( 1 ) THIS appeal under Sec. 378 of the Code of Criminal procedure, 1973 is directed against the judgment and order of acquittal dated May 31, 1988, rendered in Criminal Case No. 402 of 1987 whereby the learned Chief judicial Magistrate, Amreli acquitted the respondent-accused for the offence under secs. 406, 409 and 420 of Indian Penal Code.

( 2 ) THE respondent-accused was the Nazir in the Court of Civil Judge (Senior division) at Amreli, at the relevant time. He made an application to covert his earned Leave for 30 days, and accordingly, the bill was prepared for payment of rs. 1,247-90. Accordingly, the respondent was paid the said amount for surrendering his leave for 30 days for the period from January 17, 1985 to February 15, 1985. Mr. M. P. Bhatt, Assistant Judge, Amreli by his order dated January 19, 1985 at exh. 15 sanctioned the said amount of bill for the year 1985. It is not in dispute that vide bill, Exh. 17, the respondent was paid Rs. 1,247-90 for his Earned Leave being converted for the year 1985. The respondent by his application dated August 1, 1986, at Exh. 26, again applied to convert his Earned Leave for the period from august 1, 1986 to August 30, 1986, for 30 days for cash amount. By order dated august 2, 1986, at Exh. 27, the said conversion of leave for cash payment was sanctioned and accordingly, the bill Exh. 28 was prepared. Consequently, the respondent was paid Rs. 1,490-40 for the Earned Leave for the aforesaid period from August 1, 1986 to August 30, 1986 by cash payment. According to the rules, for a block of two years, an employee was entitled for cash payment against his converted leave for 30 days for each block. Since the respondent has obtained cash payment for his converted leave for the year 1985, he was not entitled for such second conversion in 1986. However, he made the application Exh. 26 for the year 1986 to convert his leave for cash payment in the month of August, 1986 and got the payment for surrendering the Earned Leave. On the basis of this fact and allegation, a complaint was lodged for commission of the offences punishable under Secs. 406, 409 and 420 of I. P. C.

( 3 ) IT was the defence of the respondent-accused that he did not intend to misappropriate nor he has converted any amount to his own use or committed offence of criminal breach of trust nor he intended to induce the State dishonestly for delivery of the said sum of Earned Leave for the subsequent or second year of 1986. The respondent was acquitted on ground of loss of memory and negligence or carelessness and that he might have applied for cash payment of his converted leave for the year 1986 through oversight or inadvertently.

( 4 ) THE learned Magistrate having recorded the evidence of prosecution witnesses and on appreciation thereof and other documentary evidence on record and materials, came to the conclusion that the offences under Secs. 406, 409 and 420 of I. P. C. were not established against the accused person as no deliberate and dishonest intention can be attributed to the respondent in applying for conversion of Earned leave for the subsequent year of 1986. In this view of the matter, the learned magistrate ordered the acquittal of the respondent-accused for the offences for which he was charged.

( 5 ) MR. M. A. Bukhari, learned A. P. P. appearing for the appellant-State has taken me through the relevant evidence and the judgment under appeal. In the submission of Mr. Bukhari, as per the documentary evidence on record, it was clearly established that the respondent though not entitled for cash payment for his earned Leave of 30 days, made the application Exh. 26 and got payment for the block of 1986 and thus, the respondent should have been held guilty for the offences under Secs. 406, 409 and 420 of I. P. C.

( 6 ) CONSIDERING the evidence and other materials on record, I am unable to accept the contention canvassed on behalf of the appellant-State. In order to bring home the charge of c