HARI SHANKAR PRASAD, J. - (1.) THIS revision is directed against the order dated 24.9.1996 passed in G.R. No. 1249/82, whereby the learned Judicial Magistrate, Ist Class, Daltonganj acquitted O.P. No. 2, who was an accused in that case.
(2.) THE prosecution case in brief is that the petitioner as informant lodged an FIR on 17.9.1982 against O.P. No. 2 for the offence under Sec. 406 of the Indian Penal Code (hereinafter to be referred as 'Code ') for committing, criminal breach of trust. The petitioner who is informant in the case was a manager of J.B. Company, Rehala and O.P. No. 2, against whom FIR was lodged, was working as driver since long and he used to deliver goods in different godowns of the company and likewise he went to Katihar office with Tobacco bundles in the truck. On 13.9.1982 O.P. No. 2 became seriously ill, thereafter he stopped the truck in the way in between Sankha and Ketat and went for taking medicine and the truck was brought back to the office and two packets were recovered containing Rs. 7,000.00 in cash and draft of Rs. 2,500.00 . O.P. No. 2 accused was conveyed to meet the informant but he disobeyed; thereafter one Chiman Bhai was sent to Katihar office and when he returned on 17.9.1982 gave him a letter then he came to know that cost of Rs. 1,17,539/ - draft and other papers, which were given by Katihar office, was not given and Rs. 7,000.00 in cash was in the truck and he took Rs. 1,17,539/ -. O.P. No. 2 accused was charged under Sec. 406 of the Code, which he denied and trial proceeded and in the course of trial the learned Court below came to a finding on the, basis of oral and documentary evidence that charge under Sec. 406 of the Code has not been proved against the O.P. No. 2 accused and accused was acquitted. Judgment of the teamed Court below was assailed on the ground that PWs have corroborated the statement and proved the case that O.P. No. 2 has committed the offence under Sec. 406 of the Code. The prosecution witnesses have supported the case but the case ended in acquittal. The judgment was also assailed on the ground that Mahabir Sharma, driver and Khalasi of the truck were not examined and no paper was produced on behalf of the prosecution showing entrustment of the amount to the opposite party No. 2 and these are flimsy grounds for justifying the acquittal. The judgment was also assailed on the ground that number of witnesses is not necessary for arriving at a conclusion in favour of the prosecution but it is the quality of witnesses and not the number of witnesses which should be taken into consideration and further that conviction can be based on the solitary evidence of a witness but in the instant case all these facts have been overlooked by the learned Trial Court. The judgment was also assailed or the ground that facts, which are admitted, need not be proved and, therefore, when the opposite party No. 2 did not deny that he was not an employee of J.B. Company, Rahla, therefore, production of documentary evidence and so called letter, which was sent from place of departure, cannot be a ground for acquittal. Non -examination of IO cannot be another ground for acquittal of the opposite party No. 2.
(3.) ON the other hand, the opposite party No. 2 appeared in the case through vakalatnama.;