(1.) There is no substances is this appeal preferred by State against the order of acquittal of the accused by the Judicial Magistrate, First Class, Vita (Dist. Sangli), by his order dated Januty 31, 1976. The charge against the accused is that between July 1, 1970 & December 30,1970 he was entrused with the foodgrains in his capacity as a publice servant, viz, weighman (Mapadi), in the employment of Shri Jeevan Sahakari Grahak Bhandar Ltd., Vita, committed criminal breachof trust in respect of foodgiains worth Rs 3263.84P. and cash of Rs. 776 19P., in all Rs. 4040 3P. belonging to the said Bhandar, and thus committed an offence punishable under section 409 I. P. C. Admittedly the accused was working in the Society as a weighman (Mapadi) at the materal time. One Gopal Eknath Deshpande was working in the society as a salesman till September 30, 1970 According to the prosecution, the accused was entrusted with the work of opening the shop of the socity, cleaning it and keeping the articles in the shop in order and distributing them in accordance with the memos to the customers. It was the duty of the salesman Deshpade to issue cash-memos, Credit-memos, and to receive the case for the goods sold. It is the case of the prosecution that the Managing Committee accepted the resignation of Deshpande on September 30, 1970 and that the ardcles of the value of Rs. 4046-65 were found less in the stock, and that, there fore both the accused and Deshpande accepted liability of the amount equally. It is also alleged that the accused also accepted the liability regarding the cash of Rs. 776.19
(2.) There are several circumsrances brought on record in evidence of the prosecution itself which would indicate that the prosecution has utterly failed to prove entrustment of the goods and the cash to the accused. Admittedly, the accused was working in his capacity as a weighman and it was the salesman who was in charge of the cash as well as the goods, and naturally as a salesman, he was responsible for the stock in the shop. It is not the case of the prosecution that when Deshpande was relived of his duties on September 30, 1970, the stock or the cash amount was entrusted to the accused or the charge of the shop was given to him. On the contrary, it has been brought out in the cross examination of the prosecution witnesses that the stock balance has been carried further on a large scale after December 1970 and the Managing Committee was aware of the fact of shortage of the articles No importance therefore can be given to the receipts obtained from the accused accepting the liability to pay half the amount to the society As far as the cash amount is concerned, it has been brought out in the cross-examination of the prosecution witnesses that the accused had no concern with any cash balance of the society. There is no evidence that the accused was receiving the cash amount or retaining the same with him. It appears that the society had sold certain goods on credit and has maintained a rough account book in that behalf A part of the alleged misappropriation of the amount of the goods is obviously covered by the entries in the rough account book. The goods are sold on credit to the customers by the salesman and the accused cannot be held responsible for the same.
(3.) Having regard to these circumstances, it is impossible to hold that the accused has committed the offence of criminal breach of trust. The prosecution has, in my view, failed to establish ths charge against the accused. The learned Magistrate was, therefore, right in acquitting the accused.