ORDER : S.K. Sahoo, J. 1. The petitioner Netrananda Sahu faced trial in the Court of learned J.M.F.C., Patnagarh in G.R. Case No. 77 of 1985 (T.R. No. 138 of 1990) for offence punishable under section 408 of the Indian Penal Code of the accusation that on 15-2-1985 he being the President of the Co-operative Society, Kanut SCS had withdrawn a loan of Rs. 12,000/- (Rupees twelve thousand) only which was entrusted to him for purchasing sheep, goats, calves and to finance the poor Adivasis and Harijan people of Kanut Gram Panchayat but he misappropriated the said amount. On 31-3-1985 on the basis of the first information report (Ext. 12) lodged by A. Sanyasi Rao (P.W. 10) before the officer-in-charge, Belpada Police Station, Belpada P.S. case No. 17 of 1985 was registered under sections 408/34 of the Indian Penal Code against the petitioner and Kusadhawaja Sahu (P.W. 5). The Deputy Registrar of Co-operative Society, Bolangir Division, Bolangir in his order No. 1853 dated 26-3-1985 authorized the informant to lodge the F.I.R. against the petitioner as well as P.W. 5 in connection with the case of embezzlement of Rs. 12,000/- of Kanut SCS. It is the prosecution case that the petitioner was the President and P.W. 5 was the Secretary of Kanut SCS respectively and they were the custodians of the records, cash books etc. On 29-3-1985, the informant had been to Patnagarh to verify the concerned records at the Branch Bank and on verification, he found that on 15-2-1985 the petitioner had withdrawn a sum of Rs. 12,000/- from the SBD A/c No. 25 of Kanut SCS with Branch Bank in order to purchase sheep and finance some members of the SCS under SCFC Scheme and he had produced cheque No. 28883 dated 15-2-1985 before the Branch Bank for the said encashment and he had also signed on the back side of said cheque and at page No. 58 of the cash scroll in token of receipt of the said amount. The informant then came to Kanut SCS and asked the petitioner to produce the cash balance of Rs. 12,000/- but the petitioner replied that he had already handed over the said amount to the Secretary on the very day i.e. on 15-2-1985 and he had also intimated to the Branch Manager, D.C.C.B. Ltd., Patnagarh during his inquiry on 20-2-1985. The informant then came to Kanut SCS and asked the petitioner to produce the cash balance of Rs. 12,000/- but the petitioner replied that he had already handed over the said amount to the Secretary on the very day i.e. on 15-2-1985 and he had also intimated to the Branch Manager, D.C.C.B. Ltd., Patnagarh during his inquiry on 20-2-1985. The informant then asked the Secretary to produce the said cash balance but he denied to have received the cash balance from the President. He stated that the President had brought the case with him on that day and asked him to record the transaction in the cash book and assured that he would hand over of Rs. 12,000/- (Rupees twelve thousand only) to him and accordingly, on good faith P.W. 5 recorded the entry in the cash book but the petitioner left the SCS without handing over the said amount to the Secretary. The entry of the cash was cancelled by the Secretary as the cash was not kept in the iron chest under double lock system. Since both the petitioner as well as P.W. 5 failed to produce the said amount before the informant, the first information report was lodged against both of them for embezzlement of Rs. 12,000/- on presumption that it was either the petitioner as President or the Secretary or both had embezzled the money. 2. The case was investigated by Narendra Mahapatra (P.W. 8), the officer-in-charge of Belpada Police Station. During course of investigation, he examined the witnesses, visited the spot, seized the cash book, proceeding book and the cheque book of Kanut SCS from P.W. 5 and prepared the seizure list Ext. 1. He also seized day book, cashier's scroll, one cheque bearing No. 28883 dated 15-2-1985 for Rs. 12,000/- etc. under seizure list Ext. 9. After completion of investigation. P.W. 8 submitted charge sheet against the petitioner only under section 408 of the Indian Penal Code on 24-4-1985. 3. The defence plea of the petitioner during trial was that after receipt of Rs. 12,000/- (Rupees twelve thousand only) from the bank, he had handed over the same to P.W. 5 who received the same and made entry in the cash book and thereafter, P.W. 5 cancelled that page of the cash book with ulterior motive and misappropriated the amount. 4. 12,000/- (Rupees twelve thousand only) from the bank, he had handed over the same to P.W. 5 who received the same and made entry in the cash book and thereafter, P.W. 5 cancelled that page of the cash book with ulterior motive and misappropriated the amount. 4. During course of trial, in order to prove its case, the prosecution examined ten witnesses. P.W. 1 Tuleswar Pradhan is a witness to the seizure of cash book, proceeding register and one cheque book under seizure list Ext. 1. P.W. 2 Udayanath Satpathy was the cashier in the D.C.C. Bank Branch at Patnagarh, who stated that on 15-2-1985 on the strength of presentation of a cheque by the petitioner, he paid an amount of Rs. 12,000/- to the petitioner. P.W. 3 Indramani Banchhor was the Peon of the Service Co-operative Society, Kanut and he stated that an amount of Rs. 12,000/- was taken by the petitioner from the Co-operative Bank. P.W. 4 Sarat Kumar Purohit was the Branch Manager of Pathagarh Branch of District Central Co-operative Society, Bolangir who stated about the withdrawal of Rs. 12,000/- (Rupees twelve thousand only) from the bank by the petitioner for the purpose of purchasing the cattle for the beneficiaries of the society. P.W. 5 Kusadhawaja Sahu was the Secretary, Kanut S.C.S. and he stated that on 15-2-1985 an amount of Rs. 12,000/- was withdrawn by the petitioner by presenting a cheque. He further stated that at the instance of the petitioner who gave him the counterfoil of the cheque, he made an entry in the cash book of the SCS about withdrawal of Rs. 12,000/- (Rupees twelve thousand only) since the petitioner assured him to give the cash by bringing it from his house. He further stated that the petitioner left the SCS but did not return to the SCS nor gave the money as assured for which he scored out the entry by mentioning 'cancelled'. P.W. 6 Balaram Sahu was Supervisor of 'D.C.C.B. for Belpada Block and he stated when P.W. 5 came to him and told that the petitioner was not giving him Rs. 12,000/- (Rupees twelve thousand only) which was withdrawn from D.C.C.B., Patnagarh Branch on 15-3-1985, he along with RW.5, reported the matter before the Branch Manager of D.C.C.B., Patnagarh Branch. P.W. 6 Balaram Sahu was Supervisor of 'D.C.C.B. for Belpada Block and he stated when P.W. 5 came to him and told that the petitioner was not giving him Rs. 12,000/- (Rupees twelve thousand only) which was withdrawn from D.C.C.B., Patnagarh Branch on 15-3-1985, he along with RW.5, reported the matter before the Branch Manager of D.C.C.B., Patnagarh Branch. P.W. 7 Mayadhar Joshi was the Secretary of Mandal S.C.S. and he is witness to the seizure of some documents as per seizure list Ext. 9. P.W. 8 Netrananda Mohapatra was the officer in-charge of Belpada police station who is the Investigating Officer in this case. P.W. 9 Gaurang Sundar Sahoo did not state anything about the case. P.W. 10 A. Sanyashi Rao is the informant in the case. The prosecution exhibited 13 documents. Ext. 1 is the seizure list, Ext. 2 is the cheque of Rs. 12,000/- Ext. 3 is the entry of Rs. 12,000/- in the cashier scroll, Ext. 4 is the counter foil of the cheque in the cheque book issued to Kanut S.C.S., Ext. 5 is the entry dated 15-2-1985 in the record book of Kanut S.C.S., Ext. 6 is the endorsement of P.W. 4 at page 178 of the cash book of Kanut S.C.S., Ext. 7 is page No. 181 of day book of Patnagarh Branch, Ext. 8 is the zimanama, Ext. 9 is the seizure list, Ext. 10 is the letter dated 14-2-85 of V.A.S. Belpada, Ext. 11 is the true copy of the minutes of the President of Kanut S.C.S., Ext. 12 is the F.I.R. and Ext. 13 is the endorsement and signature of P.W. 10 in the cash book dated 29-8-85. Though no witness was examined on behalf of the defence but the defense exhibited three documents. Ext. A is the proceeding of the meeting dated 15-2-85 of the Co-operative Society, Kanut, Ext. B is the scored pages of the cash book allotted for 14-2-85 and Ext. C is the page containing adverse remark against P.W. 5. 5. None appears on behalf of the petitioner. Since the revision petition cannot be dismissed for default and has to be disposed of on merit, even if the petitioner or his counsel is absent by examining the correctness, legality or propriety of the order of the inferior Criminal Court, with the assistance of Mr. Deepak Kumar, learned Addl. Standing Counsel, I went through the case records. Since the revision petition cannot be dismissed for default and has to be disposed of on merit, even if the petitioner or his counsel is absent by examining the correctness, legality or propriety of the order of the inferior Criminal Court, with the assistance of Mr. Deepak Kumar, learned Addl. Standing Counsel, I went through the case records. The learned counsel for the State placed the impugned judgments and the evidence of the witnesses. I also perused the grounds taken in the revision petition to challenge the impugned judgments. 6. It is not disputed that by presenting a cheque in Dist. Central Co-operative Branch, Patnagarh on 15-2-1985, the petitioner drew a sum of Rs. 12,000/-. The oral evidence as well as the documentary evidence clearly indicates that on 15-2-85, the petitioner received such amount. In the statement recorded under section 313 of Cr.P.C., the petitioner has also answered in affirmative to the specific question in that respect. Therefore, the entrustment of Rs. 12,000/- with the petitioner on 15-2-1985 is clearly established. It is the specific prosecution case that on 15-2-1985 the petitioner drew a sum Rs. 12,000/- but did not deposit the same before P.W. 5 rather asked P.W. 5 to make an entry in the cash book of the S.C.S. about withdrawal of Rs. 12,000/- by producing the counter foil and he assured P.W. 5 to give the money by bringing the cash from his house and left the S.C.S. but he did not return to S.C.S. and also did not give such money to P.W. 5 for which P.W. 5 scored out the entry made in the cash book by mentioning 'cancelled'. The statement of P.W. 5 in that respect appears to be highly suspicious. P.W. 5 stated that the petitioner produced the counterfoil of the cheque and on that basis, he made an entry in the cash book regarding withdrawal of Rs. 12,000/- (Rupees twelve thousand only). The counter foil of cheque No. 2888 in the cheque book issued to Kanut S.C.S. which has been marked as Ext. 4 does not reflect any amount and also in whose favour it had been issued. The relevant entry which has been made in the cash book of Kanut Service Co-operative Society has been marked as Ext. 5, wherein RW.5 has clearly mentioned about the withdrawal of Rs. 12,000/- vide cheque No. 28883 and also receipt of Rs. 4 does not reflect any amount and also in whose favour it had been issued. The relevant entry which has been made in the cash book of Kanut Service Co-operative Society has been marked as Ext. 5, wherein RW.5 has clearly mentioned about the withdrawal of Rs. 12,000/- vide cheque No. 28883 and also receipt of Rs. 12,000/- (Rupees twelve thousand only) and in the closing balance of Ext. 5, the said amount has been reflected to have been received. The signature of the Secretary (RW.5) with date 15-2-1985 and his seal is also appearing in Ext. 5. On the face of this Ext. 5, the defence plea that on 15-2-85 an amount of Rs. 12,000/- (Rupees twelve thousand only) was handed over by the petitioner to RW.5 and accordingly P.W. 5 made entry in the cash book gets corroboration from the documentary evidence. There is no dispute that after making the entry dated 15-2-85 in Ext. 5, it has been scored out by P.W. 5 himself noting 'cancelled' and the signature of P.W. 5 with his seal and date 15-2-1985 finds place there. The explanation given by P.W. 5 is that the petitioner did not hand over Rs. 12,000/- on 16-2-1985 though he produced the counterfoil of the cheque on that day and assured to give the money by bringing it from his house. This explanation given by P.W. 5 is falsified by the relevant entry made in the cash book. As per entry under Ext. 5, it was made on 15-2-1985 and cancelled also on 15-2-1985. The evidence of P.W. 5 goes to show that the entry in cash book was made on 16-2-1985 and cancelled on 16-2-1985. P.W. 5 stated that though he cancelled the entry on 16-2-1985 but he put the date 15-2-1985 under his signature under the word 'cancelled'. Therefore, in the cash book in page No. 177 which has been marked as Ext. 5, P.W. 5 has not only made the relevant entries but also put his signatures and seals at two places and mentioned the date 15-2-1985 at three places. If according to P.W. 5, except drawal of cash by the petitioner on 15-2-1985 all other things i.e. production of counterfoil of cheque, entry regarding withdrawal of money and cancellation as per Ext. If according to P.W. 5, except drawal of cash by the petitioner on 15-2-1985 all other things i.e. production of counterfoil of cheque, entry regarding withdrawal of money and cancellation as per Ext. 5 were done on 16-2-1985, it is not understood as to why P.W. 5 put the dates at three places as 15-2-1985. Most peculiarly, the entry in the next page of the cash book i.e. page number 178 which is in the hands of P.W. 5 is dated 14-2-1985. All these go to show that P.W. 5 is not a truthful witness and he was not maintaining the cash book in a systematic manner and chance of manipulation in Ext. 5 cannot be ruled out. I am of the view that the learned courts below should not have placed implicit reliance on the testimony of P.W. 5 that on the assurance of the petitioner to give sum of Rs. 12,000/- afterwards, he made the entry in the cash book without receiving such amount rather the defence plea that money was handed over to P.W. 5 by the petitioner who on receipt of the same made entry in the cash book has got sufficient force. The prosecution case that the after receiving of Rs. 12,000/- (Rupees twelve thousand only) on 15-2-85, the petitioner misappropriated such amount cannot be accepted inasmuch as he had handed over such amount to P.W. 5. The explanation given by P.W. 5 appears to be an out and out concocted version. In fact the First Information Report was lodged against the petitioner as well as P.W. 5 but ultimately charge sheet was submitted only against the petitioner showing P.W. 5 as a witness. 7. It has been held in the case of Onkar Nath Mishra and Ors. v. State (NCT of Delhi) and Anr., reported in (2008) 2 SCC 561 : 2008 AIR SCW 96), that in the commission of the offence of criminal breach of trust, two distinct parts are involved. The first consists of the creation of an obligation in relation to the property over which dominion or control is acquired by the accused. The second is a misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created. The first consists of the creation of an obligation in relation to the property over which dominion or control is acquired by the accused. The second is a misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created. Since to constitute an offence of criminal breach of trust, there must be an entrustment and there must be misappropriation or conversion to one's own use, or use in violation of legal direction or of any legal contract and in the case in hand, even though the entrustment part has been proved but the prosecution has not led any cogent material regarding misappropriation of the cash by the petitioner, one of the basic ingredients of offence under section 408 of the Indian Penal Code is missing. The learned Courts below without properly appreciating the evidence on record seems to have mechanically accepted the evidence of P.W. 5 even though his version runs contrary to the entry made in the cash book. Therefore, I am unable to accept the prosecution case that after receiving a sum of Rs. 12,000/- on 15-8-1985 from Dist. Central Co-operative Bank, Patnagarh, the petitioner misappropriated such amount. In view of the above analysis, the impugned judgment and order of conviction of the petitioner under section 408 of the Indian Penal Code is not sustainable in the eye of law and the same is hereby set aside and the petitioner is acquitted of the charge. Accordingly, the revision petition is allowed.