JUDGMENT : 1. The appeal has been preferred by the State of M. P. calling in question legality of judgment of acquittal dated 30th July, 1993 passed by CJM, Chhindwara in Criminal Case No. 279/79 thereby acquitting the respondents for commission of offence under section 409 read with section 34 of Indian Penal Code. 2. The prosecution case, in short, is that on 25-10-1976 on behalf of M/s Ghanshyamdas Chandak, Kalyanmal Sharma deposited a sum of Rs. 22,000 with the District Co-operative Central Bank Ltd., Chhindwara. The amount of Rs. 22,000 was paid to the accused Mohanlal who in turn prepared two slips for preparation of drafts of Rs. 11,000 each and forwarded it to the Agent-cum-Branch Manager Sheshrao Gaikwad. Two drafts bearing No. 741033 and 741035 were issued in the name of Harish Kumar Shyamlala and Co., Jabalpur. Drafts were signed by Sheshrao Gaikwad and second signatures were put by authorised signatory Bhairo Prasad Awasthy. Both the drafts were delivered to Kalyanmal Sharma (PW.5) who handed over drafts to Ghanshyamdas, proprietor of the firm. Drafts were ultimately transmitted to Harish Kumar Shyamlala and Co., Jabalpur. The drafts were encashed from Central Bank at Jabalpur from the account of District Co-operative Central Bank Ltd. When reconciliation statement was received from M. P. Co-operative Bank Ltd., Jabalpur by Co-operative Central Bank Ltd., Chhindwara, it was noticed that on 20th October, 1976 though two drafts were issued, but Mohanlal, Cashier, had made only entry of Rs. 11,000 as against draft No. 741033 and a sum of Rs. 11,000 was misappropriated. The statement which was outstanding was wiped off by the accused Sheshrao Gaikwad. Sheshrao Gaikwad ultimately deposited the amount of Rs. 11,000 on 30th August, 1977 and on 6-10-1977 interest of Rs. 1,295 on the aforesaid amount was also deposited by the accused Sheshrao Gaikwad, thus, temporary embezzlement of Rs. 11,000 was done with effect from 30th August, 1976 which was detected in the course of audit on the basis of which report was lodged before the Supdt. of Police, Chhindwara. Crime was registered. After due investigation the accused were found involved in the offence, hence they were charge sheeted. Trial Court framed the charge under section 409 read with section 34 of Indian Penal Code as against accused persons. 3. of Police, Chhindwara. Crime was registered. After due investigation the accused were found involved in the offence, hence they were charge sheeted. Trial Court framed the charge under section 409 read with section 34 of Indian Penal Code as against accused persons. 3. The accused have been acquitted mainly on the ground that one of the two slips which were prepared by Mohanlal for preparation of bank drafts has not been produced as well as counter foil of the bank draft book was not produced before the Court. Commission of offence has not been found to be established. Aggrieved by the judgment of acquittal, the instant appeal has been preferred by the State. 4. Shri Jinendra Kumar Jain, learned Dy. AG appearing for State/appellant has submitted that in the instant case facts are writ large, a sum of Rs. 22,000 was paid to Mohanlal, but he made entry in the bank scroll of Rs. 11,000 only. There is evidence on record indicating that the agent Sheshrao Gaikwad and Mohanlal acted in collusion. Evidence also supports the case of the prosecution that Bhairo Prasad Awasthy also assisted them actively. He has also taken this Court to the statement (Ex.D/2) of Sheshrao Gaikwad recorded by the Co-operative authorities and the statement of the accused recorded under section 313 Criminal Procedure Code, thus, the counsel has submitted that commission of offence by the accused persons under section 409 of Indian Penal Code stands established beyond periphery of doubt, consequently, the Judgment of acquittal be set aside and the accused persons be suitably punished. 5. Shri K. K. Trivedi, learned counsel appearing for respondent No. 1 Sheshrao Gaikwad who was holding the post of Agent-cum-Branch Manager has submitted that money was not paid to him by Kalyanmal (PW.5), money was paid to Mohanlal. Accused Mohanlal had made entry of Rs. 11,000. Statement of Mohanlal is not correct that he handed over amount of Rs. 11,000 to Sheshrao Gaikwad. It was necessary to produce the two slips prepared for preparation of bank drafts in order to establish that in fact two drafts were required to be prepared. It was also necessary to produce the counter foil in order to indicate the dishonest intention of Sheshrao Gaikwad. Statement (Ex.D/2) cannot be said to be reliable. It was made in order to save his own skin and the livelihood. 6. It was also necessary to produce the counter foil in order to indicate the dishonest intention of Sheshrao Gaikwad. Statement (Ex.D/2) cannot be said to be reliable. It was made in order to save his own skin and the livelihood. 6. Shri S. C. Datt, learned senior counsel appearing with Shri Siddharth Datt for respondent No. 2 has submitted that though amount of Rs. 22,000 was paid to Mohanlal/respondent No. 2, but Bank Manager had informed him that party had desired for preparation of one draft only, other draft was cancelled. Cancelled draft was shown to him by the Branch Manager, consequently, he handed over sum of Rs. 11,000 to the Branch Manager Sheshrao Gaikwad on being asked by him. Entry of Rs. 11,000 was made in the bank scroll by Mohanlal who was holding the charge of post of Cashier on the day on which the aforesaid draft was prepared as regular Cashier was on leave. Two slips were issued by accused Mohanlal which indicates that his intention was not dishonest, relying upon the statement of Sheshrao Gaikwad, money was handed over to him, thus, commission of offence by accused Mohanlal has not been established. 7. Shri Atulanand Awasthy, learned counsel appearing, for respondent No. 3 Bhairo Prasad has submitted that at the most evidence against Bhairo Prasad is that of signing the drafts. As per procedure, he was supposed to sign the drafts, money was not entrusted to him at any point of time. There is no evidence on record to indicate that he acted in collusion or shared common intention with other accused persons Mohanlal and Sheshrao Gaikwad. Acquittal recorded by the trial Court of Bhairo Prasad is proper. Counter foil of the bank draft was necessary to be produced in order to indicate that counter foil was not signed by Bhairo Prasad. The evidence fall short of proving the guilt as against Bhairo Prasad. 8. It is clear from the facts that two drafts of Rs. 11,000 each were issued from Co-operative Central Bank Ltd., Chhindwara at the instance of M/s Ghanshyamdas Chandak through its Munim Kalyanmal (PW.5). It is also clear, that the said bank drafts were issued in favour of Harish Kumar Shyamlala and Co., Jabalpur. These bank drafts were encashed at Jabalpur and intimation was sent to Central Bank, Chhindwara. It was found that amount of Rs. It is also clear, that the said bank drafts were issued in favour of Harish Kumar Shyamlala and Co., Jabalpur. These bank drafts were encashed at Jabalpur and intimation was sent to Central Bank, Chhindwara. It was found that amount of Rs. 11,000 was only deposited as against the two drafts of Rs. 11,000 each. It is also not disputed that amount of Rs. 22,000 was handed over by Kalyanmal (PW.5), Munim of firm M/s Ghanshyamdas, to Mohanlal, and the accused Mohanlal has made only one entry in the cashier scroll register of deposit of Rs. 11,000 by Kalyanmal (PW.5) whereas he had in fact received a sum of Rs. 22,000. Mohanlal has stated in answer to question No. 47, in the statement of accused recorded under section 313 Criminal Procedure Code by the trial Court, that he had received a sum of Rs. 22,000 for preparation of two drafts as Head Cashier was on leave, he was working as Cashier. It was necessary to follow the commands of Sheshrao Gaikwad who was the agent of Bank. After preparation of the slips he had forwarded the slips to Sheshrao Gaikwad, after sometime Sheshrao Gaikwad has informed to him that party had desired for cancellation of one draft as such in the scroll register, entry of deposit of Rs. 22,000 should not be made immediately. After the slip and demand draft were cancelled thereafter entry in the scroll register should be made. Consequently, he waited for the orders of Sheshrao Gaikwad, after sometime on the same day he had shown him cancelled draft in the draft book. Consequently, he made entry of Rs. 11,005.50 paisa in the cashier scroll, he has not committed any offence. Sheshrao Gaikwad has deposited sum of Rs. 11,005.50 paisa with the Bank. Sheshrao Gaikwad has also tampered with the reconciliation register and had made wrong entry in the reconciliation register wiping off amount. 9. Question arises for consideration is whether accused Sheshrao Gaikwad and Mohanlal as well as Bhairo Prasad shared common intention to commit the offence under section 409 of Indian Penal Code of committing criminal breach of trust with respect to business of the Bank. The evidence discloses initially money was paid to Mohanlal who made incorrect entry of Rs. 11,000 instead of Rs. The evidence discloses initially money was paid to Mohanlal who made incorrect entry of Rs. 11,000 instead of Rs. 22,000 in scroll and that Sheshrao Gaikwad was responsible for making wrong entries in the reconciliation book when it was pointed out by Jabalpur Bank that two bank drafts were encashed, entry of deposit of amount of Rs. 11,000 of one bank draft was not found. Phoolchand Kesharwani (PW.3) is the auditor. He has stated that it was the duty of the Cashier to accept the cash and to forward the slip to Accountant and after signing the drafts the Accountant was required to forward the slips along with drafts to the Agent and thereafter Agent was required to sign. Meaning thereby initially the money was to be deposited with cashier Mohanlal and Mohanlal was required to issue slips which he had issued and thereafter the drafts were prepared by the clerk and submitted to the Accountant Bhairo Prasad who has signed and thereafter he has forwarded the bank drafts to Sheshrao Gaikwad, Agent of the Bank. Witness has proved the Cashier scroll entry (P/12) in which Mohanlal had made entry of receipt of only Rs. 11,000 from Kalyanmal (PW.5). Later on when misappropriation of the amount was detected, amount was deposited in the name of Shri K. M. Sharma on 30th August, 1977 of which scroll register (P/13) and Challan (P/14) have been produced. He has produced the draft (P/15) which was issued and also the cash scroll register (P/16). He has stated that there was misappropriation with effect from 26-10-1976 to 29-8-1977 of amount: of Rs. 11,005. He has also stated that Agent Sheshrao Gaikwad was supposed to compare with the Bank scroll and entry of the draft (P/15) then to put his signatures. It is not disputed that on cashier scroll as well as draft, Sheshrao Gaikwad has signed in the capacity of his being agent. Accused Mohanlal was Cashier on the date on which the drafts were prepared. On 26-9-1977 statement of Sheshrao Gaikwad was recorded by M. S. Jaman. Phoolchand Kesharwani (PW. 3) had reduced in writing the statement (D/2) of accused Sheshrao. After reading it Sheshrao Gaikwad has signed it. M. S. Jaman who dictated the statement of Sheshrao Gaikwad has died. Accused Sheshrao Gaikwad had deposited the amount of Rs. 11,000 and interest. Mohd. On 26-9-1977 statement of Sheshrao Gaikwad was recorded by M. S. Jaman. Phoolchand Kesharwani (PW. 3) had reduced in writing the statement (D/2) of accused Sheshrao. After reading it Sheshrao Gaikwad has signed it. M. S. Jaman who dictated the statement of Sheshrao Gaikwad has died. Accused Sheshrao Gaikwad had deposited the amount of Rs. 11,000 and interest. Mohd. Sharif Jaman (P.W.4) has stated that P.C.Kesarwani had performed the audit and informed to him that misappropriation of a sum of Rs. 11,000 was made. The Incharge officer of Central Co-operative Bank Ltd., Chhindwara was informed vide letter (P.19), accused Sheshrao Gaikwad was also informed. PW.4 had lodged First Information Report (P.22) and had written a DO letter (P.21) dated 2-11-1977. Police had seized counter cheque book, reconciliation statement and other documents. Drafts used to remain in custody of accused Sheshrao Gaikwad. The encashed bank draft of which money was not deposited in the account of Bank was seized by the police from the State Co-operative Bank, Jabalpur. Its inquest (P.24) has been proved by Kailash Chandra (PW.6) an employee of the Bank. Anandji (PW.7), Branch Manager of Chhindwara Bank has proved the resolution of Board of Directors and specimen signatures (P. 25) by which accused Sheshrao Gaikwad and Bhairo Prasad were authorized to sign as authorized signatories. Specimen signatures of Sheshrao Gaikwad and Bhairo Prasad were sent to Handwriting Examiner and report (Ex.P/36 and P/37) have been proved by Mahendra Singh Chauhan (PW.9). Signatures on the bank draft have been found to be of Sheshrao Gaikwad and Bhairo Prasad which fact is not disputed at Bar, the accused have also not disputed aforesaid fact. Leave applications of S. P. Gaikwad and B. P. Awasthy on which signatures are their of S. P. Gaikwad and B. P. Awasthy have been compared with the signatures on the questioned document. Seizure of the application has been proved by Satish Chandra (PW.11) and Shyamsundar Pandey (PW.8). S. S. Pandey (PW.8) has conducted the investigation and has proved the recovery of various documents from Chhindwara and Jabalpur. 10. In defence, on behalf of Mohanlal three witnesses have been examined. A. L. Sanwla, Branch Manager, has made the statement with respect to reconciliation register entry (Ex.D/1). In the reconciliation register (D/1), as per his version, amount of Rs. 11,000 was shown as outstanding till January, 1977. He has stated that there were signatures of Ku. 10. In defence, on behalf of Mohanlal three witnesses have been examined. A. L. Sanwla, Branch Manager, has made the statement with respect to reconciliation register entry (Ex.D/1). In the reconciliation register (D/1), as per his version, amount of Rs. 11,000 was shown as outstanding till January, 1977. He has stated that there were signatures of Ku. Sawant and the then Branch Manager accused Sheshrao Gaikwad on outstanding. Entry (D/3) of February, 1977 in which the amount was not shown outstanding was also signed by accused Sheshrao Gaikwad. He has also stated about the bank scroll register by which amount of Rs. 11,000 was deposited on 30th August, 1977 in the name, of Harish Kumar. Entry was made by Sheshrao Gaikwad vide Ex.D/2. He has also stated that deposit voucher must have been prepared for deposit of the amount. In the cross-examination, witness has stated that from Jabalpur statement came that amount of Rs. 11,000 of deposited draft was withdrawn on 29-10-1976. It was on the basis of the bank draft 741035 which was issued by the bank, was signed by Bhairo Prasad Awasthy and Sheshrao Gaikwad. Ex.D/3, entry of February, 1977 of reconciliation register was also verified by accused Sheshrao Gaikwad. The amount was wiped off though it was outstanding. Tukaram Khelwade (DW.2), Cashier of Co-operative Central Bank Ltd., Chhindwara has also been examined on behalf of accused Mohanlal. He has stated that on 30th August, 1977 Sheshrao Gaikwad had deposited a sum of Rs. 11,005.50 paisa, deposit form (P.14) was handed over to him by accused Sheshrao Gaikwad. He deposited the amount in the Bank, on being asked by accused Sheshrao Gaikwad. The form (Ex.P/14) was required to be signed by the person whose name appeared as depositor, but it was handed over to him by Sheshrao Gaikwad. Everyone was well aware about the missing amount of said draft as such he remembered the fact that amount was deposited by Sheshrao Gaikwad. The draft application also bears the signatures of accused Sheshrao Gaikwad. Yet another employee of Co-operative Bank, Chhindwara Anandji Lakham Si (DW.3) has been examined on behalf of accused Mohanlal. He has deposed that Sheshrao Gaikwad was working on the counter on 25-10-1976 in the capacity of agent also he has signed Ex.D.4 = P. 4. He was unable to say who was the clerk on the draft counter on 25-10-1976. 11. He has deposed that Sheshrao Gaikwad was working on the counter on 25-10-1976 in the capacity of agent also he has signed Ex.D.4 = P. 4. He was unable to say who was the clerk on the draft counter on 25-10-1976. 11. What emerges from the aforesaid evidence is that Kalyanmal (PW.5), Munim of M/s Ghanshyamdas Chandak, handed over a sum of Rs. 22,011 to accused Mohanlal, accused Mohanlal had admitted the aforesaid fact in his statement recorded by the Court under section 313, Criminal Procedure Code. He has also admitted that he was working as a Cashier and had made entry of only Rs. 11,005.50 paisa in the bank cashier scroll on 25-10-1976, He has admitted that he had issued two slips and paid remaining amount of Rs. 11,005.50 paisa to Bank Manager. In our opinion, the money was entrusted by the customer to him for issue of two bank drafts, he was supposed to have returned the money in case of cancellation of bank draft to the party itself. It is not his case that customer contacted him for the purpose of cancellation of one draft of Rs. 11,000. He ought to have made the entry of amount of Rs. 22, 000 in the cashier scroll which he failed to make. He made wrong entry of Rs. 11,000 instead of Rs. 22,000 as admitted by him. Ex. D.2 is the statement of accused Sheshrao Gaikwad recorded by the Co-operative authorities. which has been proved by Phoolchand Kesarwani (PW.3), Sr. Co-operative Inspector. Reading of Ex.D.2 indicates that accused Sheshrao had taken the stand that he had paid amount of Rs. 11,000 to the President of the Bank namely, Sunderlal Jaiswal on the assurance that he would give back the money next date, but he did not repay, ultimately he had to deposit the amount in the bank on 30th August, 1977, interest was also deposited later on. In the statement of accused Sheshrao Gaikwad recorded under section 313 of Criminal Procedure Code the witness has admitted his signatures on the draft in question. Thus, production of slips was not necessary. Accused Sheshrao Gaikwad was responsible to wipe off the entry in the reconciliation statement of outstanding amount of Rs. 11,000 which existed up to January, 1977. In the statement of accused Sheshrao Gaikwad recorded under section 313 of Criminal Procedure Code the witness has admitted his signatures on the draft in question. Thus, production of slips was not necessary. Accused Sheshrao Gaikwad was responsible to wipe off the entry in the reconciliation statement of outstanding amount of Rs. 11,000 which existed up to January, 1977. Said statement of January, 1977 was signed by Sheshrao Gaikwad and thereafter statement of February was also verified by Sheshrao Gaikwad in which aforesaid amount of Rs. 11,000 was not shown. This indicates that Sheshrao Gaikwad was having knowledge and was responsible for deleting outstanding amount of Rs. 11,000 which entry was existing on the basis of fact that amount of Rs. 11,000 of disputed draft was not deposited with the Bank. Later on accused Sheshrao Gaikwad had deposited the amount of Rs. 11,000 and also the interest as apparent from various documents and statement of Phoolchand Kesarwani (PW.3), A. L. Sawla (DW.1) and Tukaram Khelwade (DW.2). It is apparent form of deposit (P.14) by which amount was deposited with the Bank was filled by accused Sheshrao Gaikwad. Kalyanmal (PW.5) has stated that he had not deposited the amount of Rs. 11,000, thus, it is proved beyond reasonable doubt that there was misappropriation of amount of Rs. 11,000. Later on it was deposited in the Bank on the aforesaid dates after about 10 months. Complicity of accused Mohanlal in misappropriation is apparent even assuming that he handed over amount of Rs. 11,000 to accused Sheshrao Gaikwad. He had made wrong entry in cashier scroll. Both the accused acted with common intention of committing the offence within the purview of section 409 of Indian Penal Code. The reason employed by the trial Court that counter foil of the draft book as well as second slip which was prepared by accused Mohanlal were not produced as such commission of offence has not been proved is totally a superficial reasoning given by the trial Court. The trial Court has not considered entire evidence on record in its true perspective along with the statement of accused. It was virtually not disputed that two drafts were prepared and handed over to customer. The bank drafts were also encashed at Jabalpur of which several documents have been placed on record. The original draft encashed at Jabalpur has also been seized and produced. It was virtually not disputed that two drafts were prepared and handed over to customer. The bank drafts were also encashed at Jabalpur of which several documents have been placed on record. The original draft encashed at Jabalpur has also been seized and produced. Reconciliation statement was tampered with by Sheshrao and later on the amount was deposited by him. It was a clear case of misappropriation of the money, only after the auditor found the aforesaid fact it was deposited in the bank. Deposit of the amount does not wipe off the offence committed in the instant case by accused Mohanlal and Sheshrao Gaikwad. 12. With respect to accused Bhairo Prasad Awasthy, it is apparent that he had signed the drafts in the capacity of his being Accountant, but at no point of time money had reached to him nor any other evidence was adduced indicating that he was having the knowledge or shared common intention with two other accused to commit offence within the purview of section 409 of Indian Penal Code. The evidence is lacking in this regard. As per procedure the money was paid to accused Mohanlal by Kalyanmal (PW.5), thereafter bank clerk had prepared the drafts and initially the drafts travels to accountant, in that process in the capacity of the accountant on 25-10-1976 Bhairo Prasad had signed the drafts. There is nothing to indicate that he helped in misappropriation or in making false entry made in bank cashier scroll and the reconciliation statement, etc. Thus, it would not be appropriate, in our opinion, to convict accused Bhairo Prasad. He is entitled to be given benefit of doubt. 13. Shri S. C. Datt, learned senior counsel has relied upon a decision of Apex Court in Union of India and another vs. Major J. S. Khanna, 1972(2) Cri.L.J. 849 in which there was charge under section 420, Indian Penal Code against the military officer of making local purchase for military purposes during emergency. The procedure adopted by the officer was not strictly in accordance with the rules prescribed for purchases. The Apex Court held that it would not by itself lead to the inference of fraud or any other criminality on his part. The procedure adopted by the officer was not strictly in accordance with the rules prescribed for purchases. The Apex Court held that it would not by itself lead to the inference of fraud or any other criminality on his part. There is no dispute with the aforesaid proposition of law, but in the instant case complicity of Mohanlal is writ large by the fact that accused Mohanlal had handed over the money as per his version to Bank Manager, he was not supposed to do it. He made a false entry also in the cashier scroll. Thus, he committed offence within the purview of section 409 of Indian Penal Code and shared common intention along with Sheshrao Gaikwad. 14. Shri K. K. Trivedi, learned counsel appearing for respondent Sheshrao Gaikwad has also placed reliance on a decision of Apex Court in Roshan Lal Raina vs. State of Jammu and Kashmir, AIR 1983 SC 631 in which Apex Court has laid down that the proof of entrustment of money is a condition precedent. There can be no question of the accused being found guilty of the offence under section 409 of Indian Penal Code without proof of entrustment. In the instant case, money was entrusted to the bank of Rs. 22,000, two bank drafts were issued, amount of Rs. 11,000 was not deposited and a false entry was made in the cashier scroll which was signed by cashier Mohanlal as well as Sheshrao Gaikwad, Branch Manager-cum-Agent of the Bank on the same day, later on Sheshrao had also tampered with the reconciliation statement and wiped off the outstanding amount of Rs. 11,000 whereas amount was still outstanding in February, 77, it was deposited later on by accused Sheshrao Gaikwad along with interest. This decision is of no help. The present one is a clear case of misappropriation of money which was entrusted to the Bank. Similar is the decision in Jiwan Dass vs. State of Haryana, AIR 1999 SC 1301 , entrustment is necessary, decision is distinguishable since in the instant case entrustment was there, money was not deposited with the Bank where as it was supposed to have been deposited. 15. Resultantly, we hold that accused Sheshrao Gaikwad and Mohanlal have committed offence under section 409 read with section 34 of Indian Penal Code and convict them accordingly. We give benefit of doubt to accused Bhairo Prasad, he is acquitted. 15. Resultantly, we hold that accused Sheshrao Gaikwad and Mohanlal have committed offence under section 409 read with section 34 of Indian Penal Code and convict them accordingly. We give benefit of doubt to accused Bhairo Prasad, he is acquitted. 16. With respect to sentence we have heard the counsel for parties. 17. Shri S. C. Datt, learned Sr. Counsel and Shri K. K. Trivedi, learned counsel have submitted that since the incident was of 1976, by now more than 30 years have passed, accused are of advanced age, by now Mohanlal is aged about 70 years whereas Sheshrao Gaikwad is aged 78 years. Money was also paid to the Bank along with interest as such lenient view may be taken. He has relied upon the decision of Apex Court in Bonela Swaminatham vs. State of A. P., AIR 2000 SC 3578 (1) submitting that accused in the above case was sent for imprisonment for one year only. 18. Considering the facts and circumstances of the case, we sentence the respondent Sheshrao Gaikwad and Mohanlal for three years imprisonment and fine of Rs. 500/- each, in default of payment of fine they have to further undergo imprisonment for three months. The accused Sheshrao Gaikwad and Mohanlal shall surrender forthwith before the CJM, Chhindwara to undergo the sentences imposed upon them. 19. Resultantly, the appeal is allowed to the aforesaid extent.