IMPORTANT POINT: The Section cannot be construed as implying that any head of an office, who is negligent in seeing that the rules about remitting money to the treasury are observed is ipso facto, guilty of the criminal breach of trust.

B.N. KARIA, J.

1. RULE. Mr. Tejas M Barot, learned advocate waives service of notice of rule, for respondent No.1 and Mr. Rutvij Oza, learned Additional Public Prosecutor, waives service of notice of rule, for respondent No.2State of Gujarat.

2. By way of this appeal, the appellant has challenged the judgment and order dated 21.09.2004 passed by the learned Judicial Magistrate First Class, Balasinor in Criminal Case No. 677 of 1990, whereby, the respondent NO.1 was acquitted of the charge punishable under Section 409 of the Indian Penal Code.

3. The facts of the case in brief are as under:

3.1 Complainant Mr. Rasiklal Manilal Parmar, an Administrative Officer, District Panchayat, Nadiad at the instance of Deputy District Development Officer, District: Kheda, got a complaint registered against one Mr.Dayabhai Gorabhai Khant, a Junior Clerk at Primary Health Centre, Virpur alleging misappropriation by Mr. Khant to the tune of Rs.617.30/for the period from 02.12.1988 and misappropriation to the tune of Rs.11,276.25/for the period from January 1989 to June 1989 and alleged that Mr. Khant used Government funds for his personal gains, as was disclosed in the Audit Report.

3.2 A complaint in respect of the aforesaid incident was lodged with Virpur Police Station. Necessary investigation was done and the accused came to be arrested. At the end of the investigation, chargesheet was filed against the accused before the trial Court. At trial, the accused pleaded not guilty and claimed to be tried.

4. To prove the case against the accused, prosecution has produced and relied upon 6 oral as well as 11 documentary evidences.

5. Heard Mr. Rajesh M Chauhan, learned advocate for Mr. H S Munshaw, learned advocate for the appellant, Mr. Tejas M Barot, learned advocate for respondent No.1 and Mr. Rutvij Oza, learned Additional Public Prosecutor for respondent No.2

6. It was submitted by Mr. Chauhan learned advocate for appellant, that the impugned judgment and order passed by the learned Magistrate in Criminal Case No. 677 of 1990 dated 21.09.2004 at Balasinor is unjust, illegal, arbitrary and passed without considering the evidence on record. That, prosecution has produced all the documentary evidences through the complainant along with Audit Report which clearly shows that the present accused No.1 is involved in the offence. That, the complainant Mr. Hemant Shah (Exh.24) in his testimony has clearly stated that he was serving as a Senior Clerk and during the incident period, the accused was Incharge of Accounts. As per the Audit Report, he had misappropriated the amount. That, Mr. Niranjan V Doshi, Auditor, has also stated that as per the accounts, a sum of amount was misappropriated for the aforesaid period. That, prosecution has clearly proved its case beyond reasonable doubt against the accused. Therefore, the judgment and order passed by the learned Magistrate is contrary to facts and evidence on record, and therefore, it was requested by him to quash and set aside the judgment and order dated 21.09.2004 in Criminal Case NO. 677 of 1990 and convict the accused by allowing this appeal.

7. On the other side, Mr. Tejas M Barot, learned advocate for respondent No.1, vehemently opposed the arguments advanced by learned advocate for the appellant and argued that prosecution has miserably failed to prove the guilt of the accused as per the charges levelled against him. He, further, argued that the amount in question i.e. Rs.11,276.25 ps. was never misappropriated by the respondent No.1, nor the said amount was used by him for his personal work. He further argued that during the aforesaid period, the accused had never looked after the accounts of P.H.C, Virpur and during his service period, the aforesaid misappropriation was never found. That, no documentary evidence was produced by the prosecution before the trial Court. That, respondent No.1 was Incharge cashier and it was his liability to handle the cash amount of the P.H.C, Virpur. That, Audit