JUDGMENT : ANANT S. DAVE, J. 1 The appellant – State of Gujarat – original complainant has filed this appeal under Section 377 of the Code of Criminal Procedure, 1973 [for short, `the Code'] for enhancement of sentence against the judgment and order dated 17.09.2004 passed by the Joint Judicial Magistrate, First Class, Patan in Criminal Case No.3584 of 1990 convicting the respondent for the offence punishable under Section 409 of the IPC and sentencing him to undergo 2 months rigorous imprisonment and imposing fine of Rs.1500 in default to further undergo 2 months SI. 2 Before we proceed to record facts of the prosecution, our attention is drawn to the oral order dated 15.06.2006 passed in Criminal Appeal No.1917 of 2004 whereby the appeal preferred under section 378 of the Code for grant of leave to file appeal challenging order of acquittal qua original accused No.2 passed by learned Joint JMFC, Patan arising out of the same Criminal Case No.3584 of 1990, in which, leave was refused as the appeal was bereft of merit and came to be dismissed. 3 The case of the prosecution is that the respondent – original accused No.1 was the Manager, Mid Day Meal, Kumar Primary School, Manpur during the period 1985-86 to 1986-87 and the accused No.2 was the Deputy Mamlatdar, in the office of Mamlatdar, Patan during the said period. The present respondent was paid Rs.900/from the taluka as an advance and he was also given permit No.0810 dated 04.08.1986 under the signature of Smt. L.S.Bhil Kelavani Nirikshan Mid Day Meal Scheme, office of Mamlatdar, Patan for obtaining stock like wheat, rice, dal pamolene oil, etc. during the period 1986-87. The present respondent took the said stock from the fair price shop of one Bachubhai Navak and credited the same in the Central Stock Register. The respondent on 24.08.1986 took such stock valued at about Rs.1740/- from the fair price shop but did not credit the same in the Central Stock Register and thus committed misappropriation by taking stock for the purpose of mid day meal scheme by taking stock like wheat, rice, dal, pamolene oil, etc. Accused No.2 aided and abetted the present respondent in committing the said crime. The complainant gave a complaint in this regard and after due completion of investigation, charge sheet Exh.11 came to be filed before the learned Judicial Magistrate, First Class, Patan. Accused No.2 aided and abetted the present respondent in committing the said crime. The complainant gave a complaint in this regard and after due completion of investigation, charge sheet Exh.11 came to be filed before the learned Judicial Magistrate, First Class, Patan. 4 The learned JMFC examined various prosecution witnesses and documentary evidence, in all 13, and in the context of charge framed under sections 408 and 409 of IPC the evidence was examined. The prosecution succeeded in establishing the offence under Section 409 of IPC to the extent that accused No.1 was given permit on 04.08.1986 for receiving wheat, rise, lentil, pamolene, etc. from the fair price shop so as to use it in mid day meals scheme managed by him at primary school of village Manpur. Having received the permit on 04.08.1986, permit dated 13.08.1986 was also granted to him for which goods were received to which no entry was made in stock register and even no attention of the authority was drawn and even goods so received were not returned and instead of using the same for mid day meal scheme, it was disposed of illegally and thus committed offence under section 409 of the IPC. 5 Learned APP would contend that sentence imposed by the learned Magistrate is inadequate tough case of the prosecution is believed to have been proved for the offence under Section 409 of the IPC. That stock valued at about Rs.1,740/was taken from the fair price shop and was not accounted in the central stock register and misappropriated the goods, which were to be used for mid day meal scheme for providing nutritious food for students of primary school came to be diverted and disposed of by respondent – accused ought not to have been taken leniently. That sentence prescribed for a serious offence like Section 409 of IPC extend to even imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. In the facts of this case not only oral evidence, but documentary record reveal misappropriation by respondent of essential commodities ought to have been viewed seriously and proportionate punishment ought to have been imposed by the learned Judge. 5.1 Learned APP has taken us through the evidence of PW1 complainant, documentary evidence viz. In the facts of this case not only oral evidence, but documentary record reveal misappropriation by respondent of essential commodities ought to have been viewed seriously and proportionate punishment ought to have been imposed by the learned Judge. 5.1 Learned APP has taken us through the evidence of PW1 complainant, documentary evidence viz. Permit Exh.48, stock register Exh.49, second permit Exh.50 and Daily Account Book [Rojmel] Exh.51 and submitted that all the above documents stood proved and on the grounds as above sentence imposed by the learned Magistrate deserves to be enhanced to the maximum extent. 6 Learned counsel for the respondent – accused would contend that conviction recorded under Section 409 of the IPC in the context of proved misappropriation of stock / goods worth Rs.1740/- being temporary and first time instance for which RI of 2 months with fine of Rs.1500 imposed by the learned Magistrate needs no interference and, therefore, appeal filed for enhancement of sentence deserves to be dismissed. 7 Having heard learned APP for the appellant – State of Gujarat and learned counsel for the respondent – accused and on perusal of the record of the case, including judgment and order under challenge, no doubt offence under Section 409 of the IPC is proved beyond reasonable doubt by prosecution, but at the same time, imposition of sentence regarding conviction and sentence qua respondent – accused No.1 is to be viewed in the context of accused No.1 being the administrator / manager of mid day meal scheme and that stock worth Rs.1740 was taken upon receiving second permit duly issued by the competent authority. The explanation rendered by respondent No.1 and further failure to establish any case under Section 114 of the IPC against the accused – convict and pancha witnesses including complainant PW1 turning hostile the negligence on the part of the respondent for not recording entry in the stock register in the context of definition that ingredients of Section 409 of IPC about misappropriation is properly considered by the learned Magistrate. Failure to establish meeting of mind, common intention and the nature of administrative error and negligence together for which the respondent is convicted under section 409 of the IPC. Failure to establish meeting of mind, common intention and the nature of administrative error and negligence together for which the respondent is convicted under section 409 of the IPC. Considering the peculiar facts and circumstances of the case and that order dated 15.06.2006 passed in Criminal Appeal No.1917 of 2004 whereby the appeal preferred under section 378 of the Code for grant of leave to file appeal challenging order of acquittal qua original accused No.2 came to be dismissed, we find no merit in this appeal for enhancement of sentence filed by the State of Gujarat and in absence of any merit, this appeal is dismissed. 8 That record produced before us does not reveal whether respondent – accused herein has challenged his conviction before the court having jurisdiction to entertain appeal against conviction and if such appeal is preferred against conviction by respondent challenging his conviction, the outcome thereof shall not be disturbed in any manner in view of dismissal of this appeal of enhancement filed by the State of Gujarat. R & P be sent back to the trial court forthwith.