M.C. Jain, J.
1. The appellant Harish Chandra stands convicted under Section 409, IPC and has been sentenced to 1 1/2 years rigorous imprisonment and to pay; a fine of Rs. 5,000/-, in default, to undergo farther rigorous imprisonment for six months by the learned Sessions Judge, Merta, by his judgment dated 13-3-75.
2. The prosecution case, in brief, is that at the relevant time between 1-3 69 to 24-1-69 the appellant was an overseer in the Public Works Department (B & R.) under the Assistant Engineer (Famine Su-Division) Nagaur, Shri Mukhtiarsingh Gill. The appellant was incharge of the famine works, bring carried on Bhundel-Chitana and Dsu-Khinviar roads. There Were number of gangs headed by mates and supervisors under the control of the accused. As a part of his duty, he used to receive substantial amounts for being disbursed to the labourers It is Said 'that the appellant received a sum of Rs. l, 79; 341.58 from the office of the Assistant Engineer during the period 1-3 69 to 24-4-69 for disbursement to the labourers The prosecution case further is shat under the supervision of the accused, muster rolls used to be prepared showing payments made to the labourers. It is said that in there muster rolls excess payment was shown to a number of labourers even though' they had been paid at a lesser rate. Complaints in this regard Were received by the Collector, Nagaur, Who deputed Shri Murlidhar Vyas, Accountant, at the 'Treasury' Office Nagaur (PW. 92) to make; a surprise check. In pursuance of this order Shri Murlidhar Vyas made a surprise check on 24 4 69. He checked the cash in hand with the accused and found that he had in all a sum of Rs. 23,825 78 Shri Murlidhar Vyas obtained memo Ex P, 56 In this regard from the appellant signed by him in token of the physical Verification of the cash in hand With the accused-appellant.' On checking of the' muster rolls Shri Vyas found that a sum of Rs, 4,262/'- has been shown as excess payment in the muster rolls as per details, given in his report Ex P/&1s According to Shri Vyas there was over writing in the muster-rolls regarding the rates of daily Wages of some Of the labourers and over writing on the total' amount paid to them. In his report Ex' P/51 he has mentioned the difference1 in the original amounts and the amounts1 shown after over -writing in column No. 6 along with the muster roll item number mentioned in column No. 3. He further found that even after taking into account the excess payment, the cash in hand was short by Rs. 854.19. According to him a total sum of Rs. 1,55 200.86 were shown as payment, whereas he received' a sum of Rs. 1,79,34 58 leaving a balance of a sum of Rs. 24,679 97. The cash in hand found Was only Rs. 23, 825 78. The Sub-Divisional Magistrate' Shri Mohar sihgh Purohit (P.-W 88; sent Ex. P/52 to the SHO Police Station,' Nagaur forwarding the report of Shri Murlidhar Vyas, On the receipt of this report a case under Section 409, 467 and 468, IPC, was registered against' the accused After usual investigation charge sheet was presented against the accused before the learned Munsif-Magistrate, 'Nagaur, who committed the accused for trial in the Court of Sessions, Merta Charges were amended by the Sessions Judge and the accused was charged for the offences under Section' 409, 465 and 471, IPC. The accused, however, pleaded not guilty to the charges and; claimed to be tried.
3. The prosecution in this case examined as many as 93 witnesses.' Out of these witnesses P W. 89 Ratansingh, PW 91 Asaram and PW 93 Ganpatraj Bhandari are the investigating officers' According to PW 91 Asaram, he took over investigation from Ganpatraj Bhandari and recorded the statements of witnesses and thereafter handed over the investigation to Ratansingh. Shri Ginpatraj Bhandari (PW 93) also recorded the Statements of some of the witnesses and obtained muster rolls Ex: P/2 to Ex P/50 from Devendra Nath Bhargava, Assistant Engineer, Famine, Nagaur. Ratansingh (PW 89) obtained true copies of the appointment orders of the accused Ex P/53 and Ex P/54 He also recorded the statement of Mukhtiar Singh Gill. PW 88 Shri Mohansing Purohit was the Sub-Divisional Magistrate Nagaur, at the relevant time, who forwarded the report for the registration of the case. 'The evidence of these Witnesses is 'more or less of formal character. The most material witness in the case is Shri Murlidhar' Vyas, Accountant (PW 92) The rest of the witnesses in the case are the labourers, mates and supervisors. The labourers working on Bhundel. Chitana and Deu-Khinvsar roads have been examined to prove that in fact' they were paid lesser wages than shown in the relevant muster rolls and to corroborate their testimonies the mates and supervisors of these labourers have been examined.
4. The accused in his statement has admitted that he was Overseer incharge of famine works undertaken on Deu Khinvsar and Bhundel Chitana Roads during the period 1-3-69 to 24-4 69. He also admitted that on 24-1-69' Shri Murlidhar Vyas (PW 92 checked the cash in hand with him and that a sum of Rs. 23, 825 78 was found in respect of which he signed the memorandum Ex P/56. He, however, stated that he cannot say that he received a sum of Rs. 1,79,341.58. as stated by Sri Vyas. He further stated that the prosecution has not produced the cash memo books and in their absence, after such a long period, he cannot say what amounts were received by him. As regards muster rolls, he stated that they used to be prepared either by mates or supervisors and he did not temper with them, nor any tampering is within his knowledge. He further stated the procedure of drawing of money and making of disbursement as well as with regard to the maintenance of muster rolls, He stated that the procedure was that blank muster roll forms signed by the Assistant Engineer used to be issued. The work which they used to get done was entered in the measurement book There were about 80 *0 100 gangs under him. Each gang had one mate and on every 3 to 7gangs there used to be a supervisor There used to be about 60 persons in etch gang. The muster rolls were delivered to mates and supervisors and they used to 511 In the various columns in the muster rolls He further stated that muster rolls Ex P/2 to Ex P/30 after being completed were put up before the AEM and before that there used to be entered in the measurement book, the number of the muster roll and the amount and the muster roll along with the measurement book were submitted to the AEM for pissing payment order. Thereupon, the Assistant Engineer used to give cash in accordance with the measurement book These amounts were entered in the cash-memo books. After receiving the amount he used to visit the sites to make payments The mode of payment was that the mate or supervisor of the gang would be given the mutter roll and they used to obtain thumb impressions of the labourers and he used to obtain their verification and in its token signatures of the supervisors or the mates would be obtained at the 'foot of the muster rolls, He used to get the roll call with reference to the muster rolls and used to pay the amount already entered in the muster rolls by the mates or the supervisors. in case he doubted the authenticity of the person, he would score off the thumb impression already obtained by the supervisor or mate and sometimes he used to write the word 'unpaid' on the same After payment he was to check if the entire amount of the muster roll had been paid or not After such a checking he used to enter the so checked amount on the back of she muster roll in the prescribed seal He further stated hat this formality could not be completed as the muster rolls were obtained from him before the checking could be completed. He had, therefore, no opportunity of checking the muster rolls and payments He further stated (hat after checking the balance, if any, he would deposit with the AEN. He further stated that after 9-8-69 he received order Ex D/6 from the office of the XEN. Thereupon he went to the XEN office and prepared accounts of the payments made by him after 24 4-69 and along with it submitted Rs, 600/-or so which was the remaining balance of the amount of Rs. 23,825.78, but this payment was not accepted.
5. He farther stated that Shri M.S. Gill, AEN, used to give currency notes in bundles and he used to check the number of the bundles. Subsequently he found that in some bundles the number of currency notes was less, Upon this, he complained to Shri Gill & he gave a beating to him. Upon the intervention of Dy. S.P. Shri Gill wrote a letter to him asking for forgiveness. He submitted that original letter to the Collector and its photo copy is Ex. D/7. On his complaint, the Collector passed the office order the certified copy of which is Ex D/8 and when checking of Shri Gill was to be made he absconded. He stated that the possibility is hat some shortage may be due to the fact that Mr. Gill was giving bundles purporting to be of 100 each, but actually containing lesser currency notes. When Mr. Gill absconded excess amount was found in his office. He submitted a certified copy of checking report Ex. D/9 and in the end he stated that, had he been given an opportunity of rendering accounts with the help of the measurement books, cash-memo books and muster rolls he would have done so, but no opportunity was given to him.
6. The learned Sessions Judge, after hearing the learned Public Prosecutor and the counsel for the accused acquitted the accused of the offences under Sections 465 and 471, IPC While acquitting the accused of these offences, the learned Sessions Judge observed that there is no evidence to show that the accused maintained the muster rolls or he Made various entries of payments in them and that there is no evidence whatever to show that he tampered with the entries in the muster rolls Ex P/2 to Ex P/50 and Ex. D/2. The learned Sessions Judge observed that the prosecution evidence that various labourers were paid lesser amounts than those indicated in the muster rolls, therefore, loses much of its edge as against the accused. After referring to the relevant evidence wherein it has come that whenever the accused doubted the genuineness of any entry already made by mate, mistry or supervisor, he would score off the thumb impressions of the payees, the learned Sessions Judge observed that this evidence goes so show that the accused was not a party to any excess payments Consequently, it was found that there is no material on record to substantiate the charges under Sections 465 and 471, IPC
7. The learned Sessions Judge then proceeded to consider the charge under Section 409, IPC. While dealing with this charge he recorded the finding that a sum of Rs. 1,79,341.58 was entrusted to the accused during the period 1369 to 24-469 on the basis of the statement of Shri Murlidhar Vyas (PW 92) After having recorded this finding the learned Sessions Judge further relying on the statements of PW 92 found that a sum of Rs. 4, 262/ was Shown as excess payment and a sum of Rs. 854-19 was found short and thus the accused committed criminal breach of trust in respect of Rs. 5,116 19. The learned Sessions Judge also observed that in case it is found that lesser amounts were paid to the labourers than what is actually shown, then the cash balance in the hands of the accused fell far shorter than what should have been with him The learned Sessions Judge observed that the accused did not explain to Shri Murlidhar Vyas or to any authority how the balance happened to be short with him. The explanation that Gill used to give lesser number of currency in the wads is not worthy of credence. So the only inference is that the accused committed criminal breach of trust. The accused has now come up in appeal dis-satisfied with the judgment of conviction entered into by the learned Sessions Judge.
8. I have heard Shri P R Choudhary, learned Counsel for the appellant and Shri N M. Lodha Public Prosecutor, for the State and perused the record of the case.
9. Shri P.R. Chaudhary, learned Counsel for the appellant vehemently contended that the learned Sessions judge has seriously erred in arriving at the finding that a sum of Rs. 1,79,341.58 was entrusted to the accused during the relevant period, solely on the statement of PW 92 Shri Murlidhar Vyas. He urged that thi3 finding could not have been recorded on the basis of the statement of PW 92, whose testimony is simply based on his report Ex. P/51, the basis whereof was, according to him, that he checked the cash-memo books Shri Vyas had no personal knowledge. There is no satisfactory evidence on record with regard to the contents of the alleged cash-memo' books, Shri Vyas has even no personal knowledge in respect of the alleged' signatures of 'the accused on cash-memo books.' He vehemently urged that Shri Bhanwarlal cashier has not been examined in this case with' whom there used to remain cash-memo books. The original cash memo books, cash books and the measurement books have not been produced. Shri Mukhtiar Singh Gill has also not been examined, whose statement is said to have been recorded by the Investigating Officer. Thus, material,' oral and documentary, evidence has been deliberately with-held. In the absence of this evidence, oral and documentary, it would not be proper to reach a finding that a sum of Rs. 1, 79, 341.58 was entrusted to the appellant He submitted that when' checking of the amount in hand with the AEN was made, excess amount was found as is evident from the report Ex D/9.Shri Murlidhar Vyas conducted this (checking on 28th April, 1969. He noticed various irregularities in 'the' maintenance of the cash-book and according to him there should have been' only cash balance of Rs. 13 622 40, whereas on physical verification a sum of Rs. 14,214 22 was found. Thus, there was an excess of Rs, 592 59. No explanation with regard to this excess amount was shown, nor the cash book was maintained for 28 days and Shri Vyas therefrom inferred that this excess amount found, was paid less to the overseers and full receipt had been obtained from them. Further fact found, mentioned in the report Ex. 0/9 is shat an application was submitted by Shri Bhanwarlal' Sharma that Shri Gill obtained cash-book and cash memo books on 28 h April, 1969, on some pretext and at about 11 in the night entries of vouchers Nos. 17, 18 and 19 at page No. 13 of the cah book were struck off. The learned Counsel submitted that this report Ex D/9 sh6uld be considered' sufficient to hold that the explanation offered by the accused is credible and should not have been lightly brushed aside by the learned Sessions Judged He further urged that in the presence of the dubious conduct of Shri M.S. Gill it was all the more necessary far the prosecution to have come out with the clear proof by production of original record as to how much amount was' actually paid to the appellant. The prosecution having failed to do so, it would not be warranted to record a finding on the basis of the statement of Shri Vyas, who has no personal knowledge of the matter that the aforesaid sum was entrusted to the accused. He also pointed out that having found that the accused was hot a party to the excess payments, while exonerating him for the offence under Section 465 & 471, I PC, it was n6t justified to hold that the accused committed criminal breach of trust by showing excess payment or on the basis that the cash in hand found was shorter than the required amount. The counsel also contended that though there is evidence of the labourers having paid kisser amount than the amounts shown, but there is ample evidence on record to the effect that whatever payment was made by (the accused, the same was made at the instance of mates and supervisors, who used to be present on the spot. He also pointed out that it is not' proved' as to what was the procedure for obtaining temporary advance. It is also mot proved chat at what stage the muster rolls' were tampered with, that i, at the stage when requisition for temporary advance was made or thereafter. He urged that in the present state of evidence offence under Section 409, IPC, is not at all brought home to the accused. In any event the accused is entitled to the benefit of doubt.
10. The learned Public Prosecutor, on the other hand supported the' judgment of the learned Sessions Judge and urged that the learned Sessions' Judge was right on placing reliance on the testimony of Shri Murlidhar Vyas (P. W 92), who had the occasion of inspecting the cash -memo books and on the basis that on inspection he found that the aforesaid total amount was advanced to the appellant, He has further stated that Bhanwarlal disclosed to him that the cash-memo books bear the signatures of the accused, as well as the Assistant Engineer and the accused also admitted before him that the cash-memo books bear his singnatures and he obtained the money from Shri M.S. Gill The learned Public Prosecutor urged that the appellant has failed to account for the shortage and so an inference of criminal breach of trust necessarily arises, for which he has been rightly convicted by the learned Sessions Judge.
11. I have given my anxious consideration to the respective contentions of both the sides. The principal controversy in the case is as to whether a sum of Rs. 1, 79, 341.58 was entrusted to the appellant It is to be seen from the evidence on record as to whether the aforesaid sum or any other specific sum has been proved by the prosecution to have been entrusted to the appellant It is not disputed that the appellant used to receive money in connection with disbursement to the labourers, but the question is what sums were in fact advanced on various dates and whether, for that, there is any satisfactory record, on which reliance can be placed. In this connection it may be pointed out that the original documents which could be the best proof have not been placed on record. The Assistant Engineer Shri M.S. Gill has not been examined nor Shri Bhanwarlal cashier has been examined. There is no evidence on record to prove as to what was the procedure for advancement of money to the overseers to be disbursed to the labourers. No investigation was conducted on these lines No explanation has been forth corning from the prosecution side as to why these original documents were not produced and why the investigation on these lines was not conducted. When Shri Murlidhar Vyas was cross-examined he stated that .he did not try to know as to whether the advance was made to overseer on verification of the muster rolls or not or the advance was made on any written requisition by the overseer. If Shri Bhanwarlal Sharma or Shri MS. Gill would have been examined certainly some light would have been thrown by them on this aspect of the case Thus, on what basis the aforesaid amount was advanced to the appellant, there is no evidence on record. With regard to the fact of quantum of money actually advanced, there is only the statement of Shri Murlidhar Vyas, who, in examination-in-chief, stated chat he saw the cash-memos in the office of the Assistant Engineer in respect of which it was told that those memos bear the signatures of' Harish Chandra, appellant As regards the alleged admission of the signatures by the accused, as deposed to by this witness in his cross-examination, it may be stated that this fact appears to re contrary to what has been stated by this witness in his examination-in chief and it appears that the witness has tried to improve his examination-in chief statement. That apart, this fact that the accused admitted his signatures before him on the cash memo books, does not find mention in his report Ex P/51 and in the police statement of this witness, Thus, in my opinion, reliance cannot be placed on the version given by this witness in his cross-examination regarding admission of signatures by the accused on the cash memos. This statement could hive been relied upon, if the original requisitions, if any, or the measurements books would have been produced to show as to what money was actually requisitioned If requisitioned money tallied with the figure given by the witness Shri Murlidhar Vyas, reliance could be placed on the admission alleged to have been made by the accused regarding his signatures on the cash-memos. It may also be mentioned here that it was most essential on the part of the investigating agency to have obtained the necessary records and produced the same and to have further conducted investigation relating to the procedure for making temporary advance for disbursement to the labourers. This appears to be a serious infirmity in the conduct of investigation. It is true that the figures have been arrived at by Shri Vyas or the oasis of the cash-memo books, but the veracity of the cash-memo books may even be doubtful and it cannot be taken that the entries therein were correct, unless the appellant gets an opportunity to look into the original cash memos and other relevant records, referred to above. Reliance on she testimony of Shri Vyas can be placed only to this extent that what he saw in the cash -Memos was made the basis of the report by him but on that basis, in my opinion, it cannot be found as a fact that the aforesaid sum on Various dates was entrusted to the appellant. The learned Sessions Judge has tried to draw the support in the, form of corroboration by the report Ex P/51. In my opinion, the basis of the statement of PW 92 Shri Murlidhar Vyas is the report itself prepared on the inspection o f the cash -memo books. So seeking any corroboration from the report Ex. P/51 is meaningless. It may be stated that it was the duty of the prosecution to have produced the. best, oral as well as documentary, evidence, but the best evidence has been rather with-held by the prosecution and in the absence thereof solely on the statement of Shri Vyas, it cannot be found that the aforesaid sum was entrusted to the appellant. The question as ft; what sum was actually entrusted, assumes greater importance, if viewed in she light of the report Ex. D/9 In the light of the report Ex. D/9, the conduct of Shri Gill becomes doubtful, so it becomes all the more necessary for the prosecution to establish by clear, cogent and unimpeachable evidence that in fact the aforesaid sum was entrusted to the appellant, When theory of excess payment has been discarded and not believed by the learned Sessions Judge then what remains is that the money actually found fell far shorter than the amounts which has been found and for arriving on this finding, it is absolutely necessary that it should have been proved as to what sum was actually advanced. Without that it cannot found the money found fell far shorter than the requisite balance. Thus, it is difficult to reach to any definite finding as to any shortage. For some shortage the accused has given an explanation and that explanation cannot be lightly ignored, more particularly in the light of the report Ex. D/9 and that accused had made a com-plaint in this regard to the Collector, which is evident from the certified copy of the order of the Collector dated 24-4-6 9 Ex D/8. It may be mentioned here that Shri Vyas did not conduct any inquiry what so ever. He simply prepared his report on examination of the muster rolls and the cash memos and in the figure Rs. 4, 262/- he has included the scored off entries as well. In his report he has mentioned in all 76 entries, out of which 41 entries appear to he scored. Believing the 'statements of the witnesses that the over. seer, whenever doubt, had arisen regarding the identity of the payee, used to score/off the entry, the case that the accused was a party to any excess payment, was not accepted by the learned Sessions judge. In this view of the matter it is not 'necessary to take into consideration the statements of the witnesses regarding lesser payments having been made to them than what is shown in the mutter rolls Even if in respect of those entries, which have not been scored, the case of excess payment is taken into consideration still it cannot be found on the evidence on record that the appellant was a party to the same in view of the fact that there is no evidence that those entries have been tampered with by the appellant or that the mates or supervisors did so at his instance, but on the contrary the evidence is that the muster rolls were used to be filled in or prepared by the mates or supervisors and further evidence is that the payments were used to be made in the presence of mates and supervisors, There is the evidence of PW 77 Bhomaram who has stated hat supervisor used to tell the overseer-that a particular labourer I? to be paid at a particular rate and he used to identify the labourer and accordingly the Overseer used to make the payment. PW 30 Birdaram is a supervisor, who has also stated in his cross-examination that the overseer used to make the payment as told by mate or supervisor to hire. The modus operandi of the commission of breach of trust is alleged to be that the rate at which payment is to be made to a particular labourer, was first shown in lesser figure, like one rupee a day and total accordingly was made, but subsequently, an over-writing was made over the rate as well as the total amount paid. Say a labourer is paid at one rupee a day and for a period of 13 days, fee was to be paid Rs. 13/- It is said that three is over-writing over Re. 1/- making it as 6'& over the figure '13' the total amount is over-written as '78'. As already stated, when it is done, and by whom it is done, is not proved and it is also not proved that at time of payment these entries were not so or that these entries were not so at the time when temporary advance was obtained by she appellant Thus, from the nature of the evidence which has been led by the prosecution, it cannot be found that lesser payment was made and subsequently over-writing was done by the appellant or he was a party to it and thus a breach of trust was committed in respect of the excess amount The question of commission of breach of trust would necessarily depend on the fact as to how much money was actually entrusted to the appellant. If that is not proved by satisfactory evidence, then the appellant cannot be held guilty of the offence under Section 409, IPC. From the documents 'Ex D/8 and Ex, D/9) submitted by the accused, a reasonable doubt in the truth of the prosecution story arises and in any case, in my opinion the accused on that account is entitled to the benefit, of doubt. The prosecution has not been able to show that the explanation offered by the accused, is not reliable and the alleged excess amount found on checking at the office of the AEN has not been explained by the prosecution, so it is reasonable to find, as was done by Shri Vyas, that there may be some truth in the complaint made against Shri Gill,
12. Further there may be dereliction of duty on the part of the appellant in not keeping proper check or vigil in disbursement or in maintenance of muster rolls and i may also add that it may be that he may be him self alone or in conspiracy with others or he along with others may have committed criminal breach of trust, but the prosecution has to cover all the distance between 'may' and 'must', which it has failed to cover in the present case. Suspicion, however, grave, cannot take the place of proof Thus, in view of what I have discussed above, I find that offence under Section 409, IPC is not proved beyond all reasonable doubt against the appellant and the accused-appellant under the circumstances of the case is entitled to the benefit of doubt.
13. In the result, this appeal is accepted, the conviction and sentence of the appellant are set aside and he is acquitted of the offence under Section 409, IPC. He is already on bail, so he need not surrender. His bail bonds are discharged.