M.L. Shrimal, J.
1. The prosecution story in a nutshell is that the petitioner was Sarpanch of the Gram Panchayat, Balrai from the year 1961 to 6.1.1965. During the tenure of his office, lime and step-stones valuing Rs. 123.60 paisa were purchased by the Panchayat on credit from the shop of Khemraj Chunnilal. It is alleged that on May 25, 1964 the petitioner withdrew an amount of Rs. 123.60 paisa to be paid to the firm Khemraj Chunnilal but the amount was cot paid Shri Achal Chand (PW. 1) was elected Sarpanch of the Gram Panchayat, Balrai in the month of January 1965. He tock charge on January 7, 1965 and On April 19, 1968, filed a complaint Ex P5 in the Court of Munsiff Magistrate, Pali stating therein that the petitioner committed criminal breach of trust regarding an amount of Rs. 123.60 paisa by not making payment of the said amount to Khemraj Chunnilal. The learned Magistrate sent the complaint for inquiry under Section 156(3), Cr.P.C. to the Police Station, Guda Endla. The Police after usual investigation, submitted challan against the accused petitioner in the Court of Munsiff-Magistrate, Pali. The accused pleaded not guilty to the charge. The prosecution examined five witnesses in support of their case. The accused in his statement under Section 342, Cr.P.C, admitted the receipt of amount of Rs. 123 60 paisa from the Panchayat Office but his plea was that the said amount was sent by him to Khemraj Chunnilal through DW. 1 Raghunath. As the owner of the shop claimed interest on the amount due, as such, this amount could not be delivered to him by Raghunath Thereafter, Raghunath went to Abmedabad and so be could not deposit the amount. This amount was debited to my (accused's) account by Khemraj Chunnilal and the same was credited to the account of the Panchayat. In support of his plea, he examined DW. 1 Ragnunath in his defence. The learned Magistrate placing reliance on the statement of the prosecution witnesses held the accused guilty of the offence punishable under Section 409 of the Indian Penal Code, and sentenced him to two years simple imprisonment and a fine of Rs. 200/-; in default of payment of which to further suffer simple imprisonment for a period of six months. The aggrieved accused petitioner challenged the verdict of the trial court before the learned Sessions Judge, Pali, who partly accepted the appeal, maintained the conviction of the accused-petitioner under Section 409, IPC, but reduced the sentence of imprisonment to already undergone by the petitioner. However, the sentence of fine imposed by the trial court was maintained. Hence this revision petition
2. the learned Counsel for the petitioner has referred to the plea of the accused before the trial court, which was that he had made payment of the amount of Rs. 123.60 paisa to the concerned firm much prior to the institution of the complaint and this complaint was filed by Shri Achal Chand in order to harass the accused petitioner because Achalchand was being prosecuted for committing the murder of his nephew. The learned Counsel has taken me through the statements of the prosecution witnesses. PW 3 Khinvraj stated that lime and step-stones were supplied by him to the Panchayat, Bairai and a bill for an amount of Rs. 123.60 paisa was sent for payment to the Panchayat, Rugharam accused asked him to make a credit entry in favour of the Panchayat of this amount and on his instructions the amount was credited to the account of the Panchayat and the same was debited to the account of the accused-petitioner and thereafter nothing remained due against the Panchayat, the witness stated that the entry to this effect was made in his 'Rokar' at page No. 1 of Ex. P8 The witness further goes on to state that Achalcband came to him and asked him to send his Munfm to the Panchayat to receive the amount of the bill Ex. P1 as the accused had deposited Rs. 300/s or Rs. 400/- in the Panchayat for being paid to the concern of the witness, On this request, be sent his Munim to the Panchayat but the amount was not paid. This witness in his cross-examination admitted that a man Bent by the accused petitioner had come to his shop for making the payment of the original amount of his bill Ex. P. 1 but his Munim did rot accept the account as the person who wanted to make payment, was not ready to pay the interest. Thereafter, Rugharam accused asked the witness to debit that amount to him and credit the same in the account of the Panchayat. The amount which was recoverable from the Panchayat was transferred to the account of Rugharam. He further admitted that no amount was due against the Panchayat. If Achalchand (PW. 1) would not have made false representation to bim, he would not have sent his Munim to receive the amount horn the Panchayat. To the same effect is the statement of PW 4 Sayarchand. He stated that Rugharam told him to credit the amount of bill Ex. P1 to the account of the Panchayat and debit the same to his account. The statements of these witnessed stand corroborated by the statement of DW. 1 Ragbunath. Thus there is total lock of evidence that the accused had the intention of wrongfully keeping the Panchayat cut of the money received by him.
3. There is a peroration of innocence in favour of the accused-petitioner and the preemption hat not been rebutted. It has not been proved that the petitioner bad soy intention of confusing a wrongful gain to himself or wrongful loss to the Panchayat. Getting the amount debited to his own account end making payment on behalf of the Panchayat to its credit or by cross entries does not show any dishonest intention. Besides this, it has also come in the prosecution evidence that an amount of Rs. 360/- was lying to the credit of the accused petitioner with the Panchayat. It does not stand to reason what made PW. 1 Achalchand to make an enquiry regarding nonpayment of the amount after the expiry of three years of his becoming Sarpanch. The prosecution has thus failed to bring home the guilt to the accrued petitioner beyond reasonable doubt. I extend benefit of doubt to the accused-petitioner.
4. I, therefore, allow the revision petition and set aside the conviction and sentence awarded by the two courts below the accused-petitioner is on bail. He reed not to tender to his bail bonds. Fine, if paid, shall be refunded to the accused petitioner.