JUDGMENT : U.C. Dhyani, J. Respondent no. 2, in present criminal revision, was convicted, on the basis of a complaint filed by Uttarakhand Power Corporation Ltd. (for short here-in-after referred to as UPCL) by learned Addl. Chief Judicial Magistrate, Haldwani, vide order dated 01.07.2009. While convicting respondent no. 2, under Section 409 IPC, he was directed to undergo a year’s rigorous imprisonment along with a fine of Rs. 3,000/-. The convict (respondent no. 2 herein) assailed such order in the court of learned Sessions Judge, Nainital, in criminal appeal. Learned Sessions judge, allowed the criminal appeal and set aside the judgment and order passed by learned Magistrate, vide order dated 25.05.2011. Aggrieved against the same, the department (Executive Engineer, Electricity Store Division, UPCL, 132 K.V. Sub-Station Haldwani, Nainital) has preferred present criminal revision. 2. Respondent no. 2 was working as Store Keeper in Electricity Store Division, Kashipur, District Nainital. A physical verification of store was conducted from 04.05.1992 to 09.05.1992. During verification 09 items were found missing and an entry was made in measurement book to that effect. Items no. 11, 12, 13, 14 and 15 were shown as on loan and the measurement book was duly signed by PW3 O.P. Srivastava, PW1 Sahdev Singh and the accused (respondent no. 2). Similarly, items no. 1, 2, 4 and 9 were shown as on loan, according to PW3, PW1 and the accused. 15 additional items were also found during physical verification around about Rs.6,062/-. The missing articles, as entered in the measurement book, were given on loan which clearly shows that either Form 8B was filled by the accused or the material given on loan was given as per the orders of the superiors or in grave exigency. On 05.06.1992, after one month of physical verification, PW1 lodged an FIR against the accused. There was no whisper in the contents of the FIR regarding misappropriation. Ironically, a departmental inquiry was also conducted against PW1 for missing articles. Monetary value of the missing articles was Rs.3,26,064/-. During the course of investigation, the Junior Engineer concerned and other officials, who took the missing articles on loan appropriated the articles of Rs. 2,77,144/- and articles amounting to Rs.48,950/- remained un-appropriated due to the death of Mr. Pandey, Jr. Engineer (defence taken by accused in his statements under Section 313 Cr.P.C.). Monetary value of the missing articles was Rs.3,26,064/-. During the course of investigation, the Junior Engineer concerned and other officials, who took the missing articles on loan appropriated the articles of Rs. 2,77,144/- and articles amounting to Rs.48,950/- remained un-appropriated due to the death of Mr. Pandey, Jr. Engineer (defence taken by accused in his statements under Section 313 Cr.P.C.). PW3, in his cross-examination, has admitted that in special circumstances, the articles were also given by the storekeeper on oral instructions and subsequently, after receiving, indent invoice was made, articles accounted for, were being regularized. He has also admitted that the nine articles which were found less in store during verification were given on loan by the accused which was dully endorsed by PW1 Sahdev Singh, Asstt. Engineer. The I.O. neither deposed during trial, nor the case diary was made available. It is admitted to the parties that the I.O., despite best efforts of the court, did not appear to depose in support of the prosecution story. This fact is admitted to learned Magistrate, who has written so at internal page 21 of the judgment. Whole trial appears to have proceeded on the erroneous assumption that a misappropriation of article amounting to Rs.3,26,064/- was done by the accused. PW2 Girish Kumar Asthana, Sr. Accountant, UPCL, deposed that the invoice of articles amounting to Rs. 2,77,144/- were appropriated by the department and the same amount was decreased from the amount shown on loan. PW1, in his statement, deposed that the verification was conducted on a routine basis and not on any complaint made by any one. Moreover, in his cross-examination PW1 has also admitted that on the instructions from the higher officials, the Store Keeper could give articles to anyone. 3. Precisely speaking, it is a case of shortfall of items in physical verification. The value of missing articles, which were taken on loan, was largely appropriated. Part thereof remained un-appropriated due to death of a Junior Engineer. 4. At the very outset, it may be stated as to what is the law on the point. In brief, such law may be reproduced here-in-below, as has been held by Hon’ble Apex Court in Thankappan Nadar and others vs. Gopala Krishnan and another, (2002) 9 SCC 393 . Paras 6, 7, 8 and 9 of said judgment read as under: “6. In brief, such law may be reproduced here-in-below, as has been held by Hon’ble Apex Court in Thankappan Nadar and others vs. Gopala Krishnan and another, (2002) 9 SCC 393 . Paras 6, 7, 8 and 9 of said judgment read as under: “6. In a revision application filed by the de facto complainant against the acquittal order, the court's jurisdiction under Section 397 read with Section 401 of the Cr.P.C. is limited. The law on the subject is well settled. Instead of referring to various judgments, we would only refer to few decisions rendered by this Court. In Akalu Ahir and Others v. Ramdeo Ram , this Court has (in para 8) observed thus: "This Court however, by way of illustration, indicated the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision: (i) Where the trial court has no jurisdiction to try the case, but has still acquitted the accused; (ii) Where the trial court has wrongly, shut out evidence which the prosecution wished to produce; (iii) Where the appellate court has wrongly held the evidence which was admitted by the trial court to be inadmissible; (iv) Where the material evidence has been overlooked only (either) by the trial court or by the appellate court; and (v) Where the acquittal is based on the compounding of the offence which is invalid under the law. These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of the acquittal." The Court further observed: "No doubt, the appraisal of evidence by the trial judge in the case in hand is not perfect or free from flaw and a court of appeal may well have felt justified in disagreeing with its conclusion, but from this it does not follow that on revision by a private complainant, the High Court is entitled to reappraise the evidence for itself as if it is acting as a court of appeal and then order a retrial. It is unfortunate that a serious offence inspired by rivalry and jealousy in the matter of election to the office of village Mukhia, should go unpunished. It is unfortunate that a serious offence inspired by rivalry and jealousy in the matter of election to the office of village Mukhia, should go unpunished. But that can scarcely be a valid ground for ignoring or for not strictly following the law as enunciated by this Court. (Emphasis added) 7. In our view, the emphasised portion of the aforesaid judgment is applicable in the present case. It is unfortunate that such a serious offence inspired by rivalry in the matter of election should go unpunished. However, that would not be a valid ground for ignoring or for not strictly following the law as enunciated by this Court, which does not empower the court exercising the revisional jurisdiction to re-appreciate the evidence. 8. In Vimal Singh v. Khuman Singh and Another, this Court after considering various decisions, observed as under: "9. Coming to the ambit of power of the High Court under Section 401 of the Code, the High Court in its revisional power does not ordinarily interfere with judgments of acquittal passed by the trial court unless there has been manifest error of law or procedure. The interference with the order of acquittal passed by the trial court is limited only to exceptional cases when it Is found that the order under revision suffers from glaring illegality or has caused miscarriage of justice or when it is found that the trial court has no jurisdiction to try the case or where the trial court has illegally shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue has been overlooked. These are the instances where the High Court would be justified in interfering with the order of acquittal. Sub-section (3) of Section 401 mandates that the High Court shall not convert a finding of acquittal into one of conviction. Thus, the High Court would not be justified in substituting an order of acquittal into one of conviction even if it is convinced that the accused deserves conviction. No doubt, the High Court in exercise of its revisional power can set aside an order of acquittal if it comes within the ambit of exceptional cases enumerated above, but it cannot convert an order of acquittal into an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial." 9. No doubt, the High Court in exercise of its revisional power can set aside an order of acquittal if it comes within the ambit of exceptional cases enumerated above, but it cannot convert an order of acquittal into an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial." 9. Same is the view taken by this Court in Logendra Nath Jha and Others v. Polaital Biswas, AIR 1951 SC 316 ; K. Chinnaswamy Reddy v. State of A.P., AIR 1962 SC 1788 ; Mahendra Pratap Singh v. Sarju Singh, AIR 1968 SC 707 ; Pakalapathi Narayana Gajapathi Raju and Others v. Bonapalli Peda Appadu, (1975) 4 SCC 477 and Ayodhya Dube and others v. Ram Sumer Singh, 1982 SCC (Cri) 471.” 5. There appears to be no procedural illegality or manifest error of law in the order passed by learned Sessions judge. The High Court, in exercise of its revisional jurisdiction, cannot re-appreciate the entire evidence. It is difficult to hold that there is any manifest error of law or procedural illegality in the decision taken by learned Sessions Judge. Re-appreciation of evidence is not permissible, while exercising the revisional jurisdiction, at the instance of the de facto complainant against the order of acquittal. 6. Learned Sessions Judge has appropriately discussed the facts of the case and has also appropriately discussed the evidence on record to overturn the findings given by learned Magistrate while convicting the accused (respondent no. 2 herein). 7. The question is whether this Court should substitute it’s own discretion for the discretion of the lower appellate court (Sessions Judge)? The reply seems to be in the negative, in view of the following observations of Hon’ble Supreme Court in Ashok Kumar vs. State of Rajasthan, (1991) 1 SCC 166 . Para 2 of the aforesaid judgment is reproduced herein-in-below for ready reference: “2. Law is well settled. While caution is the watchword, in appeal against acquittal as the trial Judge has occasion to watch demeanour of witnesses interference should not be made merely because a different conclusion could have been arrived at; the provision does not inhibit (sic) any restriction or limitation. Prudence demands restraint on mere probability or possibility but in perversity or misreading interference is imperative otherwise existence of power shall be rendered meaningless.” 8. Prudence demands restraint on mere probability or possibility but in perversity or misreading interference is imperative otherwise existence of power shall be rendered meaningless.” 8. This Court is unable to take a view contrary to what was taken by learned Sessions Judge. 9. Criminal revision, therefore, fails and is dismissed.