JUDGMENT : Misra, J. - The Appellant has been convicted u/s 408, Indian Penal Code and sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 5000- or in default to undergo R.I. for 6 months more. He has also been convicted u/s 477-A, Indian Penal Code and sentenced to undergo R.I. for one year, both the sentences to run concurrently. Prosecution case is that the accused was Secretary of the Central Co-operative Marketing and Textile Syndicate at Berhampur (hereinafter referred to as the Syndicate) in the year 1949. Government of Orissa used to allot quotas of cloth to various importers of Orissa including the Syndicate. The Syndicate used to take delivery of the quotas from the Clearing Agent L.K. Poddar of Rajnandigaon, who was the sole selling agent of Bengal Nagpur Cotton Mills Limited for Madhya Pradesh, Orissa and Bihar. On 17-6-1962 the accused gave a certificate of payment (ext. 16) mentioning therein that an amount of Rs. 23,000- had been paid to Lalit Kumar Poddar being advance towards purchase of cloth of 230 bales as per Government telegram. This telegram is ext. H dated 11-6-1952 issued by the Supply Department to L.K. Poddar mentioning therein that the extra 230 bales would be supplied to any of the importers of Orissa who are willing to accept extra quotas. A copy of this telegram was sent to the Syndicate. Interested importers were advised to contact the Clearing Agent immediately for the supply of extra quota, if any. On 17-6-1952 entries were made in Rough Cash Book (ext. 14) and Fair Cash Book (ext. 15) by the office of the Syndicate showing payment of advance of Rs. 23,000- to L.K. Poddar. In response to the telegram (ext. H), Poddar sent a reply to the following effect (ext. H1) dated 12-6-1952: We note that for the remaining extra 230 bales you wish us to ascertain from all those 19 importers whether they are willing to accept extra quota. Since to ascertain as such, it will take at least 10 to 15 days by the time we receive reply from them, we have sent you the telegram for your further instruction. It is definite that B.N.C. Mills shall not wait until then and quota will lapse. The prosecution case is that Rs. Since to ascertain as such, it will take at least 10 to 15 days by the time we receive reply from them, we have sent you the telegram for your further instruction. It is definite that B.N.C. Mills shall not wait until then and quota will lapse. The prosecution case is that Rs. 23,000- drawn in cash was not remitted to L.K. Poddar and in fact L.K. Poddar did not supply 230 bales to the Syndicate and the entire amount was misappropriated. 2. The accused in his statement u/s 342, Criminal Procedure Code has given an elaborate version of his defence. His case is that in june 1952, on the application of the Syndicate: Government reallotted 230 bales of Rajnandigaon Mills. One Puranmal Agarwala of Cuttack was purchasing heavy stocks of the Syndicate with the approval of the Government and he was dealing on behalf of a large number of dearer of Cuttack. He came to know of this allotment. With, a view to purchase these 230 bales, he approached the accused with a Bank Draft for Rs. 23,000- in favour of L.K. Poddar. The accused purchased the Draft from him on payment of Rs. 23,000- in cash to save delay and to save bank charges. The Bank Draft was sent to L.K. Poddar by registered post with a forwarding letter accompanying it with a request to arrange despatch of one bales, the value of which would be about 2 lakhs of rupees. L.K. Poddar returned the Draft and did not despatch 30 bales of cloth. Sometimes in the month of June, the accused was absent from the head-quarters as he was away at Calcutta and Bombay. Later on (the exact date not given) Puranmal Agarwala intimated him that he had taken back the Draft and this amount of Rs. 23,000- would be adjusted towards his account. By June he had to his credit and amount of Rs. 29,000- and odd in the Bank. Puranmal promised to give necessary instructions to the dealers for adjustment. The accused completely lost sight this transaction and took no further action over the matter. By the end of June, 1952, the Syndicate had heavy stocks lying at the Railway Station which they could not release as they had no money and were paying heavy damages. Puranmal promised to give necessary instructions to the dealers for adjustment. The accused completely lost sight this transaction and took no further action over the matter. By the end of June, 1952, the Syndicate had heavy stocks lying at the Railway Station which they could not release as they had no money and were paying heavy damages. The accused was greatly worried and had completely lost sight of this transaction until the Auditor called upon him to explain in September, 1963 when he submitted his explanation in writing (as per ext. 13) dated 14-9-1953. 3. The principle of law in a case of criminal breach of trust is no longer in doubt. In two recent decisions of the Supreme Court in Krishan Kumar Vs. The Union of India and Jaikrishnadas Manohardas Desai and Another Vs. The State of Bombay the question has been fully discussed. It is not always possible for the prosecution in such cases to prove the precise manner in which the money was misappropriated. Prosecution must, however, prove beyond reasonable doubt that there was dishonest misappropriations of the money. The question of intention is not also a matter of direct proof and it is for this reason that the Court had laid down certain broad tests for general guidance. In case of criminal breach of trust, the failure to account for the money proved to have been received by the accused, or giving a false account of its use is generally used to be a strong circumstance against the accused. In paragraph 4 of Jaikrishnadas Manohardas Desai and Another Vs. The State of Bombay the same principle is reiterated and their Lordships expressed in a slightly different language that where he was unable to account or render an explanation for his failure to account which was untrue, an inference of misappropriation with dishonest intent 'may readily be made. It is, however, to be noted that the onus of proof on A the accused is not of the same rigorous standard as it is on the prosecution. The prosecution must prove an offence beyond reasonable doubt while the onus upon the accused can be discharged in a manner as is done in civil proceedings. If the case of the accused appears to be reasonably true, he is entitled to an acquittal even though he might fail to establish his case beyond reasonable doubt. 4. The prosecution must prove an offence beyond reasonable doubt while the onus upon the accused can be discharged in a manner as is done in civil proceedings. If the case of the accused appears to be reasonably true, he is entitled to an acquittal even though he might fail to establish his case beyond reasonable doubt. 4. The Appellant admits that he withdrew Rs. 23,000- in cash from the coffers of the Syndicate for payment towards advance of the price of 230 bales. His defence is that he spent the money by purchase of a Bank Draft from Puranmal and in fact he despatched this Bank Draft to L.K. Poddar by registered post which was returned by the latter. Mr. Kanungo concedes that the Appellant has failed to prove by direct evidence that in fact the Bank Draft had been despatched by registered post to L.K. Poddar. The concession is also justified. Not a single witness has been examined to prove that Rs. 23,000- was paid in cash to Puranmal and no receipt had been obtained from Puranmal in evidence of such payment in exchange for the Bank Draft. The accused himself filed the certificate (ext. 16) showing payment of advance to L.K. Poddar. It is submitted that this certificate was furnished asunder the practice of the Syndicate every payment must be evidenced by a voucher. The payment was made by the accused and accordingly he furnished the certificate (ext. 16) as a voucher. A receipt could have been obtained from Puranmal to the effect that the Bank Draft was purchased from him for Rs. 23,000- in cash and this receipt could have been treated as a voucher in the place of ext. 16. It is remarkable to note that in the three documents (exts. 16, 14 and 15), the accused did not mention that the Bank Draft had been purchased and sent to L.K. Poddar. There is therefore, absolutely no document retained in the Syndicate in support of the case that a Bank Draft had been purchased on payment of Rs. 23,000- in cash. The accused made also no attempt, in course of the trial, either to examine Puranmal or to call for his accounts. Some emphasis was laid by Mr. Kanungo on the fact that Puranmal bad been examined as a witness against the accused in some other criminal case. 23,000- in cash. The accused made also no attempt, in course of the trial, either to examine Puranmal or to call for his accounts. Some emphasis was laid by Mr. Kanungo on the fact that Puranmal bad been examined as a witness against the accused in some other criminal case. That might be so; but it was open to the accused to examine himself u/s 342-A, Criminal Procedure Code. Though no adverse inference can be drawn against him for non-examining himself as a witness, the fact is to be emphasised that evidence which could probabilise his case was never presented to Court. The next important piece of evidence which the accused could have furnished to probabilities his defence is to establish that in fact on 17-6-1952 a registered letter was despatched to L.K. Poddar. The Cash Books (ext. 14) or (ext. 15) do not show any entry towards registration expenses on that day. If there were any other registers in custody of the Syndicate which could support the defence version, it was open to the accused to ask the Court to call for those documents. In fact, certain prayers were made in the High Court to call for some documents in the United Commercial Bank, Cuttack Branch. The prayers were accepted and the documents were called for, but it was ultimately submitted that they would not be relevant to the defence case. Such a course was open to the accused. The accused could also give evidence by calling for documents from the postal authorities that in fact a registered letter was despatched from Berhampur to L.K. Poddar on 17-6-1952. There are Banks at Berhampur which is the second important town in Orissa after Cuttack. It was open to the accused to produce a Bank Draft for Rs. 23,000- by depositing money in a particular Bank at Berhampur. There was no necessity of having the transaction through Puranmal so as to lose the ultimate control over the Bank Draft in the matter of encashment. It is to be noted that purchaser of the Bank Draft was Sewaram Ramdayal. It was issued in the name of L.K. Poddar. So the payee L.K. Poddar could alone encash it, and if he returns it, then only on cancellation Sewaram Ramdayal could encash it. It is to be noted that purchaser of the Bank Draft was Sewaram Ramdayal. It was issued in the name of L.K. Poddar. So the payee L.K. Poddar could alone encash it, and if he returns it, then only on cancellation Sewaram Ramdayal could encash it. The Syndicate was at one stage very prosperous in the mercantile transaction and this practice must be well known to the accused. It is difficult to accept the accused version that the Bank Draft was purchased for Rs. 23,000- paid in cash without obtaining a receipt therefor in evidence of the purchase or without mentioning those facts in the various accounts of the Syndicate. The Bank Draft was encashed on 23-6-1952 by Sewaram Ramdayal through Puranmal who signed on the back of draft and the amount was credited to the accounts of Sewaram. The accused does not specifically say as to how the Bank Draft on return came into the custody of Sewaram or Puranmal He is however, clear on the fact that some days after Puranmal disclosed to him that he had got the Bank Draft and that he would get it adjusted towards his accounts which were admittedly to the tune of Rs. 29,756- by the end of June 1952 (see ext. A). The Appellant admits that he took no action over the matter, never made any entry in the accounts of Puranmal that Rs. 23,000- was adjusted and that he completely overlooked the matter until he was asked by the Auditor to furnish explanation in the month of September, 1953. The subsequent conduct and inaction of the accused are not consistent with his explanation that Rs. 23,000- was paid to Puranmal in exchange for the Bank Draft which was despatched to L.K. Poddar. An these facts conjointly lead to inescapable conclusion that this Rs. 23,000-was secreted out from the title of the Syndicate and dishonestly misappropriated by the accused. 5. Mr. Kanungo laid considerable stress on two important facts. He contended that the letter (ext. G) dated 11-6-1952 by the accused to the Additional Under Secretary, Supply Department, with a prayer to allot 230 bails of cloth of B.N.G. Mills, and the telegram (ext. H) from the Supply Department to Poddar (a copy of which was sent to all importers and the reply (ext. He contended that the letter (ext. G) dated 11-6-1952 by the accused to the Additional Under Secretary, Supply Department, with a prayer to allot 230 bails of cloth of B.N.G. Mills, and the telegram (ext. H) from the Supply Department to Poddar (a copy of which was sent to all importers and the reply (ext. H1) of L.K. Poddar, conclusively establish the fact that immediately proceeding the despatch of the Bank Draft, the Syndicate was negotiating for the purchase of 230 bales of cloth from L.K. Poddar. This was so and the fact cannot be disputed. He, however, laid stress on the apathy on the part of the prosecution not to admit such a case to improbabilise the defence version. I do not find much force in this contention. The existence of a preceding circumstance probabilising that there might have been an occasion for sending Rs. 23,000- to L.K. Poddar does not probabilise the further inference that in fact Rs. 23,000- was despatched. Though one must precede the other, the second does not necessarily follow from the first. Mr. Kanungo therefore laid great stress on the event that in fact a Bank Draft to the tune of Rs. 23,000- in the name of L.K. Poddar contemporaneously with the time when money was to be despatched is another circumstance which probabilises the defence version. It is to be noted that 230 bales of cloth were imported. P.W.3 in his evidence admits that during that period they used to ask for advance of Rs. l00- for each bale of cloth. If the accused were to get the consignment definitely the Syndicate had to send an amount of Rs. 23,000 towards advance. Mr. Kanungo emphasised on the peculiar coincidence that this Rs. 23,000-, required by way of advance, in favour of L.K. Poddar just fitted in with the theory of issuing a Bank Draft in favour of L.K. Poddar to the tune of the same amount. He accordingly contended that the coincidence of the period, during which and the amount for which the Bank Draft was issued probabilises the defence version that this Bank Draft was despatched by the accused towards the advance of the purchase of 230 bales of cloth. I am unable to accept this contention. This does not exclude the possibility of the accused having knowledge of the factum of issue of a Bank Draft to the tune of Rs. I am unable to accept this contention. This does not exclude the possibility of the accused having knowledge of the factum of issue of a Bank Draft to the tune of Rs. 23,000- during that period by Puranmal on behalf of Sewaram Ramdayal who had certain transactions with the Syndicate. The missing link between the two circumstances, either at the beginning or at the end-probabilise the factum of purchase of the Bank Draft by the accused and the despatch thereof to L.K. Poddar. That is the crucial question which arises for determination in this case. I am, therefore, satisfied that the explanation given by the accused is not consistent with natural course of human conduct that after payment of Rs. 23,000- from the tills of the Syndicate, the accused would keep himself completely silent and inactive as to what happened to the Bank Draft and how the Syndicate was to be reimbursed in respect of such a big amount. The accused, therefore, made wrongful gain of this Rs. 23,000- to himself and his action comes within the mischief of Section 408, Indian Penal Code. He made false entries in exts. 16, 14 and 15 that there was such a payment by way of advance towards the price of 3 bales of cloth. 6. It would be important to note the explanation (ext. 13), furnished by the accused to the Auditor (p.w.2) on 14-9-1953. His explanation may be quoted in his own words 5. Rs. 23,000- of L.K. Poddar: This relates to a remittance by the Draft on account of some dealers of Cuttack, who have deposited monies with us for a special quota of Rajnandagaon Bales. As the mills refused quota, the draft was received back by the parties. The adjustment entries with the accounts of the dealers of Cuttack are to be passed. The accused referred to some dealers of Cuttack having deposited money with the Syndicate for a special quota of Rajnandagaon bales. This is clearly a false statement. No dealer of Cuttack deposited Rs. 23,000- for the special quota of 230 bales with the Syndicate. This false explanation does not fit in with the present defence that the Bank Draft was purchased with the Syndicate money. The explanation therefore proves the falsity of the defence now advanced. Mr. This is clearly a false statement. No dealer of Cuttack deposited Rs. 23,000- for the special quota of 230 bales with the Syndicate. This false explanation does not fit in with the present defence that the Bank Draft was purchased with the Syndicate money. The explanation therefore proves the falsity of the defence now advanced. Mr. Kanungo made some grievance that though as early as 14-9-1953 the accused disclosed his plea of existence of Bank Draft, the prosecution failed to make necessary investigation and that the accused had been prejudiced thereby. There is no substance in this contention. Ext. 13 refers to some dealers of Cuttack. There is no reference either to Puranmal or to Sewaram Ramdayal. There are thousands of dealers at Cuttack. Unless the accused gave some specific names, it would be difficult for the prosecution to make a wild goose chase. There was a reference to remittance by draft in ext. 13. The details of the draft were not given. It was not even mentioned from which bank the draft was issued. It would be difficult for the prosecution to know whether the draft was issued from Cuttack or from any other part of India. The explanation of the accused in ext. 13 furnished no sufficient clue or particulars to the prosecution to make an investigation if the defence version was true before launching the prosecution in Court. As is laid down by the Supreme Court, "it is not the law of this country that the prosecution has to eliminate all possible defences or circumstances which may exonerate him. If these facts are within the knowledge of the accused, then he has to prove them see Krishnan Kumar v. Union of India1. For all the reasons discussed above there is no escape from the conclusion that the accused is guilty under Sections 408 and 477-A, Indian Penal Code. 7. Mr. Kanungo at the end of the argument made a verbal prayer that the case may be remanded for retrial so that the accused can adduce evidence to probabilise the defence version by calling for certain documents. The prayer is belated and cannot be accepted. 8. Now-a-days criminal misappropriation and breach of trust have been rampant. In the circumstances of the case I am not inclined to interfere with the sentence. The appeal fails and is dismissed. Appeal dismissed. Final Result : Dismissed