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Pandurang S/O Ramji Khade Vs. State of Maharashtra - Court Judgment

LegalCrystal Citation
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 7 of 1979
Reported in1982(2)BomCR416
ActsIndian Penal Code (IPC), 1860 - Sections 120B, 409 and 477A; Prevention of Corruption Act, 1947 - Sections 5(1) and 5(2); Code of Criminal Procedure (CrPC) - Sections 313; Posts and Telegraph Financial Rules - Rules 65 and 120
AppellantPandurang S/O Ramji Khade
RespondentState of Maharashtra
Appellant AdvocateB.V. Gaikwad and ;S.M. Sonare, Advs.
Respondent AdvocateMeera Khaddakar, A.G.P.
DispositionAppeal allowed
- [couto; m.l. pendse, jj.] in the first instance the order passed under s. 132(5) is an order of a summary nature and does not conclude the rights of the petitioners, because while passing the assessment order, it is always open to the petitioners to point out that the assets recovered in the search were not undisclosed to point out that the assetsrecovered in the search were not undisclosed income. secondly, the order passed under s. 132(5) is appealable under the provisions of the act and if there is any violation in the exercise of the power, then the proper remedy is to lodge an appeal before the appellate authority. thirdly, even assuming that there is some breach in exercise of power s. 132(5) such breach is not so fatal as to warrant quashing the entire order. income tax act.....s.w. puranik, j.1. this appeal is directed against the judgment of conviction passed against the present appellant under sections 409 and 477a of indian penal code and section 5(1)(c) read with section 5(2) of the prevention of corruption act, whereby he was convicted for r.i. for one year for each of the offences and the said sentences were to run concurrently. the appellant was also fined rs. 1,000/- under section 409 indian penal code; rs. 1,000/- under section 477-a indian penal code and rs. 3000/- under section 5(1)(c) read with section 5(2) of prevention of corruption act. the prosecution case in brief is as under :---2. that the appellant accused was working as a clerk in the sub-divisional officer phones, nagpur. he was directly posted under the sub-divisional officer shri nemade.....

S.W. Puranik, J.

1. This appeal is directed against the judgment of conviction passed against the present appellant under sections 409 and 477A of Indian Penal Code and section 5(1)(c) read with section 5(2) of the Prevention of Corruption Act, whereby he was convicted for R.I. for one year for each of the offences and the said sentences were to run concurrently. The appellant was also fined Rs. 1,000/- under section 409 Indian Penal Code; Rs. 1,000/- under section 477-A Indian Penal Code and Rs. 3000/- under section 5(1)(c) read with section 5(2) of Prevention of Corruption Act. The prosecution case in brief is as under :---

2. That the appellant accused was working as a clerk in the Sub-Divisional Officer Phones, Nagpur. He was directly posted under the Sub-Divisional Officer Shri Nemade who is examined in the instant case as P.W. 12. The prosecution alleges that it was one of the duties of the appellant-accused that he was required to maintain accounts, draw cheques and documents, send cheque drawal intimation to the head office, collect cash and look after such jobs as an accounts clerk.

3. The prosecution case further narrates that on 8-10-1974 the accused in discharge of his duties as clerk incharge of accounts, drew a cheque in the sum of Rs. 10,000/- bearing Cheque No. 458477 dated 8-10-1974 which is Ex. 22 on record and that the said cheque was signed by his superior Shri Nemade and it was a bearer cheque with account of the Sub-Divisional Officer at the Reserve Bank of India. On the backside of the cheque Shri Nemade signed it and attested the signature of the appellant-accused. It is further alleged that the accused went to the Reserve Bank of India, collected the cash of Rs. 10,000/-, but in the office of the Sub-Divisional Officer, he only credited a sum of Rs. 1,000/- and it is alleged that the balance of Rs. 9,000/- was not accounted for and was misappropriated by the appellant-accused.

4. It is further the case of the prosecution that with a view to suppress this misappropriation of Rs. 9,000/- the appellant-accused on the counter-foil of the said cheque made an entry of a sum of Rs. 1,000/- only. He also while sending the intimation to the head office regarding the encashment of the said amount mentioned a sum of Rs. 1,000/- only as drawn against Cheque No. 458477. Thus, according to the prosecution, the accused as a public servant, misappropriated the amount of Rs. 9,000/- and fraudulently and dishonestly with intent to defraud prepared false accounts and counter-foil and thus converted the amount dishonestly to his own use.

5. According to the procedure adopted in the office of the Sub-Divisional Officer, Phones at Nagpur, the cash book is not maintained in the said office, but the accounts are tallied in the office of the District Manager where the intimations from the Sub-Divisional Officer's office as well as intimations from the Reserve Bank of India regarding the cash withdrawals are collected and tallied together. After reconciliation at the head office if there is any discrepancy found, the Sub-Divisional Officer incharge of his office is called upon to explain such discrepancies.

6. In the instant case, regarding the cheque of Rs. 10,000/- dated 8-10-1974, the discrepancy came to the notice of the District Manager on 4-12-1974 by which time the same office had received the Bank's carol from the Reserve Bank of India as well as the said cheque and when they tried to reconcile the same with the intimations and accounts received from the office of the Sub-Divisional Officer, they found that whereas Rs. 10,000/- has been withdrawn from the account at the Reserve Bank of India by the office of the Sub-Divisional Officer, the account of the office of Sub-Divisional Officer only showed a receipt of Rs. 1,000/-. Immediately on the same day, the senior officers of the department went to the office of Sub-Divisional Officer, Telephones of which P.W. 12 Mr. Nemade is the officer incharge. On reaching his office, the accounts were closed and the cash in hand at the office was checked. It was found to be short by Rs. 9,881/-. The original cheque book was seized from the possession of Shri Nemade P.W. 12. As far as Rs. 881/- are concerned, the said difference is regarding accounts for a subsequent period. Thus, according to the prosecution, on 4-12-1974 a deficit of Rs. 9,000/- was noticed in the cash balance at the office of Sub-Divisional Officer. Shri Shukla, P.W. 2, was the Divisional Engineer, Telephones at the relevant time and a superior officer to Mr. Nemade. He immediately recorded statements of the accused at Ex. 27 and also of Shri Nemade, Sub divisional Officer at Ex. 28. Additional statement of Nemade was also recorded at Ex. 37 on the same day.

7. It has come in the prosecution case that Shri Nemade approached his superior Shri Shukla on 5-12-1974 and filed an application before him stating that as he was overall incharge of the office of the accounts, he felt it his moral duty to reimburse the amount to the office and requested for two days time to repay the same. Accordingly by 7-12-1974 Shri Nemade paid back the entire amount which was deficient in the cash balance.

8. It is pertinent to note that in his statement before Shri Shukla, Shri Khade submitted that he was not an accounts clerk as such, but was a regular time scale clerk in the said office and he was doing whatever duties were assigned to him. According to him, as far as cash withdrawals or disbursements are concerned, Shri Nemade was personally responsible. He further stated that as a clerk he used to draw the cheques at the dictation of Shri Nemade, get them encashed from the Bank and bring back the cash and hand-over the same to Shri Nemade. He also submitted that the cash always used to remain in the custody of Shri Nemade and the key of the cash box also with Shri Nemade. Question regarding the admissibility of the statement was raised at the trial, but was not challenged at the appellate stage. It was challenged on the ground that it was a confessional statement of the accused and should not be accepted as such. However, while discussing this objection, the trial Court held that it was a submission or a statement made by the accused before his superior officer before any police machinery was brought into operation for the purpose of investigation and hence was admissible. In the said statement, the appellant further submitted that Shri Nemade was in financial difficulties and used to draw sums more than required for the office and used to utilise them and repay back the said amount in the office cash after some days. It is because of this that he had not reported the matter to any superior authorities. In his statement, Shri Nemade the Sub-Divisional Officer, submitted that he is not able to explain these discrepancies in the accounts. He threw the blame entirely on the appellant-accused and stated that it was he who used to maintain the accounts and was also incharge of the cash in the office. According to him, when the cheque for Rs. 10,000/- was drawn by accused and signed by him, he did not notice that in the counter-foil only a sum of Rs. 1,000/- was mentioned. He also omitted to notice that in the intimation to the head office a sum of Rs. 1,000/- was mentioned. As already stated above, after the said incident, he requested for short time to reimburse the office cash.

9. The first information report regarding this incident came to be lodged on 13-2-1975 vide Ex. 60. It was lodged with the Delhi Special Police Establishment, Bombay Branch, on an undisclosed source of information. It is pertinent to no note that in the said first information report, both Shri Nemade and Shri Khade the appellant, were arrayed as accused Nos. 1 and 2 respectively. The charge under the said first information report was one of conspiracy read with sections 420, 477-A, Indian Penal Code and section 5 of the Prevention of Corruption Act. I am giving special emphasis to this first information report, because in the impugned judgment of the learned Special Judge, no reference at all has been made to the first information report Ex. 60, which is the very basis of this prosecution case. It is pertinent to note that Shri Nemade was arrayed as principal accused and the present appellant as abettor or conspirator along with Shri Nemade. The date of lodging of the said report is 13-2-1975. That means about two months after Shri Nemade is alleged to have reimbursed the office cash. This assumes importance as far as appreciation of evidence of Shri Nemade is concerned. It is also surprising to note form the entire record that the prosecution has not explained as to why and how Shri Nemade who was mentioned in the first information report as the principal accused was let off before the trial started.

10. At the trial, the accused pleaded innocence and he took the same defence as he had initially taken on 4-12-1974 when his statement was recorded by P.W. 2 Shukla. He contended that as per instructions of his superior, he used to prepare cheques for larger amount, draw the said amount from the Bank and hand over to Shri Nemade, who according to him was in financial difficulties and was also constructing a house at his native place. This being so, the detailed discussion of the prosecution case may not be necessary. However, a brief sketch would prove advantageous.

11. The prosecution relies mainly on the evidence of P.W. 1 Ramchandra who is the Chief Accounts Officer and who relates the entire procedure of maintenance of accounts in his department as well as in the office of the Sub-Divisional Officer. This witness also state that there was no cash book in the office of Sub-Divisional Officer. The account was opened in the Reserve Bank of India in the name of Shri Nemade Sub-Divisional Officer, Phones, Nagpur, with a monthly limit of Rs. 35,000/-. He further states that whenever an intimation is received from the office of Sub-Divisional Officer, an entry is taken in the cash book maintained in the Account Office of the District Manager. It is in this office that on 4-12-1974 while accounts reconciliation was going on, he found the discrepancy of Rs. 9,000/-. It is pertinent to note that the cheque in question was duty signed by Shri Nemade on the face as well as on the reverse, the intimation which was sent to the office of District Manager was also signed by Shri Nemade and the counterfoil of the cheque was also initialled by Shri Nemade. In his examination-in-chief itself this witness further states that on questioning on 4-12-1974 Mr. Nemade expressed that he cannot say how it happened and he had no explanation to offer. In cross-examination, this witness admitted that there were many instances of late submission of ACE - 2 accounts (weekly statements of account from Sub-Divisional Officer's office to the office of the District Manager) from Mr. Nemade and of having kept high cash balance at hand. He further stated that these instances were brought to the notice of Shri Nemade by means of office correspondence Exts. 30 to 34. A perusal of these documents will clearly show that when according to the ACE- 2 accounts, the office of the Sub-Divisional Officer was purported to be having a cash balance of Rs. 5,000/- or 6,000/- yet in the same week Shri Nemade had withdrawn small sums like Rs. 500/-, 700/- etc. for office expense. It is for this purpose that explanations were sought for on many occasions. From the replies given by Shri Nemade, it is pertinent that he never threw any blame of those instances on the appellant-accused. If in fact appellant was incharge of the cash and accounts then when several instances of irregularities were brought to the notice of Shri Nemade, he would have as a normal prudent officer questioned the working of appellant-accused and also given the same explanation to the head office. From the persual of these explanations, we find that he himself accepted the responsibility and stated that his office would be more particular in future. One letter be way of explanation written by Shri Nemade is dated 28-10-1974 at Ex. 32. This letter is after the alleged incident of drawing of the cheque dated 8-10-1974 and even in this, he has tried to give explanation that the withdrawals were for anticipated payment of muster rolls, but does not blame the appellant-accused.

12. P.W 2. Shukla is the Divisional Engineer (Telephones) and I have already discussed his evidence to the effect that after the discrepancy in the accounts was noticed on 4-12-1974 the same day he recorded the statements of appellant at Ex. 27 and Shri Nemade at Ex. 28. He is also the officer who accorded sanction for prosecution of the appellant vide Ex. 36. This witness further states that on 5-12-174 Mr. Nemade saw him in his office and expressed his willingness to pay Rs. 9,000/- saying that he was giving it as he considered it his moral responsibility and he filed an application before him which is at Ex. 38. A persual of Ex. 38 will show that in the application Shri Nemade stated as follows :

'That in view of the fact that the ultimate responsibility of all monetary transactions and maintenance of accounts in the Sub-Divisional Officers' office devolves on me, I hereby agree to make good the loss of Rs. 9000/- (Rs. Nine Thousand) suffered by the Government.......'

This statement shows that he agreed to make good the loss and the opening paragraph of his application reads in continuation of the statement given to you on 4-12-1974. Thus, it is apparent that after the said statement was recorded, there must have been the discussion between him and P.W. 2 Shukla, whereby he agreed to make good the loss. It is very probable, and to my mind possible, that it is because of the said reimbursement that Shri Nemade even though figures as the principal accused in first information report Ex. 60, was not charge-sheet finally for the trial. In para 4 of his examination-in-chief, this witness stated that the clerks under the Sub-Divisional Officer have to do all clerical work according to the directions given by the S.D.O. This statement in chief is also of importance as far as the defence is concerned. In fact that is the exact defence taken by the accused.

13. Mohd. Mustafa Kamal P.W. 3, is the cashier from the head office examined by the prosecution to establish the accounts procedure. In view of the fact that the entire set of documents and handwriting have been admitted by the accused and Shri Nemade, all his evidence assumes only formal importance. The only important witness for the prosecution is, therefore, P.W 12 Nemade.

14. While appreciating the evidence of this witness, we must bear in mind the principles laid down by the Supreme Court form time to time that in a case where a witness for the prosecution is suspected to be an accomplice in the offence itself or is in the place of a conspirator or abettor of the main offence, then when he is examined as a prosecution witness, his testimony should be scrutinise with great case. The case law on this point need not be discussed as it is a well settled principle. It's applicability here is without question. As already stated, Ex. 60 the first information report is the very basis of this prosecution and from the said document, we find that P.W. 12 Nemade was arrayed as a principal accused and the present appellant as accused No. 2 under section 120-B of Indian Penal Code read with other offences. As already stated there is no explanation forth coming from the prosecution as to how Shri Nemade was let off even before the charge-sheet was put up, and it supports my conjecture that after Shri Nemade repaid the entire cash balance in the office, probably he was given the concession of not facing the trial. At any rate, prosecution cannot shirk of its responsibility at the execution of the trial and Ex. 60 clearly shirk the of nature of offence first disclosed to the investigating agency. That document clearly shows the complicity of accused No. 1 in the said offence. At this stage, a reference may also be made to the rules of the Posts and Telegraphs Department which were relied upon by the defence and suggestions were given to the prosecution witness in that regard. The said rules are under the Posts and Telegraph Financial Hand Book, Volume I. As per the prosecution witness Mohd Kamal P.W. 3 and Ramchandra P.W. 1, who are the cashier and Chief Accounts Officer, these are the rules which are applicable to the working of the office of the Sub-Divisional Officer (Phones). Under Rule 65 of Chapter II, the officer who signs or countersigns a certificate is personally responsible for the facts certified to, so far as it is his duty to know or to the extent to which he may reasonably be expected to be aware of them. Rule 58 states that the superior officer is personally responsible for any loss sustained by the Government. Rule 120 lays down that :

'The disbursing officer shall check all entries in his cash book as soon as possible after the date of occurrence and he should initial the book dating his initials after last entry checked by him. The cash book should be signed by him at the end of the month'.

It lastly says that :

'Such signatures should be understood as fixing responsibility for all entries of the month inclusive of the closing balance'.

Similar are the wording of Rule 124. No doubt in the instant case the office of Sub-Divisional Officer was not maintaining a cash book as such, but a regular chequebook as well as ACE -2 accounts were being maintained and they were required to be forwarded every week to the head office where cash book entries were taken. All these cheques as all as the ACE- 2 accounts were under the signature of this P.W. 12 Namdeo and under the present rules we have read, it was his personal responsibility not only for the purpose of reimbursement of loss to the Government, but a personal responsibility was fixed as and when the signed the cheque or issued the ACE- 2 account to the head office. In other words, it only means that the officer incharge P.W. 12 was required to scrutinise every document, cheque or account that was being forwarded from his office and it will not lie in his mouth to merely say that inadvertently he had made those signatures.

15. It takes us to the discussion where inadvertent cheques or entries are signed by the superior officer, whether criminal intention can be inferred therefore. The trial Court held while believing this witnesses Nemade that those entries were inadvertently made by Shri Nemade and criminal liability cannot be fastened thereon. While appreciating the evidence of Nemade we cannot lose sight of the fact that initially, he was the principal accused in the F.I.R. Ex. 60. Secondly, his conduct that on previous instances vide Ex. 30 to Ex. 34 he was warned regarding the drawing of excess amount from the Bank even when there was cash balance in the accounts and yet in throwing blame on the appellant-accused, and the fact that he repaid the money within two days to his superior officer when questioned, but 'as agreed'. All this conduct leads to an irresistible inference that the witness Nemade was in the position of an accomplice and the evidentiary value of his testimony will have to be Judged in the light of the documents of the prosecution and the defence raised by the accused. In Ex. 28 his statement before P.W. 2 Shukla, Shri Nemade stated that he overlooked the discrepancy in the figures as stated in the counter-foil and on the cheque. He also states that he overlooked the entry of Rs. 1,000/- only in the drawal intimation to the head office. He also says he overlooked the discrepancy in the ACE-2 account. Thus, we are given to understand that this witness used to overlook these entries on important documents like the cheques and intimations. In para 12 in his cross-examination, this witness stated that the ACE-2 form account is send at the end of every week. He further stated that not only he used to draw the amount as required for the day, but 'I used to get myself satisfied only on what he (accused) said'. He further stated that 'I was physically verifying the cash balance at the end of the day before sending ACE-2. I accept that it was my such duty under the rules, but in practice it is not possible to do it. 'Thus, this witness wants us to believe that while knowing what his duty was under the rules, it was not possible for him to do so in actual practice. He admitted that he had received some memos from the head office that he was keeping high cash balance at hand and yet withdrawing sums from Reserve Bank of India account. It is also admitted by him that he used to check the contents in the counterfoil corresponding with the main cheque. In the light of these explanations, it is apparent to my mind that this witness is trying to throw the blamed entirely on the appellant accused while trying to exculpate himself. The rules are very clear and cogent and it does not require any interpretation of laxity. The witness himself admits that he was aware of his responsibility under the rules. He also admits that he used to personally verify the figures and letters on the cheque as well as on the counterfoil. In these circumstances, the excuse appears to be very lame, when he stated before P.W. 2 Shukla that he over-looked the figure of Rs. 1,000/- and only signed it. In fact this is all the evidence of this witness as far as the prosecution case is concerned. The rest of his cross-examination is directed to show that he was in financial difficulties at the relevant time. That he was constructing the house at his native place. That his son was studying in the Engineering College and was involved in some criminal case for which also he was required to disburse expenses. Thus rest of the cross-examination is only in the direction that it was Shri Nemade who was in need of money at the relevant time and used to draw such sums through appellant accused who was his clerk. Be it as it may, the pertinent question still remains regarding the offences alleged to have been committed by the appellant.

16. Since in the case, the accused has admitted that he encashed the cheque of Rs. 1,000/- and handed over the money to his immediate superior P.W. 12, the only question for this Court to decide is whether the appellant dishonestly and with intent to defraud prepared false documents and mis-appropriated the amount of Rs. 9,000/-.

17. Shri B.V. Gaikwad, the learned Counsel for the appellant relied on : 1976CriLJ913 S. Harnam Singh v. The State Delhi Admn.. It has been laid down that 'willfully' as used in section 477-A means intentionally or deliberately. But from the very fact that certain entries were made willfully by accused, does not necessarily follow that he did so with intent to defraud within the meaning of section 477-A of the Penal Code. According to Mr. Gaikwad, merely making false entries by itself is not an offence if as per the defence version they were done at the dictation of his superior by a clerk. But if there is a criminal means rea or intention or deceit of causing wrongful harm, it is only then that the offence under section 477-A could be deemed to have been established.

18. In the instant case, the charges that are put up against the accused are that he committed criminal breach of trust. The charges are that the accused committed criminal breach of trust in respect of Government amounts and to suppress the same he prepared false documents and hence also committed offence under section 477-A of Indian Penal Code. Shri Gaikwad urged that in case from the evidence on record and from the defence of the accused he is able to persuade this Court that the offence of criminal misappropriation has not established against the accused, then automatically the offence under section 477-A must also fail. For this purpose he relied on a decision of the Madras High Court reported in 1968 Criminal Law Journal page 1378 Public Prosecutor v. P.C. Raju and others. It is not disputed that if the two offences are so unconnected that for the purpose of suppressing the main offence of criminal breach of trust the accused were to prepare the false accounts then, if the principal offence is not established, the other offences also automatically fails.

19. Shri Gaikwad also urged that a cheque or a document only completes the definition of an account or a document only when it is signed only the author. According to him, in the instant case, when the cheque is signed, it is only then that it becomes a document and prior to that it is only a scrap of paper over which the accused have made entries of the amount and the name of the payee etc. He, therefore, urged that it is not the accused who has made a document, but he only drafted it and finally it become a document when it was signed and stamped by Shri Nemade under his official seal. He, therefore, referred to I.L.R. 7 Cal 358 In re Juggun Lall: : AIR1953All660 Hari Prasad and others v. State, : AIR1951Cal581 Pramathan Nath v. The State, and 1968; Criminal Law Journal 1378 Public Prosecutor v. P.C. Raju and others.

20. To my mind, the charge under section 409 is more material for decision of the instant case and if the said charge fails against the accused then the other charges automatically fail.

21. From this angle, it would be advantageous to refer to the decision of the Supreme Court reported in : 1977CriLJ173 Rabindra Kumar Dev v. State of Orissa. In the said case Fazal Ali, J., has laid down certain cardinal principles of criminal jurisprudence viz.;

1) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defence version while proving its case ;

2) that in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty; and

3) that the onus of the prosecution never shifts.

He further observed that :

'It is sufficient if the accused is able to prove his case by the standard of preponderance of probabilities as envisaged by section 5 of the Evidence Act as a result of which he succeeds not because he proves his case to the hilt but because probability of the version given by him throws doubt on the prosecution case and, therefore, the prosecution cannot be said to have established the charge beyond reasonable doubt. In other words, the mode of proof, by standard of benefit of doubt, is not applicable to the accused, where he is called upon to prove his case or to prove the exceptions of the Indian Penal Code on which he seeks to rely. It is sufficient for the defence to give a version which competes in probability with the prosecution version, for that would be sufficient to throw suspicion on the prosecution case entailing its rejection by the Court.'

22. Shri Gaikwad for the appellant also referred to a case reported in A.I.R. 1965 Mys 128 C.N. Krishna Murthy v. Abdul Subban and another. The said case decided by Shri Hegde, J., as he then was, was on a similar or identical set of facts. In the said case, first charge against the accused was that he had committed breach of trust under section 409 of Indian Penal Code with respect to a huge amount within a period of one month i.e. during June 1953. The second charge against him was one under section 477-A Indian Penal Code with respect to the same period. The prosecution case was that on five days within a period of one month the accused misappropriated various sums of money and to cover up those defalcations he made false entries in the Double Lock Registrar, Single Lock Register and Treasurer's Balance-sheet. In the said case, while discussing the principles involved, the Court referred to the rules of the Treasury applicable to the said office and observed;

'It is not possible to accept the prosecution contention that the accused alone was taking out cash and currency notes from the strong room in the morning and he alone was putting them back in the strong room in the evening.'

Then, the learned Judge referred to the rules and stated that;

'There were detailed and comprehensive Rules regulating the duties of each one of the officers in the Treasury. But I was asked to believe that these Rules were not observed.

He further stated that :'Defalcations occur often times, because of the failure of the superior officers to Act according to Rules and regulations. There is a presumption that official Acts have been regularly performed that they have been performed in accordance with the rules and regulations bearing on the subject. But this is a reputable presumption. In fact it is left to the Court to raise that presumption or not depending on the peculiar facts of each case'.

and finally he observed that;

'When officials who are required to perform their official Acts regularly depose that they have failed to do so that evidence is bound to be looked with suspicion particularly when it is self serving or when it is given by their subordinates who are likely to be eager to have their grace or to avoid their displeasure'.

23. While discussing regarding the appreciation of evidence of the superior officers examined in the case vis-a-vis the accused who was subordinate, the learned Judge further observed;

'Evidently the trial Court though that it ought to rely on the evidence of P.Ws. 12 and 13 as they were holding fairly high positions in Government service though they are interested witnesses, their evidence does not accord with the Rules on the subject and the same is discrepant in several respects. The trial Court has adopted varying standards between the accused and P.W. 13 in weighing the circumstances against them. It may be that P.W. 13 was merely negligent and was not responsible for the defalcation or defalcations in question. But between a may and must there is a long way and the prosecution must cover all that way. That is what has not been done in this case.'

Lastly, he stated that;

'there are strong grounds to suspect the complicity of the accused in the embezzlement or embezzlements that had taken place in the Treasury. But for the reasons set out earlier it will be a travesty of justice to order a retrial of this case at this stage.'

and acquitted the accused.

24. The principles of this ruling, to my mind, appears applicable to the present case, inasmuch as here according to Ex. 60, P.W. 12 Nemade was proposed to be the principle accused but was not charge-sheeted. P.W. 12 has categorically admitted that he was aware of his duties and responsibilities under the Rules applicable to his office and further admits non-chalantly that they are not observed in practice. I have also noted that the said witness P.W. 12 on the one hand says that he used to check the figures on the counterfoil as well as the main cheque, but again for the particular incident he says that he overlooked the entries on the cheque and the counterfoil. In the light of this background merely because he is holding a substantially high post, his evidence cannot be weighed on any other scale except the one for which all officers are common citizens are on par before the Court.

25. It is very likely that the trial Court while discussing this case completely lost sight of F.I.R. Ex. 60 and merely accepted the explanation of P.W. 12 while shirking his responsibility on the appellant-accused. To my mind, that reasoning in erroneous and leads to injustice to the accused.

26. In the instant case, the accused has taken a consistent stand from the date the discrepancy in the account was noticed on 4-12-1974 and he has stuck to that stand as stated by him on 4-12-1974 and also in his examination under section 313 of the Criminal Procedure Code at the trial. The said explanation is not only reasonable and probable but in the light of the discussion regarding the rues applicable to the office, the complicity of P.W. 12 which causes grave suspicion in the mind about his hand in the entire affair and the lame excuse which the said witness has given, it is evidently clear that the defence of the accused has been established more than satisfactorily merely by the preponderance of probabilities in his favour. Under the circumstances, the conviction and sentences passed by the trial Court are not sustainable. Hence I pass the following order.

27. The appeal is allowed. The convictions and sentences of the appellant are quashed and set aside. His bail bond stands cancelled. Fine if paid to be refunded.

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