1. - This appeal has been filed by the State of Rajasthan against the judgment and order dated 22.2.88 passed by the Learned Judicial Magistrate, Raisingh Nagar in Criminal Case No. 266/83 by which the learned Judicial Magistrate acquitted the accused respondents Mohan Lal and Tarbabu for offence under Sections 406 and 407 I.P.C. and also acquitted accused respondent Singara Singh for offence under Sections 406 and 407/109 I.P.C.

2. This appeal arises in the following circumstances :

(i) On 5.9.83, P.W. 1 Babu Ram wrote a letter Ex. P. 1 to the President, New Janta Truck Union, Rai Singhnagar stating that on 30.8.83 in truck No. RJK 8197 through bilties Ex. P. 2 and Ex. P. 3 140 bags of gram were loaded and they were to be transported to Jalandhar (Punjab) upto 5.9.83 and since loaded goods did not reach the destination, therefore, this information was given by P.W. 1 Babu Ram to the President of New Janta Truck Union, Raisinghnagar.

(ii) On receiving this letter Ex. P. 1, P.W. 3 Pyar Singh lodged a written report Ex. P 4 on 5.9.83 with the Police Station Raisinghnagar stating that in Truck No. RJK 8197, 140 bags of gram were loaded by M/s. Babu Ram Ram Chander through Bilties Ex. P. 2 and P. 3 and these bilites were issued by New Janta Truck Union, Raisinghnagar and on that truck, the accused respondent Mohan Singh was driver who put his signatures on the bilties to the effect that he received the goods in question. The owner of that truck Was accused respondent Tarbabu, but that truck did not reach Jalandhar (Punjab) upto 5.9.83 and on being enquired, it was found that the truck was near Padampur or somewhere near to that place and goods loaded in that truck have been misappropriated by Tarbabu and Mohan Singh and one another accused respondent Singara Singh.

3. On this report, police chalked out regular FIR Ex. P. 5 started investigation.

4. During investigation, the accused respondent Mohan Singh was got arrested through Ex. P. 8 on 25.9.83 and on his information, before P.W. 5 Ranjeet Singh and P.W. 6 Santosh Singh. 140 bags of gram were recovered from the truck in question through fard Ex. P. 9 on 25.9.83.

5. After investigation challan was filed by the police against the accused respondents.

6. On 17.1.87 the charges for offence under Section 406 and 407 were framed against the accused respondent Mohan Lal and Tarbabu and for offence under Section 406 and 407 read with Section 109 I.P.C. against the accused respondent Singara Singh who pleaded not guilty and claimed trial.

7. During trial, as many as 9 witnesses have been produced on behalf of the prosecution and statements of accused respondents were recorded under Section 313 Cr.P.C. and two witnesses were examined in defence.

8. After conclusion of the trial, the learned trial Magistrate acquitted the accused respondents through his judgment and order dated 22.2.88 inter alia holding :

No breach of trust was committed by any of the accused respondents as the truck in question became out of order and the only mistake which was committed by the truck driver Mohan Lal that he did not inform this fact to the Union and thus, he acquitted the accused respondents.

9. Aggrieved from the said judgment and order of acquittal dated 22.2.88 this appeal has been filed by the State of Rajasthan.

10. In this appeal, the learned PR has argued that the findings of learned trial Magistrate by which he acquitted the accused respondent are erroneous one and they should be set aside and this state appeal should be allowed.

11. On the other hand, the learned counsel for the accused respondents submits that the judgment and order of the trial Judge are based on correct appreciation of evidence and the same do not call any interference by this Court.

12. I have heard both and perused the record.

13. So far as the fact that 140 bags of gram were handed over by P.W. 1 Babu Ram to the accused respondent Mohan Lal who was driver of the truck is concerned, there is no dispute on this point as the same