Arun Kumar Goel, J. :- State has filed this appeal against the judgment passed by the learned Sessions Judge (Forest), Shimla dated 16th June, 1992. While allowing the appeal, respondent who was charged, tried as well as convicted for offence under Section 408 I.P.C. to undergo 3 years simple imprisonment as well as to pay fine of Rs. 3,000/-by the Sub Divisional Judicial Magistrate, Theog, has been acquitted.

2. Prosecution case against the respondent was that while he was working as a servant i.e. Salesman of Dhamandri Multipurpose Co-operative Society in the year 1984-85, was entrusted with the property i.e. stocks of different articles which he misappropriated by dishonestly converting for his own use and thus committed the offence of breach of trust punishable under Section 408 I.P.C. After conclusion of the case trial Court found the respondent guilty and convicted him, as aforesaid, and in default of payment of fine, he was ordered to undergo further simple imprisonment for 3 months.

3. So far respondent being the servant i.e. Salesman of the Society is concerned, there can hardly be any dispute which fact is not even disputed by the respondent. In addition to this, it is also proved on record that respondent was working as Salesman in the Society during the relevant period i.e. 1 -7.1984 to 30.6.1985, the period to which this case realities to.

4. Audit was carried out by Devi Singh (PW-2) who was working as Inspector, Co-operative Societies Audit in the office of Assistant Registrar Co- operative Societies, H.P. Shimla for the year 1984-85 in the month of August, 1985 and copy of the Audit report has been proved by this witness on record as Ex. PA. In this background complaint was lodged by said Devi Singh (PW-2) with the police of Police Station, Theog vide Ex. PC and on its basis F.I.R. Ex.PW-5/A came to be registered by the police. Specimen signatures/ hand writings of the respondent were taken and sent for comparison to the Government Examiner of Questioned Documents and R.K. Jain (PW-7), Assistant Government Examiner of Questioned Documents Shimla has proved such documents as well as the opinion given after examination of all those documents.

5. Another relevant fact that needs to be noted here is that in Ex.P-3 Ledger of the Society respondent has admitted the liability against him to the extent of Rs. 49,673.50 as on 29th October, 1985. Further question that needs to be considered in this case is whether after having proved the respondent serving the aforesaid Society as its Salesman as also having admitted his liability to the extent noted above whether commission of offence within the meaning of Section 408 stood proved or not.

6. After having proved the entrustment, unless by cogent and reliable evidence it was established that the person charged had dishonestly misappropriated or converted or dishonestly used or disposed of the entrusted property, the offence of criminal breach of trust is not made out. That being so, it is clear that element of dishonesty has to be specifically proved. There can be numerous reasons for the shortages being there and/or the property entrusted to a servant being not properly accounted for, a servant in a given situation can be negligent or having forgotten to either make the deficiency good or to have accounted for the goods/articles entrusted to him.

7. Besides this, misappropriation by the person charged for the offence of breach of trust, misappropriation by him for his own use as well as and/or use in violation of any legal direction or any legal contract with dis- honest intention had got to be established. Such misappropriation has i: be with intention to cause wrongful loss to another as well as to gain by unlawful means something to which the beneficiary is not legally entitled to. In this view of the matter, it is clear that the offence of breach of trust though includes a remedy under Civil law, yet in the absence of menserea or criminal intention would not justif