Sunil Kumar Garg, J. - (1.) This appeal has been filed by the State of Rajasthan against the judgment and order dated 17.1.1987 passed by the learned Judicial Magistrate, Loonkaransar camp Bikaner in Cr. Case No. 397/86 by which the learned Magistrate acquitted the accused-respondent for offence under section. 409 Indian Penal Code in the alternative Section. 379 Indian Penal Code.
(2.) This appeal arises in the following circumstances:- (i) On 26.1.1981, PW-2 Sundar Lal, Branch Manager, State Bank of Bikaner and Jaipur, Nokha lodged a written report Ex.P/24 at the Police Station, Nokha, Distt. Bikaner stating that on 12.11.1980, Shri R.K. Mittal PW-6, Head cashier of the branch went to Jaipur with the remittance of soiled and non issuable currency notes to the Reserve Bank of India, Jaipur Branch. The packets of soiled and non issuable notes of the Branch were being counted in RBI, Jaipur. On 12.12.1980, a shortage of Rs. 7,400/- (Rupees Seven Thousand Four Hundred only) was detected by RBI. Shri R.K. Mittal, PW-6 had gone to Jaipur with the remittance of cash and on detection of shortage gave the telegram on 12.12.1980 to the Branch Manager, Nokha Branch which was received on 13.12.1980. On receipt of the telegram, PW-2 Sundar Lal tried to find out as to by whom the packets in which the shortage has been detected, have been prepared and checked and stamped and who were the cashiers at the relevant time. PW-2 Sundar Lal also counted the cash in the running almirah and found 5 notes of Rs. 100/- each short in the packet prepared by accused-respondent and 5 notes of Rs. 100/- each short in a packet prepared by Shri B.D. Gehlot. The accused-respondent and Shri B.D. Gehlot were appointed as temporary cashier in the Nokha Branch. The accused-respondent had worked as temporary cashier from 7.8.1980 to 27.10.1980 and Shri B.D. Gehlot from 12.8.1980 to 4.11.1980. Both of them were entrusted with the cash receipt counter and had opinion over it. For payment of the aforesaid amount, the members of the Bank went to the house of accused-respondent and ultimately Rs. 9,000/- were deposited by the accused-respondent and he also admitted his guilt before PW-10 Shri Ram Prakash Chhabra.
(3.) That after usual investigation, the police submitted challan against the accused-respondent and one more accused B.D. Gehlot.;