N.K. Das, J.
1. The petitioner was the Agent of Life Insurance Corporation of India, Cuttack L.I.C. Division in 1961-62, : He was charged under Section 409, I.P.C. read with Section 420 and alternatively under Section 420, I.P.C. for misappropriation of several items of money collected by him as first premium from several persons in connection with proposals for insurance. He has been acquitted in all these cases of the charge under Sections 420 and 420-B, I.P.C. but has been convicted under Section 409, I.P.C. In Criminal Revision No. 65 of 1980 he has been convicted under Section 409, I.P.C. and has been 'sentenced to undergo S.I. for a period of two months and to pay a fine of Rs. 200/-, in default to undergo S. I. for 15 days on the allegation of misappropriation of Rs. 57.08 paise. In Criminal Revision No. 66 of 1980 the petitioner has been convicted under S, 409, I.P.C. and has been sentenced to undergo S. I. for two months and to pay a fine of Rs. 200.00, in default to undergo S.I. for 15 days for misappropriation of Rs. 56.10 paise. In Criminal Revision No. 67 of 1980, he has been convicted under Section 409, I.P.C. and has been sentenced to undergo R. I. for four months and to pay a fine of Rs. 250.00, in default to undergo R. I. for two months for misappropriation of Rs. 240.49 paise.
2. Prosecution case is that the petitioner had collected the first premium from several persons in each of the cases and has not deposited the same in the L. I. C. office. This fact was detected later on verification of records and, as such, he has been prosecuted and has been found guilty for misappropriation of the aforesaid amounts.
The plea of the petitioner is that he has collected the money as alleged but he has deposited the same with the Development Officer Sri M.P. Dasgupta under whom he was working as agent. This money was handed over to Sri Dasgutpa for depositing in the L.I.C. Office. His further case is that he has handed over the money to Sri Dasgupta for depositing in the Life Insurance Office according to the prevailing practice in the office.
The trial Court has found him guilty on the findings that Sri Dasgupta has denied to have received any money from the petitioner, no reliance can be placed on the testimony of the witnesses examined by the petitioner inasmuch as they do not specifically say about the particular amounts involved in each of these cases to have been paid by the petitioner to Sri Dasgupta.
As the three revisions relate to different occasions, the evidence in all these cases is in one line and the defence plea is also the same, all these revisions can be disposed of together.
3. It is not necessary to discuss the evidence of the witnesses who are said to have paid the- different amount of money to the petitioner as first premium for insurance because this fact is admitted by the petitioner. The only question that remains to be considered is whether after collection of money from those persons, the petitioner has deposited the amount in the Life Insurance Office. His plea is that he handed the same over to Sri Dasgupta, Development Officer under whom he was working. Mr. Dasgupta denies to have received any such money. Evidence has been led on behalf of the prosecution to say that if money is paid to the Development Officer, he has to grant a receipt according to rules. But not only by different witnesses examined by the prosecution who are officers of the L.I.C. but also from the evidence of the witnesses examined on behalf of the petitioner consisting of some officers of the L.I.C, some journalists and other persons who have unanimously stated that the practice in the L. I. C. office was running with confidence and good faith between the officers and more so between the agents and the Development Officer, The system was run in this way because it will ensue to the benefit and development of the business of the L.I.C. They have staled that it was not a practice always to grant such receipt because the system was working on good understanding. This fact is supported by other type of evidence that is coming forth out of the statements made by the officers of the I. I. C. as well as their clerks, namely, Dibakar Satapathy, R. K. Nanda, Gopa-bandhu Das. Bhabagrahi Das and Sashi-bhusan Patnaik. The sum total of their evidence as well as the evidence of Sri M. P. Dasgupta is that a proposal is made for insurance. At that time it may be supported with a first premium or not. When the money comes it has to be deposited in suspense account because the proposal has not been finalised and, as .such, it requires medical examination so as to enable the Life Insurance Corporation to finally accept the proposal. After the proposal is accepted, the money comes to the regular cash of the L. I. C. This would show that as soon as the proposal comes the matter does not reach a final stage. It has to wait till after following the required procedure the proposal is accepted by the L. I, C. and the contract is completed by that time. From the evidence of the aforesaid persons as well as of Mr. Dasgupta, it is clear that many proposals had been sent by the petitioner and those proposals are still lying undisposed of and huge amount of such payment of first premium was lying in the suspense account of the L, I. C. Mr. Das-gupta has also admitted that by the end of 1963 about fifty per cent of the proposals of the petitioner were lying in the suspense account. It is also admitted by some of the prosecution witnesses that by 1968 fifty per cent of the proposals of the petitioner are still lying undisposed of and this money was lying in the suspense account. Either in 1961 or 1964 the petitioner has left the L. I. C. Mr. Dasgupta states that the petitioner has left the business of L. I. C. agent towards the end of 1961 or in the early part of 1962. Long after the petitioner has left the work and has left the service, this case has been started. But curiously enough the suspense accounts have not been examined or tested or verified in order to find out whether the particular proposals relating to the persons who have paid the first premium are there lying in the suspense account without being finalised. Mr. Dasgupta states that he could not verify these accounts since the particulars were not supplied to him. The Investigating Officer states that he does not know that there were such suspense registers. Thus, it would be clear that the amounts with which all the three revisions are concerned have really gone into cash of suspense account or not has not been properly investigated and found out.
4. Prosecution relies on the statement of Sri Dasgupta when he says that he has not received any money from the petitioner. It is admitted by D. W. 1 who was the Branch Manager that Sri Dasgupta was involved in a departmental inquiry relating to misappropriation of such premium money. There is no reason why the officers of the L. I. C. could depose in favour of the petitioner and say that according to practice prevalent in the office, the agents were handing over money to the Development Officer and, in fact, D. Ws. 1 and 3 have seen the petitioner handing over the money to Sri Dasgupta. It is not possible on their part to say to whom the money relaies but they have been examined in order to establish that the prevalent practice in the office was that the agents including the petitioner were handing over the money to the Development Officer. It has been admitted by the prosecution witnesses including Sri Dasgupta that as soon as the money relating to the first payment of premium comes to the L. I, C, it has to be deposited in the suspense account because it cannot be kept in regular account of the L. I. C. unless and until the proposal is finalised after acceptance and at that time the money comes from the suspense account to the regular account of the L. I. C. Mr. Dasgupta refers to the registers where he could not find the deposit of money by the petitioner but those registers relate to the suspense account where the money is deposited after finalisation of the proposal.
5. It is contended by the learned Counsel appearing for the opposite party that once entrustment is admitted, it is for the accused to explain as to what he did with the money. There cannot be any dispute about this proposition. It is further contended if the accused gives an explanation which is found to be false then that lends assurance to the prosecution story about the guilt of the accused. Mr. Mohapatra, the learned Counsel for the petitioner does not dispute this proposition of law but he contends that the explanation given by the petitioner, if appears to be reasonably probable even on preponderance of probabilities leads and probabilities are reasonable probabilities, then in that case the plea of the accused is to be accepted. The accused has not to establish his case like the prosecution beyond all shades of reasonable doubt. If he can so from the materials available on record, may be from the prosecution evidence or adducing evidence on his behalf that the plea taken by him appears to be reasonably probable, then in that case he is entitled to acquiital inasmuch as it is sufficient to throw suspicion on the prosecution case
In Rabindra Kumar Dey v. State of Orissa : 1977CriLJ173 , it was held 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. Once the accused gives a reasonable and probable explanation, it is for the prosecution to prove affirmatively. 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, Counsel for the opposite party states that the principles laid down above are not applicable to the present case because the version of the petitioner is different and is not acceptable. In the instant case, the facts emerging out of the version of the petitioner as well as from the evidence of the prosecution witnesses and the defence witnesses and more so from the evidence of Sri M. P. Dasgupta are that when money comes to the L.I.C. relating to the payment of the first premium of a proposal, it has to be deposited in the suspense account and nowhere else. Therefore, the suspense account is the most important account and its connected registers are to be checked in order to find out whether the money has been deposited or not. According to the practice prevailing in the office, the agents were handing over the money to the Development Officer Sri Dasgupta. To that extent the evidence of one of the officers of the L. I. C. is clear and he is D. W. 1. There is nothing to disbelieve his statement. He has no axe to grind against Sri Dasgupta or there is no reason for him to show any anxiety to support the case of the petitioner. In view of such circumstances and according to the dictum of the Supreme Court laid down above, the facts and circumstances as well as the evidence adduced from both sides clearly establish that the plea taken by the petitioner is reasonably probable and throws suspicion on the prosecution case.
6. In view of the aforesaid circumstances, I hold that the petitioner is entitled to be acquitted in all these three cases.
7. In the result all the three revisions are allowed. The conviction and sentence passed against the petitioner in all these three cases are set aside and he is acquitted of the charge levelled against him in all the cases. Fines, if paid, be refunded. The bail bond in all these three cases be discharged.