JUDGMENT : DEEPAK ROSHAN, J. 1. Heard learned counsel for the parties. 2. The instant revision application is directed against the judgment dated 17.09.2015, passed by learned Sessions Judge, Dhanbad, whereby the Cr. Appeal No. 206 of 2012, preferred by the petitioner has been dismissed and the judgment of conviction and order of sentence dated 30.05.2012 in G.R. No. 4077 of 2005, corresponding to T.R. No. 474 of 2012, passed by the learned Judicial Magistrate 1st Class, Dhanbad, whereby the petitioner was convicted and sentenced to undergo simple imprisonment for six months and Rs.5,000/- under Section 406 of the Indian Penal Code, and in default of payment of fine, he will further to undergo SI for one month, has been affirmed. 3. The prosecution case in brief is based upon the typed copy of written report of the informant-Dilip Kumar Gupta, Branch Manager, Bank of India, Rajganj Branch, inter alia, alleging, in brief, is that accused Ashish Kumar Khawas was sanctioned a cash credit loan of Rs.4.90 lacs on the guarantee of Thakur Prasad Mahato, guarantor. The said loan was sanctioned on 12.04.2005 for running a grocery shop in the name and style of “Maa Jagdamba Bhandar.” Accused Ashish Kumar Khawas withdrew cash of Rs.1.00 lac from the Bank out of sanctioned loan of Rs.4.90 lacs with information to the bank authority, but neither opened the shop nor was available at Rajganj and, therefore, misappropriated the money withdrawn from the Bank. After investigation, police submitted chargesheet and cognizance has been taken against the offences; for which the petitioner pleaded not guilty and claimed to be tried. After trial, the petitioner was found guilty for the offence and he was convicted and his appeal was also rejected by the learned appellate court. 4. Learned counsel for the petitioner submits that the defense of the petitioner was total denial of alleged occurrence and he claimed to be innocent and has been falsely implicated by the informant. After trial, the petitioner was found guilty for the offence and he was convicted and his appeal was also rejected by the learned appellate court. 4. Learned counsel for the petitioner submits that the defense of the petitioner was total denial of alleged occurrence and he claimed to be innocent and has been falsely implicated by the informant. Further defense of the petitioner is that no criminal case is maintainable against him since as per the terms and conditions of the agreement the property was mortgaged in favour of the bank for loan account and the ownership of hypothecated property belongs to the informant-Bank as floating charge made on goods by way of security to cover up credit facility and in such case for disposing of the goods covering the security against credit facility the offence of criminal breach of trust is not attracted. He further submits that in order to prove its case, the prosecution has examined altogether four witnesses. PW-1 has not supported the case of the prosecution, as he has stated nothing more important in respect of the case as also regarding payment of Rs. One lakh from his counter to the borrower against the said loan through cheque. PW-2 is hearsay witness and he has minutely inspected the matter before lodging the FIR. PW-3 in his evidence has stated nothing more important. There is no evidence on record to show that the Bank has filed a certificate case against the petitioner. He contended that the impugned judgment suffers from error of law as also incorrect appreciation of evidence adduced by the prosecution. The findings recorded by the courts below are perverse. 5. Learned counsel for the State supported the judgment and submits that there is no error in the findings given by the Courts below; as such, the conviction cannot be set aside. 6. Having heard learned counsel for the parties and after going through the impugned judgments including the lower court records, the learned courts below have failed to consider that none of the prosecution witnesses have been able to prove the charge against the petitioner beyond shadow of all reasonable doubts. The courts below have failed to appreciate that in view of hypothecation of goods made by the petitioner by agreement with the bank, no case under Section 406 of the IPC is made out. The courts below have failed to appreciate that in view of hypothecation of goods made by the petitioner by agreement with the bank, no case under Section 406 of the IPC is made out. Learned courts below have further failed to consider the exhibited documents of the prosecution, and last but not the least, the deposition of PW-4, who is Investigating Officer of the case, who in his evidence admitted that due to unsocial elements the petitioner had shifted his shop from Rajganj to Kalapathar More where the petitioner had been running his shop in the name and style of Maa Jagdamba. As the case is of civil in nature; at best the matter could be resolved under Public Demand Recovery Act. 7. Hence, this court is of the view that the impugned judgment suffers from error of law as also incorrect appreciation of evidence adduced by the prosecution. The findings recorded by the courts below are perverse. The learned courts below have approached the case from a wrong angle of vision and thus came to an erroneous conclusion. In view of the cumulative facts and circumstances of the case, the impugned judgments are fit to be set aside and the instant revision application is fit to be allowed as the impugned judgment passed by the courts below are neither sustainable in law nor on facts and the same are liable to set aside 8. As a result, the instant criminal revision application stands allowed and the judgment of conviction and order of sentence dated 30.05.2012, passed by the learned Judicial Magistrate 1st Class, Dhanbad and the judgment dated 17.09.2015, passed by learned Sessions Judge, Dhanbad, are hereby, quashed and set aside. 9. The petitioner shall be discharged from the liability of his bail bond. 10. Let the copy of this order be sent to the court concerned forthwith.