IMPORTANT POINT
For a conviction under Sections 408 and 114 IPC, the prosecution must prove beyond reasonable doubt the accused's dishonest misappropriation and direct involvement in the alleged offence.

JUDGMENT :

(HEMANT M. PRACHCHHAK, J.)

(1) The appellant - State of Gujarat has preferred this appeal under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order dated 11.10.2006 passed by the learned Presiding Officer, Fast Track Court, Sabarkantha at Himmatnagar (hereinafter be referred to as “the first Appellate Court”) in Criminal Appeal No.1 of 1997, whereby the learned Additional Sessions Judge has acquitted the accused from the offences punishable under Sections 408, 114 of the Indian Penal Code (hereinafter be referred to as “the IPC”) and quashed and set aside the judgment and order dated 21.12.1996 passed by the learned Chief Judicial Magistrate, Himmatnagar (hereinafter be referred to as “the trial Court”) whereby the learned Magistrate has order to undergo rigorous imprisonment for three years and imposed fine of Rs.5,000/- and in default of making payment, to undergo rigorous imprisonment for three months for the offence under Section 408 of the IPC.

(2) Brief facts of the present case are, in nutshell, as under:-

(2.1) It is case of the prosecution that on 16.07.1987, inspite of the fact that no sale of wheat coupon to the extent of 12000 kilogram have been taken place, the Manager of the Mandali has shown sell of wheat coupon of 12000 kilogram at the rate of Rs.1.50 paise in his account and thereby he created false entry of Rs.18,000/-. It is alleged that the activity of purchase and sale of goods articles was carried out by the Manager and the Clerk of the Mandali and, therefore, both accused are responsible for aforesaid illegality. It is further case of the prosecution that on 30.09.1988 closing stock of the Mandali was verified and during verification, the following shortage of stock was found.

(2.2) It is also the case of the prosecution that out of said illegality, the Manager and the Clerk both are jointly responsible for illegality committed at Sr.No.6 in wheat coupon of 12000 kilogram, whereas, the stock at Sr.No.1 to 5 is in the possession of accused No.2 and, therefore, he is sole responsible for shortage of particular stock of Rs.7,691.90 paise. Thus, the goods at Sr.No.1 to 5 have been sold away by accused No.2 without preparing bills directly in open market and value of said goods have been utilized by him for his personal use and thereby committed misappropriation of money.

(2.3) It is also the case of the prosecution that on 03.09.1988, Manager was informed to produce cash on hand of Rs.8,273.97 paise for the purpose of audit, but he did not produce and utilized the said amount for their personal use and thereby committed an offence under Section 408 r/w. Section 114 of the IPC.

(2.4) On the basis of the complaint, the Trial Court issued summons upon the accused and on the basis of the same, the concerned police has lodged the complaint and offence was registered as being C.R.No.I-35 of 1999 with Meghraj Police Station for the offences punishable under Sections 408 and 114 of the IPC against the accused.

(2.5) Pursuant to the aforesaid FIR, the police collected the evidence and arrested the accused and having got sufficient evidence, filed the charge-sheet against the accused before the trial Court.

(2.6) The charge against the accused came to be framed by the trial Court on 07.10.1991 vide Exhibit 28 for the aforesaid offences. On being explained it to them, the accused have denied having committed any offence. The accused pleaded not guilty to