ORDER : Rongon Mukhopadhyay, J. Heard Mr. Anurag Kashyap, learned counsel appearing for the petitioner and learned A.P.P. for the State. 2. This application is directed against the judgment dated 21.11.2005 passed by the learned 1st Additional Sessions Judge, Garhwa in Criminal Appeal No. 55 of 1998 whereby and where under the judgment and order of conviction and sentence dated 24.04.1998 passed by the learned Judicial Magistrate, 1st Class, Garhwa in C.G. Case No. 2 of 1992 convicting the petitioner for the offence under Sections 409 and 420 of the Indian Penal Code and sentencing him to simple imprisonment for one year under each of the Sections has been affirmed. 3. The prosecution story in brief is that the petitioner was appointed as an agent of Unit No. 108 (Dadar Fari) in the year 1990 to collect and hand over Kendu Leaves to the Forest Development Corporation on the basis of commission. The petitioner had received Rs. 30,000/- through four cheques. It is alleged that he collected and handed over Kendu Leaves worth Rs. 12,350.70/- and did not hand over Kendu Leaves for the rest amount of Rs. 17,649.30/- nor did deposit the balance amount. It was alleged that the petitioner had converted the said amount for his own gain. 4. Based on the aforesaid allegation C.G. Case No. 2 of 1992 was instituted in which after cognizance was taken trial proceeded against the petitioner. 5. In course of trial four witnesses were examined by the complainant. 6. P.W.-1, Rishikesh Dubey, P.W.-2, Baleshwar Prasad and P.W. 4, Bhuneshwar Rai have stated in unison that the petitioner who was an agent was given Rs. 30,000/- as advance for collection of Kendu Leaves but he collected leaves worth Rs. 12,350/- only and the rest of the amount was not returned. All these witnesses were the employees of the Corporation. 7. P.W.-3, Prabhu Nath Dubey, is a formal witness who had proved the complaint petition marked as Exhibit-1. The defence has examined three witnesses to controvert the allegation levelled against the petitioner. 8. D.W.-1, Kameshwar Prasad, had proved the receipts in the writing and signature of the Range Officer marked as Exhibit-A. 9. 7. P.W.-3, Prabhu Nath Dubey, is a formal witness who had proved the complaint petition marked as Exhibit-1. The defence has examined three witnesses to controvert the allegation levelled against the petitioner. 8. D.W.-1, Kameshwar Prasad, had proved the receipts in the writing and signature of the Range Officer marked as Exhibit-A. 9. D.W.-2, Manohar Kachhap, is the petitioner who had proved three letters written to the corporation marked as Exhibit-B, B/1 and B/2 as also the certificate granted by the Mukhiya marked as Exhibit-C. This witness had also proved the postal receipts which were marked as Exhibit-D, D/1 and D/2. 10. It has been stated by the learned counsel for the petitioner that the evidence which has been produced by the prosecution was tainted with distortion of fact which would be evident from the exhibits produced on behalf of the defence. Leaned counsel submits that at best the petitioner could have been hauled up for dereliction of duty but no criminality exists to convict the petitioner for the offence under Sections 409 and 420 of the Indian Penal Code. 11. Learned A.P.P. has opposed the prayer made by the petitioner. 12. It appears from the record that the date of entrustment of Rs. 30,000/- was from 18.05.1990 to 04.06.1990 Exhibit-B/1 is letter by the petitioner dated 16.06.1990 wherein it has been stated that to transport the collected Kendu Leaves the corporation had been requested for a space as there was no place to keep the Kendu Leaves secured. The letter of the Mukhiya marked as Exhibit-C also reveals that the petitioner had collected and kept the Kendu Leaves in the Fari. The Witnesses of the corporation P.W.-1, P.W.-2 and P.W.-4 had stated that the balance amount had not been returned by the petitioner and the Kendu Leaves with respect to the balance amount were also not collected. The courts below had fixed the criminality of the petitioner on the ground of not keeping in a safe custody the Kendu Leave and/or of not returning the balance amount. The letters which have been exhibited on behalf of the petitioner have not been objected to by the prosecution with respect to its veracity and thus the letters have assumed significance in the context of the allegation levelled against the petitioner. 13. The letters which have been exhibited on behalf of the petitioner have not been objected to by the prosecution with respect to its veracity and thus the letters have assumed significance in the context of the allegation levelled against the petitioner. 13. The learned courts below seems not to have appreciated the content of Exhibit-B, B/1, B/2 and C. If as per the Bihar Kendu Leave Directives or the Bihar Kendu Leaves Control of Trade Rules, 1972 the duty of the agent to keep the leaves in a safe place was not followed that would tantamount to dereliction of duty on the part of the petitioner and no criminal liability can be fastened for misappropriation of the balance amount of Rs. 17649.30/-. If the Kendu Leaves of the balance amount was already collected and the same intimated to the corporation the question of refunding the balance amount which forms the basis of launching the prosecution case does not arise. 14. The circumstance enumerated thus would reveal that the prosecution had miserably failed to prove its case against the petitioner and in fact the petitioner has sufficiently been able to explain the circumstances which controvert the allegation levelled against him and in view of the same the impugned orders are liable to be set aside. 15. Accordingly, this application is allowed and the impugned judgment dated 21.11.2005 passed by the learned 1st Additional Sessions Judge, Garhwa in Criminal Appeal No. 55 of 1998 and judgment and order of conviction and sentence dated 24.04.1998 passed by the learned Judicial Magistrate, 1st Class, Garhwa in C.G. Case No. 2 of 1992 are hereby set aside. 16. The petitioner is discharged from the liability of his bail bond.