1. Heard learned respective Counsel for the parties.

2. The present appeal has been preferred by the appellant (original complainant), challenging the judgment and order of acquittal dated 29th February 2000, rendered by the learned Judicial Magistrate (First Class), Pachora, in Regular Criminal Case No. 133 of 1991, thereby acquitting the respondent no.1 (original accused) for the offence punishable under Section 408 of Indian Penal Code.

3. The appellant no.1 and respondent no.1 are referred to as per their original status i.e. complainant and accused, respectively.

4. Briefly stated, the facts of the case are that the complainant is Accountant of the firm carrying on business under the name and style, Bajoriya Oil Refinary, Pachora; whereas the accused was working as Cashier in the said firm for about 6 – 7 years till 1-9-1991. There were two other sister firms, namely, Adarsha Engineering and Oil Millers, and Bajoriya Fats and Proteins. The accused used to maintain accounts of aforesaid all three sister concerns, and also used to disburse salary to the workers. In the said context, the accused was entrusted with the amounts from time to time in connection with business of the said firms and during his tenure, he gained confidence of the complainant by his conduct. Hence, relying upon the accused, the complainant also entrusted with him the amounts from time to time. However, it is alleged that the accused dishonestly misappropriated amount of Rs. 1,25,000/-and left the service on 1-9-1991.

5. It is also alleged that the complainant came to know about alleged defalcation of the amount when the accused was called upon to submit account on or before 13th February 1991, but the accused failed to comply with the same. It is the case of the complainant, that on 22nd February 1991, accused voluntarily made confession in writing and admitted his guilt, and further assured the complainant to repay the whole amount on or before 1-8-1991, and requested the complainant not to take severe action against him. However, the accused failed to repay the said amount inspite of written assurance. Hence, the complainant was constrained to file complaint against the accused, before the learned Judicial Magistrate (First Class), Pachora, on 12-11-1991, under Section 408 and 420 of Indian Penal Code, since according to the complainant, the accused had swallowed the amount and utilized the same for his own purpose. Accordingly, process came to be issued against the accused under section 420 and 408 of Indian Penal Code on 10-12-1991. The accused appeared in the said proceeding and evidence before the charge was recorded, and finding sufficient evidence to frame the charge against the accused, learned Judicial Magistrate (F.C.), Pachora, passed order on 1-11-1999, for framing charge against the accused. Accordingly, charge came to be framed against the accused on 5-11-1999, under Exhibit 44, for the offence punishable under 408 of Indian Penal Code. The accused pleaded not guilty to the charge framed against him and claimed to be tried.

6. To substantiate the charge levelled against the accused, the complainant examined as many as two witnesses, as mentioned below:

(1) PW 1 Raghunath s/o. Chondu Wani i.e. complainant -Accounts Manager in Bajoriya Oil Refinery, and

(2) PW 2 Bhavanishankar s/o. Babulal Bajoria -Partner of Bajoriya Oil Refinary.

7. The defence raised by the accused is that the confessional statement was got written from him under the duress and threat, and under the pressure of initiation of Police action against him, and the complainant has made scapegoat of the accused in order to suppress the illegal transaction, and accordingly, the accused claimed to be innocent and prayed for acquittal. However, the accused neither examined himself nor examined any defence witness in support of his defence.

8. Considering the oral and documentary evidence on record, and after scrutinizing the same, learned Judicial Magistrate (F.C.),