1. This appeal has been preferred under section 378 (1)/(3) of Code of Criminal Procedure 1973 by the State appellant challenging the judgment dated 10/10/1995 passed by Judicial Magistrate, First Class Bhurhanpur in Criminal Case No. 2349/1984, acquitting the respondents of the charge under section 409 IPC.

2. Facts of the case, in short, are that one respondent no.1Gajanand was the Samit Sevak and respondent no.2 Nathu was the Salesman in Seva Sahkari Samit Khamni since 21/01/1981. The aforesaid Society was undertaking the work of public distribution and agriculture finance. On having some doubt of working of the respondents in respect of distribution of sugar, kerosene etc. Anna Rao, Branch Manager, Zila Sahkari Kendriya Bank Branch-Shahpur (PW-1) directed Amritlal, Supervisor (PW-3) to make physical verification of the stock, inspect the records and to submit a report. On

15/03/1983 PW-3 submitted report Ex.P-1 showing the shortage in stock of sugar, kerosene, cereals etc to the tune of Rs.11,209.36 paisa. After about a period of 2 months on 24/05/1983, PW-1 submitted a written report Ex.P-2 to Police Station-Shahpur. A case at Crime No. 219/1984 under section 409 IPC was registered against the respondents.

3. After due investigation, police submitted a charge sheet in trial Court. Trial Court framed charge under section 409 IPC against the respondents. Respondents abjured guilt. To substantiate case of the prosecution, statements of Anna Rao, Branch Manager, Zila Sahkari Kendriya Bank Branch-Shahpur (PW-1), Yashwant Rao, Samit Sevak (PW-2), Amritlal, Supervisor (PW-3), and Kashinath (PW-4), were recorded. Defence of the respondents was that of false implication. After appreciation of aforesaid evidence, Trial Court considering the evidence of the prosecution to be doubtful and acquitted the respondents of the charge under section 409 IPC.

4. Challenging the aforesaid findings of the trial Court, State has preferred this appeal on the grounds that appreciation of evidence is not proper. Though prosecution has succeeded to prove the ingredients of offence under section 409 IPC acquittal has been recorded in wrong manner. On the other hand, learned counsel for the respondents supported the finding of acquittal and opposed this appeal.

5. Anna Rao, Branch Manager (PW-1) stated that in the year 1981 to 1983, respondent no.2 Nathu was working as Salesman and respondent no.1 Gajanand was Samiti Sevak in Khamni Society. He had issued a certificate Ex.P-4 to that effect. This fact has not been challenged in the cross-examination also, hence, it is proved that respondents were working as public servant in the relevant period.

6. In so far as act of embezzlement by respondents is concerned, Anna Rao (PW-1) stated that while he suspected something wrong in the maintenance of the account and working of the Society he asked Supervisor to go and look into the matter. Amritlal, Supervisor (PW-3) submitted report Ex.P-1 to him showing the shortage of items and accordingly embezzlement of Rs.11,200/- from the Society and respondents were prima facie found liable for the same.

7. Amritlal, Supervisor (PW-3) stated in the month of September 1982 Branch Manager has directed him to go and inspect the Society. Two months prior to that period, he had inspected the Society and found everything to be in line. He has submitted the report within a period of 2 months. Regarding relevant period of embezzlement, evidence of PW-1 and PW-3 is inconsistent. It is doubtful that report is related to the period of September 1982 or is related to March 1983. Comparing the evidence of both the witnesses, evidence of Amritlal, Supervisor (PW-3) seems to be not reliable because he has disowned his previous statement Ex.D-1 entirely. It is pertinent to note that FIR has been lodged by PW-1 on the basis of report Ex.P-1 submitted by PW-3.

8. Anna Rao (PW-1) Branch Manager stated that on 25/03/1983 on receiving inspection report Ex.P-1 he lodged the report