Judgment:
Garg, J.
1. This appeal has been filed by the State of Rajasthan against the judgment and order dated 16.1.89 passed by the Learned Judicial Magistrate, First Class, Sanchore in Cr. Case No. 217/84 by which the learned Magistrate acquitted the accused respondent for offence under Sections 409, 465, 466 and 467 I.P.C.
2. This appeal arises in the following circumstances :
(i) On 27.1.84 PW-3 Badri Dan Patwari gave a written report Ex.P/1 before PW.1 Shyam Das, Tehsildar Sanchore stating that on 17.1.84 he took charge from the accused respondent but at the time of taking charge, an amount of Rs. 1027.30 collected by the accused respondent in the capacity as Patwari and further more the amount of Rs. 553.20 belonging to Panchayat Samiti Golasan was not handed over by the accused respondent, but at the time of handing over the charge, the accused respondent had specifically mentioned in the charge report that the above amount was with him and he would deposit the amount. Since the amount had not been deposited so far, therefore, action be taken against him.
(ii) After receiving the report Ex.P/1, P.W.1 Shyam Das lodged a written report Ex.P/96 in the Police Station Sanchore on 31.1.84 stating that the said amount was retained by the accused respondent and thus, by doing so he committed criminal breach of trust.
3. On this report Ex.P/96, police chalked out regular FIR Ex.P/103 and started investigation.
4. That after usual investigation, the police submitted challan against the accused respondent.
5. On 30.5.85, the learned Judicial Magistrate framed charges for offence under Sections 409, 465, 466 and 467 I.P.C. against the accused respondents who pleaded not guilty and claimed trial.
6. During trial, as many as 7 witnesses have been produced on behalf of the prosecution and statement of accused respondent was recorded under Section 313 Cr.P.C. in which he admitted that while handing over the charge on 17.1.84 to P.W.3 Badri Dan the said amount was with him, but since on 25.1.84, his father died, therefore, he could not deposit that amount. That amount was given by him to one Ram Lal, D.W. 2, but he did not deposit the same and that amount was deposited by him on 3.2.84. Two witnesses was examined in defence.
7. After conclusion of the trial, the learned trial Magistrate acquitted the accused respondents through his judgment and order dated 16.1.89 inter alia holding that :
'Since the amount was deposited by the accused respondent on 3.2.84, no offence was committed by him,
8. Aggrieved from the said judgment and order this appeal has been filed by the State.
9. In this appeal, it has been argued by the learned P.P. that the findings of acquittal recorded by the learned Magistrate are erroneous one as there was evidence to prove the charges for the said offence against the accused respondent and, hence, this appeal should be allowed and the accused respondent should be convicted for the offences charged against him.
10. On the other hand, the learned counsel for the accused respondent submits that the judgment and order of the trial Magistrate are based on correct appreciation of evidence and the same do not call any interference by this Court.
11. I have heard both and perused the record.
12. To prove the charge for offence under Section 409 I.P.C., the prosecution has to prove following facts:
(i) The accused must be a public servant;
(ii) He must have been entrusted, in such capacity, with property.
(iii) He must have committed breach of trust in respect of such property.
13. Section 409 I.P.C. covers dishonest misappropriation in both types of cases:
(i) Where the receipt of property is improper or fraudulent; and
(ii) Where receipt of property is proper and honest.
What is required is 'entrustment.'
14. The gist of offence of criminal misappropriation is dishonest intention. Mere retention of property is not enough. It is, however, not necessary that the prosecution must establish that there was intention on the part of the accused to retain the amount permanently. Temporary retention is also sufficient.
15. So far as the present case is concerned, the accused respondent handed over the charge to PW.3 Badri Dan on 17.1.84 and in the charge handing over report, he wrote that the abovementioned amount was with him and he would deposit the said amount and the same was deposited by him on 3.2.84 and the reason for depositing that amount on 3.2.84, as stated by the accused respondent, is that his father died on 25.1.84. In these circumstances to say that the accused respondent committed criminal breach of trust for that amount cannot be accepted as there was no dishonest intention on the part of accused respondent. Had there been dishonest intention, he would not have mentioned in the charge report about that amount.
16. Apart from this, it appears highly improbable in absence of other circumstances to the contrary that the accused respondent would misappropriate a petty sum of Rs. 1580.50. If the accused had any dishonest intention, he would not have mentioned the fact of receiving that money in the charge handing over report. Therefore, in these circumstances, it can easily be inferred that due to some personal reasons, he was not in a position to deposit that amount in due time and if that amount was deposited by him on 3.2.84, by doing so, it cannot be said that he has committed any offence and thus, the findings of the learned Judicial Magistrate that the prosecutionhas failed to prove that the accused misappropriated that sum are liable to be confirmed one.
17. The position of law with respect of hearing appeal against acquittal has been made clear by the Hon'ble Supreme Court in so many judgments and for that the, important judgment of Ajit Samant v. State of Karnataka, AIR 1997 (SC) 3251 may be referred to.
18. While hearing appeal against acquittal, no doubt the High Court possesses all the powers, but the High Court has to keep in view the fact that presumption of innocence is still available in favour of the accused and if the High Court on scrutiny of material available on record is of the opinion that there is another view which can reasonably be taken, then the view which favours the accused should be adopted.
19. In my considered opinion, the judgment of the learned Magistrate is based on correct appreciation of evidence and the reasons which has been assigned by the learned Magistrate are reasonable and plausible and cannot be entirely and effectively dislodged or demolished and this Court sitting and hearing appeal against acquittal would not like to disturb the order of acquittal merely on flimsy grounds.
20. Since the learned Magistrate has arrived at the findings just quoted above and since they are based on correct appreciation of evidence, this Court should also give proper weight and consideration as the views of the trial Magistrate as to the credibility of the witnesses must be respected. Apart from this, the Court should be very slow in disturbing the findings of facts arrived at by the learned trial Magistrate as the Magistrate had advantage of seeing the witnesses and even if two reasonable conclusions can be drawn on evidence on record, the High Court should be a matter of judicial caution refrain from interfering with the order of acquittal recorded by the Court below.
For the reasons mentioned above, the present state appeal is dismissed after confirming the judgment and order dated 16.1.89 passed by the learned Judicial Magistrate, 1st Class, Sanchore.