K.P. Mohapatra, J.
1. The appellants in both the appeals were convicted by the learned (contd. on col. 2) 'Receipt Special Judge, Sambalpur for offences under Section 5(2) read with Section 5(1)(c) of the Prevention of Corruption Act, 1947 (for short, the 'Act'), under Sections 467, 477A and 120B, I.P.C. and were sentenced to various terms of imprisonment and fines. Since both appeals arise out of a common judgment, they were heard analogously and this judgment will govern both.
2. The prosecution case shorn up necessary details may be stated in brief. Appellant Balaram was the Cashier-cum-Accountant and appellant Ajodhya was the Head Cleark of the District Veterinary Officer, Bolangir when S. P. Dwary was the District Veterinary Officer. Appellant Balaram was in charge of maintenance of cash accounts and cash book and various transactions relating to cash such as receipt, disbursement and the like. At the end of each day, he was placing the cash book with detailed accounts of receipts and disbursements striking the closing balance of cash before appellant Ajodhya, who used to verify and check the accounts and put his signature in token thereof, after which, the cash book was presented before the District Veterinary Officer for his counter signature. Cash was kept in an iron chest under double lock system, one set of keys having been retained by appellant Balaram and the other set by appellant Ajodhya. In the year 1973, the accounts of the office were audited by N. K. Sahu, Senior Auditor of Forest, Fishery and Animal Husbandry Department, Bhubaneswar (P.W.5) who detected glaring discrepancy of receipt and disbursement of cash which will be best explained by the chart furnished below as per the cash book (Ext. 1):
Receipt Disbursement 1. 15-2-68. 1. 15-2-68.424-Pay-45-VI... 426-Pay-III-NSM Paid to M. Das MSM, TusraRs. 3824.20 (Ext. 1/4). towards his pay for 1/68 = Rs. 148-00.2. 426-Pay-III-NSM (Ext. 1/12)Rs. 8738.10 (Ext. 1/5)2. 19-2-68.426-Pay-III-NSM paid to J. Sahu NSM, Nagaon towards his pay for 1/68 = Rs. 166-00 (Ext. 1/11)3. 20-2-68426-Pay-III-NSM paid to NSM concerned to-wards pay for 1/68 = Rs. 8738-10 (Ext. 1/1).4. 21-2-68.426-Pay-III-NSM remitted to NSM concerned of Bolangir Division = Rs. 4089-95 (Ext. 1/10)MOC for remitting the pay of NSM and cost of money order = Rs. 62-40 (Ext. 1/13).426-Pay-45-VI paid to VAS concerned to-wards pay = Rs. 3824-20 (Ext. 1/2).MOC for remitting pay of Veterinary institu-tion = Rs. 55-34 (Ext. 1/3)Advance paid to staff = Rs. 1323-50 (Ext. 1/15)5. 22-2-68.424-Pay-45-VI paid to N. Das VT, Dudka to-wards pay of 1/68 = Rs. 208-00 (Exts. 1/6).6. 23-2-68.426-Pay-III NSM remitted to NSM concerned of Sonepur Sub-division = Rs. 4298-15 (Ext. 1/14).7. 24-2-68.424-Pay-45-VI remitted to VAS concerned towards pay for 1/68 - Rs. 3616-20 (Ext. 1/7).MOC for remitting the pay of staff = Rs. 55-35 (Ext. 1/8)
It thus appears that as against receipt of Rs. 12,562.30 in total towards two heads of accounts on 15-2-68, disbursement of a sum of Rs. 25,397.69 was shown on the self-same two heads of accounts on different dates such as 15-2-68, 19-2-68, 20-2-68, 21-2-68, 22-2-68, 23-2-68 and 24-2-68. Besides, showing miscellaneous expenditure for money order charges, a sum of Rs. 1223.50 was shown as disbursed towards advance paid to staff on 21-2-68. The Senior Auditor (P.W.5) pointed out in his audit report (Ext. 14) that having made double entries of accounts shown to have been disbursed, there was total shortage of cash of Rs. 13,941.14. On receipt of the audit report (Ext. 14) F.I.R. (Ext. 15/1) was lodged by the Inspector and Officer-in-Charge, Vigilance Police Station, Sambalpur on 26-11-74 and investigation ensued. During investigation it was found that the appellants having entered into a criminal conspiracy forged the signature of S. P. Dwary, the District Veterinary Officer in the cash book (Ext. 1), falsified the accounts and misappropriated Government, cash of Rs. 13,941.14. Socharge sheet was submitted against the appellants for having committed offences under Section 5(2) read with Section 5(1 )(c) of the Act and under Sections 467, 477A and 120B I.P.C. Charges were framed accordingly against them by the learned Special Judge, Sambalpur.
3. 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.
4. 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 was 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 shortgage of cash in the iron chest, no verdict could be recorded that there was misappropriation. Further, there was complete absence of proof that appellant Ajodhya himself committed 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 shortgage of cash could not be detected. On the other hand, appellant Balaram disbursed the amounts as shown in the cash book. The learned Additional Standing Counsel, on the other hand, contended that the prosecution proved its case against the appellants. The contentions required careful examination.
5. Indisputably, appellant Balaram was the Cashier-cum-Accountant and appellant Ajodhya was the Head Clerk. Cash was kept in an iron-chest under double lock system. One set of keys was retained by appellant Balaram and the other set by appellant Ajodhya. Appellant Balaram was maintaining the cash book (Ext. 1) from day to day by making entries of receipts and disbursements. At the end of each day he was producing the cash book for verification and counter-signature of appellant Ajodhya, whereafter, it was finally placed before the District Veterinary Officer for his signature. The brief statement of receipts and disbursements stated in para 2 (supra) would show that on 15-2-68 a total sum of Rs. 11,562.30 was received towards pay and a total sum of Rs. 25,397.69 was disbursed from 15-2-68 to 24-2-68. There is no doubt that double entries were made by appellant Balaram showing disbursement of amounts greater than those received to which appellant Ajodhya counter-signed.' It is, however, to be examined, if as a result of such double entries, there was actual shortage of cash found on physical cash verification. P.W.3, the Accounts Clerk of the District Veterinary Officer, Bolangir stated that his evidence relating to the ' alleged misappropriation was not based on physical verification of cash. On the other hand, it appears that his entire evidence was based on academic discussion of accounts recorded in the cash book (Ext. 1) without any reference to physical verification of cash for detection of shortage of this cash, if any. P.W.5 was the Senior Auditor on the basis of those audit report (Ext. 14) the case against the appellants was initiated. He stated that he did not verify the cash-chest, which means, that his audit report (Ext. 14) was based on transactions recorded in the cash book (Ext. 1) and other accounts maintained in the office. P.W.6, the Investigation Officer of the case admitted in his evidence that during investigation he did not verify the cash in the District Veterinary Office, Bolangir. He did not examine any person from the office to find out whether there was physical diminution of cash balance. 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 concerned and the appellants were made liable for the cash shortage. In a case in which there were allegations of dishonest and fraudulent 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 Orissa LR 585 : 1984 Cri LJ 1828 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.
6. 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. 3824.20 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 Balaram. 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 employees. 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 or law by which a judge is authorised to expunge (or?) 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 considered, the same would have gone in favour of the appellants.
7. 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.
8. 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 fide and not with dishonest and fraudulent intention. So in a case of this nature, facts and surrounding 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 Handwriting 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/1 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 AIR 1980 SC 531 : 1980 Cri LJ 396, Murarilal v. State of M.P. relied upon in a case reported in (1984) 1 Orissa LR 597 : 1984 Cri LJ 1289 B. K. Kutty v. State, laying down the principle that it may be hazardous to base a conviction solely on the opinion of the Handwriting expert without any independent corroboration.
9. 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 3-5-78, when cognizance of the offence was taken, the appellants had ceased to be public servants, for, appellant Ajodhya had already been retired and appellant Balaram had been dismissed from service. Apart from the decision reported in : 1980CriLJ393 State v. Air Commodore Kailash Chand, the latest decision is reported in : 1984CriLJ613 , 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, it was not a case in which sanction under Section 6 of the; Act was necessary.
10. 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.