ORDER 1. This revision petition under section 397/401 of the Code of Criminal Procedure, 1973 preferred by the petitioner/complainant is directed against a Judgment dated 22nd December 2005 in Criminal Case No. 100/96 passed by the Judicial Magistrate First Class, Ashok Nagar (Guna) acquitting thereby the respondent No. 1/accused of the charge punishable under sections 409 and 467 of IPC. 2. In brief, the facts just for the decision of this revision petition are that the accused/respondent No. 1 was working as regular employee under District Co-operative Bank at Isagarh. At the relevant time, he was on deputation and was posted and working in the Primary Co-operative Society (Sewa Sahakari Samiti) at village Dhakoni. It is allged that being the In-charge of the System, the articles up to the limit were delivered to the accused. After sale, the sale price was to be deposited in the Co-operative Bank by him, but after sale of the delivered articles, he did not deposit the sale assets for Rs. 76,970/- in the Bank and misappropriated the said amount for which he was duly bound to account for. He also caused forgery in valuable permits issued to him by the authorities. Despite notice to handover the said amount and record, he did not do so. A detailed inquiry was conducted by the Inquiry Officer and Assistant Manager of the Society. After detailed inquiry under the direction of the Superiors, the FIR was lodged at Police Station Isagarh. After Investigation, the charge-sheet was filed. After trial, the trial Magistrate acquitted him of the charges under sections 409 and 467 of IPC, hence this revision before this Court by the complainant. 3. The grounds taken by the learned counsel for the petitioner/complainant in the memo of revision are that the impugned judgment is illegal, arbitrary and against the evidence as produced, hence, same is liable to be set aside. It is submitted that by the evidence the complainant well proved the charges against the respondent No. 1-accused, but the trial Magistrate passed the erroneous judgment of acquittal. Accordingly, it is prayed that by allowing the revision the case be remanded back to the Court for fresh decision of the case in accordance with law. 4. The learned counsel for the respondent No. 1/accused on the other hand, supported the impugned judgment and prayed for dismissal of the revision. 5. Accordingly, it is prayed that by allowing the revision the case be remanded back to the Court for fresh decision of the case in accordance with law. 4. The learned counsel for the respondent No. 1/accused on the other hand, supported the impugned judgment and prayed for dismissal of the revision. 5. Heard the learned counsel appearing for the respondent No.1/accused and also perused the record of the trial Magistrate containing oral and documentary evidence and the law governing the case. 6. The question for determination in this revision is whether the trial Magistrate was justified in recording the findings of acquittal on the basis of the evidence on record and the same are not suffered from any illegality or perversity? 7. The charges framed by the trial Court against the respondent No. 1-Leeladhan are extracted below:- ^^1- fd rqeus fnukad 18-2-93 ls 10-12-93 ds nkSjku bZlkx<+ Fkkuk varxZr xzke <kdksuh esa lfefr izcaa/kd lsok lgdkjh lfefr <kdksuh ds in ij yksdlsod ds ukrs inLFk jgrs gq;s lkoZtfud forj.k iz.kkyh dh lk[k lhek dh fodz; /kujkf’k 57 gtkj 898 #- tks fd yksdlsod ds ukrs rqe ij fu;Lr Fkh dks Lo;a ds mi;ksx ds fy, laifjofrZr dj vkijkf/kd U;kl Hkax fd;k rFkk 19 gtkj 72 :- fd lk[k lhek dk vkijkf/kd U;kl Hkax fd;kA 2- mDr le;kof/k esa rqeus fn- 15-12-95 ds }kjk tIr ijfeVksa fd dwV jpuk cSad dks {kfr dkfjr djus ds vk’k; ls dh tks ewY;oku izfrHkwfr dh ifjf/k esa gSaA** 8. On looking to the ocular evidence of witnesses Meharban Singh (PW-2) and Raj Kumar Sharma (PW-3) recorded by the trial Court it goes to show that the accused was posted from 18th February 1993 to 10th December 1995 on the post of Secretary in Primary Co-operative Society Dhakoli. Meharban Singh (PW-2) states that being an Observer of the Co-operative Bank Isagarh in the year 1995, he was asked to conduct the inquiry about the transactions made during the service period of accused and after inquiry he found that there was a loss of manure to the Society. He stated that accused Leeladhar objected to the previous inquiry conducted by Narendra Singh Chauhan, the Branch Manager of the Society at preliminary stage. So, again the inquiry was conducted by this witness. He stated that accused Leeladhar objected to the previous inquiry conducted by Narendra Singh Chauhan, the Branch Manager of the Society at preliminary stage. So, again the inquiry was conducted by this witness. On inquiry, he concluded that except some deposits which were not shown in the first inquiry conducted by Narendra Singh Chauhan, there was no change and the conclusions of the first inquiry conducted by Narendra Singh Chauhan were almost found similar by the witness. In cross examination, the relevant procedures regarding conduct of busienss of sale of manure, food grain and kerosene on control price were mentioned by him. The witness further makes it clear that in the distribution of manure and seeds for agriculturist, first of all, on the basis of the title of the person concerned, the limit of the seeds and manure was fixed. After allotment of the manure from the Agency authorized by the Manufacturer or the State and the manure is received in Society, the Secretary issues the permits to the farmers on previous limits as per area of the land and on the basis of permit the manure is distributed to individual farmer and entry is made in their books of credit. The food grain and kerosene on control rate are distributed to each ration card holders of the village. One Salesman other than Secretary of the Society is also appointed for sale of control items and manures and seeds on cash or credit as the case may be. He deposed that at the relevant time Hari Shankar Sharma and Bhagwant Rao were working as Salesmen in the society. It was admitted that against the arrears of the sale proceeds, the accused deposited Rs. 9050/- on 20th August 1994, Rs. 7240 on Ist Septembeer 1994, Rs. 2200 on 25th July 1994, Rs. 4100/- on 29th July 1994, Rs. 4800/- on 30th July, 1994 and Rs. 35,000/- on 10th November, 1994 with the society. 9. Bhagwant Rao (PW-2) deposed that he was posted as Salesman on the Control shops run by the society at Village Dhakoni and Narsukhedi. He stated that either he or the Secretary, i.e., the accused/respondent No. 1 used to deposit the sale proceeds of the Society with the Bank. 35,000/- on 10th November, 1994 with the society. 9. Bhagwant Rao (PW-2) deposed that he was posted as Salesman on the Control shops run by the society at Village Dhakoni and Narsukhedi. He stated that either he or the Secretary, i.e., the accused/respondent No. 1 used to deposit the sale proceeds of the Society with the Bank. It is stated that when Leeladhar used to deposit the sale proceeds of the manure and control items on fair deal, the witness usually handed over the amount to accused and got receipt from him. He did not remember how much and when he handed over the amount of the sale proceeds to accused and got receipt from him. He stated that when the Manager of the bank made an inquiry about the deposits of the arrears of the sale proceeds, he replied that he had tendered the amount and had the receipt of the same with him. However, he was declared hostile by the prosecution. He said that he does not remember that on 20th March 1993 he tendered the amount of Rs. 12710/- to the accused as per Receipt No. 13503. So also on 29th March 1993 sale proceeds amount of Rs. 1030/-, vide Receipt No. 13504, on 12th June 1993 an amount of Rs. 700/- vide Receipt No. 13547 and on 16th July 1993 sale proceeds amount of Rs. 17230/- vide Receipt No. 6379 were delivered to Liladhar for deposits of the said amounts in the Bank but these amounts were not deposited with Bank. He admitted that daily sale proceeds were entered in stock register and the sale amounts were entered in the ledger register of the related fair deal control shops of Dhakoni and Narsukhedi. The deposit and arrears were also kept in the account of the Society of the saving/current account register maintained by the Co-operative Bank Isagarh. 10. Digvijay Singh Bhadoriya (PW-13), stated that at the relevant time he was discharging his duty as the Deputy Manager posted in District Co-operative Bank Guna. He stated that after charge-sheet, the detailed inquiry against accused Liladhar was handed over to him. After inquiry he concluded that the sale proceeds of manure and seeds to agriculturist and the sale proceeds of sold control items of the society were not deposited with the Co-operative Bank Isagarh. His inquiry report is Ex. P/25. He stated that after charge-sheet, the detailed inquiry against accused Liladhar was handed over to him. After inquiry he concluded that the sale proceeds of manure and seeds to agriculturist and the sale proceeds of sold control items of the society were not deposited with the Co-operative Bank Isagarh. His inquiry report is Ex. P/25. In cross examination he admits that the respondent/accused preferred the legal action against his suspension or termination from the service before the Deputy Registrar Co-operative Registrar Guna and he also participated in the proceedings but he does not know the results of the same. He does not remember that the accused during inquiry deposited the embezzled amount in the Bank. The original inquiry report dated 21st November 1994 and all relied documents were preserved by the Bank. 11. On perusal of the inquiry report prepared by the witness Digvijay Singh Bhadoria (PW-13), it clearly indicates that on inquiry it was found that the accused received Rs. 31,670/- up to 16th July 1993 and Rs. 23,140/- was deposited with the bank. Thus, the accused was responsible for an amount of Rs. 8,530/-. Against the said amount he deposited Rs. 7000/- on 7th February 1994 and remaining was deducted from his salary. As per report it also appears that the accused did not inform about the misdeeds of the Salesman. Consequently, no legal action was proposed to be taken against the erring Salesman in time. The explanations of the accused during inquiry were not found satisfactory. The accused embezzled Rs. 1800/- towards rent of the fair deal shop which was shown paid to the landlord but not paid to him. For the sale proceeds against the sale of manure to the members of agriculturists, it was found that manure valued at Rs. 49,314/- was sold on permit on credit to farmers which on verification comes on record that only eight members have accepted to receive the manure while six members of the Society denied that no manure was sold to them on permit. Thus, the sale credit price was embezzled in the said manner by the accused. While concluding, the accused was finally held responsible for an amount of Rs. 9,624.58 and Rs. 57,898/- for PDS sales proceed. 12. Thus, the sale credit price was embezzled in the said manner by the accused. While concluding, the accused was finally held responsible for an amount of Rs. 9,624.58 and Rs. 57,898/- for PDS sales proceed. 12. It is pertinent to mention here that the original documents such as inquiry reports of various inquiry Officers and the supportive documents kept in the possession of the District Co-operative Bank Guna/Isagarh were not procured during investigation nor were they produced and proved in trial. It may further be mentioned that the Salesman who is also responsible for shortcoming in stock of PDF items, no prosecution was launched against him alongwith the accused/petitioner. 13. Only witness Milkha Singh (PW-1) states that four years ago the Agent of bank made a demand of price of manure which was never sold to him by the Society and the accused got his signature on permit by deceitful means. In cross-examination, he said that the receipt of manure on credit is entered on his book of debit-credit issued by the bank. Near about 10-12 years ago, he purchased the manure on credit and the relevant entry of purchase of manure was entered in his book of debit-credit but he did not submit his book of debit-credit in Court, during evidence, which raises suspicion to rely on him. 14. Another witness Ram Chandra Rao (PW-6) states he expressed his desire before accused Liladhar to become the member of the Society and he told to deposit Rs. 11/- but he did not purchase the wheat seeds of Rs. 3500/-. However, he admitted his signatures on the permit (Ex. P/9). Further he stated that he did not remember that on the basis of permit the wheat was delivered to him or not. Witness Bhagwan Singh (PW-7) said that he did not apply for manure or seed from the Society and he cannot say whether the permit (Ex. P/12) contained of his signature or not because his eye sight is weak and he is not able to recognize his signatures on the permits. He is declared hostile by the prosecution. Witnesses Saudagar Singh (PW-8) stated that in the year 1994 he purchased DPA Manure from the society. He stated that accused did not deceive him. Witness Kabul Singh (PW-11), admitted that he is a member of the Society and he purchased the manure from the society. He is declared hostile by the prosecution. Witnesses Saudagar Singh (PW-8) stated that in the year 1994 he purchased DPA Manure from the society. He stated that accused did not deceive him. Witness Kabul Singh (PW-11), admitted that he is a member of the Society and he purchased the manure from the society. He is declared hostile by the prosecution and he denied that a forged permit was prepared on his name and the purchase of manure was shown in his account. 15. On the discussions of the aforesaid, it seems that out of six persons, four persons namely. Ram Chandra Rao (PW-6), Bhagwan Singh (PW-7), Saudagar Singh (PW-8), Kabul Singh (PW-11) and Milkha Singh (PW-1) did not deny their signatures on permits (Ex. P/7 to P/12). To prove that the signatures or thumb impression on these permits are forged, no attempt was made to obtain a report from the Handwriting Expert by the prosecution. Hence, it cannot be safely said that the accused/respondent No. 1 ever prepared the forged signatures on permits issued by him to farmers for manure or seeds of crop to be sold on credit. No books of debit-credit from the farmers/members of the Society were collected during inquiry conducted by the Bank officers nor were they seized during investigation and further no plausible efforts were made to prove that by deceitful means the signatures of the related farmers were obtained on the permits while no manure or seed were sold to them on permit by the accused/respondent No. 1. 16. In a case where entrustment is admitted, it would be for an accused person to account for the money entrusted with him and the prosecution may not be in a position to establish as to how exactly an amount was converted by the accused to his own use, but the evidence and the circumstances of the case must warrant a conclusion that the accused in order to cause wrongful gain to himself or wrongful loss to another, has committed misappropriation of the amounts. 17. 17. In the case of Rabindra Kumar Dey v. State of Orissa ( AIR 1977 SC 170 ), the Hon’ble Apex Court held :- “Although the onus lies on the prosecution to prove the charge against the accused, yet where the entrustment is proved or admitted it will be difficult for the prosecution to prove the actual mode or manner of misappropriation and in such a case the prosecution would have to rely largely on the truth or the falsity of the explanation given by the accused. But the question is whether the explanation given by the appellant in this case can be said to be absolutely false? Another question that arises is what are the standards to be employed in order to judge the truth or falsity of the version given by the defence? Should the accused prove his case with the same amount of rigour and certainty, as the prosecution is required, to prove a criminal charge, or it is sufficient if the accused puts forward a probable or reasonable explanation which is sufficient to throw doubt on the prosecution case? In our opinion three cardinal principles of criminal jurisprudence are well-settled, namely : (1) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakenss or falsity of the defence version while proving its case; (2) that in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty; and (3) that the onus of the prosecution never shifts. It is true that under section 105 of the Evidence Act the onus of proving exceptions mentioned in the Indian Penal Code lies on the accused, but this section does not at all indicate the nature and standard of proof required. The Evidence act does not contemplate that the accused should prove his case with the same strictness and rigour as the prosecution is required to prove a criminal charge. The Evidence act does not contemplate that the accused should prove his case with the same strictness and rigour as the prosecution is required to prove a criminal charge. In fact, from the cardinal principles referred to above, it follows that, it is sufficient if the accused is able to prove his case by the standard of preponderance of probabilities as envisaged by section 5 of the Evidence Act as a result of which he succeeds not because probability of the version given by him throws doubt on the prosecution case and, therefore, the prosecution cannot be said to have established the charge beyond reasonable doubt. In other words, the mode of proof, by standard of benefit of doubt, is not applicable to the accused, where he is called upon to prove his case or to prove the exceptions of the Indian Penal Code on which he seeks to rely. It is sufficient for the defence to give a version which competes in probability with the prosecution version, for that would be sufficient to throw susupicion on the prosecution case entailing its rejection by the Court.” 18. Now coming to the case, it is noted that the witness Digvijay Singh Bhadoria (PW-13) states in cross examination that accused initiated the legal action before the Deputy Registrar Guna against his suspension/removal from service. An un-exhibited copy of the order dated 16th July 2001 passed by the Deputy Registrar Co-operative Societies Guna filed on record shows that under the provisions of section 55 (2) of the MP Co-operative Societies Act, 1961 and the powers conferred under Regulations F/5-1-99/fifteen-1-C dated 26.7.99, issued by the M.P. Co-operative Department accused/respondent was acquitted from the charges and he was directed to resume his charge without back wages however on the principles of no work no pay and the employer bank was directed to make deposit the embezzled amount as per law and rules from his regular monthly salary with liberty to take legal action by the employer against the accused if he is convicted by the Court of law. 19. In the case of L.Chandraiah v. State of A.P. and another [(2003) 12 SCC 670], it was held :- “...........It may be, and as rightly observed by the Courts below, that they acted in negligent manner and if they had taken due care they would have detected the fraud, but they failed to do so. 19. In the case of L.Chandraiah v. State of A.P. and another [(2003) 12 SCC 670], it was held :- “...........It may be, and as rightly observed by the Courts below, that they acted in negligent manner and if they had taken due care they would have detected the fraud, but they failed to do so. However, that by itself would not constitute an offence under section 409 IPC though it may expose the appellants to disciplinary action under the relevant rules. The learned counsel also brought to our notice the fact that in respect of the same sub-post office some vouchers prepared and countersigned by A-3 on the reverse side were sent to the head post office at Mancherial. PW 5, the investigating officer has referred to several such vouchers which were sent to the head post office for payment, and the officers of the head post office also sanctioned payment on the basis of such fabricated vouchers. Obviously, the officers at the head post office were also not very careful and as a result A-2 succeeded in his evil design to fraudulently withdraw a large sum of money. The learned counsel submitted that on the basis of these facts not only the appellants were cheated by A-3 but even the officers of the head post office were similarly cheated by A-3.” 20. Again in a case of V.S. Achuthanandan v. R. Balakrishna Pillai ( AIR 2011 SC 1037 ), it is held that if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court. 21. The revisional jurisdiction of this Court is different from the appellate jurisdiction and the Court does not normally re-appreciate the evidence and go to the question of crdibility of witnesses, unless the appreciation of evidence and the finding of the Courts below is vitiated by an error of law of procedure, misreding of the evidence or is perverse, In the case of Ramanand Yadav v. Prabhunath Jha, (2003) 12 SCC 606, this Court observed :- “There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not.” 22. In the case of Chandrappa v. State of Karnataka, 2007 AIR SCW 1850 the apex Court held :- “In our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appellate Court has full, power to review, re appreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and law ; (3) Various expressions, such as, ‘substantial and compelling reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.” 23. On the discussions of the factual and legal aspects of the matter, it appears that the prosecution could not prove the guilt of the accused beyond doubt. Against the dismissal of his service, the accused initiated the proceedings before the Departmental Authority in which it was observed that the department through inquiries could not be able to bring home the delinquent employee within the scope of charges for removal of services and eventually removal of the respondent No. 1/accused was quashed and he was reinstated in service. It is settled principle of law that a Court of revision should not interfere with the judgment of subordinate Court or the findings arrived at, unless there is gross violation of the procedure or perversity in reasoning resulting in miscarriage or total failure of jusitce. Further, the revisional powers can be excercised only if there is a flagrant miscarriage of justice in the sense that the findings are against evidence and facts, but where the acquittal is recorded after due appreciation of the evidence on record, interference by the revisional Court is not warranted. In that view of the matter, the findings of the learned trial Magistrate recorded after due appreciation of the evidence on record for acquittal of an accused of the charges under sections 409 and 467 of IPC could not be said to be illegal or erroneous. 24. In the result, the revision fails and is dismissed for want of substance.