JUDGMENT : A. Misra, J. - The Petitioner has been convicted u/s 409/34, Indian Penal Code, and sentenced to undergo R.I. for Six months and to pay a fine of Rs. 50/-; in default, to undergo R.I. for one month more. 2. According to prosecution Petitioner was the Junior Accountant in the D.T.M. office at Rourkela, while one Bafat Khan was the Senior Accountant and Rajkishore Singh Samant was the Assistant Cashier. A.K. Singh (p.w. 5) who was serving as a driver in the State Transport at Rourkela on a monthly salary of Rs. 98/- submitted his resignation (Ex. 8) on 25-4-1961 and left service with effect from 3-5-1961. Petitioner as Junior Accountant while preparing the establishment pay bill for the month of June 1961 included therein the pay of p.w. 5, who was no longer in service. Rajkishore Singh Samant as Asst. Cashier drew the amount from the Treasury and both he and Petitioner are said to have misappropriated the amount by forging the signature of p.w. 5 in the acquittance roll Bafat Khan, Rajkishore Singh Samant and Petitioner were put on trial for an offence u/s 409/34, Indian Penal Code. All of them pleaded not guilty. The defence of Petitioner was that as usual, be prepared the pay bill for the month of June on the basis of the absentee statement of the month of May, and his duty being confined to preparation of the bill, he had nothing to do with withdrawal or disbursement of the amount, and as such, the charge against him cannot be sustained. The learned Magistrate, who tried the case, acquitted Bafat Khan, while he convicted and sentenced Petitioner and Rajkishore, as stated above. Petitioner preferred an appeal against his conviction and sentence which was dismissed by the learned Additional Sessions Judge. 3. Mr. Kanungo, learned Counsel appearing for Petitioner contends that on the evidence and facts proved, the conviction of Petitioner u/s 409/34, Indian Penal Code, cannot stand. 4. As transpires from the evidence, the practice prevailing in that office is that Petitioner used to prepare the establishment pay bill on receipt of the absentee statement and thereafter submit it for scrutiny and check by the Senior Accountant. After the bill was so checked, it used to be made over to the Cashier or in his absence to the Asst. After the bill was so checked, it used to be made over to the Cashier or in his absence to the Asst. Cashier whose duty it was to en cash it and disburse the money. The duties of Petitioner did not include drawing, disbursement or handling of cash in any other manner. In this case, it has been proved that p.w. 5 left service with' effect from 3-5-1961, and as such, he was not entitled to get any salary for the month of June. The evidence of p.ws. 2 and it also proves that while preparing the bill No. 11/p., dated 30.6.1961, Petitioner included an amount of Rs. 98/- as salary of p.w. 5. Ex 5/1 is the signature of Petitioner in the acquittance roll (Ex. 5) in token of his having prepared the bill. The Courts below have negatived the Petitioner's defence that he prepared the bill on the basis of the absentee statement for the month of May and this finding is not seriously challenged. The evidence of p.ws. 2 and 3 proves that this bill was encashed by Rajkishore on 3-7-1961 who has made an entry to that effect at page 392 of the Cashier's hand book (Ex. 6) and disbursement of the amount of Rs. 98/- to p.w. 5 has been shown to have taken place on 5-7-1961 at page 19 of Vol. II of Ex. 6. Thus, the prosecution evidence only establishes that Petitioner prepared the pay bill wrongly including the Amount of Rs. 98/- towards the salary of p.w. 5 and that Rajkishore encashed it in the Treasury and received the amount which he entered in his own cash book and showed disbursement of the same to p.w. 5, though actually no such disbursement had been made. On these facts, the point for consideration is whether Petitioner can be saddled with joint criminal liability for, an offence of criminal breach of trust. 5. To constitute an offence u/s 409, Indian Penal Code, besides proving that the accused was a public servant, etc., the prosecution has to establish that he was in such capacity entrusted with the property in question or had dominion over it and that he committed criminal breach of trust in respect of it. 5. To constitute an offence u/s 409, Indian Penal Code, besides proving that the accused was a public servant, etc., the prosecution has to establish that he was in such capacity entrusted with the property in question or had dominion over it and that he committed criminal breach of trust in respect of it. On the admitted evidence, when Rajkishore encashed the bill and received the money, it cannot be said that Petitioner was entrusted with the same or had dominion over it. Similarly, when the duty of Petitioner did not involve disbursement of the amount and it is the function of Cashier to disburse the same, it cannot be said that Petitioner committed criminal breach of trust in respect of the money regarding which entrustment was made to the Cashier, who alone had dominion over it. Necessarily the question arises whether Petitioner (Jan be saddled with joint criminal liability for the alleged breach of trust committed by Rajkishore. 6. The only facts relied upon to saddle Petitioner with joint criminal liability are that he had prepared the pay bill in spite of having the absentee statement showing the absence of p.w. 5 and the finding that the signature of p.w. 5 marked C/1 at page 88 of Ex. 5 is a forged one and found to be in the hand-writing of Petitioner. The essence of liability u/s 34, Indian Penal Code is to be found in the existence of a common intention animating the offenders leading to the doing of a criminal act in furtherance of the common intention, the leading feature being "participation in action." To establish joint responsibility for an offence, it must be proved that a criminal act was done by several persons and the participation must be in doing the act and not merely in planning it, vide State of Orissa v. Rajkishore Singh Samanta and three Ors. 1966 C.L.T. 41. It has been held in the decision reported in Shiv Prasad Chunilal Jain Vs. 1966 C.L.T. 41. It has been held in the decision reported in Shiv Prasad Chunilal Jain Vs. The State of Maharashtra that where a person did not participate in commission of the acts of the convicted accused, although earlier to the commission of the offence, be might have done something in that direction, still as such acts did not form any ingredient of the offence committed by the convicted accused, it cannot be said that he participated in the commission of the criminal acts of the convicted accused. As such, Section 34, will not be attracted. In short, Section 34, does not create a distinct offence, but it only lays down the principle of joint criminal liability, the necessary conditions for its application being firstly, common intention to commit an offence and secondly, participation by all the accused in doing the act or acts in furtherance of that common intention. In this case, the preparation of the bill including the salary of p.w.5 who was no longer in service itself is not sufficient to saddle Petitioner with joint criminal liability, because that is not an act of participation in the commission of the offence. The Defence was committed by falsely showing disbursement of Rs. 98/- to p.w. 5 and committing criminal breach of trust, in respect of it. The other circumstance relied upon to prove participation by Petitioner in the commission of the offence is the alleged act of forging the name of p.w. 5 in Ex. 5 in token of receipt of the amount said to have been disbursed. If it is proved that Petitioner forgeo the signature of p.w. 5, undoubtedly, he will he guilty of participation in the offence an Section 34, will be attracted. The difficulty, however, in regarding the proof offered by the prosecution in support of this allegation that Petitioner forged the signature of p.w. 5. Except the evidence of the Govt. Handwriting Expert (p.w. 4), there is no other evidence to show that the disputed signature (Ex:. C/1) in Ex. 5 is in the hand writing of Petitioner. Mr. Kanunongo, learned Counsel appearing for Petitioner contends that the evidence of p.w. 4 is only an opinion and it cannot be a substitute for proof that, it is in the handwriting of Petitioner. 'This contention has considerable force. C/1) in Ex. 5 is in the hand writing of Petitioner. Mr. Kanunongo, learned Counsel appearing for Petitioner contends that the evidence of p.w. 4 is only an opinion and it cannot be a substitute for proof that, it is in the handwriting of Petitioner. 'This contention has considerable force. He has relied on the observations of the Supreme Court in the decisions reported in Ishwari Prasad v. Mohammad Isa AIR 1963 S.C. 1729, and Shashi Kumar Banerjee and Others Vs. Subodh Kumar Banerjee since deceased and after him his legal representatives and Others. In the former decision, it has been held that evidence given by experts of hand writing can never be conclusive, because it is, after all, no evidence. In the latter case,' it has been held that the expert's evidence as to handwriting is no evidence and it can rarely, if over, take the place of substantive evidence. Before acting on such evidence, it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence. P.w. 4 in his cross-examination admits that the science of handwriting is still a progressive one and he cannot claim to be infallible in his opinion, though he has taken all possible care in examining the writings. Therefore, the evidence of Ex. C/1 being in the handwriting of Petitioner is confined to the testimony of p.w., who cannot be positive or cannot claim infallibility about, his opinion. It will be unsafe, without other corroboration 01' other evidence, to hold that Ex. C/1 has been forged by Petitioner, ann as such, he participated in the commission of the crime. Thus, eliminating Ex. 011 from the evidence the only other evidence is the preparation of the bill which as I have already indicated, does not show that Petitioner did any act which will constitute participation in commission of the offence of criminal breach of trust. As such; Petitioner's conviction u/s 409/34, Indian Penal Code cannot be sustained. 7. In the result, the revision is allowed; the conviction and sentence of the Petitioner are set aside and he is acquitted of the charge. Final Result : Allowed