(1.) This is an appeal by Government against the acquittal of an accused person, who is charged with criminal breach of trust as a clerk under Section 408 of the Indian Penal Code. The charge against him was that he had committed criminal breach of trust in respect of a sum of Rs. 39,942-3-7. The Acting Chief Presidency Magistrate acquitted him on the ground that, in view of certain admissions of the complainant and some difference between the account, Ex. A, on which the prosecution relies and the accounts of certain merchants, it was evident that the charge of having misappropriated this exact amount of Rs. 39,942-3-7 could not stand. He goes on to say :- When such a general charge is made it is not legal for a Court to hold that though the accused cannot be held guilty of misappropriating such a large amount, the evidence does show that he has misappropriated at least a large sum though the Court cannot definitely say what that amount is.-
(2.) He also says :- So that it is in my opinion very unfair to the accused to say that though it cannot be proved that he has committed a defalcation to the extent of Rs. 89,942-3-7, yet on the evidence I hold that he has committed a defalcation of some indefinite amount; it may be Rs. 100 less or it may be Rs. 4,000 less, Such a charge would be absolutely illegal.
(3.) On this ground he declined to go into the merits of the case and the various contentions of the prosecution and the defence, and held that the accused was entitled to an acquittal on the above point.