IMPORTANT POINT
A person cannot be charged with both cheating and criminal breach of trust for the same transaction; the prosecution must prove the specific elements of each offence beyond reasonable doubt.

ORDER :

1. Assailing the judgment dated 24.09.2009 in Crl. A. No. 332 of 2008 on the file of the Court of learned Sessions Judge at Guntur, confirming the conviction and sentence passed against the petitioner/accused by the judgment dated 14.10.2008 in C.C. No. 227 of 2003 on the file of the Court of learned Judicial Magistrate of First Class at Vinukonda, for the offences under section 409 and 420 of Indian Penal Code (hereinafter referred to as “IPC”) the petitioner/accused filed the present criminal revision case under Section 397 r/w.401 of the Criminal Procedure Code, 1973.

2. The revision case was admitted on 09.10.2009 and the sentence of imprisonment imposed against the petitioner was suspended, vide orders in Crl. R.C.M.P. No. 2346 of 2009.

3. The shorn of prosecution case is that:

(i) The petitioner being clerk-cum-cashier in State Bank of India at Vinukonda Branch, obtained cash from the customers of Agricultural Market Committee of Vinukonda, Ipur, Government Degree College at Vinukonda and issued challans to them. But he did not enter the same in scroll sheets of the Bank, misappropriated those amounts and destroyed the original challans as well.

(ii) Typist of Agricultural Market Committee of Vinukonda remitted Rs.1,87,584/- through twenty (20) challans into State Bank of India at Vinukonda. Similarly, the Junior Assistant of Agricultural Market Committee of Ipur remitted Rs.39,443/- through ten (10) challans. Government Degree College, Vinukonda remitted Rs.2,226/- by two (2) challans through its Office Subordinate. Petitioner, who was in cash counter as cashier, received the said amounts by issuing challans to them and later on failed to remit the same into the Bank by making necessary entries in the scrolls. While reconciling the payments with STO at Vinukonda, the officials of Agricultural Market Committee of Vinukonda Ipur and Government Degree College came to know that the amounts paid into the Bank were not sent to STO office.

(iii) Based on the report of PW-1 Bank Manager, Vinukonda Police registered a case in Cr. No. 171 of 2002 and investigated into.

4. After completion of investigation, PW-8-S.I. of Police, Vinukonda Police Station filed charge sheet. The same was taken on file and numbered as C.C. No. 227 of 2003 on the file of the Court of learned Judicial Magistrate of First Class at Vinukonda, after full-fledged trial, vide judgment dated 14.10.2008, found the accused guilty of the offences under Section 409 and 420 of IPC, sentenced him to undergo rigorous imprisonment for one (1) year and to pay fine of Rs.1,000/- in-default to suffer simple imprisonment of three (3) months and also sentenced him to undergo rigorous imprisonment of one (1) year and to pay fine of Rs.1,000/-, in-default to suffer simple imprisonment of three (3) months, for the respective offences. All the sentences shall run concurrently.

5. Aggrieved by the same, the petitioner/accused preferred an appeal, vide Crl. A. No. 332 of 2008, before the Court of learned Sessions Judge at Guntur and the same was dismissed, vide judgment dated 24.09.2009, by confirming the conviction and sentence passed by the trial Court.

6. Against the said judgment of the Appellate Court, the present criminal revision case was preferred by the petitioner/accused.

7. Heard learned Senior Counsel Sri Posani Venkateswarlu appearing for Sri Posani Akash, learned counsel for the petitioner/accused and Sri S. Dheera Kanishk, learned Special Assistant Public Prosecutor for the respondent-State.

8. Now the point that arises for determination in this revision is “whether there is any manifest error of law or flagrant miscarriage of justice in the findings recorded by the Trial Court as well first Appellate Court?”

9. Learned Senior Counsel Sri Posani Venkateswarlu appearing for the petitioner/accused submits that the prosecution utterly failed to establish that who among the six cashiers in the Bank, exactly received the cash from PWs. 2 to 4 and issued challans; that the