BHASKAR BHATTACHARYA, J. - (1.) This is an appeal against order of acquittal passed by the learned Judicial Magistrate, 1st Class at Mayabunder thereby vindicating the accused, a Government Cashier, of the charge under Section 409 of the Indian Penal Code.
(2.) The prosecution case may be summarized thus : (a) The accused was entrusted with the job of Cashier from January, 1990 at the concerned office at Rangat. In course of his duty as such, he used lo keep the official money in a chest made of iron placed in the office room. The said chest could be locked by joint operation of two different keys. The key No. 1 was given to the accused while key No. 2 was in the custody of Deputy Education Officer ("DEO"), who is de facto complainant and P.W. 12. The key No. 1 was required to be used first for the purpose of closing and then key No. 2 should be operated. If both the keys are so used, the chest cannot be opened unless both the keys are again applied. However, the chest could also be closed with the help of key No. 1 only and in such a situation, for opening the same, there was no necessity of taking help of key No. 2. But. at any rate, the chest could not be closed or opened at the instance of key No. 2 alone. (b) The duplicate of key No. 1 and key No. 2 were kept in the Treasury and later those were shifted to the strong room of the office of the Deputy Commissioner at Port Blair vide letter No. 4-3/DEO/MB/77/1270 dated October 6, 1980. (c) On April 3, 1990 at about 9.15PM while the de facto complainant was in front of his quarter; the Supervisor of Physical Education informed him that the nightwatchman viz. K. Natarajan reported to him that at about 8.30 PM when Shri Natarajan went for night duty and opened the doors of the office room, he found that the chest was not locked. The complainant along with the said Supervisor rushed lo the office in no time and found that the Cashier along with some other persons stood outside the office room. On entering the room he found that the chest was locked and the accused told him to do something as a sum of Rupees three lakh was missing. (d) The PW. 12 asked the accused to verify the cash once again and after such verification the accused told him that there was a deficit of Rs. 3.00.000/- and a sum of Rs. 1.32.400/- was still lying in the chest. There was no sign of tampering with either the cash chest or the lock of doors. (e) Although the usual practice was that after verification of cash those should be kept in chest and the same should be locked by key No. 1 first by the Cashier and followed by key No. 2 by the DEO, such practice was followed upto February. 1990 regularly. In the month of March, 1990 the accused did not submit the cash book to PW. 12 for verification on the plea that there was a "difference of pages 41 to 42" which he should reconcile and then he would put up the cash book before PW. 12. The accused did not produce the cash book before P.W. 12 from March, 1990 till the date of incident i.e. April 3. 1990. The PW. 12 used the second key upto February, 1990. 34 Witnesses were examined on behalf of the prosecution and out of those, PW. 11 and PW. 28 became hostile. The accused pleaded "not guilty" but did not offer any evidence on his behalf.
(3.) The learned court below by the order impugned herein, as mentioned above, acquitted the accused of the charge on the ground of benefit of doubt.;