STATE OF ORISSA Vs. SHYAMSUNDER RATH

JUDGEMENT

(1.) This appeal has been directed against the order of acquittal recorded by the learned Sub-divisional Judicial Magistrate, Sundargarh, in which the respondents had figured as the accused persons being charged under Section 409 of the Indian Penal Code for misappropriation of Rs. 22,520.97 paise between 1-7-1974 and 31-1-1976 while Shyam Sunder Rath, the respondent No. 1, was functioning as the Administrator and Dileswar Singh, the respondent No. 2, was functioning as the Secretary of the Kundukela Service Cooperative Society in the district of Sundargarh. The plea of the defence was one of denial. The prosecution had examined three witnesses to establish its case. The respondents had examined two witnesses in their defence. On a consideration of the evidence, the trial court held that the charge had not been brought home to the respondents.

(2.) Upon hearing Mr. N.C. Panigrahi, the learned Additional Government Advocate and the learned counsel for the respondents, I find that of the three witnesses examined for the prosecution, the evidence of the Investigating Officer (P.W. 2) and that of P.W. 3, the Zone Officer of the Sundargarh Central Co-operative Bank, was of no avail to the prosecution. The only other evidence was that of the auditor (P.W. 1) who had audited the accounts of the Co-operative Society. His evidence was based on the entries made in the books of accounts audited by him. There had been no independent evidence of entrustment of any moneys with any of the respondents. As has been held by this Court in Okila Luha v. State of Orissa1 referring to and relying on the principles laid down by the Supreme Court in A.I.R. 1974 S.C. 388, entries in the books of account, though relevant, shall not alone be sufficient evidence to charge any person with criminal misappropriation and mere entries unsupported by any other oral evidence cannot prove entrustment. In a case of this nature, the prosecution must prove the factum of entrustment and the factum of misappropriation. No order of conviction can be based merely on the basis of an audit report of an inconclusive character. The order of acquittal has correctly been recorded.

(3.) The appeal fails and is dismissed.