime No. 35 of 1990 was registered under Section 409 I. P. C. , the same was investigated and charge sheet was filed against the accused under Section 409 I. P. C. The case was taken on file by the learned Judicial Magistrate of First Class, Gurajala which was transferred to the Special Court on question of jurisdiction after it is established. ( 4 ) P. W. 1, the then Divisional Co-operative Officer, Narasaraopet, just deposed that he lodged complaint against the accused before Machavaram Police Station after getting sanction order from the Collector. Ex. P-1 is the original complaint and Ex. P-2 is the sanction order and P. W. 1 deposed in cross-examination that he handed over all records to police along with Ex. P-1 and Ex. P-1 was presented through his subordinate on 09-10-1990 and the sanction order Ex. P-2 does not bear the seal of the Collector. ( 5 ) P. W. 2, one of the Secretaries of P. A. C. S. , deposed that he does not know anything about the case. P. W. 3 is the enquiry officer, who had deposed about the details of enquiry. P. W. 3 stated that at the time of his enquiry one Punnam Panakalarao was the President and the accused was suspended during the said period and another Secretary was holding the charge and accused misappropriated an amount of Rs. 7,874-70 ps. in respect of 5 items and Ex. P-7 is his enquiry report. P. W. 3 also deposed that accused collected part payments of amounts from loanees to a tune of Rs. 4,963/- and had not remitted the same to the Bank of the Society. 7,874-70 ps. in respect of 5 items and Ex. P-7 is his enquiry report. P. W. 3 also deposed that accused collected part payments of amounts from loanees to a tune of Rs. 4,963/- and had not remitted the same to the Bank of the Society. P. W. 3 also deposed about his verification of the accounts in cross-examination, this witness admitted that the enquiry proceedings were issued in the name of one B. Gopalarao after whom he assumed charge and conducted enquiry under the same proceedings and it was suggested to this witness that there were misunderstandings between the then President Panakalarao and the accused due to political miss-feelings and it was also suggested that all the loanees had received their share capital amounts and it was wrongly stated in his report that accused misused the said amounts without returning the same to the loanees. This witness also admitted that he had not examined the auditor of the society during his enquiry and he had not obtained any extension of time to continue his enquiry. P. W. 4 to P. W. 10 had not supported the version of the prosecution. P. W. 11 and P. W. 12 are the investigating officers and P. W. 12 deposed that he had registered FIR as Crime No. 35 of 1990, marked as Ex. P-11 and he submitted the original FIR to the I Additional Judicial Magistrate of First Class, Gurajala by marking the copies to all the concerned. ( 6 ) THE learned Magistrate, on appreciation of the evidence and after recording reasons at para 12, arrived at a conclusion that prosecution miserably failed to establish the guilt of the accused. P. W. 3 deposed that the misappropriated amount is Rs. 7874-70 ps. , but as per the charge sheet and evidence of P. W. 11, the misappropriation was Rs. 6,199-70 ps. The learned Additional Public Prosecutor placed strong reliance on the evidence of P. W. 3 and Ex. P-7 the enquiry report submitted by P. W. 3. P. W. 3 deposed that the misappropriated amount is Rs. 7874-70 ps. , but as per the charge sheet and evidence of P. W. 11, the misappropriation was Rs. 6,199-70 ps. The learned Additional Public Prosecutor placed strong reliance on the evidence of P. W. 3 and Ex. P-7 the enquiry report submitted by P. W. 3. ( 7 ) SECTION 409 IPC reads as hereunder:- criminal Breach of Trust by Public Servant or by banker, merchant or agent:- Whoever, being in any manner entrusted with property or with any dominion over property in his capacity by a public servant, or in the way of his business as a banker, merchant, factor, broker, attorney, or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extent to ten years, and shall also be liable to fine. ( 8 ) THERE cannot be any controversy that in view of Section 129-A of the Act, this officer would be a public servant. ( 9 ) IN D. Venkata Rao and another v. State Rep. By S. I. of Police, Pentapadu P. S. , W. G. District, (2000 (2) ALT (Crl) 272 (AP)) while dealing with a case of misappropriation of society fund and prosecution relying upon the departmental enquiry report, this Court held that enquiry report is not substantive piece of evidence. ( 10 ) IT is also pertinent to note that P. W. 2, P. W. 4 to P. W. 10 had not deposed anything. There is some discrepancy relating to the amount alleged to have been misappropriated also. ( 11 ) IN the light of the reasons recorded, there cannot be any doubt that the order of acquittal made by the learned Magistrate need not be disturbed. However, the learned Additional Public Prosecutor had pointed out that the learned Magistrate recorded reasons to the effect that Ex. P-2 is doubtful as the sanction order does not bear the signature of the Collector and there is no office seal on the said order. The learned counsel would submit that misappropriation of funds would be no part of the duty of the Secretary of a society and hence, no sanction is required and this reasoning adopted by the learned Magistrate cannot be sustained. The learned counsel would submit that misappropriation of funds would be no part of the duty of the Secretary of a society and hence, no sanction is required and this reasoning adopted by the learned Magistrate cannot be sustained. ( 12 ) IN Om Parkash Gupta V. State of U. P. ( AIR 1957 SC 458 ), it was held that no sanction is necessary to prosecute the Public Servant, as he does not normally act in his capacity as a Public Servant when committing criminal breach of trust. ( 13 ) IN Dhulamani Behara v. State of Orissa (1988 Crl. L. J. 1027 (Orissa) at para 6 it was held: the question whether sanction is required for prosecution of a public servant with relation to any offence alleged against him is always one of fact to be determined on the basis of the duties discharged by him and relation of such duties to the conduct complained of. It was observed in AIR 1948 PC 128: (1948 (49) Crl. L. J. 503) (H. N. B. Gill v. The King) that when a question arises to determine whether the offence is one committed while acting or purporting to act in the discharge of official duty the test may well be whether the public servant, if challenged, can reasonably claimed that, what he does, he does in virtue of his office. The decision approved AIR 1939 FC 43: (1939 (40) Crl. L. J. 468) (Dr. Hori Ram Singh V. Emperor) and was again re-affirmed in AIR 1948 PC 156: (1948 (49) Crl. L. J. 660), it could hardly be said that misappropriation of Government money is an offence committed while either acting or purporting to act in discharge of official duty. Could it be said that when an officer is charged for misappropriation, he can say yes, I have misappropriated, but I have done so by virtue of my office and hence, you must obtain sanction before you prosecute me? The stand could never be upheld as a demand under Section 197, Cr. P. C. The same view was expressed in B. S. Sambhu v. T. S. Krishna Swamy ( AIR 1983 SC 64 ). In N. Bhargavan Pillai (dead) by L. R. S. Vs. State of Kerala (AIR 2004 S. C. 2317) following the view expressed in State of Himachal Pradesh Vs. P. C. The same view was expressed in B. S. Sambhu v. T. S. Krishna Swamy ( AIR 1983 SC 64 ). In N. Bhargavan Pillai (dead) by L. R. S. Vs. State of Kerala (AIR 2004 S. C. 2317) following the view expressed in State of Himachal Pradesh Vs. M. P. Gupta ( (2003) 10 JT (SC) 32) it was held that sanction under Section 197 Cr. P. C. is not a condition precedent for an offence under Section 409 I. P. C. ( 14 ) THEREFORE, this Court is of the considered opinion that the recording of acquittal for want of evidence and in view of the discrepancies would be justified. The finding recorded relating to Ex. P-2, cannot be sustained for the reason that in the facts and circumstances of the case, no sanction is required as such and hence, the want of seal or want of signature of the Collector on Ex. P-2 may not be of serious consequence. However, for the reasons recorded above, this Court does not see any reason to interfere with the order of acquittal, except making the above observations in relation to Ex. P-2. Accordingly the Criminal Appeal fails and shall stand dismissed.