S.W. Puranik, J.
1. This criminal revision is directed against the concurrent findings of Judicial Magistrate, First Class, Malkapur, and Sessions Judge, Buldana whereby the applicant was convicted of the offence under section 408 Indian Penal Code and sentenced to suffer R.I. for 3 years and a fine of Rs. 5,000/- in defaulter further rigorous imprisonment for six months.
2. The prosecution case alleged that the applicant was working as Manager in a registered Co-operative Society run under the name and style Dharangaon Multipurpose Co-operative Society at village Dharangaon, taluka Malkapur district, Buldana. The applicant was working as its Manager in the year 1969. One Bhagwan Nemade (P.W. 1) was the Special Auditor of Co-operative Societies and he had conducted the audit of the same Society for the period 1-1-1969 to 31-12-1969. In the said audit he found that on 14-1-1969 a sum of Rs. 350/- was paid as temporary advance to one Waman Hari as per the account books and a sum of Rs. 1056/- was paid on 22-1-1969 to Waman Tukaram as temporary advance. He, however, did not find corresponding receipts from these two persons on record. He also did not find the detailed addresses of these two persons. The Special Auditor also noticed that on 23-7-1969 a sum of Rs. 882.14 was recovered from one Ninoo Pachpande and on 17-8-1969 a sum of Rs. 110.83 was recovered from one Vishnu, but the said account books of the Society did not show these entries. Lastly, the said Auditor also found that on 30-6-1969 a sum of Rs. 20/- was paid in excess of the amount due to the party while on 29-4-1969 a sum of Rs. 25,000/- has been shown as paid to one Chandak (P.W. 4). On enquiry from the office of the Society, he learnt that no receipt has been obtained from the said Chandak for the payment of Rs. 25,000/-. He also found that there was no corresponding credit entry in the account book of the said Chandak for 29-4-1969. From the above discrepancies in his audit, he came to the conclusion that there has been misappropriation of the amounts belonging to the Society by the application Madhukar. He, therefore, called for his explanation and submitted a report to his superiors. After necessary sanction a report was made to the Police Station who conducted the investigation and put up a charge-sheet against the applicant for offences punishable under section 408 Indian Penal Code.
3. An over all charge for the total amount of Rs. 27,418.60 was framed against he applicant alleging that he had committed criminal breach of trust in the receipt of the said amount in his capacity as a servant of the Dharangaon Multipurpose Co-operative Society. The appellant denied the charge and claimed to be tried.
4. The prosecution examined as many as 16 witnesses in support of its case. The main witness for the prosecution is Bhagwan Nemade (P.W. 1) the District Special Auditor of Co-operative Societies, Buldana. He deposed that in the course of his duties, he had audited the accounts of the Dharangaon Co-operative Society for the period 1-1-1969 to 31-12-1969 and that the applicant accused Madhukar was the Manager of the said Society during the said period. He than goes on to narrate the various discrepancies which he noticed from the account books and the receipts. They need not be repeated here as they have been stated in the narration of the prosecution case above. He then states that he called for the explanation from the applicant. He also reported the matter to the police. He also submitted his audit report to his superiors. In paragraph 4 he also refers to the cotton pool cash book at Article 2 and another cash book at Article 4. However, he admits that he was not personally present when the said account books were seized. He admits in cross-examination that there are bye-laws made effective for the said Society which would show the duties and responsibilities of individual officers. He also admits that on Murlidhar Borke and Karanjkar were clerks and accountants of the said Society at the material time. But he had not made any enquiries from both of them. He accepts that he did not question he said Borke and Karanjkar as they had no concern with the cash amount. Admittedly, the bye-laws of the Society are not produced on record. It is also pertinent to note that the cash books which were audited by the witness P.W. 1 even though produced in the Court were not got proved through concerned persons. It is for this reason that the account books are only marked as articles and are not exhibited.
5. It was the case of the prosecution that the two accounts of Rs. 350/- and Rs. 1056/- paid as advance to Waman Hari and Waman Tukaram were to fictitious persons and that no such persons by name of Waman Hari and Waman Tukaram existed. For this averment the prosecution has examined P.Ws. 8, 9, 10, 11, 12, 14 and 16 who are the Police Patils of the surrounding villages near Dharangaon. These Police Patils have made oral statements before the Court that in their respective villages, there is no such person by the name of Waman Hari Patil or Waman Tukaram Patil. The said witnesses have not relied on an electoral list or tax assessment list or birth and death register of the respective villages. The prosecution expects the Court to accept their verbal testimony in this regard.
6. The other two transactions relate to recoveries of Rs. 882/- and Rs. 110/- effected from one Ninu Pachpande (P.W. 2) and Vishnu Patil (P.W. 3) . These two witnesses state that having paid the respective sums, they were issued receipts Ex. 24-A and Ex. 26 in their favour. However, to show that the said amounts were not credited in the account of the society to infer misappropriation by the applicant, the prosecution ought to have proved the account books in which the said corresponding entries are not effected. The prosecutions has not examined the cashier or accountant who was incharge of writing the account books. The handwriting in the account book has not been got identified and as such even though two cash books were produced before the Court they remain unexhibited. In the absence of the said material evidence, it is difficult to believe that the amounts recovered from these two witnesses (P.W. 2 and P.W. 3) were not in fact credited to the account of the Society.
7. Amongst the several amounts allegedly misappropriated by the applicant in this trial, the main amount is Rs. 25,000/- allegedly paid on behalf of the Society to one Chandak on 29-4-1969. It is the prosecution case that the cash book show a debit entry of Rs. 25,000/- in favour of Chandak, but there is no corresponding receipt of the said amount secured from the said Shri Chandak by the Society. The said Chandak has been examined as P.W. 4 in this case. Unfortunately, for the prosecution he did not support the prosecution case. On the other hand he stated that he has no knowledge about the accounts of his firm and he is also not aware whether any amount of Rs. 25,000/- was received by his firm on 29-4-1969 or not. He was, therefore, cross-examined by the Public Prosecutor. In his cross-examination also he stated that he has no idea as to whether any such amount was received by his firm on the relevant date or not. Finally he was shown the account book of his firm and he stated that on looking at the said account of the date 29-4-1969 that no such credit entry appears. However, the prosecution has not taken pains to further prove that the said amount was also not credited in his account books any day after 29-4-1969. The accused has given his explanation to the Auditor that the said amount was handed over in cash to Murlidhar Borke and Karanjkar for returning it to Ramesh Kumar Chandak. He, therefore, had implicit faith upon them and directed the debit entry to be made. In the absence of any proof of the cash book concerned and in the absence of any positive evidence coming forth from the said Chankar (P.W. 4), it would not be possible to reject the explanation of the accused a improbable. In this case, the applicant has entered the witness box as P.W. 1 in his own defence. He has narrated the circumstances under which the said transaction had taken place. The trial Court had also taken pains to question the applicant in regard to this transaction. However, it is seen that the applicant reiterated his contention that the amount was in fact handed over to Chandak and hence the corresponding debit entry appearing in the cash book of the Society.
8. In a charge of criminal breach of trust by an employee, the burden is on the prosecution to establish not only the entrustment of the amount or the dominion of the applicant over the amount, but the further fact that the applicant has misappropriated dishonestly the said amount. Apart from the oral testimony of the Auditor and the several witnesses examined to show the nature of the transaction, we find that the account book on the basis of which the inference of misappropriation is sought to be drawn has not been proved and exhibited. In view of this material infirmity, the charge of breach of trust cannot be said to have been brought home to the accused. I have, therefore, no hesitation to interfere with the concurrent findings of conviction and to order acquittal of the applicant. Hence the following order.
9. Criminal Revision Application No. 27/81 is allowed. The conviction and sentences imposed against the applicant for the offences under section 408 Indian Penal Code is quashed and set aside. His bail bonds shall stands discharged. He shall be set at liberty forthwith if not otherwise required. Fine if paid be refunded.