JUDGMENT Hon’ble Kalimullah Khan, J.—This criminal appeal has been preferred against the judgment and order dated 13.10.1986, passed by Special Judge, Basti in Sessions Trial No. 2 of 1986, convicting and sentencing the appellant Tilakdhari Singh s/o Deo Narain Singh, r/o Dumari. P.S.Sahjanwa, District Gorakhpur, to undergo a rigorous imprisonment for 5 years under Section 5(1) (c) read with 5(2) of the Prevention of Corruption Act, 1947 and convicting the appellant under Section 409 IPC and sentencing him to undergo 3 years rigorous imprisonment. Both the sentences were directed to run currently. 2. The impugned judgment and order has been challenged on the ground that besides being perverse, it is illegal. 3. In nutshell, the prosecution case is that accused Tilakdhari Singh was a public servant being employed as Assistant Agriculture Inspector in the Agriculture Department. He was posted as Incharge of Babhnan Seed Godown from 25.12.1967 to December, 1970. He was also the Incharge of Agriculture Seed Godown, Chhapiya, District Gonda. He was entrusted with the stock of seed and manures kept in the said godowns. He was to maintain the accounts of the seed and manures of the said godowns. It is alleged that the godown at Babhnan, district Basti was set on fire on 6.9.1970 at 4.00 a.m. as a result of which manures were damaged causing a loss to the exchequer. An F.I.R. at crime No. 168/70 was registered under Section 436 IPC against unknown person on 6.9.1970 at 9.15 a.m. in the absence of applicant. Investigation followed. After completing the investigation, final report under Section 173 Cr.P.C. was submitted by I.O. However, on physical verification, in the absence of the appellant, it was detected that there was a loss of manures valued Rs. 2,03,362.19. During the relevant days, the appellant was absent from his duty. He had sent a number of applications seeking casual leave but none of them was allowed for want of leave in his account. Undisputedly, the appellant did not turn up for the physical verification of the manures in question. Hence, it was resolved by the department that he had misappropriated and embezzled the fertilizer in question. 4. Applicant was charged for the offence punishable under Section 5 (1) (C) and 5 (2) of the Prevention of Corruption Act, 1947 as well as Section 409 I.P.C. Appellant accused pleaded not guilty and claimed his trial. Hence, it was resolved by the department that he had misappropriated and embezzled the fertilizer in question. 4. Applicant was charged for the offence punishable under Section 5 (1) (C) and 5 (2) of the Prevention of Corruption Act, 1947 as well as Section 409 I.P.C. Appellant accused pleaded not guilty and claimed his trial. Prosecution examined as much as 15 prosecution witnesses. Appellant accused was examined under Section 313 Cr.P.C. in which he challenged the prosecution story, allegations and evidence made and occurred against him during trial. However, he was called upon to enter into his defence and he examined Shri Kailash Lal as D.W.1 in support of his case, he deposed that he was an employee as Kamdar at Chhapiya Godown where as employee Indra Jeet was posted at Babhanan Godown when accused Tilakdhari went on leave, he had assigned the responsibility of supervision of the godown at Chhapiya to him and that of Babhanan godown to Indra Jeet. In the absence of accused Tilakdhar, Babhnan Godown was set on fire for which Indra Jeet was held guilty in departmental enquiry and his services were terminated. Tilakdhari is innocent. 5. Having heard learned counsel for the prosecution and defence, learned trial Court held the appellant guilty and after recording conviction, sentenced him as stated above. The lower Court record is available with this Court and copy of the paper-book has been furnished to learned counsel for the parties. Heard the learned counsel for the parties and perused the record. Learned counsel for the appellant has submitted that there is no evidence on record that appellant has misappropriated any Government property which was entrusted to him. He has not committed any criminal breach of trust. Prosecution has not been able to establish as to what was the quantity of the property entrusted to him and how much shortfall was noticed. There is no evidence that records of receipts and disposal are missing, therefore, it was the bounden duty of the prosecution to place the record before the Court to prove the charge against the accused but no record whatsoever has been placed. Admittedly, accused was not there at the godown of Babhanan on the date and time of incident when the said godown is said to have been set on fire. Admittedly, accused was not there at the godown of Babhanan on the date and time of incident when the said godown is said to have been set on fire. At that time, the said godown was in the supervision of Indra Jeet, who was held guilty in the departmental inquiry for his negligence and his services were terminated. Therefore, the appellant cannot be said to be responsible for setting the godown at Babhanan on fire. It has come in the evidence that after the incident of fire, police reached at spot, entered into the godown, checked the manures etc. in the godown and sealed the godown and thereafter inventory was got prepared by the department at subsequent stage in the absence of the appellant. Unless there is some authentic record showing the stock prior to the incident of fire, it cannot be said that there was any shortfall in the said stock due to fire when no damage of fertilizer is alleged by prosecution. 6. Per contra, learned A.G.A. has submitted that undisputedly appellant was a public servant and posted at Babhanan godown. He was entrusted with the seeds and manures and if there is a shortfall therein the appellant alone is responsible for the same but he has not been able to show as to what was the closing balance and quantum of shortfall. The goods shown in the inventory by itself cannot determine the actual shortfall of the manures in absence of the stock register. He does not say that the records were not available to the department either original or reconstructed. 7. I have given my anxious thought to the issue involved. 8. To constitute an offence of criminal breach of trust it is essential that prosecution must prove first of all that the accused was entrusted with some property or with any dominion or power over it. It has to be established further that in respect of the property so entrusted, there is dishonest misappropriation or dishonest use or disposal in violation of direction of law or legal contract by the accused himself or by someone else, which he willingly suffered to do.Unless the exact quantity of manures entrusted to the appellant is known the shortfall cannot be assessed by showing the inventory or actual balance and, therefore, the question of misappropriation or converting it to his own use cannot be determined. Assuming it for a moment that some short of entrustment was there, it must further be shown that the accused misappropriated the goods. It has occurred in the evidence of prosecution that after extinguishing fire in the godown, it was opened and made accessible to all where the articles were kept in. Therefore, the possibility of goods having been pilfered or stolen away by others cannot be excluded and in that eventuality accused deserves his acquittal. It is well-settled that in a case where accused stands charged for criminal misappropriation under Section 409 I.P.C. entrustment must be proved. When allegation of the prosecution is that commodity entrusted with the accused fell short, it is necessary to take into account the actual stock at the time when the accused took over charge of the stock, receipt in the store from time to time thereafter and the stock issued from time to time till the godown was set on fire. The prosecution in this case made no attempt to prove the entries in the issue and receipt registers. Without proof of the entries in the issue and receipt register which constitute the primary evidence and especially the most relevant evidence in this case, the prosecution failed to prove the entrustment or the misappropriation. In the absence of legal and independent evidence with regard to the actual quantity of the entrustment to the appellant, it would not be proper to put a question with regard to entrustment to him. Partial admission that he was Incharge of the godown in question would not establish a case of entrustment. 9. There appears substance in the contention of learned counsel for the appellant that there is no evidence on record to establish that the accused has misappropriated property or converted it to his own use. Likewise, there is no evidence to establish that there was any dishonest intention on the part of the accused if at all any shortfall took place there. 10. To constitute an offence of criminal breach of trust, there must be an entrustment, there must be misappropriation or conversion to one’s own use, or use in violation of a legal direction or of any legal contract, and the misappropriation or conversion or disposal must be with a dishonest intention, which is lacking in this case. 11. 10. To constitute an offence of criminal breach of trust, there must be an entrustment, there must be misappropriation or conversion to one’s own use, or use in violation of a legal direction or of any legal contract, and the misappropriation or conversion or disposal must be with a dishonest intention, which is lacking in this case. 11. Shri Harihar Prasad Singh, Director of Agriculture, U.P., Lucknow (P.W.1) has deposed that Tilakdhari Singh was posted as Assistant Agriculture Inspector at Krishi Beej Bhandar situated in village Babhnan, P.S. Paikoliya district Basti in employment of U.P. Government (in Agriculture Department) in between 1968 to 1970. He is the appointing and dismissing authority of the accused, a public servant. After perusal of the records submitted by investigating agency, he has granted sanction for prosecution of accused and has proved it as Ext.Ka-1. He admitted that C.I.D. Inspector has not interrogated him. In the sanction report (Ext-Ka-1) he has mentioned that a loss of Rs. 1,60,950.61 had occurred to the department. There was no valid reason for the aforesaid loss, hence he concluded it as the misappropriated property by accused Tilakdhari Singh. The aforesaid witness did not disclose the stock received by the appellant and disposal of the stock in various ways, therefore, there appears substance in the contention of learned counsel for the appellant that he has not applied his judicial mind while granting sanction for prosecution. According to this witness since there was no valid reason for the loss hence he took it as misappropriated by appellant. The view of this sanctioning authority is unwarranted by law. 12. Shyam Manohar Tripathi P.W. 2 the then District Agriculture Officer, Gonda has deposed that he had sent the report to S.P. Basti on 29.3.1971 on the basis of which the case was registered against appellant Tilakdhari Singh on 7.4.1971, P.S. Paikoliya, district Basti. Being public servant, appellant was under obligation to maintain the account, make supervision and distribution of the seeds and fertilizers in between 25.12.1968 to December, 1970. The appellant sent a number of leave applications which were not allowed. The leave applications did not contain his address. Even for the purpose of verification when he was asked to appear after the incident of fire in the godown he did not appear. On physical verification of the stock it was detected that there was a loss of Rs. The appellant sent a number of leave applications which were not allowed. The leave applications did not contain his address. Even for the purpose of verification when he was asked to appear after the incident of fire in the godown he did not appear. On physical verification of the stock it was detected that there was a loss of Rs. 2,03,336.61 which was, according to him, misappropriated by appellant hence the appellant was placed under suspension. The witness has proved his report dated 7.9.1970 as Ext.Ka-10 the witness admitted that two godowns were in the supervision of accused Tilakdhari Singh. The witness expressed his ignorance as to who had sealed the godown after the incident of fire. He could not tell as to whether both the godowns were sealed or single one was sealed. Police had not sent any inventory to him. He admitted that no shortage of any item was brought to his notice during his tenure in between 1969 to May, 1972. He admitted that he has perused the records sent by the Supervising Officer as well as by accused but there was no shortage of any kind in the manures and seeds. There were two Kamdars posted at both the godowns who used to live there and supervise the godown. He could not tell as to whether the services of Indra Jeet Pandey (Kamdar) was terminated by the department. This witness has not prepared the inventory and has deposed that he has no personal knowledge about the veracity of the contents of his report. He has prepared the report on the basis of documents. He never went on the spot. 13. Mahabir Singh Rawat the then Project Officer, district Gonda (P.W.3) has deposed that in the year 1970, the physical verification of Babhnan Beej Bhandar was done wherein it was detected that accused has embezzled manures and seeds valuing Rs. 2,03,336.61. On its basis, on 27.12.1971, he has sent the report. But he has admitted that no such report is on record. He has further said that the said report is not with him and his statement is based on his memory. In cross-examination, he has stated that he has no personal knowledge of the aforesaid misappropriation. He claimed to have made inquiry after the incident of fire. But he has admitted that no such report is on record. He has further said that the said report is not with him and his statement is based on his memory. In cross-examination, he has stated that he has no personal knowledge of the aforesaid misappropriation. He claimed to have made inquiry after the incident of fire. He expressed his ignorance that police has sealed the godown after the incident of fire and what were the goods there in the godown. 14. In view of the aforesaid statement of this witness he has no personal knowledge of the misappropriation, if any, nor his report as claimed by him is on record. His statement is based on his memory. He has further admitted that a number of inquiries have been done in different matters by him during his tenure but he cannot tell orally anything about either of the inquiry. 15. Shri Satyadev Singh, Deputy Registrar, Cooperative Societies, Lucknow P.W.4 has deposed that under the orders of District Magistrate, Basti, he had prepared the inventory of Khadya Evam Beej Bhandar in the absence of accused Tilakdhari in between 21.12.1970 to 23.12.1970. He has proved his inventory report dated 22.12.1970 to 23.12.1970 as Ext.-Ka-2 and Ka-3. He claims to have given the information in writing dated 21.12.1970 to P.S. Paikoliya district Basti in his own handwriting and signature which he proved as Ext-Ka-5. However, he has admitted in the cross-examination that he did not conduct any inquiry. He prepared only the inventory. He further admitted that he has no proof that he sent any letter to accused. He expressed that he has no personal knowledge about the incident. He prepared the inventory of the goods available there. His evidence does not prove the charge of criminal breach of trust against the appellant. 16. Ram Pyare Chaudhari P.W.5 has deposed that he was posted as Assistant Development Agriculture Officer, Utraula, District Gonda in between 1969 to 1970. Under the direction of District Magistrate he had made physical verification of Beej and Khad Godown, Babhanan on 9, 10, 11 and 12th of April, 1970 in the presence of accused Tilakdhari and prepared report dated 12.4.1970 (Ext.Ka-8) Some of the manures were found short which is mentioned in column No. 9 of Ext.Ka-8. At that time he claims to be A.D.O. Agriculture, Utraula. At that time he claims to be A.D.O. Agriculture, Utraula. In cross-examination, he admitted that there was shortage only in the manures and not in the seeds. When the manures are supplied to any godown no weight check memo is prepared. Only bags are counted but there use to be shortage of 1 kg. or half kg. or 2 kg. in standard bags of manures. Number of reasons have been pointed out by him for the damage of manures such as when bags are torn or falls on the ground or seals are suo moto broken. Likewise, the manures are melted due to moist atmosphere. He claimed to have counted the bags in physical verification and the bags were found torn. He did not weigh as per number of bags. He could not tell as to how many bags were found short by him in physical verification. He admitted that number of bags are not entered into the stock register rather weight are mentioned. The manures are also sold in retail by opening the bags. In his verification report, it has not been mentioned that how many bags were found opened as per his own admission but in the Court he says that some of the bags were found opened. However, he has admitted the fact that prior to this incident of fire, he had made physical verification of godown in question and has found 1% shortfall in the stock and the said 1% shortfall is allowed under the rules. He has proved his physical verification report as Ext.Ka-2 which was prepared in his own handwriting and signature. 17. On the strength of the aforesaid statement of this witness, learned counsel for the appellant has submitted that prior to the incident of fire, there was no noticeable shortfall in the stock of seeds and manures in either of the two godowns including the godown at Babhanan, district Basti. The basis of calculation of shortfall on account of the physical verification of the godown made after the incident of fire is the previous physical verification report made in the month of April, 1970 but in the said verification report, as stated above, there was no objectionable shortfall and admittedly no record is available with the prosecution. No evidence has been led to the effect that appellant has withheld the said records or caused loss of it. No evidence has been led to the effect that appellant has withheld the said records or caused loss of it. Therefore, the calculation of the loss of the manures valuing Rs. 1,60,950.61 is not reliable. It appears to be arbitrary calculation without any base and without taking into consideration the quantity of the manures disposed of or sold in between April, 1970 and the date of incident of fire and therefore, appellant cannot be held guilty. 18. Ram Sahai P.W.6 is the owner of the house wherein the concerned seed and manures godown was lying of which appellant was the Incharge. This witness has deposed that noticing the fire in the godown, he raised hue and cry and called for the police. On the dictation of the head constable, report was prepared and he was asked to put his signature. Accordingly, he put his signature on Ext.Ka-11. He has admitted that at the time of fire, appellant was not present there. 19. Kripa Shanker P.W.7 has deposed that Daroga Ji had called for him. When he reached at spot, there were a number of persons at the godown, which was locked. Daroga Ji got the lock opened. Wherefrom he procured the key, the witness could not tell but he deposed that after getting the lock opened Daroga Ji went inside the godown, checked the goods kept therein and then reduced it into writing whereupon his signature was obtained.The said memo is Ext.Ka-12 but in his cross-examination the witness said that when the godown had caught fire he had not reached there. He was called upon by Daroga Ji in the next morning of the incident. He had not entered inside the godown nor he has seen the articles kept therein. He has denied the contents of the memo prepared by the Daroga Ji. 20. Basudev P.W 8 has deposed that Daroga Ji got the lock of the seed godown opened, went inside and after coming out he sat on the cot and wrote something on paper and obtained signature of this witness which is Ext.Ka-12 and Ext.Ka-13. The witness stated that he had not reached at spot when the godown had caught fire. He expressed his ignorance as to what had been taken by Daroga Ji in police custody. The witness stated that he had not reached at spot when the godown had caught fire. He expressed his ignorance as to what had been taken by Daroga Ji in police custody. 21, Ram Lakhan P.W.9 has stated that Daroga Ji had taken the goods of godown in his custody and locked and sealed it. He has prepared the memo thereof and obtained his signature which is Ext.Ka-14. The witness could not tell as to what was there inside the godown. 22. Bhagwandeen P.W.10 has deposed that he cannot tell as to whether or not his signature was obtained by Daroga Ji. He denied his statement allegedly recorded under Section 161 Cr.P.C. The evidence of this witness is of no use to the prosecution. 23. Mohan Chandra Utpreti P.W. 11 had deposed that on 14.7.1980 he was Deputy Director, Food and Fertilizers, Lucknow. If the manures get fire and water is poured then such a huge quantity of smoke would generate that it may not allow anybody for several days to enter into the godown. 24. Mithhulal Verma, Accountant P.W.12 has deposed that he was posted at Gonda in the year 1979 as Assistant Accountant Agriculture, Babhanan. In the year 1970, accused Tilakdhari was Assistant Inspector Agriculture. In the year 1970, inventory of godown at Babhanan was prepared by Verifying Officer but who had verified the same he could not tell. Subsequently he deposed that Satyadev Singh, Assistant Registrar, Sahkari Samitiyan was directed by D.M. to prepare the inventory Ext.Ka-3. It was prepared after the incident of fire in the godown. However, he denied the writing and signature of Satyadev Singh. He expressed his ignorance about the facts of this case. In cross-examination, he stated that the godown was checked in the month of April, 1970 and no report was lodged against the accused Tilakdhari. He has further deposed that if the checking officer finds some fault, he used to report but there was no report of shortage of the manure. 25. Omprakash Srivastava, Block Development Officer P.W.13 has deposed that on 6.9.1970, Kailash Lal Kamdar informed him that somebody has set Babhanan Beej Bhandar on fire. On its basis, he claims to have sent the report to District Project Officer, Gonda and District Agriculture Officer, Gonda. Some clerk has prepared the said report. 25. Omprakash Srivastava, Block Development Officer P.W.13 has deposed that on 6.9.1970, Kailash Lal Kamdar informed him that somebody has set Babhanan Beej Bhandar on fire. On its basis, he claims to have sent the report to District Project Officer, Gonda and District Agriculture Officer, Gonda. Some clerk has prepared the said report. However, he has identified his signature and proved it as Ext.Ka-15, which was sent to District Project Officer and the report which was sent to District Agriculture Officer was in his own handwriting and signature, which is Ext.Ka-16. After extinguishing the fire, local police has sealed the godown. The witness claims to have gone there with A.D.O. Agriculture. The key of the lock was with the appellant accused, who was absent there. The witness made a search for the accused but in vain. He has stated that the leave applications sent by the accused appellant were not sanctioned by him. However, the witness has expressed his ignorance as to how the godown was set on fire and what was the cause thereof. Next day of the incident, he got the information at about 9.00 to 10.00 a.m. It was the oral information. 26. Gaznaphar Ali P.W.14 has deposed that he was Head Constable at Police station Paikoliya on 6.9.1970 and on the written report of Ram Sahai, he registered case crime No. 168/70, under Section 436 IPC at the police station Paikoliya and chik report Ext.Ka-27 was drawn. The G.D. of the registration case is not available in view of the fact that it had already been weeded out. The matter was investigated but final report was submitted by S.I. Vishnu Shankar Srivastava, which is Ext.Ka-29. The witness has proved the registration of the case crime No. 60, under Section 409 IPC, the carbon copy of which has been marked as Ext.Ka-30. G.D. has been weeded out. Bhuvneshwar P.W.15 is the I.O. of the case. He has proved the investigation. 27. From the evidence adduced by the prosecution as stated above, it is clear that prosecution has not come with a definite case as to what was the actual quantity of manure, which was missing. As regards seed in the godown, there is no complaint of missing. Prosecution does not say that the records concerning the manures and seeds received in the godown and its disposal in various ways has been withheld by the appellant accused. As regards seed in the godown, there is no complaint of missing. Prosecution does not say that the records concerning the manures and seeds received in the godown and its disposal in various ways has been withheld by the appellant accused. Since, he was not available on the day of the incident of fire and even thereafter in spite of the repeated calls by the department for getting the stock’s physical verification, therefore, it appears to have been concluded that the appellant had misappropriated some quantity of manures. Section 409 IPC is a penal provision and stringent penalty has been provided for the offence of criminal breach of trust committed by a servant, therefore, the law requires the strict proof of the charge. Unless the exact quantity of the receipt of the manures, quantity of actual disposal and the figure of the actual balance are disclosed to the Court it could not be said that any quantity of the manures in question was missing or it was misappropriated. The factum of missing of manures would not suffice to prove the charge of Section 409 IPC rather it requires something more to be proved by the prosecution that accused has misappropriated the same or had converted it to his own use. The evidence to prove the aforesaid facts are missing. Therefore, charge under Section 409 IPC is not proved. Likewise, the charge under Section 5(1) (c) read with Section 5 (2) of Prevention of Corruption Act, 1947 is also not made out in view of the facts that there is no evidence on record that the accused appellant has dishonestly or fraudulently misappropriated or otherwise converted for his own use any property entrusted to him or under his control as a public servant or allowed any other person so to do. Findings of learned trial Court are perverse. They are based on presumptions and assumptions, hence not tenable under the law. Learned trial Court, in fact, has not made any appraisal of evidence in the light of the settled principles of appreciation of evidence. He has just copied the statements of witnesses in the judgment and directly came to the conclusion that appellant has committed criminal breach of trust of some of the manures. Unless the ingredients of the offences under which the appellant is charged or constituted by the allegations proved by legal evidence he cannot be held guilty. He has just copied the statements of witnesses in the judgment and directly came to the conclusion that appellant has committed criminal breach of trust of some of the manures. Unless the ingredients of the offences under which the appellant is charged or constituted by the allegations proved by legal evidence he cannot be held guilty. Learned trial Court does not appear to have considered the facts elicited during cross-examination of the witnesses. Therefore, the impugned judgment and order convicting and sentencing accused appellant deserves to be set aside. 28. In the result, criminal appeal is allowed. Impugned judgment and order dated 13.10.1986 is hereby set aside. Accused appellant Tilakdhari is found not guilty and therefore, he is cquitted under Section 409 IPC and Section 5 (1) (c) read with Section 5 (2) of Prevention of Corruption Act, 1947. He is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. —————