' AMAN ULLAH KHAN, J.--By this common judgment we propose to dispose of Special Criminal Appeals No,2 of 1998 and 3 of 1998 filed by appellants Muhammad Hussain and Shuja Hussain respectively as both the appeals arise out of the common judgment dated 9-6-1998 passed by Special Judge Banking Court, Balochistan at Quetta.
2. The appellant Muhammad Hussain was convicted under section 409, P.P.C. Read with section 109, P.P.C. To seven years R.I. And a fine of Rs,1,00,000 in default to further undergo R.I. For one year; under section 5(2) Act II of 1947 he was further sentenced to seven years' R.I. And a fine of Rs,1,00,000, in default to further undergo R.I. For one month and under section 477-A, P.P.C. He was sentenced to suffer R.I. For five years and a fine of Rs,50,000, in default to further undergo R.I. For six months. Appellant Shuja Hussain was convicted under section 409, P.P.C. Read with 109, P.P.C. To suffer R.I. For seven years and a fine of Rs,1,00,000 in default to further undergo R.I. For one year, under section 5(2) Act II of 1947 he was further sentenced to R.I. For seven years and a fine of Rs,1,00,000 in default to further undergo R.I. For one year. The sentences of both the appellants were ordered to run concurrently.
3. Briefly stated the facts of the case are that P.W.2 Ikhlaque Ahmad wrote a letter Exh.P/F to the F.I.A. Banking Cell, Quetta on 7-12-1986 stating therein that on 2-12-1986, Abdul Basit, IInd Officer United Bank Limited (UBL) City Brinch informed him at the Circle Office that Muhammad Yousaf, Manager of the Branch has not reported for duty and requested for duplicate key to open the cash safe. The whereabouts of the Manager were not known till 4-30 p.m. And Cashier of the said Branch Arif Ahmad Rana had also gone on leave on the said date and had left the keys of the safe without properly handing over charge to the reliever. At about 6-30 p.m. On the said date the safe was opened in presence of Anwar Ahmad Shah, Vice-President Circle Officer Abdul Qadir Baloch Assistant Vice-President Circle Office, Abdul Basit Officer Grade II, Zaheer Abbas Cashier and Syed Najeebullah Officer Grade III. On opening the safe an amount of Rs,5,54,248.07 was lying in the safe and four unposted cheques debit cash voucher and 11 prize bonds of denomination of Rs,500 were recovered from the safe. According to the cash balance book of the previous day i,e, 1-12-1986 the closing balance was Rs,12,68,259.56, an amount of Rs,7,08,511.49 was found missing. It is further alleged that Arif Ahmad Rana, Cashier who was on his way to Multan by Train was informed at Sibi and he returned on 30-12-1986. It was alleged that Muhammad Yousaf Manager City Branch U.B.L.
Quetta had misappropriated the said amount and his whereabouts were not known. On the basis of said letter, F.I.R. No,3 of 1986 (Exh.P/G was registered by the F.I.A.
4. Investigation was entrusted to P.W.17 Zafar Iqbal Niazi, Sub-Inspector F.I.A. During the course of investigation Manager Muhammad Yousaf was declared as absconder. The appellants alongwith Rana Arif were arrested. After completion of investigation, challan was submitted before Special Judge Banking Court Balochistan at Quetta. Charge against the absconding accused was framed in absentia, and against Rana Arif Ahmad and the appellants on 27-10-1987. Appellant Muhammad Hussain was charged under section 409/109, P.P.C. Read with section 5(2) Act II of 1947 and under sections 477-A and 468, P.P.C. It was alleged that while serving as Machine Operator in U.B.L. Shar- e-Iqbal Branch, Quetta during 26-8-1984 to 1-12-1986, he abetted the absconding accused Muhammad Yousaf for criminal breach of trust in respect of bank money entrusted to him. It was further alleged that to defraud and falsify the account, he made wrong and false entries and also committed forgery by way of opening false accounts in order to cheat. To the said charge the appellant Muhammad Hussain did not plead guilty. Appellant Muhammad Shuja Hussain was charged under section 409, P.P.C. Read with section 5(2) Act H of 1947 and under section 477-A, P.P.C. It was alleged that while working as Officer Grade III in U.B.L. Shar-e-Iqbal Branch, Quetta from 10-8-1986 to 16-10-1986 an amount of Rs,5,02,000 was misappropriated by him and during the aforesaid period he ' altered and mutilated the counter-foil in respect of Rs,1,02,000. The said charge was also denied by appellant Muhammad Shuja Hussain. It may be mentioned here that accused Rana Arif Ahmad died during the pendency of the case; thus, the charges against him were dropped.
5. To prove its case, the prosecution at the trial produced 18 witnesses who deposed as follows:--
6. P.W.1 Muhammad Yousaf Constable F.I.A. Deposed that he took non-bailable warrants of absconder Muhammad Yousaf as his whereabouts were not known, thus the warrants were returned unexecuted.
7. P.W.2 Ikhlauqe Ahmad Circle Executive U.B.L. Is the complainant of the case. On his letter Exh.P/F written to the Director F.I.A. Banking Cell, F.I.R. No,3/86 (Exh.P/G) was lodged on 7-12-1986. He stated that on 2-12-1986 he was informed by Abdul Basit IInd Officer U.B.L. City Branch with Muhammad Yousaf Manager of City Branch was absent; as the key of the safe was with the Manager; thus, he got issued a duplicate key and Rana Arif Ahmad Cashier of the city Branch was also absent on that day. After issuing a duplicate key, the safe was opened in his presence and in presence of Muhammad Anwar Shah Vice-President, Abdul Qadir Baloch, Assistant Vice-President. Some unposted cheques were recovered; the amount of Rs,5,54,000 was lying in the cash and previous balance was Rs,12,68,259. The cheques were produced as Exh.P/A to Exh.P/D; Letter dated 2-12-1986 written to Abdul Basit was produced as Exh.P/E and when the whereabouts of Muhammad Yousaf could not be traced, a letter was written to F.I.A. For registration of the case which is Exh.P/F and on the basis of the same F.I.R. Exh.P/G was registered. After registration of the case, the customers of the bank approached authorities for their deposits with the bank. It was found that many accounts were not properly maintained and the amount received from the customers were not credited in their respective accounts. In this regard letter was also written by him to the F.I.A. Vide Exh.P/H. A team was appointed to inspect the accounts and report was submitted by the said team which is Exh.P/5. It was further stated that Manager Muhammad Yousaf who was the custodian of the bank at the relevant time had started parallel banking and after misappropriation of the amount, he absconded and the bank had suffered a loss of about Rs,80,00,000 which was paid to the customers.
8. P.W.3 Abdul Basit stated that on 2-12-1986 he was posted as IInd Officer in U.B.L. Share-Iqbal Branch Quetta. On the said date Manager Muhammad Yousaf did not report for duty. He was informed from his house that Muhammad Yousaf had already left in the morning; thereafter, he informed the Circle Office that Muhammad Yousaf had not returned for duty and requested for duplicate key and Rana Arif Ahmad, Cashier of the Branch had also gone to Multan without handing over the charge on the said date. The Circle Office was informed vide letter Exh.P/E wherein request was made for duplicate key. While Opening the safe, four unposted Cheques Exh.P/A to Exh.P/D were taken and an amount of Rs,5,54,000 was found in the safe whereas the closing balance of the previous day was Rs,12,68,259. The Original Cash Book of 1-12-1986 was produced as Exh.P/K. The entries in Exh.P/K were written and signed by Muhammad Yousaf and cash balance books of 28-11-1986 and 30-11-1986 were produced as Exh.P/C and Exh.P/M which were signed by Muhammad Yousaf and Cashier Rana Arif Ahmad. He had complained to the Circle Office about Rana Arif Ahmad for not handing over the charge on 2-12-1986 vide Exh.P/N and further stated that an amount of Rs,7,08,511.49 were found missing on the said date.
9. P.W.4 Muhammad Naeem Qureshi, Assistant Vice-President U.B.L. Quetta deposed that he was deputed by Circle Executive Ikhlaque Ahmad to look into the applications of the claimants pertaining to Share-e-Iqbal Branch and City Branch, Quetta. After receiving the said applications, he forwarded the same to he Special Inspection Team headed by Farooq Ansari, Vice-President Inspection Division. After reconsideration of each individual claimant it was revealed that he bank had suffered a loss of Rs,80,79,717 at the hands of Muhammad Yousaf, the then Bank Manager. It was further stated that Muhammad Yousaf by resorting to parallel banking had misappropriated the said amount.
10. P.W.5 Dost Muhammad Nasir Officer U.B.L. Stated that on 9th August, 1983 appellant Muhammad Hussain had brought a bank form in the name of Abdul Wahid for introduction. On his request he introduced the said customer as appellant Muhammad Hussain had informed him that the customer was his uncle. He produced the account opening form as Exh.P/D-I and specimen signature Card Exh.P/D-2. He also produced the affidavit signed by appellant Muhammad Hussain Exh.P/D wherein it is stated that account opening form of Abdul Wahid was produced by him before Dost Muhammad.
11. P.W.6 Najeebullah Officer-Grade III stated that on 2-12-1986, he was directed by Ehsan-ul-Haque, Staff Officer and Abdul Qadir to take the duplicate key of the United Bank Limited City Branch and to watch the banking business during absence of the manager and further stated that the safe was opened in presence of Muhammad Anwar Shah Vice-President, Abdul Qadir Assistant ice- President, Abdul Basit Second Officer and Zaheeruddin Cashier. On opening the safe, an amount of Rs,5,59,748.07 was found in the cash and an amount of Rs,7,08,511.49 was found missing. The cheque Exh.P/D was for Rs.3,65,000 in the name of Abdul Wahid. He further stated that Arif Ahmad Rana and Manager Muhammad Yousaf were responsible for the missing cash.
12. P.W.7 Muhammad Nawaz Qazi is Masheer to two stamps secured by F.I.A. Vide seizure memo.
Exh.P/P also signed by him and Raja Zaheer Ahmad and Naeem Qureshi. P.W.8 Muhammad Iqbal Manager Muslim Commercial Bank Jinnah Road Quetta stated that appellant Muhammad Hussain opened an account in the name of his minor child Muhammad Israr with Muslim Commercial Bank and deposited an amount of Rs,20,000. The said amount was separated by Muhammad Hussain.
He produced cheque Exh.P/O and last withdrawal cheque of Rs,32,000 Exh.P/R. The account opening form specimen signatures etc. Were taken by F.I.A. Vide Exh.PR to Exh.P/T. P.W.9 Raja Zaheer Ahmad Assistant U.B.L. Jinnah Road, Quetta is Masheer to two seals with the bank taken by F.I.A.
Vide seizure memo. Exh.P/P.
13. P.W.10 Syed Salahuddin stated that he had an account in U.B.L. Share-Iqbal Quetta bearing No,3046; on 16-10-1986 he gave Rs,1,02,000 to appellant Muhammad Shuja Hussain and deposited the receipt Exh.P/V issued to him and photocopy of the same Exh.P/W was produced in the Court.
After fraud was detected he approached the bank authorities wherein appellant Muhammad Shuja Hussain asked him not to complain against him in the bank and he promised to return him his money and also returned the deposit receipt to Muhammad Shuja Hussian. Later on he demanded his money but Muhammad Shuja Hussain refused to return the same and then his statement was recorded by, the police and the receipt was taken into possession vide Exh.P/X. In cross examiantion he admitted that due to the detection of fraud he claimed an amount of Rs,11,90,600 and his claim regarding Rs,1,02,000 in respect of the alleged amount given to appellant Muhammad Shuja Hussain was not accepted by the bank. He further admitted that the suit for recovery of Rs,1,79,000 was filed by the bank against him.
14. P.W.11 Syed Jameel Raza Officer Grade I, stated that a Term Deposit Receipt of Rs,400,000 issued in favour of one Fateh Muhammad Baloch on 10-8-1986 was detected which was not entered in the account books. The Term Deposit Receipt was produced as Exh.P/Y which was jointly signed by the absconding accused Muhammad Yousaf and appellant Shuja Hussain. The Cashier's book was produced as Exh.P/Z. The said amount was subsequently deposited on 1-12-1986 vide credit voucher Exh.P/AA. He further stated that as far as amount of Rs,1,02,000 is concerned, the same should not have been accepted by the accused. He produced Ledgers Account Exh.P/BB wherein an amount of Rs,1,02,000 (receipt Exh.P/V) is not deposited. He further stated that he produced Exh.P/Y and Exh.P/Z, Exh.P/AA, Exh.P/BB before the police and further stated that the same were taken into possession vide memo. Exh.P/CC. He produced ledger Cards Exh.P/DD and further stated that accused Muhammad Hussain had been operating machine and the deposits were not shown in their respective accounts and accused further stated that appellant Muhammad Hussain opened a fictitious Account No,CD-3360 in the name of Abdul Wahid which was being operated by appellant Muhammad Hussain. He produced two cheques Exh.P/EE, Exh.P/FF and cheque Exh.P/D which was found in the cash safe. He further stated that parallel banking was run by. Muhammad Yousaf.
15. P.W.12 Mir Muhammad Tareen stated that in December, 1986 while posted as Second Officer, U.B.L. Shar-e-Iqbal Branch both the appellants came along with EL A. Officials and pointed towards documents which were taken vide Exh.P/CC.
16. P.W. 13 Eshan-ul-Haque stated that in January, 1987 a complaint was lodged by Syed Salahuddin holder of Account No,3045 in U.B.L. Shar-e-Iqbal Quetta and claimed that an amount of Rs,1,02,000 was deposited by him but the same was not credited in his account. He further stated that the pay in slip was also produced and from taking the record, the said amount had not been deposited in the account of Syed Salahuddin and further stated that the amount was received by appellant Shuja Hussain. In cross-examination he admitted that the claim of Syed Salahuddin regarding Rs,1,02,000 was not entertained by the bank as receipt slip did not appear to be genuine.
17. P.W.14 Wasif-ur-Rehman stated that in December, 1986 it was revealed that in U.B.L. Fraud has been committed by Muhammad Yousaf IInd Officer and after inspection by the audit team it was revealed that Muhammad Yousaf was carrying out parallel banking. He further stated that he was deputed by the Authorities to look into the claims made by the account holders and the ones which were found genuine after thorough verification, payment was made to the account holders against their such claims. He further stated that during inspection it came to his knowledge that appellant Shuja Hussain had signed the T.D.R. Of Rs,4,00,000 on 10-8-1986 which was encashed on 2-10-1998 and the amount was deposited by appellant Shuja on 1-12-1986 and the TDR was produced as Exh.P/Y, credit voucher is Exh.P/AA and the same were taken into possession vide recovery memo. Exh.P/14-A, various other documents in respect of parallel banking were taken into possession by F.I.A. Vide Exh.P/14-B. He further produced documents Exh.P/14-C to Exh.P/14-H. In cross-examination he stated that appellant Shuja after detecting deficiency of Rs,4,00,000 obtained the amount from Muhammad Yousaf and deposited the same.
18. P.W.15 Ghulam Haider Durrani stated that in February 1987 he was posted as audit Joint Circle.
The case was registered in his absence and he alongwith the other officers of the bank checked the accounts of the customers on which it transpired that an amount of Rs,80,79,717 was embezzled by Muhammad Yousaf with the connivance of appellant Muhammad Hussain as the accused were involved in parallel banking. In cross-examination he stated that he had no knowledge that the bank had filed a suit for recovery of Rs,1,00,58,309.79 against Muhammad Hussain and Muhammad Yousaf. He further stated that he had no knowledge that the recovery suit was decreed against Muhammad Yousaf and dismissed against appellant Muhammad Hussain. He also admitted that appellant Muhammad Hussain was working as a machine operator with the status of labourer. He further stated that machine operator had no concern with the receipt and withdrawal of the cash.
P.W.16 Karim Agha stated that he had an account with U.B.L. City Branch, Quetta. He deposited Rs,2,40,000 in the bank. The deposit receipt was Exh.P/4-C and he drew an amount of Rs,1,00,000 and thereafter, an amount of Rs,1,40,000 was withdrawn.
19. P.W.17 Zafar Iqbal Niazi stated that on 7-12-1986 when the complaint was registered with the F.I.A.
Investigation of the case was entrusted to him. During investigation it was revealed that appellant Muhammad Shuja Hussain had misappropriated an amount of Rs,1,02,000 which was deposited by Salahuddin and not credited in his account. It further transpired that an amount of Rs,4,00,000 TDR was not deposited in the bank against which was deposited on 10-8-1986. However, the same was later on deposited by appellant Shuja Hussain. He further stated that during the course of investigation he took into possession various documents and it was revealed that Muhammad Hussain had opened fake account and had also opened accounts with Muslim Commercial Bank in the name of his minor son which was operated by him.
20. P.W.18 Syed Masood Hashmi stated that S.I. Zafar Iqbal Niazi was transferred and investigation of the case was handed over to him on 10-2-1987 and carried out further investigation of the case and on completion he submitted challan Exh.P/14-D and during investigation obtained audit report Exh.P/18-C.
21. After completion of prosecution evidence, appellants were examined under sections 342 and 340(2), Cr.P.C. Wherein charges alleged against them were denied. After hearing the parties, the learned Special Judge Banking Court Balochistan at Quetta convicted the appellants in the above stated terms; hence this appeal.
22. Mr. Nawaz Khan Barkazai, Advocate appearing in Criminal Appeal No,2 of 1998 for appellant Muhammad Hussain contended that the appellant was working as a machine operator as a labourer and had no concern with the deposit and withdrawal of the cash and further stated that the provisions of section 409/109, P.P.C. Read with section 5(2) Act II of 1947 are not applicable to the appellant. The learned counsel further contended that since no amount was entrusted to him; thus there is no question of criminal breach of trust.
23. Mr. Muhammad Aslam Chishti, Advocate for the appellant Muhammad Shuja Hussain contended that as alleged the amount of Rs,1,02,000 was misappropriated by him but the said amount was not proved to have been entrusted to the appellant inasmuch as the claim alleged by claimant Syed Salahuddin in respect of the said amount was not entertained. He further contended that as far as TDR of Rs,4,00,000 is concerned, it is stated that as soon as the said deficiency was detected by the appellant; he, approached Muhammad Yousaf and thereafter, deposited the same prior to the registration of the case; thus no criminal breach of trust was committed by him nor the provisions of section 409, P.P.C. Are attracted in the case of the appellant.
24. Mr. M.S. Rakhshani, Advocate appearing for the State opposed the appeal and contended that the prosecution had proved its case beyond any shadow of doubt against the appellants.
25. We have heard the learned counsel for the parties and have also perused the record.
26. Adverting to the arguments of Mr. Nawaz Khan Barakzai, Advocate that the appellant was working as a machine operator and being a labourer had no concern with the deposit and withdrawal of the cash; it may be mentioned here that to bring the charge home against the appellant Muhammad Hussain, the following evidence was brought on record against him. P.W.5 Dost Muhammad Nasir deposed that appellant Muhammad Hussain was working as a machine operator on 9-8-1983; he brought an account opening form in the name of one Abdul Wahid, which was a forged account and was being operated by appellant Muhammad Hussain, whereas there is nothing on record to show that the said account was being operated by appellant himself and prosecution did not produce said Abdul Wahid in whose name the account was being operated. Be that as it may, even if the said account was being operated by appellant Muhammad Hussain, there is nothing on record to show that the bank sustained any loss due to the operation of the said account. Admittedly, neither any loss was reported by the bank nor any claim was lodged by the said account holder Abdul Wahid.
27. P.W.8 Muhammad Iqbal Manager Muslim Commercial Bank stated that the appellant opened an account in the name of his minor son, namely Muhammad Israr and was operating the said account. It is further stated that an amount of Rs,32,000 was withdrawn on 8-12-1986 from the said account. The statement of account (Exh.P/S) reveals that the account was opened in Muslim Commercial Bank bearing No,1313 on 5-2-1985 and initially an amount of Rs,1,000 were deposited; thereafter, different amounts were being deposited on different dates and an amount of Rs,32,086 was withdrawn on 8-12-1980 as stated above but there is nothing on record to show that the embezzled amount was deposited by the appellant in Muslim Commercial Bank. Further, the prosecution failed to show whether operating the account in the name of minor amounts to any forgery.
28. P.W.15 stated that appellant Muhammad Hussain with connivance of main accused Muhammad Yousaf was involved in parallel banking. In cross-examination he admitted that the appellant being a machine operator had not concern with the case, nor any counter-foil or deposit slip are signed by him. It has further been admitted that his duty was to make entries in the machine in register books on the directions of the Bank Manager as mentioned in the debit and credit voucher. In this regard reference may be made to the statement of P.W.2 Ikhlaque Ahmad who stated that the Manager was custodian of the bank and had charge over the cash. The duty of appellant Muhammad Hussain at the relevant time was that of machine operator i,e, to credit all transactions carried out in the bank in respective accounts. Mr. Nawaz Khan Barakzai, Advocate pointed out that the suit for recovery was filed by the bank against Muhammad Yousaf and appellant Muhammad Hussain, but the said suit was decreed only against Muhammad Yousaf and was dismissed against appellant Muhammad Hussain by the learned Special Judge Banking vide judgment dated 2-5-1990. As the charge against the appellant was that of abetment, Mr. Nawaz Khan Barakzai Advocate pointed out that no case of abetment was made out. In this regard reference can be made to Rathan Lal and Dhiraj Lal's Law of Crimes 23rd Edition revised by Justice D.A. Dasai wherein abetment has been defined at page 342 as under:-- "A person abets by aiding when by any act done either. Prior to, or at the time of the commission of an act he intends to facilitate, and does in fact facilitate the commission thereof.
' The intention should be to aid the commission of a crime, a mere giving of an aid will not make the act and abetment of an offence. If the person who gave the aid did not know that an offence was being committed or contemplated, the intention should be to aid an offence or to facilitate the commission of an offence. But if the person who lends his support does not know or has no reason to believe that the act which he was adding or supporting was in itself a criminal act, it cannot be said that he intentionally aids or facilitates the doing of the offence."
29. In view of above definition it is held that the prosecution has failed to show that the appellant Shuja Hussain intentionally aided the commission of the offence.
30. Reverting to the arguments of Mr. Muhammad Aslam, Advocate regarding the allegations against appellant Shuja Hussain, the allegation against him is that he misappropriated an amount of Rs,1,02,000 deposited by a customer Salahuddin. Further, he received an amount of Rs,4,00,000 which he deposited after a lapse of a few months. As far as the amount of Rs,1,02,000 is concerned, in this regard prosecution case is based on the following pieces of evidence:
31. P.W.10 Syed Salahuddin stated that on 6th October, 1986 he gave an amount of Rs,1.02.000 to Shuja and the receipt was given to him. He further stated that Shuja approached him not to complain against him and also took the original receipt from him. The original receipt of the said amount was not produced. However, photostat was produced.
32. P.W.13 Ehsanul Haque stated that during inspection after detection of the said fraud an amount of Rs,1,02,000 deposited by Syed Salahuddin was not credited in his account. In cross-examination he admitted that the claim of Syed Salahuddin regarding the amount of Rs,1,02,000 was not entertained as the deposit receipt produced by him did not seem to be genuine. It has further come on record that the bank filed a suit for recovery against said Syed Salahuddin as he had withdrawn excess amount from his account with the connivance of the Bank Manager Muhammad Yosuaf and it was admitted by P.W.14 Wasif-urRehman that the claim of Syed Salahuddin against Rs,1,02,000 was not entertained as during the course of inspection it revealed that no such amount was deposited in the bank and the bank had not suffered any loss regarding the amount of Rs,1,02,000.
33. The other allegation against Shuja Hussain is that an amount of Rs,4,00,000 was received by him on 10-8-1986. P.W.11 Syed Jameel Raza stated that the term deposited receipt of Rs,4,00,000 was found which was issued in favour of one Fateh Muhammad Baloch. The said receipt was issued on '10-8-1986 and during the course of investigation the amount was found short. Appellant Shuja Hussain deposited the amount of Rs,4,00,000 on 1-12-1986. He further stated that the said amount should have been deposited on 10-8-1986. In cross-examination he denied that this shortage was in fact detected by appellant Shuja Hussain and then the said amount was recovered by him from Manager Muhammad Yousaf. It may be mentioned here that P.W.14 Wasif- ur-Rahman admitted in cross-examination that the deficiency of amount of Rs,4,00,000 was detected by appellant Shuja Hussain and thereafter, he deposited the same in the bank and the bank had not suffered on account of the said deposit.
34. Mr. Muhammad Aslam Chishti, Advocate argued that to constitute the offence of criminal breach of trust under section 40, P.P.C. The prosecution has to prove that an amount was entrusted to the accused and after receiving the same, the accused had misappropriated the same. In this regard reference is made to the definition of criminal breach of trust defined by Dr. Sarhari Singh Gour in the 10th edition of Penal Code of India, the following observations were made:-- "The essential thing to be proved in case of criminal breach of trust is whether the accused was actuated by dishonest intention or not. So, in cases of criminal breach of trust the failure to account for the money proved to have been received by the accused or giving a false account as to its use is generally considered to be a strong circumstance against the accused. The mental act or intent to deprive the master of his property is the gist of the offence."
' It was further observed as under:-- "There are, however, two distinct parts involved in the commission of the offence of criminal breach of trust. The first consists of the creation of an obligation in relation to the property over which dominion or control is acquired by the accused. The second is a misappropriation or dealing with the property dishonestly and contrary to the term of the obligation created."
35 From a plain reading of the above definition conclusion can be drawn that without proof of entrustment there can be no question of accused being guilty of the offence under section 409, P.P.C.
36. The prosecution has failed to prove that any amount was entrusted to the appellants, thus, the question of misappropriation does not arise.
37. For the foregoing reasons prosecution has failed to prove the case against the appellants beyond any shadow of doubt; therefore, the impugned judgment dated 9-6-1998 is set aside and appellants are acquitted. They be released forthwith if not required in any other case.
38. Above are the reasons of our short order dated 27-5-1999.