JUDGMENT : A. Misra, J. - This is a Defendant's appeal against a reversing judgment. Defendant at the relevant time was working as the Assistant Sub-Inspector of Schools, Binjharpur circle and was also temporarily in additional charge of the Bari circle. On 17.11.1955, the Deputy Inspector of Schools, Jaipur (p.w. 1.) paid Rs. 6, 000/- in cash to the Defendant, out of which, Rs. 3,000/- was to be utilised for the mid-day meal centre of the Binjharpur circle and the balance Rs. 3000/- was to be banded over to the Assistant Sub-Inspector of Bari being utilised in that circle. On 19-11-1955, Defendant mad a report to the police at Binjharpur that while proceeding to Bari with the amount of Rs. 3,000/-, besides a sum of Rs. 252/- appertaining to the Education Department, he was waylaid at an isolated spot on the way by some miscreants, assaulted and robbed of the amount. According to Plaintiff, the police after thorough investigation submitted a final report to the effect that the alleged robbery was false and that Defendant had misappropriated the amount. On these grounds, Plaintiff filed the suit to recover the amount of Rs. 3,000/- from the Defendant. 2. The Defendant, while admitting receipt of Rs. 6,000/- as alleged from p.w. 1. alleges that he proceeded to Bari on 19-11-1955 with the amount of Rs. 3,000/- to make it over to the Assistant Sub. Inspector of Schools who joined there and on the way he was waylaid and robbed. 3. On a consideration of the evidence, circumstances and probabilities, the trial Court dismissed the suit on the following findings: (1) that on the date of the alleged occurrence, i.e. 19.111955, Defendant proceeded to Bari carrying with him Rs. 3,252/- including the sum of Rs. 3,000/- to be handed over to the Assistant Sub-Inspector of Schools there; (2) that on the way at a solitary place some unknown miscreants robbed him and decamped with the amount; (3) that there was no fraud or negligence on the part of Defendant and the amount having been lost by him in circumstances beyond his control, he was not liable to pay the same. 4. 4. The lower appellate Court reversed the judgment of the trial Court and decreed the suit in full on the followings findings: (1) even assuming that on the fateful day Defendant was carrying the amount with him while proceeding to Bari for making it over to the Assistant Sub-Inspector of Schools and the robbery took place, Defendant is bound to reimburse the amount as the loss is not due to any act of God, but due to the negligent conduct of Defendant; (2) it has disagreed with the finding of the trial Court and doubted the fact of Defendant carrying the money with him while proceeding to Bari; (3) it has found that there was no robbery whatsoever on the way. 5. The judgment and decree of the lower appellate Court are assailed on the following grounds: (1) that the lower appellate Court has failed to make a proper approach in deciding the issues; (2) that it has indulged in taking into consideration many extraneous matters, rules, etc. which were not alleged or canvassed by either of the parties and entirely irrelevant for determination of the essential points which arise for decision and (3) that it has committed grave errors of record in dealing with the evidence and has been influenced more by extraneous considerations and suspicions and depended more on surmises than the evidence on record, while arriving at its findings. 6. The undisputed facts are as follows: After the devastating floods in 1955, mid-day meal centres had been opened in the affected areas of Binjharpur and Bari circles. At that time, p.w. 1. was the Deputy Inspector of Schools, Jajpur having jurisdiction over these two circles and the Defendant was the Assistant Sub-Inspector of Schools, Binjharpur, besides being in temporary additional charge of the duties of the Bari circle. On 17.11.1955, p.w. 1 handed over Rs. 6,000/- to the Defendant with instructions that Rs. 3,000/- out of it was to be utilised for the mid-day meal centre of the Binjharpur circle and the balance of Rs. 3,000/- was to be handed over to the Assistant Sub. Inspector of Schools at (sic) who had by then reported himself for duty but bad not yet taken over charge. On the date of occurrence (19-11-1955), Defendant was found lying at a short distance from the foot path at a solitary place known as Naranpur Pat on the way to Bari. Inspector of Schools at (sic) who had by then reported himself for duty but bad not yet taken over charge. On the date of occurrence (19-11-1955), Defendant was found lying at a short distance from the foot path at a solitary place known as Naranpur Pat on the way to Bari. He was brought to Binjharpur dispensary in a palanquin where he was given medical aid at about 6.30 p.m. The medical officer (p.w. 4) found certain injuries on his person. Defendant gave a report to the A.S.I. who was in charge of the Binjharpur police station about the alleged robbery on the same day and the police after investigation gave a final report to the effect that the incident was false. There is no eye-witness regarding the actual commission of the alleged robbery which is said to have been committed by some unknown persons while the Defendant was proceeding alone. 7. It being admitted that there was entrustment of the money to the Defendant and the same was not utilised for the purpose for which the entrustment was made, the employee, i.e., the Defendant is liable to reimburse the same to the employer' Plaintiff unless it is established that the amount was lost and loss occurred in circumstances beyond the control of the employee in the course of performance of his duty without any fraud or negligence on his part. In short, the trial Court while proceeding to decide the matter posed the above point, and on a consideration of the evidence gave its findings. The lower appellate Court, on the other hand, has proceeded to decide the point on suspicions, assumptions and presumptions and differed in its findings. 8. I do not consider it necessary to deal with the observations and expressions of opinion in para 6 of the appellate Court's judgment as to whether a plea of vis major is available to the Defendant and the discourse on the distinction between accidents that occur due to Act of God, accidents that result from intervention of human agency and those which occur as a result of combination of both. The lower appellate Court referring to paragraphs 7 to 10 of the plaint and paragraph 11 of the written statement has observed that the learned Munsif should have examined the question whether Defendant had neglected to take sufficient care of the Government money for distribution to the flood-affected people. The lower appellate Court referring to paragraphs 7 to 10 of the plaint and paragraph 11 of the written statement has observed that the learned Munsif should have examined the question whether Defendant had neglected to take sufficient care of the Government money for distribution to the flood-affected people. The averment in para 10 is to the following effect: That the Defendant having received the sum of Rs. 3,000/- for Bari circle and having failed to pay the money to the persons concerned is liable to make good the loss occasioned to the Plaintiff by his failure to deliver the amount even if the amount was lost by him though his plea in this respect is not believable and was found to be false after proper enquiry. The above averment in no way alleges or attributes any negligent conduct to the Defendant which occasioned the loss. The lower appellate Court has come to the finding that assuming that there was loss due to theft or robbery or other cause, it was due to the negligent conduct of Defendant on the following among other grounds: (1) that Defendant did not observe the requirements of the Orissa General Financial Rules, 1956; (2) that he failed to obtain police escort as provided in the Police Manual; (3) that he did not take any of the teachers as escorts with him while carrying such a large sum of money; (4) that he should have protested to the d. I. when the amount was entrusted to him and asked him to pay the amount direct to Sri Nityananda Routrai, Assistant Sub-Inspector who had reported himself for duty at Bari; (5) that he deviated from his programme and proceeded to Canda Sahi and other places on the way to hold enquiries; and (6) that he carried Rs. 252/- of the Education Department along with the amount of Rs. 3,000/-. 9. None of these grounds are alleged in the plaint and most of them do not appear to have been canvassed by the parties at the hearing of the suit. Apart from it, none of the grounds can stand scrutiny on merits. 252/- of the Education Department along with the amount of Rs. 3,000/-. 9. None of these grounds are alleged in the plaint and most of them do not appear to have been canvassed by the parties at the hearing of the suit. Apart from it, none of the grounds can stand scrutiny on merits. The last two grounds of holding some enquiries on the way and carrying some additional Amount of the Education Department can in no sense be considered as negligent conduct on the part of Defendant which led to or facilitated the alleged robbery .The alleged incident occurred on 19-11-55 and it is surprising how the learned Additional Subordinate Judge expected that Defendant should have observed the provisions of the Orissa General Financial Rules of 1959 which were framed four years later. The provisions in the Police Manual specify the authorities who can indent an escort and the circumstances in which such indent can be made. There is no material on record to show that Defendant had the authority and the circumstances empowered him to apply for polic escort under the provisions of the Police Manual. When p.w. 1, his superior officer entrusted the money to Defendant and gave him certain direction, it will be unreasonable to expect that the subordinate should have protested or refused to carry out the orders. So also, when there was no direction to take any teachers as escorts, it is equally unreasonable to attribute negligence' to Defendant for not requesting any such teachers to accompany him. Thu, none of the grounds on which Defendant's conduct has been found to be negligent has any merit. 10. Learned Counsel appearing for Respondent at the outset conceded that the success or failure of the claim of Plaintiff will entirely depend on the question whether the alleged robbery is proved or not. As already stated, the entrustment of the money having been admitted and the only plea of Defendant being that the loss occurred due to robbery on the way, if it is found that the robbery as alleged did not take place, it will necessarily follow that he will be liable to reimburse the amount. On the other hand, if the evidence and circumstances do not reasonably exclude the possibility of robbery having taken place, the claim of Plaintiff cannot be sustained. On the other hand, if the evidence and circumstances do not reasonably exclude the possibility of robbery having taken place, the claim of Plaintiff cannot be sustained. Undoubtedly the onus is on the Defendant to prove the alleged robbery as Plaintiff cannot be required to prove a negative fact. As admittedly there is no other eye-witness to the actual commission of the alleged robbery, the learned Munsif weighed each of the circumstances relied upon by the Plaintiff in support of the allegation that no robbery in fact took place and each of the circumstances alleged by the Defendant to the contrary and came to the conclusion that the robbery in fact took place. In para 9 of its judgment, the lower appellate Court has correctly posed the approach for determination of the question by observing that it is for the Defendant to prima facie show that the circumstances were such as would lead to a reasonable belief that he was robbed. At the same time, strangely, the learned Additional Subordinate Judge seems to have found fault with the learned Munsif for his "meticulous scrutiny" of the evidence of Plaintiff's witnesses to show that the robbery must have taken place. He has observed: "Unfortunately the learned Munsif has made a meticulous scrutiny of the evidence of Plaintiff's witnesses to show that the robbery must have taken place". This observation would suggest that in the opinion of the learned Addl. Sub-judge it is not proper for a trying Court to make meticulous scrutiny of the evidence adduced before it, but satisfy itself with superficial assessment of the evidence to say that least, this does not indicate a judicial bent of mind and such observations will hardly serve to improve or afford guidance to trial Courts whose judgments come before it for scrutiny. 11. The entrustment of the money to Defendant being admitted, and it being not disputed that on 19-11-1955 he proceeded to Bari, the first point for consideration is whether he was carrying the amount with him and the second, whether while so carrying, the loss occurred as a result of robbery committed on the way, as alleged. 11. The entrustment of the money to Defendant being admitted, and it being not disputed that on 19-11-1955 he proceeded to Bari, the first point for consideration is whether he was carrying the amount with him and the second, whether while so carrying, the loss occurred as a result of robbery committed on the way, as alleged. So far as the first point is concerned, though the trial Court came to a categorical finding that Defendant while proceeding to Bari was carrying the money with him, the lower appellate Court has not arrived at a specific conclusion on this point on the ground that except the evidence of d.w. 5, there is no corroborating evidence in support of it. The two witnesses who have deposed about, this fact are the Defendant examined as d.w. 5 and his wife examined as d.w. 7. The lower appellate Court does not either believe or disbelieve d.w. 7, but purports to ignore her evidence by saying that she is an illiterate woman and cannot give the exact amount of the money though she stated that it was a large amount. In the very nature of things, it is not reasonable to expect that Defendant would have publicised the fact of his taking money with him when he started for Bari to expect any corroborating evidence from others. Therefore, there seems to be no reason to suspect that Defendant might not have carried the money with him or assume the possibility of Defendant having concealed the same somewhere, as observed by the lower appellate Court. On the evidence, therefore, the trial Court's finding that Defendant carried the money while proceeding to Bari seems to be most reasonable and actually it has not been categorically discarded by the lower appellate Court. 12. Coming to the next point, i.e. about the occurrence of actual robbery, it is not correct to say that the onus which (sic) on Defendant can be discharged only by the evidence of witnesses examined on his side and not from the circumstances elicited from Plaintiff's witnesses. At the appellate stage, the Court has to adjudicate on the material before it and the question of onus is not of much importance. Further, in this case, there is no dispute that p.ws. At the appellate stage, the Court has to adjudicate on the material before it and the question of onus is not of much importance. Further, in this case, there is no dispute that p.ws. 2, 3 and 7 reached the place of occurrence immediately it is said to have occurred and d.w. 1 helped in arranging removal of Defendant in a palanquin from that place to the Binjharpur hospital. P.ws. 2, 3 and 7 were also examined by the police on the very next day of occurrence during the course of investigation. The truth or otherwise of the occurrence of alleged robbery is dependent on the evidence of these witnesses and the question of Defendant finding or producing other witnesses cannot arise. These witnesses have deposed that from the spot of occurrence Defendant was carried in a palanquin to Binjharpur hospital where p.w. 4 examined and gave him first aid. The lower appellate Court referring to certain statements of these witnesses that the hands and legs of Defendant were not tied when he was found in a prostrate condition; that be was not unconscious and the subsequent opinion of p.w. 4 that Defendant was pretending and the injuries on him could have been self-inflicted, came to the conclusion that actually no robbery took place, but the entire thing was stage managed by him with the object of defrauding Government. In considering the evidence, it is significant that the lower appellate Court has ignored to take note of certain essential factors which will militate against the finding that the incident was stage-managed. No doubt, p.ws. 2, 3 and 7 in their evidence before the Court tried to make out that the hands and legs of Defendant were not tied when they first found him and that he was not unconscious. From various circumstances, it appears clear that these witnesses have tried to suppress the truth. P.w. 3 in his chief stated that the chadar was tied to the hands of Defendant, though his legs were not tied. In cross-examination he stated that he untied the Defendant's bands. The I.O. (p.w. 10) who examined p.ws. From various circumstances, it appears clear that these witnesses have tried to suppress the truth. P.w. 3 in his chief stated that the chadar was tied to the hands of Defendant, though his legs were not tied. In cross-examination he stated that he untied the Defendant's bands. The I.O. (p.w. 10) who examined p.ws. 2, 3, 7 and others on the next day of the evening of occurrence (20-11-1955) in his cross-examination stated: "I as certained on 20-11-1955 that Defendant was lying on the spot with his bands and legs tied together with white cloth and his eyes and mouth had been tied with a cloth. By the time had this information, I had examined p.ws. 2, 3 and 7". This statement along with p.w. 3, 8 evidence clearly discloses the actuate state of affairs in which Defendant was found on the spot, i.e., he was found with his bands and legs tied. The lower appellate Court has ignored these facts and simply referred to the statements of p.ws. 2 and 7 made at the trial. It has come to the conclusion on the statements of p.ws. 2, 3 and 7 and of p.w. 4 that Defendant was not unconscious when he was found. This conclusion has has been reached, because the first three witnesses stated that Defendant was muttering the words "money" ann "waist". It is in evidence that a piece of cotton emitting camphor smell was found close to the place where Defendant was lying. Though this was seized by the police, it was not subsequently sent for chemical examination to find out whether it had been soaken with any intoxicating drug. The possibility cannot he ruled out that persons under influence of chloroform or other intoxicating drug may mutter incoherently making some sound subconsciously without remaining conscious in its true sense. Therefore, in the circumstances, to rely on the fact of Defendant having muttered two worth as ruling out the possibility of his being unconscious or being under influence of some intoxicating drug, is not correct. The lower appellate Court has laid considerable stress on the evidence of p.w. 4 who expressed his opinion at the trial that Defendant was merely pretending. His evidence shows that Defendant was produced before him at about 6.30 p.m. on 19-11-1965 and immediately attended upon. The lower appellate Court has laid considerable stress on the evidence of p.w. 4 who expressed his opinion at the trial that Defendant was merely pretending. His evidence shows that Defendant was produced before him at about 6.30 p.m. on 19-11-1965 and immediately attended upon. According to him, Defendant did not respond to his questions, but immediately when he started his treatment, he shouted and prevented p.w. 4 from giving further injections. If this is true, p.w. 4 must have formed his opinion that Defendant was pretending on that very evening. On the other hand, in the injury report (Ex. 3) which be gave after examining the patient on 20-11-1955, he stated that the patient was still under observation and was still unable to sit. This belies his present evidence which has not been considered by the lower appellate Court. Coming to the injuries, p.w. 4's evidence is that they could be self-inflicted. The injuries found were a bruise, a swelling on the right side of the chest and swelling and tenderness on the lumber region. From the evidence of p.w. 4 himself, it is patent that his statement that all the injuries can be self-inflicted cannot but be untrue. Before his examination in Court, he never gave any written report to the police that the injuries could be self-inflicted. In his cross-examination be stated that injury No. 3 cannot be self-inflicted but can be caused by a fall, and such an injury will occur only if be falls over a ridge which will come in direct contact with the lumber region. If injury No. 3 cannot be self-inflicted, the rejection of Defendant's version of the alleged robbery on the ground that the injuries are self-inflicted is based on omission of essential admissions made by p.w.4 and ignoring the impossibility of at least one of the injuries being self-inflicted. Thus, the three main circumstances on which the truth of the alleged robbery has been discarded are not based on evidence and are conclusions drawn by ignoring to take note of certain material facts on record and on surmises. The evidence clearly proves that Defendant was found at the spot with at least his hands tied. It is proved that he was either unconscious or under influence of some intoxicating drug and that at least one of the injuries must have been caused by an extraneous agency. The evidence clearly proves that Defendant was found at the spot with at least his hands tied. It is proved that he was either unconscious or under influence of some intoxicating drug and that at least one of the injuries must have been caused by an extraneous agency. These circumstances are consistent only with the Defendant's version of his being assaulted, gagged and deprived of the money which he was carrying. The conclusions thus being that Defendant carried the amount with him while proceeding to Bari on that day and at an isolated spot be was found in the circumstances mentioned above with injuries, there is no reason to disbelieve the Defendant's version regarding the loss of the amount. The loss thus did not occur due to any negligence or fraud on his part. If in the course of discharge of official duties loss occurs not due to negligence or fraud of the servant but due to circumstances beyond his control, he is not liable to reimburse the same and the amount cannot be realised from him. The trial Court, therefore, had rightly dismissed that suit. 13. In the result, the appeal is allowed, the judgment and decree of the lower appellate Court are set aside and the suit is dismissed with costs throughout. Final Result : Allowed