Judgment : Challenge in the revision is against the order of acquittal rendered in favour of the accused/1st respondent in C.C.No.630/06 by the learned Judicial Magistrate of the First Class-III. Kottayam. The de facto complainant, a company represented by its Director is the revision petitioner. The accused was prosecuted for offences under Sections 406, 420 and 468 of the Indian Penal Code (for short ‘IPC’), on a report filed by the Sub Inspector of Police, Kottayam West Police Station. After trial, the learned Magistrate, holding that the prosecution has failed to establish the guilt of the accused for the offences ordered his acquittal. Propriety, legality and correctness of that order is assailed in this revision. 2. Short facts necessary for disposal of this revision can be summed up thus: The accused was the Restaurant Manager of a “Kappi Club” operated by the petitioner company. He was also entrusted with the work of making payments to vendors for purchases made in the course of running the shop, apart from other works. The accused, after working for about 7 months as the restaurant manager, abruptly left the job. After he left his job, it was detected that many of the bills placed by the vendors towards purchases made from them for operating the aforesaid club for which uncrossed cheques were issued in the name of such vendors and handed over to the accused for payment, remained unpaid. Enquiries with the bank revealed that the accused had encashed all such cheques impersonating as the bearer of such instruments. The company detected that about 23 cheques were illegally and deceitfully encashed by the accused impersonating as the bearer of such instrument and a sum of Rs.1,32,863/- covered by such instruments had been wrongfully encashed by the accused. He had also not paid the amounts so collected impersonating as bearer of such cheques to the creditors to whom the amounts were payable for supply of goods to the company. Wrongful gain was made by the accused by deceitful means and fraud committing criminal breach of trust and causing wrongful loss to his employer-company. On the complaint filed by the petitioner company before the police, the crime was registered against the accused for offences punishable under Sections 403, 404, 405, 406, 415, 416, 417, 418, 419, 420 and 468 of the IPC. On the complaint filed by the petitioner company before the police, the crime was registered against the accused for offences punishable under Sections 403, 404, 405, 406, 415, 416, 417, 418, 419, 420 and 468 of the IPC. After investigation of the crime the Sub Inspector of Police, Kottayam West Police Station laid the charge indicting the accused for offences punishable under Sections 406, 420 and 468 of the IPC. 3. The accused had pleaded not guilty to the charges. Prosecution examined Pws.1 to 16 and got marked Exts.P1 to P17 to bring home the guilt of the accused. The accused when questioned under Section 313 of the Code of Criminal Procedure (for short “the Code”) reiterating his plea of innocence contended that the case has been falsely foisted against him at the instance of one Pradeep to wreak vengeance as he had lodged a theft case against him before the police. He further stated that Pws.1 to 3 examined in the case are the friends of the aforesaid Pradeep and after his resignation they had influenced various vendors who supplied goods to the company for leveling false imputations and to prosecute him on a false complaint. However, no evidence was adduced in support of the defence so canvassed. 4. Appreciating the evidence tendered in the case, the learned magistrate came to the conclusion that the prosecution miserably failed to prove the criminal breach of trust against the accused. It was further held that the charge against the accused did not contain any allegation constituting the offence of cheating and that even the prosecution had no case that the accused cheated and dishonestly induced any person deceived to deliver any property or to make, alter or destroy the whole or part of any valuable security. The offence of forgery, for the purpose of cheating, imputed against the accused remained unsupported by any allegation thereto, and in fact, the prosecution failed to state what was the forgery by the accused, and in which manner he committed forgery, was the view formed by the magistrate, who concluded that there is no evidence to substantiate the offence of forgery. On drawing conclusions as above and holding that the evidence tendered in the case is totally insufficient to hold the accused guilty of the offences charged under Sections 406, 420 and 468 of the IPC, the learned magistrate passed the order of acquittal in favour of the accused. The merit of that acquittal is assailed in the revision by the de facto complainant. 5. The learned counsel appearing for the petitioner/de facto complainant contended that the order of acquittal rendered in favour of the accused is thoroughly perverse and, more so, based on total mis-appreciation of the evidence, and also misinterpreting even the penal provisions, for which indictment was leveled in the case. In fact, the learned magistrate erred in appreciating the scope of the word ‘entrustment’ in relation to criminal breach of trust as covered under Section 405 of the IPC and that has led to wrong appreciation of the evidence let in the case resulting in forming erroneous conclusions leading to miscarriage of justice, is the submission of the counsel. The factum of the case against the accused was that cheques handed over to him to be paid to the suppliers had been encashed and misappropriated by him, and thereby he committed criminal breach of trust against his employer. When entrustment of such cheques is proved, which, on the basis of the evidence let in the case, according to the counsel, even remained unchallenged, to enter a finding thereof whether there was misappropriation which forms the latter part of the definition of proof regarding continuation of such entrustment till it was misappropriated need not be established by the prosecution, submits the counsel. The learned magistrate under a misconception, it is argued, has held that entrustment can be stated to be proved only if it continued till the misappropriation took place. The learned counsel relied on State of H.P. v. Karanvir (2006 (3) SCC 381) to contend that once entrustment is provided the actual manner of misappropriation need not be established. The report received from the Forensic Science Laboratory, Ext.P17 and also the evidence of PW.4 the Manager of the Bank were totally mis-appreciated by the court on the basis of the erroneous conclusion that entrustment and misappropriation go together, and both have to be strictly proved by the prosecution. The report received from the Forensic Science Laboratory, Ext.P17 and also the evidence of PW.4 the Manager of the Bank were totally mis-appreciated by the court on the basis of the erroneous conclusion that entrustment and misappropriation go together, and both have to be strictly proved by the prosecution. The reasoning of the court below to hold that the sample signatures collected from the accused, which were sent over with the cheques. Exts.P1 to P6 series, for comparison of the signatures allegedly subscribed on the reverse side of such instruments by the accused, could not be given any value, it is submitted, was totally erroneous and faulty where the accused had admitted the authenticity of the sample signatures obtained from him by the police and sent over to the expert. Even if sample signatures collected from the accused while he was in police custody could not be admitted as such in evidence, still, a finding of fact discovered on comparison of such specimen collected with the signatures found in Exts.P1 to P6 series cheques, is relevant and admissible, and as such Ext.P17 report should have been acted upon and relied by the court below, especially when no challenge to impeach its value has been made out in the case, is the further submission of the counsel. There was total mis-appreciation of the evidence let in by the prosecution in view of the erroneous and incorrect interpretation placed by the court with respect to the entrustment and misappropriation to examine the offence of criminal breach of trust indicted against the accused and also with respect to the other offences of cheating and forgery as well, is the submission of the learned counsel to contend that the order of acquittal rendered in favour of the accused by the learned magistrate is liable to be interfered with in exercise of revisional jurisdiction. 6. Per contra, the learned counsel appearing for the first respondent/accused contended that there is no merit in the revision, and after meticulous consideration of the evidence and correctly interpreting the penal provisions charged, the learned magistrate has passed the order of acquittal forming the conclusion that the materials tendered are hardly sufficient to prove the culpability of the accused for any of the offences imputed against him. The defence canvassed by the accused that he has been falsely implicated at the instance of some other employees as he had lodged a complaint against one of them on detecting commission of theft by him was also shown to be probable on the materials available on record, is the further submission of the counsel. Even some of the prosecution witnesses, according to the counsel, have admitted that the accused had lodged such a complaint against one Pradeep another employee before the police alleging commission of theft by him. Canvassing and, in fact, stressing with emphasis that revisional jurisdiction to interfere with an order of acquittal can only be an exception, it is urged by the counsel, that the grounds canvassed to challenge the order of acquittal rendered in favour of the accused are devoid of any merit and the order of acquittal passed by the learned magistrate is not liable to be interfered with. Reliance is placed by the counsel in Johar and others v. Mangal Prasad (2008 (3) SCC 423) to contend that in exercise of revisional jurisdiction against an order of acquittal, this Court in the absence of any error on a point of law cannot reappraise the evidence and reverse the finding of fact on which the acquittal was passed. In such a case, revisional court has only a limited power, and if only the order of acquittal is perverse it can be interfered with, is the submission of the counsel contending that the reasoned judgment of acquittal passed by the learned magistrate does not suffer from any infirmity warranting interference. 7. A casual glance over the evidence let in the case without any critical appreciation thereof is necessary to examine the challenges raised impeaching the order of acquittal. Prosecution has examined PWs.1 to 16. PW.1 is the Personnel and Administrative Manager of Cardamom County Parks and Hotels (P) Limited, Thekkady. He gave evidence that the accused was the manager of a restaurant “Kappi Club”, a Unit of Cardamom County Parks and Hotels (P) Limited, and he worked as such from 07.12.2004 to 07.08.2005. After he left, then alone it was detected that several cheques collected by him for payment towards the supplies made have not been given to the suppliers. He gave evidence that the accused was the manager of a restaurant “Kappi Club”, a Unit of Cardamom County Parks and Hotels (P) Limited, and he worked as such from 07.12.2004 to 07.08.2005. After he left, then alone it was detected that several cheques collected by him for payment towards the supplies made have not been given to the suppliers. Verification by the accountant revealed that 20 bearer cheques, all issued in the names of the suppliers but collected by the accused, totaling a value of Rs.1,32,863/- had been encashed by him as the bearer of those instruments, and he had not settled the transactions giving the amounts to the ‘payee’ named in the instruments, Exts.P1 to P6 series cheques. Ext.P7 application for appointment of the accused as Manager of “Kappi Club” and Ext.P8 complaint filed this witness before police were exhibited through him in evidence. PW.2 was the then Development Manager of the Muthoot Group. He stated that the company followed the practice of issuing cheques where payments exceeded the sum of Rs.500/-. He gave evidence that producing the bills of purchases made the accused had collected the cheques from him. Several complaints received from the suppliers as to non-payment after the accused left the service of his employer were exhibited through him as Exts.P9 to P14. PW.3 was the Accountant of the company. He gave evidence that on verification of the accounts of Muthoot “Kappi Club” it was detected that the cheques issued in the name of suppliers had been encashed by the accused collecting the sums thereof subscribing his signature as the bearer of those instruments. PW.4 was the Manager of the Bank through which Exts.P1 to P6 series were transacted. He gave evidence that the accused has an account in his bank. He had compared the signature in his account opening form and specimen signatures collected, with those appearing on the reverse side of Exts.P1 to P6 series cheques, and, according to him, such signatures were put by the accused. PWs.5 to 9 and 12 are the suppliers or their authorized agents who had supplied goods to the “Kappi Club” and later gave complaints as to non-receipt of payments for such goods. Complaints given by them are exhibited in evidence as Exts.P9 to P14. PWs.5 to 9 and 12 are the suppliers or their authorized agents who had supplied goods to the “Kappi Club” and later gave complaints as to non-receipt of payments for such goods. Complaints given by them are exhibited in evidence as Exts.P9 to P14. Some of the above witnesses also stated that the accused used to issue cheques for the goods collected during the period of time he continued as the manager, but he failed to pay the amount regularly. PW.10 was the Assistant Sub Inspector of Police, who effected the arrest of the accused. The role of PW.11 the Sub Inspector of Police was limited as he had only verified the investigation, and prepared forwarding note for sending it to the court. PW.13 is an attester to Ext.P15 mahazar prepared over the seizure of the cheques leaves from the Bharat Overseas Bank during the investigation of the crime. PW.14 is also another attester, who was stated to be present at the time when the investigating officer collected the specimen signatures and handwriting of the accused, after his arrest, while he was at the police station. Specimen signatures collected from the accused in six sheets, is exhibited as Ext.P16 series. PW.15 was the Sub Inspector of Police who registered the case under Ext.P17 FIR and later conducted its investigation. His successor in office, PW.16, continued the investigation, through whom the report Ext.P18 obtained from Forensic Science Laboratory, Thiruvananthapuram, to which Ext.P6 series cheques and specimen signatures and writings of the accused were sent over, was exhibited in evidence. As seen from his statement under Section 313 of the Cr.P.C., denying the prosecution evidence the accused had contended that PWs.1 to 3 were the friends of one Pradeep against whom a crime case was registered over theft at Kottayam West Police Station while he was the manager of the “Kappi Club”. After the accused resigned and left, with the assistance of some suppliers of goods to the club, without the knowledge of the company, to wreak vengeance they had framed him with the false case, was his defence. He also stated that after his arrest, at the police station, his handwriting and signatures were forcefully obtained. 8. After the accused resigned and left, with the assistance of some suppliers of goods to the club, without the knowledge of the company, to wreak vengeance they had framed him with the false case, was his defence. He also stated that after his arrest, at the police station, his handwriting and signatures were forcefully obtained. 8. Where materials, as indicated above, were tendered, what was the approach made thereto by the court below in examining the indictment leveled against the accused needs to be looked into to find out whether the challenge against the order of acquittal of the accused has any merit. Going through the judgment of the learned magistrate, it is seen, the entire materials tendered by the prosecution, after taking note of the same, was critically looked into by the learned magistrate wrongly interpreting the offence of criminal breach of trust covered by Section 405 of the IPC. The learned magistrate has formed an opinion that to constitute the offence of ‘criminal breach of trust’ the entrustment of the property with the accused has to be established not with ‘handing over or putting in possession’, but of its continuance till the point of time the misappropriation takes place. Examining the entrustment part involved in the case, stating it began with the entrustment of Exts.P1 to P6 series of cheques with the accused the learned magistrate has proceeded thus: “The entrustment alleged in the case further extends up to the alleged encashment of the cheques by the accused after putting his signature on the reverse side of Exts.P1 to P6 series of cheques.” Evidently, the learned magistrate was under a misconception that ‘entrustment’ with property or with dominion thereof, to be established for constituting an offence of criminal breach of trust must continue till it is misused by such person, and that has to be so established by the prosecution. The learned magistrate has lost sight of the fact that the offence constituted under Section 405 of the IPC to prove the same demands from the prosecution ‘entrustment’ or ‘domino’ over the property with the person proceeded and the person so entrusted has dishonestly misappropriated or converted that property. The learned magistrate has lost sight of the fact that the offence constituted under Section 405 of the IPC to prove the same demands from the prosecution ‘entrustment’ or ‘domino’ over the property with the person proceeded and the person so entrusted has dishonestly misappropriated or converted that property. Even if the prosecution succeeds in proving entrustment, it would fail to establish the offence against the accused, if it fails to prove that he has misappropriated the property entrusted (See Sardar Singh v. State of Haryana (1977 (1) SCC 463). The decision relied by the counsel for the petitioner rendered by the Apex Court in State of HP v. Karanvir (2006 (5) SCC 38) has only stated that ‘actual manner of misappropriation need not be established. The learned counsel for the petitioner has relied on the following observations made in the decision: “The actual manner of misappropriation, it is well settled is not required to be proved by the prosecution. Once entrustment is proved, it was for the accused to prove as to how the property entrusted to him was dealt with in view of Section 405 of the IPC. If the respondent has failed to produce any material for this purpose, the prosecution should not suffer therefore.” Such observations have been made, it is seen, repelling the argument canvassed on behalf of the accused that no material was brought on record, as to how he had utilized the amount. In that case, noting the defence of the accused that the entire amount had not been paid to him observing that such defence has to be proved by him, the Apex Court stated as above. Observations so made in the decision do not indicate nor relieve the prosecution from proving the second ingredient as to misappropriation of the property entrusted to establish the offence of criminal breach of trust, but only that there is no need to prove the actual manner of misappropriation. 9. The entire materials tendered by the prosecution, as seen from the judgment rendered by the magistrate, has been appreciated placing a wrong interpretation of the offence under Section 405 of the IPC, as indicated above, and it was, no doubt, misdirected and egregiously faulty. 9. The entire materials tendered by the prosecution, as seen from the judgment rendered by the magistrate, has been appreciated placing a wrong interpretation of the offence under Section 405 of the IPC, as indicated above, and it was, no doubt, misdirected and egregiously faulty. The learned magistrate has proceeded to consider the question of ‘entrustment’ critically examining the evidence of PW.4, the bank Manager, who gave evidence that the signatures appearing on the reverse side of Exts.P1 to P6 series on comparison with those in the account opening form and specimen signatures of the accused, who had an account in his bank, were found similar, and also the merit of Ext.P18 report received from the Forensic Science Laboratory. Expressing views that even in a case where bearer cheques are issued, “banker is duty bound to see that encashment of those cheques should go to the account of the concerned institutions” the action of PW.4 comparing the signature of the accused in his account opening form with the signatures on the cheques recovered by the police is taken exception to by the magistrate stating that it was not based on any request of the investigating officer. I have glanced through the evidence of PW.4. I am afraid, that no challenge, as referred to by the magistrate, was canvassed nor even suggested to, during the cross-examination of the aforesaid witness. The evidence of PW.4 is seen discarded by the magistrate stating that he did not state of having any particular qualification and skill which enables him to conduct comparison of signatures. Glancing through the evidence of PW.4 and also other material witnesses in the case, so far as the signature appearing on the reverse side of Exts.P1 to P6 series, it is seen, the accused had not set up a challenge that they were not subscribed by him. True, that there was no admission from him. Glancing through the evidence of PW.4 and also other material witnesses in the case, so far as the signature appearing on the reverse side of Exts.P1 to P6 series, it is seen, the accused had not set up a challenge that they were not subscribed by him. True, that there was no admission from him. Still, when the offence is one of criminal breach of trust, if collection of cheques drawn in favour of the suppliers, as payees in such instruments, by the accused is proved, to what extent the manner of misappropriation thereto has to be established and what is the burden cast upon the accused in such case, all required to be appreciated having regard to the offence covered by criminal breach of trust under Section 405 of the IPC as enunciated in State of H.P. v. Karanvir (cited supra). Ext.P18 report from the Forensic Science Laboratory is also seen brushed aside by the learned magistrate stating that the “opinion of a forensic science expert is not at all safe to base conviction upon the opinion of handwriting expert alone.” The handwriting expert compared only the specimen signatures obtained by the investigating officer for comparison of the signatures on the reverse side of Exts.P1 to P6 series and the prosecution should have produced admitted contemporaneous signatures of the accused to have an effective comparison and scrutiny were further reasonings taken by the learned magistrate to discard Ext.P18 report, observing that such scrutiny was essential when the accused had set up a defence that signatures had been collected from him by force. To say the least, the reasoning of the magistrate as aforesaid was perverse. Even the accused has practically conceded that his signatures have been collected after his arrest by the police. The investigating agency has every right to do so for the purpose of investigation of the crime. The accused has not set up any defence that it was not the specimen signatures collected from him which were not used for comparison with the signatures found on the reverse side Exts.P1 to P6 series, as stated in Ext.P18 report. When that be so, the conclusion formed as aforesaid by the magistrate to discard Ext.P18 was thoroughly faulty. The accused has not set up any defence that it was not the specimen signatures collected from him which were not used for comparison with the signatures found on the reverse side Exts.P1 to P6 series, as stated in Ext.P18 report. When that be so, the conclusion formed as aforesaid by the magistrate to discard Ext.P18 was thoroughly faulty. To hold that entrustment of Exts.P1 to P6 with the accused has not been made out, the learned magistrate has gone to the extent of stating that PWs.4 to 9 and 12 suppliers who gave complaints as to nonreceipt of amounts for the goods supplied have not spoken about the ‘entrustment’ of such cheques to the accused. The evidence o PWs.1 to 3 over the factum of entrustment of cheques to the accused is also seen discarded stating flimsy reasons that Ext.P7 application does not disclose that the accused continued in service for the entire period as Manager of the club as alleged and that the competency of the Joint Managing Director to sign the cheques when the Managing Director is empowered to sign the cheques. Sworn testimony of these witnesses on various aspects covered by the entrustment of the cheques, the period of service of the accused etc., are not even looked into by the magistrate. In the given circumstances where the whole approach made by the magistrate in appreciating the evidence tendered by the prosecution and also interpreting the penal provision covered by criminal breach of trust is found to be not only erroneous but perverse. I find that the order of acquittal rendered in favour of the accused cannot be sustained. So far as the other offences covered by Sections 420 and 468 of the IPC, whether the allegations constitute such offences, or the evidence tendered is sufficient, as the findings made are also based on the mis-appreciation of evidence totally on wrong interpretation of the criminal breach of trust on which the scrutiny of materials was proceeded with by the magistrate, I find that also calls for a re-look, in the given facts of the case. 10. I made it clear that I am not expressing any opinion whether the offences under Sections 420 and 468 of the IPC in the facts and circumstances involved and materials tendered would lie against the accused, and also whether it has been brought home against him by the prosecution. 10. I made it clear that I am not expressing any opinion whether the offences under Sections 420 and 468 of the IPC in the facts and circumstances involved and materials tendered would lie against the accused, and also whether it has been brought home against him by the prosecution. Though the offence of criminal breach of trust is akin to cheating theft and misappropriation, there is vast difference between them on various aspects. In a case of criminal breach of trust, the property is lawfully acquired with the consent of the owner, but dishonestly misappropriated by person to whom it is entrusted. However, in cheating property is acquired by wrongful representation. In the case of theft, property is taken without the consent of owner, with dishonest intention. In criminal misappropriation, property is acquired without dishonest intention, but by subsequent change of intention, retention or disposal of property becomes wrong and fraudulent. Similarly for the offence of forgery making of a false document with intend to commit fraud or that fraud may be committed is essential. So, in the given facts of the case whether the offences under Section 402 or 468 of the IPC would lie, and if so made out, is a matter to be probed by the magistrate taking note of the observations made above and in accordance with law. However, when facts and circumstances and materials are seen examined on wrong interpretation of criminal breach of trust, and after entering a perverse finding thereof, the learned magistrate has proceeded to examine the offences under Section 402 and 468 of the IPC, it is necessary that the findings thereof also have to be examined afresh. The order of acquittal rendered in favour of the accused is liable to be interfered with, and I do so. In the result, setting aside the order of acquittal, the case is remitted for fresh disposal. The learned magistrate shall take note of the observations made above, and, after hearing the prosecution and also the counsel appearing for the accused, dispose the case afresh, in accordance with law, on the materials on record, as expeditiously as possible, at any rate, within a period of eight weeks from the date of receipt of the records. The accused is directed to appear before the court below on 28.03.2012. Revision is allowed. Send back the records forthwith.