Judgment

CHANDRACHUD, J. :- The appellant who was accused No.3 in the court of the learned Judicial Magistrate, 1st Class, Buldana, was tried along with two others under S.408 of the Penal Code on the charge that he committed breach of trust in respect of a sum of Rs.7,000/-. The learned Magistrate convicted all the three accused and sentenced the appellant to rigorous imprisonment for six months. The learned Sessions Judge, Buldana, in appeal, acquitted accused No.1 but maintained the conviction and sentence of the appellant and of accused No.2. That order having been confirmed by the High Court, Bombay, Nagpur Bench, accused No.3 has brought this appeal by special leave.

2. The three accused were employees of the Chikhli Taluka Sahakari Shetki Kharedi Vikri Samiti Ltd., Chikhli. The Samiti had its head office at Chikhli and a branch office at Buldana. Accused No.1 was working as an accounts clerk at the Buldana branch, accused No.2 was an accounts clerk usually stationed at Chikhli while the appellant, being the Manager, used to look after the work of both the head office and the branch office, the distance between the two being about 15 miles.

3. The Samiti used to receive large amounts in its Buldana branch office and those amounts used to be carried to the head office by some employee or the other. In the daily cash book maintained at Buldana, debit entries used to be made showing the amount despatched to the head office and mentioning the name of the person through whom the amount was sent. Normally, the head office would send the receipt to the branch office the next day and then the branch office would number such receipts serially. It is in the course of these transactions that seven thousand rupees are alleged to have been entrusted to the appellant on November 10, 1965 and nine thousand five hundred rupees on November 11. The allegation is that the appellant credited the sum of Rs.9,500/- in the books of the head office but misappropriated the sum of Rs.7,000/-.

4. The High Court has scrutinised the evidence at some length and normally we would be loath to interfere with the concurrent findings recorded by the trial court, the Sessions Court and the High Court. But there are a few circumstances which, in our opinion, render it highly unsafe to accept the case of the prosecution. Those circumstances have a material bearing on the guilt of the appellant and due importance would appear not to have been attached to them by the learned Judges who, at one stage or the other have dealt with the matter.

5. The High Court has rightly observed that there is no direct evidence of entrustment to the appellant. We have gone through the record in order to find whether there is any indirect evidence of entrustment but we see none. All that the prosecution did was to produce the books of account of the Chikhli head office and of the Buldana branch. There is a debit entry in the books of the Buldana branch showing that a sum of Rs.7,000/- was given to the appellant on November 10, 1965 for being taken to the head office but the mere entry, unsupported by any oral evidence cannot prove entrustment. Section 34 of the Evidence Act says that entries in books of account, regularly kept in the course of business are relevant but such statements shall not alone be sufficient evidence to charge any person with liability. The prosecution did not examine anyone even to show that the books of account were regularly kept in the course of business nor indeed was any attempt made to lead evidence apart from the production of books of account to prove the entrustment of the amount to the appellant.

6. The defence of the appellant is that a sum of Rs.7,000/- was given to him on the afternoon of November 10, 1965 and that a further sum of Rs.2,500/- was given to him the same evening. These two amounts, tied in two separate bundles, were taken by him to Chikhli and he handed over the two bundles to Haribhau Mahajan who was working as an accountant at the