JUDGMENT : Vivek Singh Thakur, J. The present appeal has been filed by the State of Himachal Pradesh against the Judgment dated 17.12.2009, passed by learned Additional Chief Judicial Magistrate, Chamba, in Criminal Case No. 428-1/05/2000T/188-11/05/2000, acquitting the respondent-accused in FIR No. 35/87, dated 16.06.1987 under Sections 409 and 420 of the Indian Penal Code in Police Station, Bharmaur, District Chamba, H.P. 2. Shri. M.A. Khan, learned Additional Advocate General has vigorously contended that the findings of acquittal, recorded by the learned trial court are not based on proper appreciation of the evidence on record. 3. On the other hand, learned counsel appearing for the accused has with considerable force contended that the findings of acquittal, recorded by the court below are based on proper appreciation of evidence on record. We have heard the learned counsel for the parties and have gone through the record carefully. 4. This Court with the able assistance of the learned counsel on either side, has evaluated the entire evidence on record. 5. In the present case, the FIR under Sections 409, 420, 467, 468, 471 of Indian Penal Code was registered on a complaint Ex. PW-1/A forwarded by the PW-1 Rattan Chand against the accused Krishan Kumar alleging the misappropriation of the wheat supplied to him by the Department for further supply to the Depot Holders. It had been alleged that it was the duty of the accused to keep the accounts of receipt, demand and supply of the wheat and the accused had failed to perform his duty, rather, he had mis-appropriated the wheat which was to be supplied to Depot Holders through him. It had also been alleged that the accused has deposited lesser amount in comparison to the amount deserved to be deposited by him on account of supply of wheat. The prosecution, in support of its case, has examined as many as 19 witnesses. 6. PW-1 Rattan Chand in his statement has deposed that Accounts Section had made a complaint that lesser amount has been received from the accused on the basis of he lodged FIR. However, he has stated that he has not remembered the complete detail of the mis-appropriation. He has further stated that he has no knowledge about the period of supply of wheat. He has also stated that godown were under his supervision but he had not checked the godown. However, he has stated that he has not remembered the complete detail of the mis-appropriation. He has further stated that he has no knowledge about the period of supply of wheat. He has also stated that godown were under his supervision but he had not checked the godown. He has admitted that the Accounts Section had made a written complaint but the said complaint and Stock Register has not been shown to him in the Court. Therefore, the statement of PW-1 cannot be made basis for convicting the respondent-accused. 7. PW-2 Pratap Chand has been examined with respect to the production of receipts of carriage of wheat through truck of Chamba Truck Union, Exs. P-2 to P-51 taken into possession vide Seizure Memo.PW-1/A. This witness has admitted that Exs.PW-1 to PW-51 did not have endorsement that the wheat had been sent by the Food and Supply Department, Chamba, due to which the said receipts cannot be said to be definitely related to the accusation of respondent-accused. 8. PW-3 Madan Lal is witness to the seizure memo Ex. 2/A. However, he has also admitted that Seizure Memo is only Photostat. PW-4 Surinder Kumar had produced the record relating to requirement and demand of the wheat. However, he had admitted in cross-examination that application and demand to wheat had not been placed before him and he has no knowledge that with whom and in whose possession these documents were. PW-5 Madan Lal was also witness to PW- 2/A and he has also admitted that the Seizure Memos PW-2/A and PW-5/A are only photocopies. PW-6 Mahinder had taken over charge from the accused on the instructions of District Food and Supply, Chamba. He had alleged that on sport, there was shortage of 1 Qtl. 51 Kgs. 500 Grams wheat regarding which a physical verification was conducted by the District Food Inspector Krishan Dev, PW-10 but at the same time, he has also stated that the accused had handed over charge of the godown without any material and list. However, he had admitted in cross-examination that in Stock Register, balance of nine bags and 10 Qts. 51 Kgs. and 500 Grams has been shown. He has further admitted that Mark X-6, copy of Stock Register is only Photostat copy. PW-7 Rakesh Kant was the Inspector, who had handed over charge to the respondent-accused in June, 1984. However, he had admitted in cross-examination that in Stock Register, balance of nine bags and 10 Qts. 51 Kgs. and 500 Grams has been shown. He has further admitted that Mark X-6, copy of Stock Register is only Photostat copy. PW-7 Rakesh Kant was the Inspector, who had handed over charge to the respondent-accused in June, 1984. Therefore, the statements of these witnesses and the documents produced through them are not sufficient to held the respondent-accused guilty. 9. PW-8 Rishi Ram and PW-9 Ram Kishan are the contractors who had allegedly transported wheat during 1984 to 1987. In cross-examination, PW-8 has stated that he had further assigned carriage of wheat to the other persons who are using their horses for carrying wheat to godown and the receipts also brought by those persons. PW-9 has also admitted in cross-examination that he had sublet the work of supply of wheat to another contractor whose name not remembered by him. As per him, contractor used to bring kachi receipts from the accused. He has further stated in cross-examination that he did not remember that for how many days the work of carriage of wheat was done. The statements as a whole made by these witnessed do not prove the guilt of the accused. 10. PW-10 Shri Krishan Dev has made detailed statement with respect to the allegations against the accused. In examination-in-chief, he has stated that there should be 30 Qtl.07 Kgs. wheat in the godown as per Stock Register which was not there at the time of checking, however, in the cross-examination, he has stated that he had not stated to the police that the accused had done embezzlement. He has further stated that he did not know that who had done the embezzlement. As per him, he had submitted verification report to District Food and Supply Officer, Chamba which had not been shown to him in the Court. Hence, statement of PW- 10 also does not support the case of the prosecution. 11. PW-11 Vijay Kumar has only produced appointment letter of the accused. PW-12 Shri Ramesh Chand had produced two receipts dated 03.06.1986 and 08.03.1986 vide seizure Memo. Ex.PW-5/A. However, in cross examination he has admitted that Ex.PW-51/A does not bear receipt number. PW-13 Mast Ram had recorded FIR and made endorsement Ex.PW-13/A in this regard. 11. PW-11 Vijay Kumar has only produced appointment letter of the accused. PW-12 Shri Ramesh Chand had produced two receipts dated 03.06.1986 and 08.03.1986 vide seizure Memo. Ex.PW-5/A. However, in cross examination he has admitted that Ex.PW-51/A does not bear receipt number. PW-13 Mast Ram had recorded FIR and made endorsement Ex.PW-13/A in this regard. PW-14 Lajam Singh had partially investigated the case and has taken the documents in possession vide Ex. PW-4/A. PW-15 Gulab Singh has also taken into possession the documents vide Ex. PW-5/A and had recorded statements of witnesses Partap Chand, Ramesh Chand, Madan Lal and Des Raj, Ex. PW-15/A to Ex.PW-15/D. Thereafter, he has handed over the file to SI Hans Raj who has not been examined by the prosecution. PW-16 Jaram Singh, SI has also recorded statements of Ami Chand, Rikhi Ram and Ram Krishan. PW-17 Sukhdev DSP has taken into possession file vide Ex. PW-17/A receipts vide Ex. PW-17/B, appointment letter PW-11/A and posting order Ex. PW-11/B. He has also recorded statements of Vijay Kumar, Vijay Singh, Rakesh Kant, Satya Parkash, Mahinder Chand, Kuldeep Chand, Pratap Chand and Krishan Dev. The challan was put in the court by PW-18 Om Parkash. PW-19 Devi Ram had arrested the accused and produced in the Court. 12. From the perusal of the entire statements made by the prosecution witnesses in the Court, it is evident that the prosecution has failed to prove the guilt of the accused and to establish the offences under Sections 409 and 420 of the Indian Penal Code beyond reasonable doubt. It is settled principle of law that no one can be punished on the basis of suspicion and the prosecution has to prove its case on the basis of cogent, reliable and conclusive evidence for which the prosecution has failed in the present case. As evident from the evidence led by the prosecution, the prosecution has failed to prove quantity of entrustment of wheat, supply of the same by the accused and deficiency in the stock, if any. The originals of relevant record had also not been produced before the Court below. The written complaint made by the Accounts Section, verification report submitted by the PW10 Krishan Dev and Stock Register had also not been produced in the Court. The originals of relevant record had also not been produced before the Court below. The written complaint made by the Accounts Section, verification report submitted by the PW10 Krishan Dev and Stock Register had also not been produced in the Court. In view of the statements of other witnesses, the statement of Investigating Officer and other police officials are not sufficient to hold the respondent-accused guilty. 13. Their Lordships of Hon’ble Supreme Court in Tulsi Ram and others Versus State of U.P., AIR 1963 Supreme Court 666 has held that ‘wrongful loss is the loss by unlawful means of property to which a person is entitled while wrongful gain to a person means a gain to him by unlawful means of property to which the person gaining is not legally entitled’. Their Lordships have held as under:- 14. “….. ….. ..... Learned counsel points out and rightly, that for a person to be convicted under Section 420, Indian Penal Code it has to be established not only that he has cheated some one but also that by doing so he has dishonestly induced the person who was cheated to deliver any property etc.. A person can be said to have done a thing dishonestly if he does so with the intention of causing wrongful gain to one person of wrongful loss to another person. Wrongful loss is the loss by unlawful means of property to which a person is entitled while wrongful gain to a person means a gain to him by unlawful means of property to which the person gaining is not legally entitled. ……… …… …… ……..”. 14. The evidence led and relied upon by the prosecution does not prove that the respondent-accused has caused wrongful gain or loss dishonestly as required to punish the respondent-accused under Section 420 of Indian Penal Code. 15. Learned Single Judge of Delhi High Court in B.K. Roy Choudhary v. The State of (CBI), AIR 1997 Cril. L.J. 4204 has held that in the absence of proof of entrustment, there can be no question of accused being found guilty of the offence. Learned Single Judge has held as under:- 3(3) “….. ….. …... …… In a case under S. 409, IPC, the factum of entrustment and the factum of misappropriated of the entrusted articles is absolutely necessary. L.J. 4204 has held that in the absence of proof of entrustment, there can be no question of accused being found guilty of the offence. Learned Single Judge has held as under:- 3(3) “….. ….. …... …… In a case under S. 409, IPC, the factum of entrustment and the factum of misappropriated of the entrusted articles is absolutely necessary. In the absence of these two essential ingredients, no charge can be framed under S. 409 I.P.C. (see Janeshwar Das Aggarwal v. State of Uttar Pradesh, reported as AIR 1981 SC 1646 ). In the absence of proof of entrustment, there can be no question of accused being found guilty of the offence (see Roshan Lal Raina v. State of Jammu & Kashmir, reported as AIR 1983 SC 631 (1983 Cri LJ 975)”. 16. Their Lordships of the Hon’ble Supreme Court in Jiwan Dass v. State of Haryanaya with Mittar Pal Yadev v. State of Haryana, AIR 1999 SC 1301 have held that in a prosecution for offence of criminal breach of trust if there is absence of legal and independent evidence with regard to the entrustment, then, it would be improper either to put a question with regard to the entrustment to the accused and if put an answer is obtained, partially admitting entrustment, the same does not establish the case of the entrustment. Their Lordships have held as under:- 10. “In our considered opinion the gravamen of the charge being misappropriation of 4300 litres of diesel oil which was found to be in shortage while measuring the diesel that had been brought and the said diesel having been delivered to Mittar Pal Yadav, who had signed the relevant documents in token thereof, the entrustment to or dominion over the diesel by Jiwan Dass has not been established and as such the prosecution has not been able to establish the charge under Section 409, I.P.C. beyond reasonable doubt as against accused Jiwan Dass in respect of the shortage of diesel to the tune of 4300 liters. It is no doubt that Jiwan Dass appears to have given in writing on 2.03.1982 that he would be completing the quantity of 10,000 litres of oil but that writing neither can be held to be a confession or admission of the guilt on the part of the accused Jiwan Dass, nor that can form the basis of convicting the accused-Jiwan Dass for an offence under Section 409, I.P.C. In a prosecution for offence of criminal breach of trust if there is absence of legal and independent evidence with regard to the entrustment, then it would be improper either to put a question with regard to the entrustment to the accused and if put an answer is obtained, partially admitting entrustment, the same does not establish the case of the entrustment. 17. In the present case for want of proper evidence, as required, the prosecution has failed to prove entrustment as well as misappropriation as required in criminal jurisprudence to punish a person under Section 409 IPC. 18. The accused has been acquitted by the court below and there is nothing on record from which it can be said that the Court below has not correctly appreciated the evidence on record and the acquittal of the accused has resulted in travesty of justice. Therefore, no interference is warranted in the instant case. In view of the aforesaid discussion, appeal being devoid of merit, is dismissed, so also pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of the Court below be immediately sent back.