V.B. Raju, J.
1. The appellant, who was original Accused No. 1 in Sessions Case No. 37 of 1964 was convicted under Sections 409 and 477A of the Penal Code. The prosecution case was that he was the Secretary of the Kotarpur Gram Panchayat. The charge is that he and Accused No. 2, who was the Bar Panch of the said Gram Panchayat were entrusted with the work of maintaining accounts and receiving, collecting and disbursing the amount of the said Gram Pan-chayat. The charge further proceeds to say that there was a common intention to misappropriate the amount received by the accused. The charge further proceeds to say that a criminal breach of trust was committed in respect of Rs. 610.75 Paise. The charge does not say that there are four items making up Bs. 610.75 Paise. Nor does the charge mention to which of the accused and by whom moneys were entrusted. Such a charge would be entirely unsatisfactory. The charge does not say that there was a joint entrustment of the amount in question. When there is no charge of joint entrustment, the charge of criminal misappropriation of the money en. trusted in furtherance of common intention to misappropriate cannot be sustained. Section 34 can be applied only when a criminal act is done by several persons, either individually or constructively, A criminal act can he said to have been done by several persons, although actually it was performed by one person. But criminal misappropriation of property entrusted is not such a criminal act which can be done by several persona in the absence of evidence to prove joint entrust-ment. Abetment is not always a joint act. In certain cases, abetment may amount to a joint act, if there is presence of both the accused at the time the act is committed by one of them. If the property is entrusted to one person, there cannot be misappropriation by several persons. The charge in this case is not one of joint en. trustment. There cannot therefore be a charge of misappropriation of property entrusted in furtherance of common intention.
2. Now, although the charge does not mention that there were four items, the offence discloses that there were four items. One is in respect of Rs. 500. This amount was withdrawn as a result of a voucher signed by Accused No. 2 alone by signing a voucher. Accused No. 2 authorised the Bank to pay that amount to the person named in that voucher. The money may have been actually received from the Bank by Accused No. 1. But the responsibility of withdrawing the money from the Bank of the Gram Panchayat rests upon Accused No. 2. It cannot be said that the money was entrusted by the Gram Panchayat to Accused No. 1, even if Accused No. 3 may have entrusted the same to Accused No. 1. Accused No. 1 cannot, therefore, be convicted of criminal breach of trust of the Gram Panchayat Funds in respect of this item.
3. Regarding the item of Rs. 60, the lower Court has held it not proved. Regarding the amount of Rs. 48.75 Paise, being house tax, said to have been paid by Shivkumar, Shivkumar says in his evidence that he paid the house-tax amount to Accused No. 2. There is, therefore, no entrustment of this money to Accused No. 1. Regarding the payment of house tax, Babulal Ambaram in his evidence has stated that he went to the Panchayat office to make payment. Both the accused were present. He offered the amount to Accused No. 2, when he asked the witness to pay it to Accused No. 1. The receipt was actually given by Accused No. 2. As the receipt is signed by Accused No. 2, he is responsible for the amount and he must, therefore, be said to have been entrusted with the amount. The Accused No. 1 cannot, therefore be convicted for that amount.
4. Regarding the item of Rs. 2 said to have been paid as fine in respect of cattle pound, the receipt is in the signature of accused No. l. The learned Sessions Judge does not say that he has seen the account books and he does not find the entry of Rs. 2/- in the account books. It is not open to an auditor to give evidence, because the documents are to be inspected by the Court as mentioned in Section 62 of the Evidence Act, which says that primary evidence means the document itself produced for the inspection of the Court, Secondary evidence of the contents of a document can be given by a person who has examined the documents as stated in Clause(g) of Section 65 of the Evidence Act. Clause (g) of Section 65 of the Evidence Act reads as under:
66. Secondary evidence may be given of the existence, condition or contents of a document in the following cases:.
(g) When the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
In such a case evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents. It is only in such a case that a person other than the Court can examine the document and give evidence as to the contents of the document. In any case, there is no evidence that there is an entry in the account books of the Gram Panchayat in respect of the amount. It may be that the total amount of fine in respect of the cattle pound is credited to the Gram Panchayat on any day and not in separate items.
5. As observed by the Allahabad High Court in Banwarilal v. The State : AIR1956All341 ,
For the application of Section 34 a criminal act must have been done by both the accused; if they merely entered into a conspiracy and one of them stole ghee, the other would not be guilty by virtue of Section 34.
Moreover, as observed by the Supreme Court of India in Krishna v. State of Maharashtra : 1SCR678 , where common intention is alleged on the part of two accused and one is acquitted, the other cannot be convicted under Section 34 of the Indian Penal Code.
6. For all these reasons, the case against the appellant in respect of the offence under Section 409 of the Indian Penal Code is not proved beyond reasonable doubt. The conviction and sentence under that section must, therefore, be set aside.
7. As regards the charge under s 477.A of the Indian Penal Code, against the appellant, there is no evidence to show that the item of us. 2/- must be entered in the account books of the Gram Panchayat. Mere omission to make such an entry would not therefore amount to an offence under Section 477-A of the Indian Penal Code. The conviction and sentence under this section must also be set aside.
8. In the result, the appeal is allowed and the convictions and sentences of the appellant under Sections 409 and 477A161 of the Indian Penal Code are set aside.