JUDGMENT M.C. Jain, J.
1. The State has come up in appeal against the order of acquittal passed by Sri Harish Chandra, the then Chief Judicial Magistrate, Aligarh on 12-5-1993 in Criminal Case No. 4873 of 1991. The two accused respondents were absolved of the charges under Sections 420 and 409, I.P.C. The F.I.R. was lodged by Nazim Hussain PW1, Executive Engineer of Temporary Division of PWD, Aligarh. During the audit of the office by the team of A.G., it was reported to him on 3-3-1990 that there were discrepancies in the amount of total of balances in the cash-book for the month of April, 1989. On checking, he found that in the month of April, 1989, the total of posted vouchers was Rs. 5,48,086.35p. which had been shown as Rs. 6,03,386.35. Vouchers Nos. 27 and 28 dated 15-4-1989 amounting to Rs. 10,818,30p. and Rs. 13,133.50p. respectively had fictitiously been shown in the cash-book. The said vouchers were missing from the bundle of vouchers and in this way, a total sum of Rs. 79,251.80 p. had excessively been shown against vouchers in the month of April, 1989. In the month of May, 1989, the total of posted vouchers was Rs. 2,45,343.92p. whereas the amount was shown in the cash-book as Rupees 3,40,343.92p. In June, 1999 the total of posted vouchers worked out to Rupees 3,30,540.75p, which was shown in the cash-book as Rs. 4,30,040.75p. Fictitious vouchers were mentioned in the cash-book and excessive amount was so shown as spent against them which had actually been misappropriated. The accused respondent Ganga Sahai Saxena was the cashier and was said to have misappropriated the said amount. The case was investigated by Man Singh Yadav PW 3 and as a result the present two accused respondents came to be booked. The accused respondent No. 2 was Divisional Accountant who was posted on deputation in the temporary division in question. The two accused respondents were said to be in collusion with each other in this cheating and embezzlement. At the trial, Nazim Hussain, Executive Engineer, PW 1, subsequent cashier Shiv Charan and the Investigating Officer Man Singh Yadav, PW 3 were examined.
2. Accused Ganga Sahal Saxena stated in his statement under Section 313, Cr.P.C. that the Executive Engineer, Nazim Hussain had foisted a false case to save his own skin. The deposits and withdrawals were made under his orders. The defence of the other accused respondent was that he had nothing to do with the cash dealings. The subsequent cashier Shiv Charan examined as a witness was of formal nature who spoke about the procedure concerning the maintenance of cash-book and other documents and records. He was posted as cashier in Sept. 1989. His statement was not helpful in proving the charges levelled against the two accused persons relating to the entries of April to June, 1989 when he was not even posted there. On the scrutiny of the testimony of Nazim Hussain, Executive Engineer, trial Court found that the accusation against the accused respondents had not been established and the same was not free from doubt.
3. We have heard learned A.G.A. from the side of State, Sri Ravindra Sharma for accused Ganga Sahai and Sri A. B.L. Gaur for accused Om Prakash Rastogi. Learned A.G.A. has argued that the entries in the cash-book were proved to have been made in the handwriting of accused respondent Ganga Sahai Saxena and the evidence showed that the other accused respondent Om Prakash Rastogi was in collusion with him and both of them misappropriated the amount in question by making incorrect entries in the cash-book. On the other hand, learned counsel appearing for the two accused respondents have urged that for the alleged Incorrect entries of April, 1989 to June, 1989 the F.I.R. was lodged as late as on 9-3-1990 by the Executive Engineer who himself was responsible for passing the vouchers, and withdrawals here against form the cash-book. For the accused respondent No. 2 it has also been urged by Sri Gaur that he had nothing to do at all with the cash dealings. It is to be noted that the alleged misappropriation was detected by audit party of the office of the Accountant General, U.P. However, the note/report of the audit unit was not even produced at the trial as to what was their observation. The voucher Nos. 27 and 28 which were pointedly alleged to be fictitious were not at all produced. The Executive Engineer Nazim Hussain PW 1 did not inquire about the said vouchers from concerned Junior Engineers M.S. Khan and B.K. Saxena. It also could not be shown that any of the two accused respondents were responsible for maintenance and upkeep of the vouchers where against payment had been made. Therefore, blame could not be thrust on their heads if the said two vouchers could not be traceable in the bundle of the vouchers. The Investigating Officers also did not record any statement of these two Junior Engineers. It was even admitted by the subsequent cashier Shiv Charan that the Job of upkeep of the vouchers was of another clerk and not of the cashier. The accused respondent No. 1 Ganga Sahal Saxena had been transferred from that Division in July, 1989. Roshan Lal had replaced him whereafter Shiv Charan occupied the post of cashier. The Executive Engineer himself being responsible for passing the vouchers was supposed to check them off and on to ensure that no fictitious voucher had been posted and money withdrawn there against. He did nothing for the kind and was completely inert till the matter was ultimately detected by the audit party on 3-3-1990. He then hastily lodged the F.I.R. It could not at all be shown that the accused respondent No. 2 had anything to do with the cash dealings.
4. Before conviction under Section 409, I.P.C. could be recorded, the prosecution must prove two essential things, the factum of entrustment and the factum of misappropriation of the entrusted articles/amount. The prosecution utterly failed to establish these two ingredients as against the accused respondents. The ingredients of the offence of cheating to make out a case under Section 420, I.P.C. were equally missing. The Executive Engineer Nazim Hussain, PW 1 himself had certified the entries in the cash-book and the cash balance of the months of April, May and June 1989 to be correct on 1-5-1989, 30-5-1989 and 30-6-1989 respectively. In any view of the matter, if fictitious vouchers had been posted in the cash-book and amount (s) withdrawn there against, he was equally responsible and fair play required that he ought to have been made a co- accused at Investigation stage itself. It appears that to wash his hands off his liability and to make a show of his bona fide, he lodged the F.I.R. thrusting the blame on the heads of the weak lings.
5. In view of the above discussion, we find no merit in this appeal and it is hereby dismissed.