K.P. Mohapatra, J.
1. The appellants in both the appeals were convicted by the learned Special Judge, Sambalpur for offence under Section 5(2) read with Section 5(1)(c) of the Prevention of Corruption Act, 1947 (for short, the 'Act'), under Section 467A and 120B, I. P. C. and were sentenced to various terms of imprisonment and fines. Since both appeals arise cut of a common judgment, they were heard analogously and this judgment will govern both.
His Lordship after narrating the facts observed.
2. The appellants denied the charges. The learned Special Judge on consideration of the evidence adduced by the prosecution found the charges established and, therefore, convicted and sentenced the appellants as referred to above.
3. Mr. P. K. Misra, learned counsel urged that there was no evidence of entrustment of cash to appellant Ajodhya and that he misappropriated the same in any manner. Assuming, the cash book wa3 improperly maintained by making double entries showing disbursements, yet, in the absence of physical cash verification and specific proof to the effect that there was actual shortage of cash in the iron chest, no yerdict could be recorded that there was misappropriation. Further, there was complete absence of proof that appellant Ajodhya himself comitted forgery or falsified accounts by making double entries in the cash book. As the verifying officer of the cash book at the end of each day, at best He committed an irregularity by not properly and carefully checking each of the entries made by the cashier-cum-accountant, appellant Balaram. Mr. P. K. Ray, learned counsel appearing for appellant Balaram urged that there was no evidence of misappropriation as physical shortage it of cash could not be detected. On the other hand, appellant Balaram disbursed the amounts as shown in the cash book. The learned Additional v. Standing Counsel, on the other hand contended that the prosecution. proved its case against the appellants. The contentions required careful examination.
His Lordship discussed the evidence and observed.
There is no other evidence of any official of the Veterinary Department either at the district level or at the zone level or at the state level to show that as a result of double entries of disbursements, there was physical shortage of cash detected after verification. There is also no evidence to show that the audit report (Ext. 14) was brought to the notice of the appellants so that there could meet the objection, the audit report (Ext, 14) was finally accepted by the authorities concerted and the appellants were made liable for the cash shortage. In a cash in which there were allegations of dishonest and fradulent misappropriation and conversion of cash entrusted to a public servant, it would be hazardous to record a finding that such public servant misappropriated cash or converted the same for his own use and return, a verdict of guilty based solely on the analysis made in an audit report without further finding on scrutiny of evidence that there was a physical verification of cash and as a matter of fact there was shortage of cash proportionate to the amount alleged to have been misappropriated by the public servant or converted for his own use. A recent decision of this Court reported in 1984 (1) O L R 585 ; Okila Luha v. State of Orissa, can be profitably cited as authority in support of the proposition that entries in books of accounts maintained in due course of business though relevant, shall not alone be sufficient evidence to charge any person with liability for, misappropriation. No order of conviction can be passed merely on the basis of an audit: report of an inconclusive character as the auditor noticed some objections which are not brought to the notice of the persons concerned and liability is finally fixed after due enquiry by the authorities.
4. Mr. P. K. Ray urged that far from misappropriating office cash, there was documentary evidence, such as, Exts. 8 to 8/4 and Ext. 10 showing disbursement of cash in the year 1968. The learned Special Judge committed a serious illegality of law by expunging this material documentary evidence to the utter prejudice of appellant Balaram. Therefore, the benefit arising therefrom should be available to him. Ext. 8 was the Bill Register of the District Veterinary Office for the year 1967. Ext. 8/1 was the preparation side of the bill book regarding the amount of Rs. 3824. 20. Ext. 8/2 was the encashment side of the said bill. Ext. 8/3 was the preparation side of the bill for the amount of Rs. 8,738.40 and Ext. 8/4 was the encashment side of the said bill. These documents did not relate to disbursement of cash, but related to encashment of bills for the amounts of Rs. 3824. 30 and Rs. 8738. 40 alleged to have been misappropriated by the appellants by making double entries in the cash book. Therefore, these documents could be of no help to appellant Bahrain. But Ext. 10 was the pay Acquittance Register for the year 1968. This document would have shown in what manner the amounts mentioned above drawn as pay in the year 1968 were disbursed to the employee. If there was evidence in Ext. 10 that the amounts drawn were disbursed, no finding could be recorded that the appellants after drawing the cash either misappropriated or converted the same for their own use. It is pertinent to note that Ext. 10 was expunged from the record by the learned Special judge, because, along with Exts. 8 to 8/4 it had been sent to the Supreme Court in connection with an appeal of the year 1979. There is no rule of law by which a judge is authorised to expunge and exclude evidence already admitted for the simple reason that such evidence had been sent to another Court. On the other hand, even when evidence is lost or destroyed, attempts are made by Courts for reconstruction so as to be considered for deciding material issues. The learned Special Judge seems to have made no effort at all to procure Ext. 10 and the other documents so as to be used as evidence either for or against the appellants. He committed a serious error of law by not giving the benefit to the appellants for taking advantage of the entries made in Ext. 10 and so material prejudice has been caused to them. Therefore, it cannot but be presumed that had Ext. 10 been on record and duly cosidered, the same would have gone in favour of the appellants.
5. Mr. P.K. Misra strenuously urged that the cash book (Ext. 1) shows disbursement of amounts to several officials. All of them could have been examined by the prosecution to say that they did not receive the amounts, in which case it could be concluded that the appellants made false entries showing disbursement and actually misappropriated the amounts falsely showing to have been disbursed. But none of them was examined by the prosecution to prove that actually the amounts shown to have been disbursed to them in Ext. 1 were not actually received by them. Particularly, the Acquittance Roll (Ext. 10) which would have shown the receipts and signatures of such persons was illegally expunged from the record. In such circumstances, no adverse presumption can be drawn against the appellants to the effect that by making false double entries they misappropriated the amounts.
6. The essential elements of an offence falling under Section 5(1) (c) of the Act are :
(i) Entrustment of property to a public servant or placing such property under his control,
(ii) dishonest or fraudulent misappropriation of such property by the public servant or conversion of the same for his own use and .
(iii) the public servant allowing any other person to misappropriate such property or convert the same for his own use
In this case though entrustment has been proved by the entries made in Ext. 1, in view of the serious infirmities discussed above, the other essential ingredient such as misappropriation or conversion for their own use has not at all been established. It cannot be forgotten that while maintaining accounts, an Accountant, as a human being and not being a computer, is likely to commit mistakes or even make double entries. In every such case it cannot be presumed and concluded that his motive was fraudulent and dishonest. There may be cases where such mistakes and even-double entries may occur bona fids and rot with dishonest and fraudulent intention. So in a case of this nature, facts and sorrounding circumstances have to be duly considered in order to find if the intention of the public servant entrusted with cash was dishonest and fraudulent. It is, therefore, impermissible under law to record a verdict of guilty against any of the appellants for the offence punishable under Section 5(2) read with Section 5(1)(c) of the Act. Since the main charge against the appellants has failed, they cannot be held guilty for the other charges of forgery, falsification of accounts and criminal conspiracy under Sections 467, 477A and 120B, I. P. C. I would like to mention in particular that although a hand writing expert (P. W. 7) was examined to depose that some disputed signatures of the District Veterinary Officer, S. P. Dwari (marked X/1 to X/3 compared with his admitted signatures A/l to 1/15) were forged according to his report (Ext. 27), such evidence is of inconclusive character, because, in the absence of a finding by the appellants for misappropriation of cash no reasonable conclusion can be drawn that either of the appellants committed the forgery. In this connection the authorities are, A. I. R. 1980 S.C. 531 : Murarilal v.State of M. P., relied upon in a case reported in 1684U) OLR 597 : B. K. Kutty v. State, laying down the principle that it may be hazardous to base a conviction solely on the opinion pf the handwriting expert without any independent corroboration.
7. Before closing the case, I would note the contention of Mr. P K Ray, to the effect that for prosecution of the appellants under Section 5(2) read with Section 5(1) (c) sanction for the prosecution under Section 6 of the Act, was neither obtained nor proved in this case. This contention does not merit consideration in view of the fact pointed out by the learned Special Judge that by 3. 5. 1978, when cognizance of the offence was taken, the appellants had ceased to be public servants, for, appellant Ajodhya had already been retired and appellant Bahrain had been dismissed from service. Apart from the decision reported in A. I. R. 1980 S. C. 522 : The State v. Air Commodore Kailash Chand, the latest decision is reported in A. I. R. 1984 S. C. 684, R. S. Nayak v. A. R. Antulay, in which it was held that the relevant date with reference to which a valid sanction is sine qua non for taking cognizance of an offence committed by a public servant as required by Section 6 is the date on which the Court is called upon to take cognizance of the offence of which he is accused. In view of this proposition was not a case in which sanction under Section 6 of the Act was necessary.
8. For the foregoing reasons, in disagreement with the learned Special Judge, I hold that the charges framed against the appellants were not brought home to them beyond reasonable doubt and so the order of conviction and sentence cannot be sustained. Accordingly the same is set aside and the appellants are acquitted. Fines, if realised, may be refunded. Both the appeals are allowed.