Judgment :- 1. The revision petitioner is the accused who was convicted by the Magistrate under S.409 I.P.C. and sentenced to undergo rigorous imprisonment for four months. Having failed in his attempt to challenge the correctness of the order in appeal he has moved this Court in revision. 2. The accused was the Executive Officer of the Thevalakara Panchayat. In that capacity he came into possession of a sum of Rs. 929-65 p. which he was bound to remit into the Government Treasury on 1st January 1963. The prosecution case is that he misappropriated the amount for twenty-two days before he sent the amount through a messenger. The accused while admitting that he came into possession of the amount as also his liability to deposit the amount in the Treasury on the first, pleads that he was prevented by a serious attack of fever which he contracted on the first and which developed into typhoid from the fifth, from personally remitting the amount or making proper arrangements to send it through messenger. He was putting forward that plea consistently from the very start even at the investigation stage and relied upon the evidence of Pw. 7 who treated him at the initial stages and Dw.1 under whose treatment he was thereafter. The courts below disbelieved the evidence of Dw.1 and found that the accused had misappropriated the amount as he failed to prove the fact of his illness. 3. "Where orders of conviction and sentence are based on concurrent findings of fact, this Court will be slow to interfere in revision unless the court is satisfied that the said findings are vitiated by errors of law or that the conclusions reached by the courts below are so patently opposed to well-established principles of judicial approach, that they can be characterised as wholly unjustified and even perverse." Having heard the learned counsel for the revision petitioner, at some length and gone through the entire evidence I do feel that this is a fit case for Interference by this Court in revision. 4. To sustain a conviction under S.409 IPC. 4. To sustain a conviction under S.409 IPC. the prosecution has to prove that there was dishonest misappropriation or conversion by the person to his own use of the property entrusted or that there was dishonest use or disposal of the property in violation of any direction of law prescribing the mode in which such trust is to be discharged or that he wilfully suffered any person to do so. It is too elementary to point out that for an offence of breach of trust the most essential ingredient to be proved is dishonest user of the amount. Mere retention, without the element of dishonesty cannot make it an offence of criminal breach of trust. Both the lower courts are agreed on this point that the prosecution did not adduce any evidence of dishonest conversion or fraudulent misappropriation, but both fell into an error in thinking that there is an automatic presumption that the retention of money for twenty-two days must necessarily have been with a dishonest intention. This is a wrong approach based on an error of law. The burden of proof in criminal cases is ever on the prosecution and guess work and unwarranted presumptions are no substitutes for positive proof. The insistence of both the courts on the accused to prove his innocence might be due to a mistaken notion about the application of S.106 of the Evidence Act which does not modify the ordinary rule that the prosecution has to prove the guilt of the accused in criminal cases. As observed by the Supreme Court in Shambhu Nath v. State of Ajmer AIR. 1956 Supreme Court 404: "S. 106 is an exception to S.101. The latter with its illustration (a) lays down the general rule that in a criminal case the burden of proof is on the prosecution and S.106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge." 5. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge." 5. Both the courts make much of the failure of the accused in his statement under S.342 Criminal Procedure Code to offer an explanation for not having remitted the amount into the Treasury as per the rules. There is neither an allegation nor even a hint in any of the questions that the accused had misappropriated the amount during the twenty-two days or acted with a dishonest intention in retaining the money with him. Hence there was no occasion for him to come out with an explanation at all. Moreover in the letter sent by him with the money on 22nd January 1963 he had already explained in detail the cause of the delay in sending the money. 6. Because of the absence of proof regarding the essential ingredient of dishonesty, the accused is entitled to be acquitted of the offence of breach of trust under S.409, IPC. Even otherwise this is a case in which the accused has not only offered a reasonable explanation for the retention of the money which should ordinarily be accepted unless circumstances indicate that it is false, but has actually proved his case. The prosecution has no case that the accused was guilty of non-accounting or false accounting. The accused had come forward with his case even at the stage of investigation. These circumstances ought to have weighed in his favour. He has also sufficiently well explained his inability to send the amount earlier through a messenger as he did on the 22nd as soon as he got out of the hospital. When he applied for leave from the 1st to the 4th and that in two instalments he could have been under the honest belief that he would get better and could himself take the money when he attends office and by the 5th he was totally incapacitated. The Panchayat Authorities have no case that they made any enquiries about the accused or called upon him to produce the amount. Perhaps the accused's absence from the office led to a hasty report to the police. When the accused sent the money along with the explanation, evidently the Deputy Director was for accepting the explanation given by the accused and recommended to his superior to withdraw the case. Perhaps the accused's absence from the office led to a hasty report to the police. When the accused sent the money along with the explanation, evidently the Deputy Director was for accepting the explanation given by the accused and recommended to his superior to withdraw the case. I feel it is a case in which the matter should have been left at that. 7. The accused was keeping the money with him as there was admittedly no iron safe in the Panchayat Office. As no particular place is prescribed for the custody of the money no adverse inference could be drawn from that circumstance nor have the courts below done so. There was also no attempt at tampering with the accounts. An order transferring the accused from the Thevalkara Panchayat from 1st January 1953 was passed but admittedly that order was not communicated to him. He did not attend office from the first and had sent in two applications for leave from the 1st to the 4th on the ground that he was suffering from fever. The evidence of Pw. 7 himself shows that he treated the accused for fever on the 2nd, that the fever must have started a day earlier and that the accused got medicine from him on three or four occasions. To a pointed question put to him in chief examination whether the accused had any difficulty to talk or walk or write the witness only gave the vague answer that the accused had fever and weakness which could result from fever and in answer to a straight question in cross-examination whether the accused was running very high temperature this prosecution witness could only plead loss of memory. The prosecution evidently examined the witness to make out that the accused could move about and if he wanted he could have gone to the office and remitted the amount. However the courts missed the fact that the accused's house and Pw. 7's dispensary are both in Quilon whereas the Panchayat Office is at Thevalkara, a place more than fifteen miles away from Quilon. Dw.1's evidence is complementary to the evidence of Pw. However the courts missed the fact that the accused's house and Pw. 7's dispensary are both in Quilon whereas the Panchayat Office is at Thevalkara, a place more than fifteen miles away from Quilon. Dw.1's evidence is complementary to the evidence of Pw. 7 and proves that the accused was admitted to his dispensary on the fifth with high temperature, that he was having delirium and was treated as an in-patient there till the 21st during which period he was so weak that he was unable to attend to his normal avocations. Dw.1 is a retired Assistant Surgeon, a respectable gentleman aged 70 and his evidence has been discarded mainly for the reason that he had not produced the register maintained in his dispensary. Having gone through his evidence, I feel that his evidence was discarded just for the reason that he had the misfortune to figure as a defence witness. This should not be. The witness gives evidence that he treated the accused and had issued a certificate to that effect which is proved by him. When cross-examined, he asserted that he maintained an in-patient register which will contain the necessary entries to show that he treated the accused for typhoid and readily accepted the challenge to produce it but the prosecution left the matter at that evidently not being bold enough to pursue the matter further. In this connection I am constrained to say a word of caution as to the manner in which the evidence of a defence witness is to be appreciated. A witness ought not to be discredited for the mere reason that he is a defence witness. The standards for assessing the worth of a witness should be the same, be he a prosecution witness or a witness for the defence. Here Dw. 1 who was in Government service for 17 years is discredited as he did not carry with him the in-patient register of his private dispensary when he was summoned to prove the certificate he had issued. It appears to me to be a funny reason that is advanced to discredit the 70-year-old Assistant Surgeon after his 32 years of practice as a doctor. It appears to me to be a funny reason that is advanced to discredit the 70-year-old Assistant Surgeon after his 32 years of practice as a doctor. During the years of service in the Medical Department, he could not have had the experience of carrying bundles of in-patient registers of the hospital to courts to be believed by Magistrates and judges when he was cited as a prosecution witness to prove certificates issued by him and certainly he could not have anticipated such a demand when cited as a defence witness for the same purpose. 8. It appears to me that the only circumstance that may go against the accused is the evidence of Pw.1 that he had met the accused on the 4th near his office and when he questioned the accused as to why he did not hand over charge to Pw. 3, the accused replied that the entire amount of kist due for the 3rd instalment from the public market had not been realised and he will collect it the same day and hand over charge on Monday itself, and that of Pw. 2 that the accused had gone to the office on the 4th and entrusted the receipt books to him. This statement of Pw. 2 is in direct conflict with the evidence of Pw.1 that the accused did not go to the office on the 4th and both Pw.1 and Pw. 2 had not come forward with such a case at the stage of investigation when they were questioned by the police. On the other hand the information statement of Pw.1 as well as the several other reports made by him make it clear that at that stage their case was that the accused had made himself scarce after the first & was never seen thereafter. It is also noteworthy that this belated piece of evidence was not brought to the notice of the accused when he was questioned under S.342 to afford him an opportunity to explain. 9. When all is said and done, the court has to find that the prosecution has failed to prove that there was a dishonest retention of money till the 22nd and the explanation offered by the accused has to be accepted. 10. The revision petition is allowed and the conviction and sentence are set aside. The accused is acquitted and his bail bonds are cancelled. 10. The revision petition is allowed and the conviction and sentence are set aside. The accused is acquitted and his bail bonds are cancelled. The rule issued from this court in Calendar Revision for enhancement of sentence is discharged. Allowed.