The presumption of innocence and the necessity of proving guilt beyond reasonable doubt were upheld, leading to the dismissal of the appeal.

JUDGMENT :

1. This appeal has been filed by the appellant – State under Section 378 (1)(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) against the judgment and the order passed by the learned Sessions Judge, Sabarkantha @ Himmatnagar (hereinafter referred to as ‘the learned Appellate Court’) in Criminal Appeal No. 36 of 2010 on 28.02.2012, whereby, the learned Appellate Court has quashed and set aside the judgment and order passed by the learned Chief Judicial Magistrate, Himmatnagar, (hereinafter referred to as ‘the learned Trial Court), in Criminal Case No. 2473 of 1999 on 18.03.2010, whereby, the learned Trial Court convicted and sentenced the original accused to rigorous imprisonment of 5 years and fine of Rs.5,000/-, and in default, simple imprisonment of 07 days for the offence punishable under Section 408 of the Indian Penal Code . (hereinafter referred to as ‘the IPC’).

1.1. The respondent hereinafter is referred to as ‘the accused’ as he stood in the rank and file in the original case, for the sake of convenience, clarity and brevity.

2. The relevant facts leading to filing of the present appeal are as under:

2.1. Sub-Auditor, N.K. Nivedi, conducted the audit of Lalpur Milk Producers Co-operative Society, Lalpur (Gambhoi), Taluka Himmatnagar for the period from 01/04/1998 to 30/04/1998. At that time, the accused was serving as the Secretary of the Society and was responsible for maintaining accounts, record-keeping, collections, and custody of cash. During the audit on 16/09/1998, when the outstanding cash balance was verified and demanded, the accused failed to produce an amount of Rs.31,430.36 paisa. It was found that the accused had misappropriated the said amount for his personal use. Accordingly, after due procedure, a complaint was lodged at the Gambhoi Police Station which came to be registered at Gambhoi Police Station I-66 of 1999 under Section 408 of the IPC.

2.2. After registration of the FIR, the investigation was carried out by the concerned Investigating Officer and after having sufficient material against the accused, the charge sheet came to be filed against the accused before the Court of Judicial Magistrate, Himmatnagar, which culminated into Criminal Case No.2473 of 1999.

2.3. The accused was duly served with the summons and the accused appeared before the learned Trial Court and it was verified whether the copies of all the police papers were provided to the accused as per the provisions of Section 207 of the Code. A charge was framed by the learned Trial Court at Exh.15 and the statement of the accused was recorded at Exh.16, wherein, the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. The prosecution examined 05 witnesses and produced 09 documentary evidences in support of the case.

2.4. After the closing pursis was submitted by the learned APP, the further statement of the accused under Section 313 of the Code was recorded wherein the accused denied the evidence on record. After hearing the arguments of the learned APP and learned advocate for the accused and after perusing the documents on record, the learned Trial Court, by the impugned judgment and order dated 18.03.2010, was pleased to convict the accused for the offence under Section 408 of the IPC and sentence him as mentioned above.

2.5. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Trial Court, the accused preferred Criminal Appeal No.36 of 2010 before the learned Sessions Court, Himmatnagar, whereby, the appeal preferred by the accused came to be allowed and the learned Sessio