S. K. Karar ( 1 ) THIS judgment will dispose of Criminal Appeals Nos. 225-D of 1962 and 226-D of 1962. The appeals are directed against the judgment of special Judge, Delhi, dated December 19. 1962. By the said judgment the learned Special Judge convicted and sentenced appellant Bharel to- (1) One year s rigorous imporisonment and a fine of Ks. 100. 00 or in default of payment of fine to further rigorous imprisonment of one month under section 120-B, Indian Penal Code, read with section 5 (2) and (1) (e) of the Prevention of Corruption Act ; (2) Rigorous imprisonment of one year and a fine of Rs. 100. 00 or in default of payment of fine rigorous imprisonment of one month under section 5 (2) read with section 5 (1) (e) of the Prevention of Corruption Act ; (3) One year s rigorous imprisonment under section 477-A, Indian Penal Code; and (4) Rigorous imprisonment of one year under section 471/467, Indian Penal Code. And appellant Bhatia to- (1) One year s rigorous imprisonment and a fine of Rs. 100. 00 or in default of payment of fine to rigirous imprisonment of one month under section 120-B, Indian Penal Code, read with section 5 (1) (e) and 5 (2) of the Prevention of Corruption Act; (2) One year s rigirous imprisonment under section 477-A, Indian Penal Code; and (3) One year s rigorous imprisonment under section 467, Indian Penal Code. The sentences of imprisonment were made to run concurrently in both the cases. ( 2 ) S. C. Bharel appellant was employed as Assistant Engineer (Electrical) in the Northern Electrical Division, C. P. W. D. , New Delhi, during the months of January and February 1960 and H. C. R, Bhatia appellant was working under him as Section Officer. Bhatia appellant prepared a report Exhibit P. 12 asking for sanction for engaging additional labour called muster roll employees from 1-1-1960 to 31-1-1960 for working at Primary Health Centre, Najafgarh. The sanction sought was for four employees consisting of one Diesel Engine Driver, two Fitters and one Wireman for operating the pumping Plant at the said Primary Health Centre, Najafgrah. The said report was written by Bhatia and signed by Bharel. Bharel forwarded it to K. S. Khera, Executive Engineer, who granted the sanction. One of the Diesel Engine Drivets was Prabhu Dayal, who left on 20th January, 1960. The said report was written by Bhatia and signed by Bharel. Bharel forwarded it to K. S. Khera, Executive Engineer, who granted the sanction. One of the Diesel Engine Drivets was Prabhu Dayal, who left on 20th January, 1960. According to the prosecution, no substitute was employed in place of Prabhu Dayal for the period 21-1-1960 to 31-1-1960. Both the appellants are alleged to have entered int a conspiracy to misappropriate Rs. 44. 00 by falsely showing the name of Tarlok Nath (P. W. D.) as having been employed in place of Prabhu Dayal for the said period of Tl days from 21-l-1960 to 31-1 I960. The prosecution further alleges that the method adopted by the appellants for misappopriating the said amount was that though no one was employed in place of Prabhu Dayal, name of Tarlok Nath (P. W. 1) was shown in the muster roll as the person who worked for the period of said I I days as Diesal Engine Driver. Bhatia forged the signature of Tarlok Nath (P. W. 1) on the said muster roll Exhibit P. i 3 acknowledging or the receipt of Rs. 44. 00 though the amount was never paid to Tarlok Nath. Bharel is alleged to have signed the said muster roll certifying payments to all muster roll employees, including Tarlok Nath. Defence of appellant Bhatia was that Tarlok Nath had in fact been employed from 21 1-1960 to 31-1-1960 and his name had been correctly shown in the muster roll Exhibit. 13. He further pleaded that on 2-2-1960, the date when money was distributed to the muster roll employees for the relevant period, he was not present at the time of distribution and the money was actually paid to lhe employees by Bharel appellant. He denied having forged the signatures of Tailok Nath in the muster roll Exhibit P. 13. The defence of Bharel appellant, on the other hand. was that on 2-2-1960 he had to distribute money at five different Section 0 facers. So far as this centre was concerned he paid he money to Bhatia for distribution to the employees and Bhatia actually disbursed the money. Bharel appellant admitted that he did go to the certre on that day but that was alter the money had been distributed. He admitted having certified. So far as this centre was concerned he paid he money to Bhatia for distribution to the employees and Bhatia actually disbursed the money. Bharel appellant admitted that he did go to the certre on that day but that was alter the money had been distributed. He admitted having certified. the muster roll but that was done because Bhatia told him that he had paid the money to the employees concerned. A question was put to Bhar I apnellant if it was a fact that Tarlok Nath ^p. W. 1) never worked at the said centre for the said period. To this he replied that he did not know about it. It is admitted on both sides that the appellants charged T. A. for going to the centre on 2 2-1960. It is on these allegations that lhe appellants were charged as above. ( 3 ) SO far as the question whether Tarlok Nath (P. W. 1) worked as a Diesel Engine Driver for the said period at Najafgarh Pumping Centre the evidence consists of the statement of Tarlok Nath (". W. 1) who deposed that he worked as a Diesel Engine Driver as muster roll employee at the said Centre from 1-12-1959 to 3-1-1960 and the wages for the said period were paid to him by Bharel appellant on 4-1-1960. On the night of 4-1-1960 when he reached the centre he was told by Ram Singh Head Machanic (P. W. 13) that as per instructions of Bhatia appellant his services were not required and thereafter he never worked at Najafgarh Centre. He further stated that for the period 18-1-1960 to 1-2-1960 he worked as a Fitter in the Central Secretariat. Ha denied the signatures in the muster roll Exhibit P. 13 acknowledging the receipt of Rs. 44. 00for the period of said I (days. To the same effect is the evidence of Murli Dhar Store-keeper Electrical Stores Division, C Public Witness D. . New Delhi, (Public Witness. 2) who is the father of Tarlok Nath. Santokh Singh (P W. 5), Section Officer, Electrical Division No. 1ll, C. P. W. D. , New Delhi, stated that Tarlok Nath worked under him as Fitter in the Central Secretariat from 18 1-1950 to 1 2-1960 and was paid Rs. 75. 00 for this period vide muster roll Exhibit P. 2. 2) who is the father of Tarlok Nath. Santokh Singh (P W. 5), Section Officer, Electrical Division No. 1ll, C. P. W. D. , New Delhi, stated that Tarlok Nath worked under him as Fitter in the Central Secretariat from 18 1-1950 to 1 2-1960 and was paid Rs. 75. 00 for this period vide muster roll Exhibit P. 2. According to this witness, Tarlok Nath worked under him during subsequent periods also and was paid wages as shown in the muster rolls Exhibits P. 4 and P. 5. The duty hours, according to the said witness with respect to the period covered by Exhibits P. 2. , P. 4 and P. 5 were 9-00 A. M. to 500 P. M. It may be pointed out here that Exhibit P. 3 shows that on 2-2-1960, the date when payment with respect to the said period had been received, Tarlok Nath was working at Western Court and there is evidence to show as to what his working hours were on that day. Lakha Singh (P,w. 4), who succeeded S. C. Bharel appellant as Assistant Engineer, stated that- (1) After sanction to engage muster roll staff is obtained the practice is to send a requisition to the Employment Exhange for sending some candidates requisite qualifications for the posts. On receipt of names the Assistant Engineer appoints the persons. If no candidates are received from Employment Exchange the Assistant Engineer makes recruitment from themarket. The Assistant Engineer generally asks the Section Officer to tell his workers to arrange for some people. (2) The attendance of muster roll staff is taken by the Section Officer who sends daily reports regarding the work of muster roll staff to the Assistant Engineer. After it is scrutinised by the Sub. Divisional Clerk, it is sent to the office of the Executive Engineer. (3) After muster roll period is over it is closed by the Section Officer who sends the papers to the Assistant Engineer for checking and secutiny and thereafter the papers are sent to the Executive Engineer. (4) The scrutiny of muster roll papers is normally done by the Sub-Divisional Clerk who compares the muster roll with the daily reports received from the Section Officer concerned and the payment of muster roll staff is sanctioned by the Executive Engineer. (4) The scrutiny of muster roll papers is normally done by the Sub-Divisional Clerk who compares the muster roll with the daily reports received from the Section Officer concerned and the payment of muster roll staff is sanctioned by the Executive Engineer. (5) Normally payment to muster roll staff is made by the Assistant Engineer himself but sometimes he entrusts this duty to the Section Officer concerned in exceptional cases. (6) A log sheet of the persons on duty is prepared and maintained at the site of work indicating the working of the set, the hours it has worked, the quantity of fuel consumed and the persons operating it during the said period. (7) Log sheets are maintained for a week and then passed on to the Section Officer who is expected to produce the same before the Inspecting Officer as and when required. (8) He was asked by the Special Police Establishment to produce the log sheets but they were not available in the record. (9) The work at the said centre was done all the 24 hours and the names of all the persons working at the centre have to be mentioned in the log sheet. (10) At the centres where work is to be carried on for all the 24 hours it is done in three shifts that if from 6-OU A. M. to 2-00 P. M. , from 2-00 P. M. to 10-00 P. M. and from 10-00 P. M. to 6-00 A. M. and the log sheets would indicate the shifts during which a particular person worked ; and (11) Sometimes the Executive Engineer goes to the spot for test check and follows the procedure of checking up of the persons on duty with the log book. Another important witness is Ram Singh (P. W. 13), Head Mechanic, who inter alia stated that- (1) He worked as Head Mechanic at the said centre from May 1959 to May 1961. (2) He used to mark the attendance of the muster roll staff working at the centre and for that purpose maintained an attendance register Exhibit P. 48 under the orders of Bhatia appellant. (3) Tarlok Nath worked as Pump Engine Driver from 3-12-1959 to 31-12-1959 and his attendance was marked in the said register Exhibit P. 48. (2) He used to mark the attendance of the muster roll staff working at the centre and for that purpose maintained an attendance register Exhibit P. 48 under the orders of Bhatia appellant. (3) Tarlok Nath worked as Pump Engine Driver from 3-12-1959 to 31-12-1959 and his attendance was marked in the said register Exhibit P. 48. He also worked from 1-1-1960 to 3-1-1960 and his presence was marked with respect to the said period also in the said register. (4) After 3. 1. 1960 Tarlok Nath never came to receive payment at the site. (5) The attendance register Exhibit P. 48 was used to be checked by Bhatia appellant who put his signatures when he liked. It may be pointed out here that the said register Exhibit P. 48 bears the initials of Bhatia appellant dated 10-1-1960. He does not appear to have signed the said register thereafter in January 1960. (6) No one was employed in place of Tarlok Nath when Prabhu Dayal left the employment. (7) He did not remember who actually worked in his place after Tarlok Nath left and no person from work charged staff (permanent employees) was called to work in his place. His attention was invited to his statement portion marked A to A, Exhibit D. 2, made to the police under section 161 Criminal Procedure Code, to the effect that after Tarlok Nath did not come to duty he got the work done from the work charge men but the witness said that he did not remember having stated so. The witness, however, in the later part of his statement said that he did not remember if any other person was employed in place of Prabhu Dayal. (8) The last checking in the month of January 1960 regarding muster roll employees was made by Bhatia Appellant on 10 1. 1960 and after Prabhu Dayal left the service on 19-1-60 no other person was employed in the month of January 1960. (9) The said register Exhibit P. 48 was maintained under the orders of the Section Officer and he could not say whether there was any rule regarding the maintenance thereof. 1960 and after Prabhu Dayal left the service on 19-1-60 no other person was employed in the month of January 1960. (9) The said register Exhibit P. 48 was maintained under the orders of the Section Officer and he could not say whether there was any rule regarding the maintenance thereof. (10) His duty hours were from 9-00 A. M. to 5-00 P. M. (11) He did not take the roll call personally by calling the names of the employees but used to make entries from the log sheet and by making enquiries from the persons working on the previous shifts. (12) He was residing in a house situate at a distance of about 250 yards from the centre and before the allotment of the house he lived in Viney Nagar at a distance of about 14 miles. It may be pointed out here that the salary bill Exhibit P. W. 3/11 of the said witness shows that till March 1960 he was being paid Rs. 15. 00 as house rent allowance and Ks 4. 00 as conveyance allowance and from this the learned counsel for the appellants have sought to deduce that till then he was living in Viney Nagar. (13) He did not remember whether the house near the centre was allotted to him in March 1960. (14) Bharel appellant never checked the register Exhibit P. 48 and he did not sign or initial the same, and (15) He did not remember whether Bharel appellant was present when the Section Officer checked exhibit P. 48 on 10. 1. 1960. Another important witness is Jagdish Chander D. W. 2 , who was produced by the appellant Bharel. He stated that he worked as Diesel Engine Driver at the said centre from September 1959 to 28th February, i960. He also deposed that appellant Bharel was not presenton 2-2-1960 when appellant Bhatia disbursed the amounts to the employees. He further stated that the Engine Driver was required to sign the log sheet register and that he used to work at night and sometimes during the day. Regarding the forgoing of signatures of Tarlok Nath on Exhibit P. 7, that is the document acknowledging the receipt of payment purporting to be on behalf of Tarlok Nath, there is evidence of Tarlok Nath (P. W. I who denied having received any payment. Shri S. K. . Regarding the forgoing of signatures of Tarlok Nath on Exhibit P. 7, that is the document acknowledging the receipt of payment purporting to be on behalf of Tarlok Nath, there is evidence of Tarlok Nath (P. W. I who denied having received any payment. Shri S. K. . Gupta (P. W. 8 ; Assistant Government Examiner of Questioned Documents, compared the signatures and according to his opinion the signatures purporting to be of Tarlok Nath were in the hand of appellant Bhatia. On the other hand, Shri A. S. Kapoor (D. W. 4 , Handwriting Expert, said that the said signatures were not in the hand of appellant Bhatia but showed similarity with the admitted signatures of Tarlok Nath. ( 4 ) MR. Bipott Behari Lal, the learned counsel for appellant Bharel, has broadly analysed the judgment of the learned Special Judge and criticised the findings. The findings of the learned Special Judge regarding the complicity of appellant Bharel are based on the evidence of Lakha Singh (P. W. 4), Santokh Singh (P. W. 5), Sat Dev Sharma P. W. 121, Phera Mal Bhasin (P. W. 7), Hari Niwas Sharma (P. W. 9. H. K. Krishnan (P. W. 10) and Tarlok Nath (P. W. I. The learned Special Judge found that according to their evidence payment to muster roll staff was to be made by the Assistant Engineer on the identification of the Section Officer. He further relied on the following evidence and circumstances :- (1) Register Exhibit P. 40 showed that on 2-190 appellant Bharel obtained a cheque for Rs. 3593. 43 np from the office for disbursing the salaries and wages of muster roll and work charged employees and this cheque was got encashed. Below Exhibit P. 42 there were two entries Exhibit P. 43 and P. 44 which showed that appellant Bhatia received the following payments on 2-2-1960 :- (i) Rs 3, 271-59 np. (ii) Rs. 321-94 np. Documents Exhibits D. W. 3/6 to D. W. 3/11, produced by Hari Niwas Sharma (P. W. 9 ). who again appeared as D. W. 3 and produced these documents, showed that a sum of Rs. 3, 271-59 np was paid to work charged employees on 2-2-1960. The other amount given to appellant Bhatia was Rs. 321-94 np and this was not sufficient for making payment of Rs. 4961- required to be made to muster roll employees. who again appeared as D. W. 3 and produced these documents, showed that a sum of Rs. 3, 271-59 np was paid to work charged employees on 2-2-1960. The other amount given to appellant Bhatia was Rs. 321-94 np and this was not sufficient for making payment of Rs. 4961- required to be made to muster roll employees. (2) If the payment to muster roll employees was made by appellant Bhatia it was not explained why appellant Bharel went to Najfagaih in the evening when he could have attested the muster roll in his office. (3) When Jagdisli Chander (D. W. 2) states that the appellant Bharel was not present at the time of payment on 2-2-1960 he is not telling the truth because he was inimically disposed towards appellant Bhatia and he wanted to injure him. ( 5 ) MR. Bipin Behari Lal submits that regarding the procedure for disbursement of the amount the evidence of Lakha Singh (P. W. 4 showed that there was no set rule or practice in this behalf and he has admitted that sometimes the Assistant Engineer handed over the money to Section Officer for disbursement. He further points out that though Hari Niwas (P. W. 9) stated that according to the rules the individual payments to the labourers had to be attested by the S. D. O. and without such attestation they were not accepted and further that according to rules such attestation had to be made by the S. D. O. and not by the Section Officer still no rule or regulation had been brought out showing that the Section Officer could not be entrusted with the job of actual distribution of money. He says that- (1) Appellant Bharel had to disburse amounts at five different centres and there was nothing wrong in his trusting the Section Officer to go and pay the money to the muster roll employees. (2) Three or four muster roll employees received payment on 2-2-1960 and the prosecution did not produce any one of them. They would have been the best persons to show as to who actually distributed the money. (2) Three or four muster roll employees received payment on 2-2-1960 and the prosecution did not produce any one of them. They would have been the best persons to show as to who actually distributed the money. The only witness, namely, Jagdish Chander (D. W. 2), who was one of the four muster roll employees who received payment on that day, was also not produced by the prosecution but was produced by the appellant Bharel and according to his evidence appellant Bharel was not present at the time of payment of money. (3) Regarding the two amounts of Rs: 3,271-59 np. and Rs. 32 -94 np. the learned Special Judge has based his conclusions on documents Exhibits D. W. 3/6 to D. W. 3/11, which were produced by Hari Niwas Sharma when he appeared as D. W. 3 with the result that appellant Bharel had no opportunity to explain those documents. He further says that in any case his defence was that he gave the said amounts to appellant Bhatia but were not allocated for payment to any particular class of employees. In the circumstances, says the learned counsel, the learned Special Judge was not justified in drawing an inference against the appellant. He has relied on a statement annexed to his grounds of appeal explaining the position regarding the said- two amounts he says that if he had an opportunity of explain ing the said documents Exhibits D. W. 3/6 to D. W. 3/11 he would have shown that his defence was correct, particularly because some work charged employees had received payment in the office and, therefore. Rs. 3271. 59 np could not have been given for payment to the work charged employees. He has further tried to explain that there were certain payments required to be made to certain work charged employees on account of over-time and in concluding that the sum of Rs. 3,27 -59 np was meant for the work charged employees the learned Special Judge has fallen into an error in not taking into account the said payment for over-time work. (4) Regarding the conclusion of the learned Special Judge as to why did Bharel go to the centre when he could have signed Exhibit P. 7 in his office Mr. 3,27 -59 np was meant for the work charged employees the learned Special Judge has fallen into an error in not taking into account the said payment for over-time work. (4) Regarding the conclusion of the learned Special Judge as to why did Bharel go to the centre when he could have signed Exhibit P. 7 in his office Mr. Bipin Behari Lal says that as appellant Bharel had to distribute payments at five centres he must have gone to each one of them but may have given money to appellant Bhatia with instructions to disburse the money so that time could he saved. Accordin gto Mr. Bipin Behari Lal it is also possible that he may have gone there to earn his T. A. There is according to Mr. Bipin Behari Lal a third possibility, narmely, that appellant Bharel may not have gone to the centre but since he had claimed his T. A. he had to stick to the position that he went there. (5) The evidence of Jagdish Chander (D. W. 2) should be accepted because he is the only person who admittedly received payment and was present at the spot on 2-2-1960. (6) In judging whether appellant Bharel was guilty or not the defence and explaination of appellant Bhatia should not have been taken into consideration. ( 6 ) MR. Mehta, the learned counsel for the respondents, has, on the other hand, relied on the following : - (1) Direct evidence of Tarlok Nath (P. W. I) to the effect that he never worked at the centre on the relevant dates. (2) According to the evidence of Lakha Singh (P. W. 4 , the plant at the centre was operating in three shifts and after Prabhu Dayal left there were still Phool Singh, a muster roll employee and Net Ram, a work-charged employee, available as Drivers. Evidence of Jagdish Chander (D. W. 2) shows that he, also worked at the relevant period as Driver. It follows that there were three Drivers working in the said three shifts and there was not place where Tarlok Nath (P. W. 1) could be utilised. (3) Jagdish Chander (D. W. 2) in his complaint against appellant Bhatia for non-payment of a part of his du. s, which is a document Exhibit D. W. 2/1 dated 25th March, 1960, stated that he worked during the relevant period as a Driver. (3) Jagdish Chander (D. W. 2) in his complaint against appellant Bhatia for non-payment of a part of his du. s, which is a document Exhibit D. W. 2/1 dated 25th March, 1960, stated that he worked during the relevant period as a Driver. No doubt, in the muster roll register he is shown as a Fitter but appellant Bhatia was responsible for the maintenance of the same and no reliance could be placed on it. In the Register Exhibit P. 48 maintained by Ram Singh (P. W. 13) he is shown as an Engine Driver and this register was checked and signed by appellant Bhatia on 10-1-1960. Ram Singh (P. W. 13) categorically stated that when Prabhu Dayal left no person was employed in his place. (5) Jagdish Chander (D. W. 2 may have been shown as a Fitter in the muster roll but made to work as a Driver as appears from the Register Exhibit P. 48. Exhibit p. 48 is a reliable document and entries in the same should be taken as correct in preference to the entries in the muster roll which was main tained by appellant Bhatia. (6) T. A. bill of appellant Bharel shows that he went to the spot to disburse payments. That being so he wouldhave known that there was no such person as Tarlok Nath employed as a Diesel Engine Driver and payment to him could not have been shown in the muster roll unless the appellants had conspired together to misappropriate the amount. (7) Bharel appellant in his statement under section 342, Criminal Procedure Code, admitted that he used to check the entries in the muster rolls by reference to the log sheets. Since it is established that the muster roll entries were not correct it follows that appellant Bharel was a co-conspirator. (8) In the log sheet the entries had to be made by the employees concerned. Since the evidence shows that Tarlok Nath was never employd there would have been no entry in the log sheet with respect to him. Consequently if his entry appears in the muster roll it could not have so appeared without the active connivance of appellant Bharel. Since the evidence shows that Tarlok Nath was never employd there would have been no entry in the log sheet with respect to him. Consequently if his entry appears in the muster roll it could not have so appeared without the active connivance of appellant Bharel. ( 7 ) I may mention here that the case of the appellants is that name of Tarlok Nath must have existed in the Jog sheets because the evidence shows that payments were made after checking the muster roll, the log sheets and daily reports and they used to be inspected by higher officials at the site. In such circumstances no one would have taken the risk of including the name of an employee in the log sheet when he was not working. I have carefully gone through the evidence on the record and in my view there is no evidence to bring home the guilt to appellant Bharel. Even if appellant Bhatia had wrongly shown the name of Tarlok Nath in the muster roll, which will be discussed separately, there is nothing to show that appellant Bharel knew about his presence being wrongly shown. I must say that the prosecution has not produced the best avidence which could have been available for disclosing the true facts. None of the other muster roll employees have been produced to show as to who actually disbursed the money and the only person admittedly present, that is, Jagdish Chander ( D. W. 2 ), stated that the appellant Bharel was not there at that time. In view of the circumstances mentioned above it is to my mind more probable that name of Tarlok Nath would have existed on the log sheets. The : daily reports have not been produced and no reason has been disclosed for the non-production. So far as documents Exhibits D. W. 3/6 to D. W. 3/11 are concerned, they cannot be used against appellant Bharel because he has had no oppotunity to explain the same and, therefore, it is difficult to say for what purpose the two amounts were given by appellant Bharel to appellant Bhatia. The raeson given for disbelieving the evidence of Jagdish Chander (D. W. 2) regarding the presence of Bharel has also not appealed to my mind. Even if he was inimically disposed towards appellant Bhatia there is no reason why he should spare appellant Bharel. The raeson given for disbelieving the evidence of Jagdish Chander (D. W. 2) regarding the presence of Bharel has also not appealed to my mind. Even if he was inimically disposed towards appellant Bhatia there is no reason why he should spare appellant Bharel. After all Bharel s office was situated at a great distance and it would be impossible to expect that he would know precisely who working at what time and as what. He may wm reasonably trusted the Section Officer and believed that the entriesay ade by him in the muster roll were correct. No rules have been shh n requiring that the payment must be made by the Assistant Engineer but even if any existed there would be nothing criminal in Bharel s reposing confidence in his Section Officer and asking him to distribute the amount. Even if it be assumed that Jagdish Chander was working as a Driver the muster roll did show him a Fitter and if Bharel Placed confidence in his Section Officer and trusted him he cannot be held guilty of consipiracy. No doubt, it is rarely that direct evidence of conspiracy is available and it has always to be deduced from the circumstances of the case but the circumstances in the present case are such as may at the most create a mere suspicion but do not amount to proof. So far as T. A. bill is cancerned, I agree with the learned counsel for the appellant that he may have charged the TA. because he went there though he may have reached after the money had been distributed, or he may in fact not have gone but show his visit only to claim T. A. That circumstance in my opinion does not lend any further support to the prosecution. It is said that in T. A. bill Exhibit D 0 Bharel had stated that he had gone there to disburse the salary of work charged employees and that showed that there was some sinister motive behind this. If he had gone there to distribute the salaries o muster roll employees as well as of work charged employees he would have so stated in the T. A. bill. That again, according to me, is a circumstance creating suspicion but not sufficient to hold that it constitutes a link in the chain for proving the offence. If he had gone there to distribute the salaries o muster roll employees as well as of work charged employees he would have so stated in the T. A. bill. That again, according to me, is a circumstance creating suspicion but not sufficient to hold that it constitutes a link in the chain for proving the offence. Lastly, it is argued by the learned counsel for the prosecution that according to the evidence it was clear that Bharel appellant was, at least, negligent in the performance of his duties and thereby allowed appellant Bhatia to misappropriate the amount and he should, therefore, be held guilty under section 5 2) read with section 5 l) (c of the prevention of Corruption Act. In this connection reliance has been placed on 0m parkash v. State of U. P Their Lordships in the said case observed : - "the meaning put on the word allows would certainly be different from (dishonest misappropriation) by the offender himself. It may be that the word can mean allowing by negligence or without any volition on the part of the offender. It may also mean that there is some kind of positive and tacit acquiescence necessary to bring home the offence, in any event, allowing other persons so to do doss not find a place in section 405, Penal Code though this section also contemplates wilfully suffering any other person so to do. There is an essential difference between allowing a person and wilfully suffering a person to do a certain thing". In the latter part of the judgment again it is said :- "there is a vast difference between "wilfully suffering another and allowing a person to do a particular thing and in hour view the word allows is much wider in its import. Wilfully pre-supposes a conscious action, while even by negligence one can allow another to do a thing. " ( 8 ) ON the basis of the aforesaid observations Mr. Mehta contends that if Bharel had not acted negligently, misappropriation would not have taken place and he is, therefore, guilty under section 5 (2) read with section 5 (1) (c) of the Prevention of Corruption Act. I need not consider this argument in view of my conclusion on Bhatia s appeal that the prosecution has failed to prove that Tarlok Nath was not employed. I need not consider this argument in view of my conclusion on Bhatia s appeal that the prosecution has failed to prove that Tarlok Nath was not employed. In the circumstances, my conclusion is that the prosecution AIR 1957 SC 458 . has not succeeded in establishing anything beyond suspicion and appellant Bharel should be entitled to the benefit of the doubt. He cannot, therefore, be held guilty for any of the offences alleged against him. I also must make a reference to the conviction of appellant Bharel under sections 477-A and 471/467 Indian Penal Code. Once it is held that he was not a party to the conspiracy, if any, he cannot be held guilty under any of the said provisions because there is no evidence establishing that (a) appellant Bharel altered or falsified any book or paper or was a party to such falsification, or (b) he forged any document or was in any manner concerned with forgery, or (e) he falsely attested the forged signatures of Tarlok Nath, or ( d) be used as genuine any forged document. Moreover since I am of the view that the prosecution has failed to establish that Tarlok Nath was not employed, there can be no question of convicting appellant of the aforesaid offences. ( 9 ) COMING now to the appeal of appellant Bhatia, as I have already acquitted appellant Bharel that would entitle appellant Bhatia to acquittal so far as the charge under section 120-B, Indian Penal Code, is concerned. Mr. Hardy then submits that : - (1) The prosecution evidence showed that the generating set was being run continuously for three shifts but the prosecution had failed to produce any witness showing who operated the three shifts. Mr. Hardy says that it would have been very easy for the prosecution to produce the three witnesses who operated the three shifts as Drivers and thus proved the charge. Not having done so every presumption should be drawn against the prosecution. (2) Prabhu Dayal worked only up to 20th January 1960 and Ram Singh (P. W. 3) was the only witness produced by the prosecution to show that somebody else worked in place of Prabhu Dayal and not Tarlok Nath. It was only in re-examination that the prosecution for the first time asked him. (2) Prabhu Dayal worked only up to 20th January 1960 and Ram Singh (P. W. 3) was the only witness produced by the prosecution to show that somebody else worked in place of Prabhu Dayal and not Tarlok Nath. It was only in re-examination that the prosecution for the first time asked him. about this to which he replied that work of Prabha Dayal was being done by work charged staff. But in answer to a question by Court he stated that he did not make any note to this effect. (31 There was also no evidence that any extra payment was made to anyone. In cross-examination by Bhatia the witness stated that he did not remember who worked in place of Prabhu Dayal and no one from worked charged staff was asked to do work in his place. Mr. Mehta relies on the evidence of Jagdish Chander (D. W. 2) to show that three Drivers were available He refers to Chaman v. Emperor, in support of the proposition that evidence of the said witness, though summoned by the other appellant could be used against appellant Bhatia. The learned counsel for the appellant, on the other hand, relying on Bahoru v. Emperor submits that evidence of a defence witness produced by one accused cannot be used against the other accused. No doubt, there are observations in the Lahore judgment which lend support to the contention of Mr. Mehta but in my view the evidence of Jagdish Chander (D. W. 2) cannot, having regard to the circumstances of the case, be used against appellant Bhatia. If the broad proposition of law; that evidence of a witness produced by a co-accused can be used against another accused be accepted it may lead to a great injustice for the other accused may have no opportunity, except cross-examination of that! witness itself, to rebut the evidence. Moreover, the facts brought out in the evidence of a witness produced by a co-accused may not have been put to the other accused in his statement under section 342, Criminal Procedure Code, thereby again resulting in injustice. I need not consider the argument that the Lahore decision is incorrect in view of the fact that that decision must be limited to the facts of that case. I need not consider the argument that the Lahore decision is incorrect in view of the fact that that decision must be limited to the facts of that case. There the evidence of the defence witness was in addition to what had been brought out clearly in the other evidence led by the prosecution. In that case it may be said that non-compliance with section 342. Criminal Procedure Code, to the extent of putting his evidence to the accused may not have resulted in injustice The facts of this case, however, disclse a different state of affairs. In this case the prosecution had led no evidence to show who was the third Driver who worked in place of Prabhu Dayal and that evidence for the first time came from the statement of Jagdish Chander (D. W. 2 ). Using that evidence against appellant Bhatia would clearly cause a serious prejudice to him. ( 10 ) MR. Hardy further submits that the evidence of Ram Singh Public Witness I 3, even to the limited extent to which he had deposed, could be accepted because his duty hours were from 9-00 A. M. to 5-00 P. M. while according to appellant Bhatia Tarlok Nath was working at the night shift. His evidence that somebody else worked in his place was, therefore, not based on personel knowledge. He further says that it was clear from salary Bill exhibit D. W. 3/11 that he was not allotted a house near the centre till March 1960 and before that he was living a a distance of about 14 miles. Mr. Hardy then refers to two important documents, namely, the register Exhibit P. 48 maintained by Ram Singh, and the muster roll Exhibit P. 7) maintained by appellant Bhatia. He says that the entries in Exhibit P. 48 should not be accepted for the following reasons ;- (1) Exhibit P. 48 was being maintained by Ram Singh on information collected by him from different sources and not on the basis of his personal knowledge. (2) The entries in Exhibit P. 48 were based on log sheets. The evidence showed that the log sheets were being examined by top officials and, therefore, it was impossible to expect that anyone would take the risk of making false entries in the log sh ets. Moreover, according to the evidence of Lakha Singh lp. (2) The entries in Exhibit P. 48 were based on log sheets. The evidence showed that the log sheets were being examined by top officials and, therefore, it was impossible to expect that anyone would take the risk of making false entries in the log sh ets. Moreover, according to the evidence of Lakha Singh lp. W. 41 payments for muster rollemployees were sanctioned after checking the daily reports and the log sheets and since payment for four employees in his particular shift was sanctioned it follows that the log sheets did show that four persons had been employed. It also follows, according to Mr. Hardy, that the entries in the muster roll and the log sheet tallied and consequently the muster roll must be correct. Mr. Hardy further points out that Tarlok Nath Public Witness I was shown in the register (Exhibit P. 481 to have worked on the 1st, 2nd and 3rd January, l-60; In the muster roll Exhibit P. 7) he was not shown as having worked on those days. If appellant Bhatia was interested in getting money he would have collected Tarlok Nath s wages for those three days as well yet he did not show Tarlok Nath s presence on the said days. Moreover, since Tarlok Nath was not shown. is having, worked on the said three days he could not have been paid by the Government and there was nothing on the record to show as to who made payment to Tarlok Nath for those days. Bhatia appellant could not have made the payment from his own pocket. Again one Suleman was shown in the register (Exhibit P. 48) to have worked from 9th to l2thjanuary, 1960. His name also did not appear in the muster roll. Mr. Hardy says that appellant Bhatia could not have made the payment from his pocket and yet in the absence of his name from the muster roll Government could not have paid him. This, Mr. Hardy says, lends further support to his argument that register Exhibit P. 48 was not an authentic document while entries in the muster roll were correct. (3) Appellant Bhatia had explained in answer to question No. 10 as to why Exhibit P. 48 was maintained. It was, according to the appellant, maintained only to give moral strength to Ram Singh (P. W. 13 ). (3) Appellant Bhatia had explained in answer to question No. 10 as to why Exhibit P. 48 was maintained. It was, according to the appellant, maintained only to give moral strength to Ram Singh (P. W. 13 ). The last date on which Bhatia initialled the said register was on 10th January, 1960, and there was nothing on the record to show that he ever examined it there after. (4) Evidence of Tarlok Nath should not be believed because he would be interested in showing that he did not work at the centre since he had already been employed in the Central Secretariat. He may have genuinely believed that if he admitted having worked at two places that may go against him. Mr. Hardy has further pointed out certain contradictions in his evidence and particularly the following :- (a) He stated that he went to receive payment of Rs. 124. 00 paid to him vide entry Exhibit P. I in the mutter roll on 4-1-1960. The said exhibit, however, showed that payment of the said amount was made by appellant Bharel on 1-1-1960. Mr Hardy says that it was only because of his presence having been shown in Exhibit P. 48 for the first three days in the month of January 1960 that he had woven all this story on the basis of the said entries. It was for this reason that Tarlok Nath falsely stated that he went to receive payment on 4-1-1960; and (b) He falsely stated that Prabhu Dayal was also doing night duty along with him for the days he worked there. That was false because two Drivers could not have worked in the same shift. (5) There was no validity in the argument of the prosecution that Tarlok Nath could not have worked at two places. He worked in the Central Secretariat from 9-00 A. M. to 5-00 P. M. While at the centre from 10-00 P. M to 6-00 A. M. and, therefore, there was no conflict in the working hours. A Driver generally starts the engine and goes off to sleep by its side. There was, therefore, nothing impossible in his carrying out the work at two places. A Driver generally starts the engine and goes off to sleep by its side. There was, therefore, nothing impossible in his carrying out the work at two places. (6) Tarlok Nath as Public Witness I stated that during the days he worked his duty hours were from 10-00 P. M. to 6-00 A. M. The prosecution could have led evidence showing that some other Driver worked during the relevant days on the said night shifts yet the prosecution made no effort to produce say witness. (7) The prosecution produced no witness employed for the night shift to prove that Tarlok Nath did not work during those days. The prosecution could have clinched the issue by producing some person who worked during the night shifts. (8) Ram Singh (P. W. 13) was not telling the truth when he vaguely stated that some work charged employee was working as an Engine Driver during the said shift. The pros cution could have shown that some over-time payment was made to that employee for having worked at the night shift yet no evidence was produced on this point. Moreover, even from Ram Singh the prosecution asked this question for the first time in re examination. (9) According to Lakha Singh (P. W. 4) payments were sanctioned on the basis of daily reports. The said daily reports had not been produced by the prosecution and no reason had been given for withholding the same. Lakha Singh p. W. 4) had stated that the muster roll used to be compared with the daily reports. That being so, it was obligatory on the part of the prosecution to produce the daily reports. To the same effect was the evidence of Phera Mal (P. W. 7, and Hari Niwas (P. W. 9 ). (10) The prosecution made no serious effort to secure the production of log sheets. It was clear from the evidence that the log sheets used to be with the Section Officer yet the prosecution did not issue any notice to the successor of Bhatia to produce the same. A notice was sent by the police only to Lakha Singh (P. W. 4) who reported that they were not available in the record. (11) The learned Special Judge held that the log sheets appeared to have. been destroyed by appellant Bhatia. A notice was sent by the police only to Lakha Singh (P. W. 4) who reported that they were not available in the record. (11) The learned Special Judge held that the log sheets appeared to have. been destroyed by appellant Bhatia. This conclusion had been arrived at without any question having been put to appellant Bhatia in his examination under section 342, Criminal Procedure Code. (12) The prosecution had not proved as to which shifts were attended to by Net Ram Driver, a work charged employee, and Phool Singh Driver, a muster roll employee. None of those two persons were produced and even Ram Singh (P. W. 13) was not questioned about it. (13) Jagdishchander (D. W. 2) appeared as a defence witness on behalf of appellant Bharel and stated that he was appointed as a Driver. Still no question was asked as to what work he actually did. Muster roll showed him as a Fitter and yet he was not asked to explain the discrepancy. The said witness was hostile to Bhatia as he had already made a complaint (Exhibit D. W. 2/1) against him to the Executive Engineer. (14) The learned Special Judge erred in observing that the accused die not explain why the other muster roll employes were not examined. It was for the prosecution to examine the other muster roll employees and establish their case. (15) The learned Special Judge had wrongly drawn am inference against Bhatia that since wages were alleged to have. been paid between 4 and 5 P. M. Tarlok Nath, who was working in the Central Secretariat, could not have been present at that time. This inference was not justified because entry Exhibit P. 3 showed that on 2- -1960 he was working in the Western Court and there was no evidence showing the working hours there. (16) The learned Special Judge had again wrongly drawn an inference against the appellants on the ground that they had both told lies. Even if an accused personsets up a false defence it cannot form a basis of his conviction. (17) The evidence of Jagdishchanderl (D. W. 2) could not be used against Bhatia and the use of that "evidence has vitiated the judgment of the learned Special Judge, and (18) Jagdish Chander (D. W. 2) made three statements. Even if an accused personsets up a false defence it cannot form a basis of his conviction. (17) The evidence of Jagdishchanderl (D. W. 2) could not be used against Bhatia and the use of that "evidence has vitiated the judgment of the learned Special Judge, and (18) Jagdish Chander (D. W. 2) made three statements. (i) complaint Exhibit D. W. 2/4 made to the Executive Engineer against Bhatia ; (ii) his statement under section 164, Criminal Procedure Code, (Exhibit D. W. 2/2) relating to this very case; and (iii) his evidence as D. W. 2. In none of these statements did Jagdish Chander ever mention that Tarlok Nath had not been employed. Since he was admittedly inimical to Bhatia he would have definitely made this grievance against him in the said statements. ( 11 ) MR, Mehta, the learned counsel for the respondents, has, on other hand, submitted that- (A) The person concerned, namely, Tarlok Nath. had been produced who had categorically stated that he did not work there on the relevant days. (b) Evidence of Jagdish Chander (D. W. 2) showed that three Drivers were available and, therefore, Tarlok Nath could not have worked. (c) The register Exhibit P. 48 was a reliable document and no reliance should be placed on the muster roll which was being maintained by Bhatia himself. Mr. Mehta emphasises the fact that in register Exhibit P. 48 Tarlok Nath is shown to have been in employment on 1st, 2nd and 3rd of January, 1960. This register was signed by Bhatia on 10. 1. 1960 and he would have objected to the said entries if they were incorrect. This showed that the muster roll, which did not enter the presence of Tarlok Nath on the said three days, was not correct. Again presence of Suleman was shown in Exhibit P. 48 from 9th to was 12th January, 1960, and in that very column on 10. 1. 1960 Bhatia signed it. If Suleman had not been employed, Bhatia would have objected to it. I would straight way dispose of this contention. The very look at the entry regarding Suleman s presence casts at least a doubt that it may have been entered later. The said entery is not numbered and is interposed between entries 2 and 3 relating to Phool Singb and Jagdish Cliander, Drivers. I would straight way dispose of this contention. The very look at the entry regarding Suleman s presence casts at least a doubt that it may have been entered later. The said entery is not numbered and is interposed between entries 2 and 3 relating to Phool Singb and Jagdish Cliander, Drivers. (d) The prosecution made all efforts to procure the log sheets but they had been done away with by one of the accused persons. (e) The defence taken by Bhatia was that he was not present when money was distributed on 2. 2. 1960. That was obviously wrong because in the document Exhibit D. W. 2/l he had admitted that he was present at that time. (f) Ram Singh (P. W. 13) had no enmity with any of the accused and, therefore, his statement that no one was employed in place of Prabhu Dayal should be accepted. He further states that entries were made by him in Exhibit P. 48 from the log sheet and so obviously the name of Tarlok Nath was not there in the log sheet. (g) The production of log sheets also would have made no differe- nce because they were being maintained by Bhatia. (h) Jagdish Chander (D. W. 2 stated that a Driver had to sign the log sheet If Ram Singh and Tarlok Nath Public Witness s. and Jagdish Chander (D. W. 2) were right then Tarlok Nath s name could be there in the log sheet. (i) Reference to the Central Civil Service ( ontrol and Appeal) Rules would show that there was no bar to Tarlok Nath s working at two places ; and (j) If it was established that Tarlok Nath was not employed then the evidence of Government Hand writing Expert should be accepted when he says that the signatures of Tarlok Nath appeared to have been forged by Bhatia. ( 12 ) I have gone through the entire evidence and the documents and am of the opinion that there exists a reasonable doubt as to the commission of any offence by Bhatia. There is force in Hardy s argument that the prosecution has failed to produce important witnesses who would have unfolded the true state of affairs. ( 12 ) I have gone through the entire evidence and the documents and am of the opinion that there exists a reasonable doubt as to the commission of any offence by Bhatia. There is force in Hardy s argument that the prosecution has failed to produce important witnesses who would have unfolded the true state of affairs. If the evidence of Jagdish Chander (D. W. 2) is excluded from consideration, which must be, there is no evidence to show as to how many Drivers were available and who worked at the three shifts. Non-production of these witness casts a serious doubt on the prosecution case. I am also not inclined to agree with the prosecution that better value should bs attached to register Exhibit P. 48 as compared to the muster roll. I agree with Mr. Hardy that if Tarlok Nath and Suleinan had actually been employed 1-1-60 to 3-1-60 and 9th to 12 h January 60 respectively their names would have appeared on the muster roll because their wages could not have been sanctioned unless their names were there. In spite of this lacuna, the prosecution has failed to produce any evidence to showthat as a matter of fact wages were paid to Suteman and/or to Tarlok Nath for the said days. The entry Exhibit P. I shows that payment of Rs. 124. 00was made to Tarlok Nath on 1. 1-1960 and not on 41-1960 as alleged by him. The way the name of Suleman has been entered in the register Exhibit P. 48 lends a further support to the defence case. I am not prepared to place any reliance on the evidence of Tarlok Nath and his father for he may have suffered from an impression that if he worked at two places he may be condemned for the same. The prosecution has also failed to prove that they had three Drivers available besides Tarlok Nath during the said period. There is also force in the argument of the defence counsel that if Tarlok Nath was interested in concealing the fact of his employment at two places he would not have put his normal signatures on the receipt. Even if the non-production of the log sheets is ignored the prosecution has failed to show why the daily reports were not produced. Even if the non-production of the log sheets is ignored the prosecution has failed to show why the daily reports were not produced. The said reports would have had an important bearing on the case and I must draw an inference against the prosecution for the non-production thereof. If the prosecution has, I have held, failed to prove that Tarlok Nath was not employed, charge against Bhatia under section 120 B, Indian Penal Code, fails. It fails also for the reason that I have held Bharel as not guilty of any conspiracy. So far as the evidence of Ram Singh (P. W. 13) is concerned, it is most inconclusive at least regarding someone other than Tarlok Nath having worked in place of Prabhu Dayal and no conviction can be based on his evidence. The father of Tarlok Nath would naturally be interested in supporting what his son stated. So far as charges under sections 477-A and 467, Indian Penal Code, are concerned, they also must fail because I have come to the conclusion that the prosecution has failed to prove that Tarlok Nath had not been employed. The evidence of experts is only an opinion and can rarely take the place of substantive evidence. If the prosecution fails regarding the employment or non employment of Tarlok Nath I see no justification for Bhatia s conviction under the said two charges. The impression formed on my mind from persusal of the entire evidence and the documents is that the prosecution has Failed to bring the charge home to the accused. I, therefore, give the benefit of the doubt to appellant Bhatia as well. ( 13 ) IN the result, both the appeals succeed and conviction of the appellants on various charges set aside. They need not surrender to their bail-bonds.