To convict under Section 409 IPC, prosecution must prove entrustment of property and dishonest misappropriation, which was not established in this case, thus resulting in the appeal's allowance.

1. This appeal is preferred against the judgment and orderof conviction dated 22.08.2000 passed by the Learned Sessions Judge and Special Judge, 1st Court, Howrah under Section 409 of Indian Penal Code in Special Case No. 17 of 1997, arising out of Golabari P.S. Case No. 28 dated 22.05.81 whereby convicting the appellant to suffer simple imprisonment for 3 years along with a fine of Rs. 10,000/- and in default simple imprisonment for 6 months more.

2. The prosecution case emanated on the basis of a letter replicated as follows :-

“The letter dated 22.5.1981 from the „The Divisional Officer, „E‟ Division, West Bengal Fire Services” to “The Officer-in-Charge, Golabari P.S., Howrah” states as follows:

In my capacity as Divisional Officer, „E‟ Division, West Bengal Fire Sevices, Government of West Bengal having its office at 430, G.T. Road(N), Howrah, P.S. Golabari and being duly empowered under the law so to do, I lodge this written complaint against Shri Prasanta Kumar Chakraborty, Cashier (now under suspension) attached to „E‟ Division, West Bengal Fire Services.

There is a prima facie case against the said Shri Prasanta Kumar Chakraborty that he committed criminal misappropriation of a sum of Rs. 22,000/- (Rupees Twenty two thousand) approximately during the months of October and November‟80 while having custody of the said amount of money in course of performance of his duties as Cashier „E‟ Division at the Office at 430, G.T. Road(N), Howrah, P.S. Golabari. The criminal misappropriation took place in the following manner :-

Shir Chakraborty was instructed with his job-duty to disburse monthly salaries to staff including obtaining custody of deductions from the salary bills from a section of the empleyees of the Fire Services who are loanees from the Police Co-operative Credit Society, Lal Bazar and the said Cashier in the above manner obtained custody of an amount to the extent of Rs. 22,000/- (Rupees twenty two thousand) approx. shown deducted as side deduction in the salary bills from the employees of the Fire Services for the months of September and October‟80 ….. in October and November, 1980 respectively.

As per usual practice, the said Cashier should have deposited the amount of loan instalments recovered from the pay bills of September‟80 by the 15th day of October‟80 and the instalments recovered from the pay bills of October‟80 by the 15th day of November‟80. This deposit is required to be made at the Cash counter of the Lal Bazar Police Co-operative Society and Banking Ltd. But instead of making such deposit, the said Cashier Shri Chakraborty kept with himself the collected amount of Rs. 22,000/- approximately and the said amount was dishonestly and fraudulently misappropriated by him.

As soon as the defalcation was detected, Shri Chakrabory was asked to show cause why disciplinary action apart from prosecution under criminal law should not be started against him. In reply, Shri Chakraborty in a letter dated 17.1.81 has virtually admitted having misappropriated the above sum and sought six months time to make good the loss.

So he is palpably guilty both under Section 409 of Indian Penal Code and also under Section 5 of the Prevention of Corruption Act . Shir Chakraborty has since been placed under suspension and sanction already obtained from the Government to proceed against the accused.

So it is prayed that you will take cognizance of the complaint by treating this