JUDGMENT : B.N. KARIA, J. 1. RULE. Mr. Tejas M Barot, learned advocate waives service of notice of rule, for respondent No.1 and Mr. Rutvij Oza, learned Additional Public Prosecutor, waives service of notice of rule, for respondent No.2State of Gujarat. 2. By way of this appeal, the appellant has challenged the judgment and order dated 21.09.2004 passed by the learned Judicial Magistrate First Class, Balasinor in Criminal Case No. 677 of 1990, whereby, the respondent NO.1 was acquitted of the charge punishable under Section 409 of the Indian Penal Code. 3. The facts of the case in brief are as under: 3.1 Complainant Mr. Rasiklal Manilal Parmar, an Administrative Officer, District Panchayat, Nadiad at the instance of Deputy District Development Officer, District: Kheda, got a complaint registered against one Mr.Dayabhai Gorabhai Khant, a Junior Clerk at Primary Health Centre, Virpur alleging misappropriation by Mr. Khant to the tune of Rs.617.30/for the period from 02.12.1988 and misappropriation to the tune of Rs.11,276.25/for the period from January 1989 to June 1989 and alleged that Mr. Khant used Government funds for his personal gains, as was disclosed in the Audit Report. 3.2 A complaint in respect of the aforesaid incident was lodged with Virpur Police Station. Necessary investigation was done and the accused came to be arrested. At the end of the investigation, chargesheet was filed against the accused before the trial Court. At trial, the accused pleaded not guilty and claimed to be tried. 4. To prove the case against the accused, prosecution has produced and relied upon 6 oral as well as 11 documentary evidences. 5. Heard Mr. Rajesh M Chauhan, learned advocate for Mr. H S Munshaw, learned advocate for the appellant, Mr. Tejas M Barot, learned advocate for respondent No.1 and Mr. Rutvij Oza, learned Additional Public Prosecutor for respondent No.2 6. It was submitted by Mr. Chauhan learned advocate for appellant, that the impugned judgment and order passed by the learned Magistrate in Criminal Case No. 677 of 1990 dated 21.09.2004 at Balasinor is unjust, illegal, arbitrary and passed without considering the evidence on record. That, prosecution has produced all the documentary evidences through the complainant along with Audit Report which clearly shows that the present accused No.1 is involved in the offence. That, the complainant Mr. That, prosecution has produced all the documentary evidences through the complainant along with Audit Report which clearly shows that the present accused No.1 is involved in the offence. That, the complainant Mr. Hemant Shah (Exh.24) in his testimony has clearly stated that he was serving as a Senior Clerk and during the incident period, the accused was Incharge of Accounts. As per the Audit Report, he had misappropriated the amount. That, Mr. Niranjan V Doshi, Auditor, has also stated that as per the accounts, a sum of amount was misappropriated for the aforesaid period. That, prosecution has clearly proved its case beyond reasonable doubt against the accused. Therefore, the judgment and order passed by the learned Magistrate is contrary to facts and evidence on record, and therefore, it was requested by him to quash and set aside the judgment and order dated 21.09.2004 in Criminal Case NO. 677 of 1990 and convict the accused by allowing this appeal. 7. On the other side, Mr. Tejas M Barot, learned advocate for respondent No.1, vehemently opposed the arguments advanced by learned advocate for the appellant and argued that prosecution has miserably failed to prove the guilt of the accused as per the charges levelled against him. He, further, argued that the amount in question i.e. Rs.11,276.25 ps. was never misappropriated by the respondent No.1, nor the said amount was used by him for his personal work. He further argued that during the aforesaid period, the accused had never looked after the accounts of P.H.C, Virpur and during his service period, the aforesaid misappropriation was never found. That, no documentary evidence was produced by the prosecution before the trial Court. That, respondent No.1 was Incharge cashier and it was his liability to handle the cash amount of the P.H.C, Virpur. That, Audit Report is silent involving him in the offences. That, it was merely an irregularity of account as admitted by the Senior Clerk Mr. Hemant Shah and the AuditorMr. Niranjan V Doshi. That, ingredients under Section 409 of IPC were never proved by the prosecution by producing cogent and satisfactory evidence against respondent No.1. That, during the audit period, general cash book was never audited and no charges were proved by the prosecution about misappropriation of the amount. There is no evidence available with the prosecution that who had prepared the cash book. That, during the audit period, general cash book was never audited and no charges were proved by the prosecution about misappropriation of the amount. There is no evidence available with the prosecution that who had prepared the cash book. That, the judgment and order passed by the learned judge is just, legal and reasoned, and therefore, no contrary view is possible by the court except to acquit the respondent No.1. Hence, it was requested by him to dismiss the appeal and confirm the acquittal passed by the learned judge in Criminal Case No. 677 of 1990 dated 21.09.2004. 8. Mr. Rutvij Oza, learned Additional Public Prosecutor for respondent No.2, supported the arguments advanced by Mr. Rajesh M Chauhan, learned advocate for the appellant and submitted that from the evidence of the prosecution witnesses mainly of Mr. Hemantkumar Navnitlal Shah (Exh.24) and Mr. Niranjan V Doshi, Auditor, it is clearly proved that the chargesheeted amount was misappropriated by respondent No.1 during the period when the accused was Incharge of accountant. As prosecution has proved the guilt of respondent No.1 beyond reasonable doubt, it was requested by him to quash and set aside the judgment and order acquitting the accused in Criminal Case No. 677 of 1990 and convict him as prayed for. 9. Having considered facts of the case, submissions made by learned advocates for the respective parties, the judgment and order challenged by the appellant and documentary evidences produced on record, this Court would like to refer to a decision of Apex Court in case of Sadhu Saran Singh v. State of Uttar Pradesh & Ors., reported in (2016) 4 SCC 357 , wherein the Apex Court, while discussing scope of interference in appeal against acquittal order, held and observed as under : 20. Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate court in an appeal against acquittal in Sambasivan v. State of Kerala, (1998) 5 SCC 412 has held : 7. The principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, are well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial Court. It is only when the approach of the trial Court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal. 10. In order to sustain conviction under Section 409 IPC, two ingredients are to be proved, namely, (i) the accused, a public servant or a banker or agent was entrusted with the property of which he is duty bound to account for, and (ii) the accused has committed criminal breach of trust. What amounts to criminal breach of trust is provided under Section 405 IPC. The basic requirement to bring home the accusations under Section 405 IPC are the requirements to prove conjointly. (i) entrustment and (ii) whether the accused was actuated by dishonest intention or not, misappropriated it or converted it to his own use or to the detriment of the persons who entrusted it. The Section cannot be construed as implying that any head of an office, who is negligent in seeing that the rules about remitting money to the treasury are observed is ipso facto, guilty of the criminal breach of trust, but something more than that is required to bring home the dishonest intention. There should be some indication which justifies a finding that the accused, definitely had the intention of wrongfully keeping the government out of the money. There should be some indication which justifies a finding that the accused, definitely had the intention of wrongfully keeping the government out of the money. Discussing the scope of section 409 IPC, the Supreme Court has observed and held as under: “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 was dishonest misappropriation or dishonest use or disposal in violation of a direction of law or legal contract, by the accused himself or by someone else which he willingly suffered to do. It follows almost axiomatically from this definition that the ownership of beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit.” 11. Now, if we examine the prosecution evidence complainant Rasiklal Manilal Parmar, on receiving instructions from the higher authority, lodged a written complaint before Virpur Police Station, which was registered accordingly vide C.R.I 44 of 1989. As per the contents of the complaint, the present respondent-accused when was serving in the Primary Health Centre, Virpur as Junior Clerk for the period from 1.01.1989 to 30.04.1989, he had misappropriated an amount of Rs.3893.15ps permanently. At present, this witness has no knowledge in respect of the alleged offence committed by the respondent, as he lodged the complaint on instructions received by him from Deputy District Development Officer. At present, in the complaint itself, it is nowhere stated that during which period this amount was misappropriated. In the chargesheet, it is stated that from 02.12.1988 to 12.06.1989 Rs.617.30ps and from January to June 1989 Rs.11,276.25ps were temporary misappropriated. While in the complaint, it was averred that there was a misappropriation of amount of Rs.3893/permanently. While in the chargesheet, it is shown as a temporary misappropriation. Therefore, it is not clear by the prosecution from the chargesheet as well as from the complaint that what type of misappropriation was made. Prosecution witness (Exh.18) Danabhai Khatubhai is a panch witness and had good relation with the police. While in the chargesheet, it is shown as a temporary misappropriation. Therefore, it is not clear by the prosecution from the chargesheet as well as from the complaint that what type of misappropriation was made. Prosecution witness (Exh.18) Danabhai Khatubhai is a panch witness and had good relation with the police. He has made his signature in a prepared Panchnama. If we look at the Panchnama (Exh.119), it shows that some record was seized by the police which was produced by the complainant, but, it is nowhere found from Panchnama that this record was seized from the custody of the accused. Therefore, Panchnama (Exh.19) is not clearly proved by the prosecution. Prosecution witness Nitinkumar Mahendrabhai Trivedi (Exh.20) was serving in a Primary Health Centre at Virpur from 1989 and Mr. M M Patel was a Medical Officer. This witness has not supported the prosecution theory, and therefore, he was turned hostile. He has stated that Mr. Hemantkumar Navnitlal Shah was serving as a Senior Clerk and maintaining the accounts as well as paying the salary to staff. For preparing the bills of the office, Mr. H N Shah was responsible. Prosecution witness No.2, Laxmanbhai Galabhai (Exh.21) in his testimony states that he has no idea as to who was holding responsibility of preparing the bills or maintaining the accounts in Primary Health Centre, Virpur. He has no idea at what time, the payment of bill was sanctioned and on which date it was received by him. As this witness has not supported the prosecution case, he was also declared turned hostile. In the cross-examination he accepted that payment of salary of the employees working was conducted by the Medical Officer and he was maintaining the account of cash. Material witness Mr. Hemant N Shah (Exh.24) was serving as a Senior Clerk in the Primary Health Centre at Virpur. In his evidence, he admits that it was the responsibility of Senior Clerk to maintain cash book, obtain acknowledgment in salary register, withdrawing cash book, making salaries and making vouchers, etc. He further admits that it was responsibility of the Medical Officer to supervise the above cash verification as well. While he took his charge, the respondent was serving as a Junior Clerk. He further admits that it was responsibility of the Medical Officer to supervise the above cash verification as well. While he took his charge, the respondent was serving as a Junior Clerk. He has also admitted that, Junior Clerk has to prepare the bills of Administrative Department, maintaining service book and perform other miscellaneous works, but it was not his responsibility to maintain the cash account. Another witness Sushmitaben Maheshbhai (Exh.31) says that all the payments were received by her and nothing remains to be recovered during her tenure. She has no idea that who was handling and maintaining the account, and therefore, she has also turned hostile. As per the statement of Shantaben Bhulabhai (Exh.32), she was serving in the Health Department at Kasodi, since last four years and at present at Primary Health Centre at Dabhari. Before five years, she was vising the Primary Health Centre, Virpur for getting her salary and her salary was paid by the Medical Officer. On the same line, PW Dhuliben Shankarbhai (Exh.40) has turned hostile, but admits that payment of salary was made by the doctor. Other witnesses examined by the prosecution viz Kokilaben Kodarbhai at Exh.46, Hiraben Manilal at Exh.50, further have not supported the prosecution case in their chief examination and have turned hostile. They have admitted in their cross-examination that payment of salary was made by the doctor and in an urgency without getting signature of the employee in the salary register payment was made to the concerned employee. They have received all the dues from the officer. Another material witness Niranjan V Doshi PW5 (Exh.69) who has conducted audit of Primary Health Centre, Virpur and has submitted at (Exh.74) stating that respondent No.1accused had committed permanent misappropriation of Rs.3893.15ps and temporary misappropriation of Rs.11,893.55ps (Rs.617.30 + Rs. 11,276.25). However, it transpires from the deposition that he had not examined general cash book and for the fist time in the Court, he had shown the General Cash Book to the learned APP. He has no idea who was maintaining the cash book and he is not known to him, nor had he inquired and could not identify handwriting of such person. He has further admitted in his evidence that respondent No.1 was not discharging his duties as Accountant. He categorically admits that the cash was tallied. He has no idea who was maintaining the cash book and he is not known to him, nor had he inquired and could not identify handwriting of such person. He has further admitted in his evidence that respondent No.1 was not discharging his duties as Accountant. He categorically admits that the cash was tallied. However, he also admits that the accounts were not being regularly maintained and there was an error in addition / summing up, and therefore, there was an irregularity in maintaining accounts. As per the ‘Rojmel’, the balance amount was proper. This witness has never examined or checked the General Cash Book, till he was testified before the Court. As per the admission, the accused was not holding the post of Accountant, and till his audit period, the balance was completely found proper. From the deposition of this witness, it appears that he has not audited the General Cash Book. He is not in a position to say that under whose handwriting the General Cash Book was written. It appears that there were some error in addition /summing up and maintaining accounts of the office. No evidence is produced by this witness or any other witness examined by the prosecution that any misappropriation of amount was made by the accused and was used by him for his personal gains. From the evidence of other witnesses examined by the prosecution, it appears that they were paid their salaries or other dues without any delay by the office. From the evidence, prosecution is unable to prove that respondent No.1 at the relevant point of time was engaged in preparing salary, T.A Bills etc., nor he was engaged in maintaining accounts of the office. Prosecution has failed to prove that by engaging in any acts of misappropriation respondent No.1 has not paid Salary Bills, T.A Bills or Honorary Payments. It is not proved that respondent No.1 has committed any act of temporary or permanent misappropriation and/or used such misappropriated amount for his personal gain. 12. For the aforesaid reasons, it cannot be said that the impugned judgment and order passed by the learned Judicial Magistrate First Class, Balasinor in Criminal Case No. 677 of 1990 is illegal, perverse in any manner, and therefore, we are unable to accept the submission made by the learned advocate for the appellant. 13. 12. For the aforesaid reasons, it cannot be said that the impugned judgment and order passed by the learned Judicial Magistrate First Class, Balasinor in Criminal Case No. 677 of 1990 is illegal, perverse in any manner, and therefore, we are unable to accept the submission made by the learned advocate for the appellant. 13. Resultantly, the present appeal fails and the impugned judgment and order dated 21.09.2004 of the learned Judicial Magistrate First Class, Balasinor in Criminal Case No. 677 of 1990, whereby, acquittal of respondent No.1 of charges punishable under Section 409 of the Indian Penal Code, stands confirmed. Accordingly, Appeal is hereby dismissed. R & P be sent back to the concerned Court below, forthwith. Rule discharged.