B.K. Behera, J.
1. Charged of dishonest misappropriation in respect of an amount of Rs. 26.83 paise between April, 1974 and May 16, 1974 and an amount of Rs. 1160.99 paise between September 25, 1975 and July 16, 1975, out of the amounts collected by the appellant towards the octroi tax in his capacity as an Assistant Tax Moharir in the Kantabanji Notified Area Council, he stands convicted by the Judgment and order dated June 26, 1980, passed by Mr. V.V.R. Sarma, Special Judge (Vigilance), Sambalpur, under Section 5(2) read with Section 5(1)(c) of the Prevention of Corruption Act, 1947 and Section 409 of the Indian Penal Code for dishonest misappropriation in respect of a total amount of Rs. 688.44 paise excluding some sums stated to have been collected beyond the periods covered by the charges and has been sentenced under the first-mentioned section to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 700/- and in default of payment thereof, to undergo rigorous imprisonment for a further period of one month and under the latter section to undergo rigorous imprisonment for a period of one year, with a direction that the terms of imprisonment would run concurrently.
2. To bring home the charge, the prosecution had examined six witnesses of whom P. Ws. 1, 2, 4 and 5 were of the concerned Notified Area Council. P. W. 3, a Senior Auditor of the Finance Department, had conducted the audit into the accounts of the Notified Area Council for the relevant period and P. W. 6, an Inspector of Vigilance, had lodged the first information report (Ext. 11) before the Superintendent of Police (Vigilance) and had, under his orders, taken up investigation of the case and had submitted a charge-sheet on its completion. The appellant had denied the accusations and according to him, he had not collected the amounts and had not misappropriated any amount. He had not examined any witness in his defence.
3. The learned Special Judge found that the charges had been brought home to the appellant for a lesser amount than mentioned in the charges as indicated above and recorded the order of conviction.
4. Mr. C. V. Murty, appearing on behalf of the appellant, has challenged the order of conviction as factually unwarranted and legally unsustainable. According to him, in the absence of independent evidence with regard to entrustment of any of the amounts alleged to have been collected by the appellant, no conviction could be based merely on the basis of the entries in some books and registers to which reliance had been made by the Auditor ( P. W. 3) and the Octroi Superintendent of the Notified Area Council (P. W. 4). Initially, a ground was taken that the prosecution under the Prevention of Corruption Act was bad for want of sanction, but this contention was give a go-by because by the time cognizance of the offence was taken by the learned Special Judge, the appellant was no more in the employment of the Notified Area Council, his resignation having been accepted by the Chairman on January 19, 1976. The relevant date for the purpose of sanction is the date of taking cognizance and no sanction is necessary if the accused has ceased to be a public servant by that date. [See AIR 1984 Supreme Court 684 : 1984 Cr. L. J. 613 : 1984 (I) Crimes 547 : 1984 (I) OLR SC R.S. Nayak v. Abdul Reheman Antulay and Anr.. Mr. A. Rath, the learned Additional Standing Counsel, has fairly submitted that although some entries in the daily collection register and receipt books had been exhibited and admitted in evidence showing collection of some amounts and there was some evidence that their deposits were misappropriated by not showing the collections in the Cashier's cash book and the Accountant's cash book, there was no independent evidence regarding the collection of the amounts alleged to have been misappropriated by the appellant.
5. In a case of dishonest misappropriation of this nature, the prosecution must prove two essential facts : (1) the factum of entrustment and (2) the factum of misappropriation. (See AIR 1981 Supreme Court 1646--Janeshwar Das Aggarwal v. State of Uttar Pradesh). In AIR 1974 Supreme Court, 388--Dadarao v. State of Maharashtra, the Supreme Court has held :
' The High Court has rightly observed that there is no direct evidence of entrustment to the appellant. We have gone through the record in order to find whether there is any indirect evidence of entrustment but we see none. All that the prosecution did was to produce the books of account of the Chikhli head office and of the Buldana branch. There is a debit entry in the books of the Buldana branch showing that a sum of Rs. 7,000/- was given to the appellant on November 10, 1965, for being taken to the head office but the mere entry, unsupported by any oral evidence cannot prove entrustment. Section 34 of the Evidence Act says that entries in books of account, regularly kept in the course of business are relevant but such statements shall not alone be sufficient evidence to charge any person with liability. The prosecution did not examine anyone even to show that the books of account were regularly kept in the course of business nor indeed was any attempt made to lead evidence apart from the production of books of account to prove the entrustment of the amount to the appellant.'
6. In respect of the charge of misappropriation of a petty amount out of Rs. 58. 65 paise said to have been realised by the appellant on April 7, 1974, by depositing Rs. 56. 80 paise with the Cashier, there was the sole evidence of P. W. 2 unsupported by the evidence of the Octroi Inspector who had received the amount in question from the appellant, as testified by him (P. W. 2. ). It had not been established by any other evidence that it was the appellant who bad collected Rs. 58. 65 paise himself. With regard to the other items of misappropriation, there was the sole evidence of the Senior Auditor (P. W. 3), who had scrutinised the daily collection register, the Cashier's cash book and the Accountant's cash book, as deposed to by him. No order of conviction can be based merely on the basis of an audit report of an inconclusive character as an auditor notes some objections therein and until the objections are brought to the notices of the persons concerned and the liability is fixed by the authorities after proper enquiry, no legal culpability can be fixed.
7. The appellant was not the sole collector of octroi tax for the Notified Area Council. There was no clear and satisfactory evidence that the amounts said to have been misappropriated had been deposited with or collected by the appellant and as a matter of fact, there was the evidence of P. W. 2 that the Tax Moharirs were to collect octroi tax and the appellant used to issue receipts. The trial Court had mainly relied on the evidence of P. W. 3 to the effect that having entered in the daily collection register, the collections had not been accounted for in the Accountant's cash book and the Cashier's cash book. No due notice had been taken by the trial Court of the non-production of the Accountant's cash book and the Cashier's cash book in the Court and the complaint made in this regard on behalf of the appellant is legitimate, as has fairly been conceded by the learned Additional Standing Counsel. Besides, even the Cashier (P. W. 2) had not testified in his evidence that the amounts collected by the appellant had not been entered in the Cashier's cash book. P. W. 4, the Octroi Superintendent, had deposed about' the procedure for collection of octroi tax and for making entries in the concerned books and had proved some receipts in the hand of the appellant.
8. There was no evidence that the books of account on which Teliance had been placed by the prosecution had duly and regularly been kept in the regular course of official business. As earlier indicated, there was no independent evidence of entrustrnent of any of the amounts with the appellant. In this state of the evidence and keeping in mind the principles laid down by the Supreme Court in the cases referred to above, I must hold that the trial Court went wrong in fixing criminal liability on the appellant and holding him guilty of the charge of criminal misappropriation and criminal misconduct.
9. A similar case had come up for consideration in Rahas Bihari Behera v. State of Orissa 1981 C. L. R. 291 and for similar reasons recorded by this Court, it had been held that the charge under Section 409 of the Indian Penal Code had not been brought home to the petitioner, a Toll Collector.
10. In my view, the order of conviction recorded against the appellant is factually unfounded and legally untenable.
11. I would allow the appeal and set aside the order of conviction and sentences passed against the appellant.
12. Before I part with this appeal, I would like to keep on record a disquieting feature. As I notice from the judgment, the appellant had not been represented by an Advocate at the trial which could be owing to his poverty. In such a case, the Court is not to sit as a disinterested auditor of the contest before it, but should take an intelligent part in the proceedings with a view to getting at the truth and if necessary, proper questions should be put under Section 165 of the Evidence Act. Had the trial Court done so and had made a probe into, the controversy, no order of conviction, could have been, recorded.