Panchapakesa Ayyar, J.
1. This appeal is by the Madras State against the acquittal of one Ramaswami, the accused in C. C. No. 155 of 1949, by the Sessions Judge off Salem in C. A. No. 174 of 1949, and shows the utility and importance of Section 106 of the Indian Evidence Act in certain cases. This Ramaswami, as the Secretary of the village school building committee, Pattanam, Salem district, has admittedly, been given 2 1/2 tons of M. S. Rounds 5/8' from one S. Kuppuswami Chetti of Madras (P.W. 1's firm), for making certain additions and constructions in an elementary school in Pattanam Village. He agreed, under the permit, that he would utilise the material that was allowed to be purchased by him for the purpose above-mentioned and that he would return the permit to the Director of Industries and Commerce and the Provincial Iron and Steel Controller if the purpose for which it had been issued ceased to exist, and the permit was made valid for 30 days from the date of its issue, namely, 6-1-1949. Admittedly, he bought the goods through P.W. 2 from P.W. 1's firm on 25-1-1949, after endorsing the permit in his favour. P.W. 2 swore that he was given Rs. 875-15-6 and the permit by the accused and that he bought the articles from P.W. 1 and put them in a cart and was taking them to the vail-way station in Madras (Salt Cotaurs) to book them for Salem when the accused met him and took over the articles from him. He was not believed regarding this by the trial Court which, however, convicted the accused under Clause 8 of the Iron and Steel Production and Distribution Order read with Clauses 7 (1) and 17 (2) of Central Act 24 of 1946, holding that he and P.W. 2 must have colluded together to use the goods purchased under the permit otherwise than in accordance with the conditions mentioned in it. It sentenced the accused to pay a fine of Rs. 1,000. It observed that there was no proof that he had disposed of the goods in the black-market with a view to enrich himself. The accused had examined D.WS. 1 to 3 to show that he had given away the permit to P.W. 2, under the orders of P.W. 5, the President of the School Committee and a relation of P.W. 2, for some money due by the school committee to P.W. 2, for iron articles, weighing 8 cwt. and odd, got already and utilised for the building of the school. He had also said that despite several demands, P.W. 2, failed to deliver to him the goods purchased under the permit and that he intended to proceed against P.W. 2, for breach of trust, regarding these iron goods after this case was over.
2. On appeal, the learned Sessions Judge, salem, held that upon the proved facts of evidence and taking them at their face value the accused was entitled to an acquittal as there was no evidence to show what happened to the materials purchased under the peimit. Ex. P. 1, by P.W. 2 from P.W. 1, or that they had been disposed of in the black-market or in any improper manner. He relied on the wording of Rule 8 of the Iron and Steel Production and Distribution Control Order, 1941, which, runs as follows:
'A person acquiring iron or steel in accordance with the provisions of Clause 4 shall not use the iron or steel otherwise than in accordance with any conditions contained or incorporated in the document which was the authority for the acquisition.'
The learned Sessions Judge set aside the conviction and sentence of the accused as the prosecution had not proved that the accused had misused the materials, and as the permit did not prescribe a time limit for use of the materials and so the accused could still use the materials some day in the future. The State has filed this appeal against the acquittal, urging that the case against the accused Ramaswami has been proved satisfactorily, especially in view of Section 106 of the Indian Evidence Act which was overlooked by the Sessions Judge and which puts the burden of proving the fact of the use or location of the things purchased under Ex. p. l on the accused as they are within his special knowledge.
3. I have perused the records, and heard the learned Public Prosecutor for the appellant, and Mr. Kailasam, the learned Counsel for the accused Ramaswami. There is no doubt in my mind that the learned Sessions Judge was wrong in acquitting Ramaswami in the light of the evidence in the case and in view of Section 106 of the Indian Evidence Act which throws on the accused the burden of proving what became of the materials he brought under Ex. P. 1.
4. It will be indeed a sad state of affairs if any man taking a permit for steel or iron for a specific purpose, as the accused Ramaswami did, undertaking to use the materials for that purpose and that purpose alone, and to return the permit in case that purpose had ceased to exist, should be allowed to escape all liability and punishment, even though he purchased the materials and even though the purpose has admittedly not been carried out, simply because, though the materials are not accounted for by the man and he gave a false explanation (as the accused did to P.W. 6, the Revenue Inspector when he told him on 17thi February 1949, under Ex. P. 12, that he had re-ceived the materials and utilised them in full for the school) and simply because the prosecution could not find out where the materials were and how they had been misused. The accused a1one had this special knowledge, and he will be liable under Section 106 of the Indian Evidence Act to be con-victed of this offence unless he proved that he had utilised the materials for the purpose granted. Courts should never fall to apply Section 106 to cases of special knowledge and burden, like this.
5. To allow this accused to escape simply because the prosecution could not show where the materials which this accused bought through P.W. 2, were, and how they were utilised, things which the accused alone knew, will be like allowing a shop servant charged with misappropriating a bottle of wine when taking it to a permit-holder to escape, despite proof of His being entrusted with it for delivery, because the prosecution could not say what became of the wine later on, though It suspects that the wine might have been sold or consumed by the servant but cannot prove it, and the accused, who has special knowledge of it, will not say what became of it! Mr. Kailosam, for the accused, frankly conceded that the materials bought under Ex, P. 1, by the accused through P.W. 2 from P.W. 1, were not utilised for the purpose for which they were applied for, and for which the permit was granted, and also said that there is no intention on the part of the accused to use the materials 'in the future', as he has not got them. The accused said In Ex. P. 12 that he got the materials under Ex. P. 1, and that he utilised them for the purpose mentioned in Ex. P. 1. That is now proved to be false. The accused did not file a complaint against P.W. 2, for failure to give him the materials purchased under Ex. P. 1 from P.W. 1. Obviously he could not be speaking the truth here In the light of his own statement in Ex. P. 12. The Irresistible Inference is that he used the materials purchased under the permit, Ex. P. 1, otherwise than in accordance with the conditions contained in Ex. p. 1, and he would be guilty as charged. Of course, if he had proved that the materials were swallowed up by an earthquake, or were carried away by thieves, or even misappropriated by P.W. 2 or others without his connivance, Section 106 will not apply and enable the Court to convict him. But he egregiously failed to do so. Even if P.W. 2 and P.W. 5 were liable for abetment of the offence of misuse of the materials granted under Ex. P. 1, by handing them over to P.W. 2 for his use for the debt due to him by the school committee (many committees raise funds by lotteries, contracts, sale of permits, etc., it is said), the accused's liability will not cease. Proof does not mean only proof by 'direct evidence', as proof of sale in black-market, utilisation for another building in a different place by a different person, etc., as the learned Sessions Judge seems to have taken it to mean. It will also include proof by 'indirect evidence.' Indirect evidence, or circumstantial evidence, leading to an irresistible inference of guilt is sufficient for a conviction even in murder cases, and much more so in less grave cases like this.
6. I am satisfied that the accused Raniaswamih as committed the offence charged against him though he has not been proved to have sold the materials In the black-market and enriched himself. It is probable that this village committee owed money to P.W. 2 for the construction already made, and that P.W. 2 was given the permit by the accused illegally, and possibly also with the connivance of P.W. 5, the President, in discharge of his dues, by allowing him to purchase the materials and utilise them himself, unlawfully and in contravention of the conditions in Ex. P. 1. So, I set aside the acquittal of the accused and convict him of the offence charged. Mr. Kailasam pleaded for a very lenient sentence as the accused has only been made a scapegoat of by P.W. 5 and the other committee members and has not earned one pie by this offence. I agree. Considering all the circumstances, and the possible complicity of P.Ws. 2 and 5 also in this offence, and the factthat the accused did not make any profit himself,I sentence him to pay a fine of Rs. 50, or, in default, to undergo rigorous Imprisonment for onemonth, as that will meet the ends of justice inthis case, as conceded by the learned Public Prosecutor. Time is granted till 3 p.m., on 30th March1951 to pay the fine in the trial Court.