IMPORTANT POINT
In order to bring case u/s. 409 I.P.C. it is necessary to show that property was entrusted to a public servant and that he accepted property entrusted, being in his public capacity required or authorised to accept it.

JUDGMENT

A. Pasayat, J. - Petitioner (also referred to as the 'accused') questions his conviction for an offence punishable under Section 409 of the Indian Penal Code, 1860 (in short, 'I.P.C.') and sentence of two years rigorous imprisonment and to pay a fine of Rs.6,500/-, in default to undergo one year rigorous imprisonment, as awarded by learned Additional Chief Judicial Magistrate, Bhubaneswar and confirmed in appeal by the learned Additional Sessions Judge, Bhubaneswar.

2. In a nutshell, the prosecution case is as follows:-

Accused was an employee in office of Executive Engineer, National Highway Division, Bhubaneswar. On 24.3.1977, he was working as Treasury Sarker. Sri G.T. Rao, the then Executive Engineer (P.W. 4) entrusted him with two bearer cheques, one for Rs.1284.10, and the other for Rs.10,000/- for encashment. Petitioner went to the State Bank of India; Bhubaneswar for encashment of the cheques and also took the office cycle. He did not return till late afternoon, but another Peon Puma Ch. Pradhan came to the office with office cycle with a letter from accused addressed to the cashier stating that he was not able to come as his father had met with an accident, and he would deposit cash on the next day. He did not think it wise to send money through Puma. After handing over the chit, Puma immediately left the office. So P.W.4 sent the Cashier (P.W. 6) along with some other members of office staff to the house of accused to call him. In presence of the Divisional Accountant (P.W. 2), Cashier and other accused opened the cash bag wherein Rs.5,084.10 was found instead of Rs.11,284.10. Accused gave out that the balance was stolen away while he was going to the market. It was noticed that there was a small cut in the cash bag, which did not probabilies plea of the accused. Accused was thoroughly interrogated, and he changed his version by saying that he along with Puma Chandra Pradhan went to the residence of Puma, where an unknown person told that money would be doubled by chemical process. Accused gave Rs.6200/- to Puma who handed over the same to the unknown person, who put the money under two glasses, and covered it with cloth. He told that after two to three hours, money would be doubled. Subsequently, instead of money some cash was found in the glasses. Accused was asked to give a written statement of what he wanted to say, and he voluntarily gave a written statement. Puma also gave another statement. Thereafter, P.W. 124 lodged report at Sahidnagar P.S., the matter was investigated into, two cheques were seized from the Deputy Accountant General Office, Puri, cash of Rs.5034.10, letters of accused and Puma and treasury remittance book were seized. After completion of investigation, charge-sheet was submitted and accused faced trial. He pleaded his innocence. His stand was that there was no entrustment of cheques and that on account of enmity, Executive Engineer had foisted a false case against him.

3. In order to further its case, eight witnesses were examined by prosecution. As noted earlier, P.W. 2 is the Divisional Account of National Highway Division, Bhubaneswar, P.W. 3 is the Head Clerk, P.W. 4 is the Executive Engineer, P.W. 5 is the S.D.O., National Highway Sub Division, Tangi, P. W. 6 is D.D. Clerk and P.W. 1 is an employee of Deputy A.G. Office, Puri who produced cheques and P.W. 7 and 8 are Investigating Officers. One witness was examined by the accused in support of his plea of innocence. Learned A.C.J.M. on evaluation of evidence, found accused guilty and convicted and sentenced him as aforesaid. Appeal did not bring any relief.

4. Mr. S.P. Sarangi, learned Counsel for petitioner urged that in order to constitute an offence under Section 409 of the Indian Penal Code entrustment is the sine qua non. According to him, evidence is discrepant so far as entrustment of cheque is concerned. Additionally, many relevant records like bank statement, cheque issue register, cheque book and cash book which wou