JUDGMENT : G.K. Misra, C.J. - The Petitioner was tried for offences under Sections 409 and 467, Indian Penal Code. He was acquitted of the offence u/s 467, Indian Penal Code by the learned Assistant Sessions Judge, Sambalpur, but as convicted u/s 409, Indian Penal Code and sentenced to R.I. for three years and to pay a fine of Rs. 2,000/- in default to undergo R.I. for six months more. The substantive sentence awarded in this case was directed to run concurrently with the substantive sentences awarded in Sessions Trial No. 14/3(S) of 1973. Against his conviction and sentence u/s 409, Indian Penal Code the Petitioner filed an appeal before the Sessions Judge, Sambalpur, which was dismissed. Accordingly, he has filed this revision. 2. Prosecution case may be stated in short. In 1969 the Petitioner was serving as a Lower Division Clerk in the Working Plan Office No. II of the Forest Department at Sambalpur. He was entrusted with the cash of the office and he was maintaining the cash book and accounts. On 31st October, 1969 the Working Plan Officer (hereinafter to be referred to as W.P. 0.) (p.w. 5) sanctioned payments of advance of Rs. 1,200/-, Rs. 1,000/- and Rs. 1,000/-in favour of three Forest Rangers (p.ws. 1, 2 and 3 respectively). The requisitions of p.ws. 1, 2 and 3 in Exts. 1, 4 and 7 bear the endorsements of p.w. 5 sanctioning the payments. Exts. 2, 5 and 8 are respectively the vouchers given by p.ws. 1, 2 and 3. These vouchers were interpolated by the Petitioner. Rs. (sic) 200/- in Ext. 2, Rs. 1,0001- in Ext. 5 and Rs. 1,100/- in Ext. 8 were converted to Rs. 2,200/, Rs. 2,000/- and Rs. 2,100/- respectively. Thus an excess receipt of Rs. 3,000/- by p.ws. 1 to 3 was indicated by tampering with the vouchers though in fact they did not draw that amount. The Petitioner misappropriated Rs. 3. 0001- between 3.11.1969 and 11-12-1969. The corresponding entries in the cash book were made by the Petitioner. Exts. 14 and 13 are the entries dated 3-11- 1969 in the cash book (Ext. 12) showing payments of Rs. 2,100/- and Rs. 2,000/- to p.ws. 3 and 2 respectively. Ext. 15 is the entry dated (sic) 1969 in the cash hook showing payment of Rs. 2,200/- to p.w. 1. In Ext. Exts. 14 and 13 are the entries dated 3-11- 1969 in the cash book (Ext. 12) showing payments of Rs. 2,100/- and Rs. 2,000/- to p.ws. 3 and 2 respectively. Ext. 15 is the entry dated (sic) 1969 in the cash hook showing payment of Rs. 2,200/- to p.w. 1. In Ext. 15 the first figure "2" has been over-written but there is no over written in Exts. 13 and 14. The defence of the Petitioner is that he had written the cash book and Exts. 13, 14 and 15 are in his handwriting though he has not over-written the first figure "2" in Ext. 15. He, however, takes the plea that the Head Clerk (p.w. 6) also writes the cash book. In the relevant month the Petitioner admits to have written the cash book. The prosecution case of his having interpolated the vouchers and misappropriated however, denied the money is. 3. The Petitioner has been acquitted of the charge of forgery of Exts. 2, 5 and 8. It follows from this conclusion that the vouchers in Exts. 2, 5 and 8 for Rs. 1,200/-, Rs. 1,000/- and Rs. 1,100/- respectively were not tampered by the Petitioner. The Petitioner?s suggestion m cross-examination of p.w. 6 was that vouchers were being handed over to him by p.w. 6 and he entered the same in the cash book. If this suggestion is established through the prosecution evidence, then the corresponding entries in Exts. 14, 13 and 15 made by the Petitioner would be in accordance with the vouchers as handed over to him. There was no charge against the Petitioner that be tampered with Ext. 15. This is one aspect of the matter that will be kept in view in course of discussion. 4. The learned Courts below have found the Petitioner guilty u/s 409, Indian Penal Code after recording a finding that the Petitioner was in charge of cash of the office. With regard to the charge u/s 409 it was not that the Petitioner was in charge of the cash of the office but that he was specifically entrusted with an amount Rs. 3,000/- in respect of which he committed criminal breach of trust. The Petitioner denies to be In charge of the cash. Prosecution must, therefore, establish beyond reasonable doubt that the Petitioner was in charge of the cash and he made criminal breach of trust by misappropriating Rs. 3,000/- in respect of which he committed criminal breach of trust. The Petitioner denies to be In charge of the cash. Prosecution must, therefore, establish beyond reasonable doubt that the Petitioner was in charge of the cash and he made criminal breach of trust by misappropriating Rs. 3,000/- out of that cash. 5. The learned Courts below have placed reliance solely on the evidence of p.ws. 5 and 6 in support of their conclusion that the Petitioner was in charge of the cash. If p.ws. 5 and 6 are reliable, the conclusion of the Courts below is sustainable. 6. The main question for consideration is whether p.ws. 5 and 6 are reliable. Under the Orissa Forest Code, published under the authority of the Government of Orissa, cash of the forest office is to remain in charge of the officer and not m charge of any clerical staff. Rule 202 in Chapter XVI at p. 159 of the 1941 Edition runs thus; Every officer who is authorised to receive and disburse Government money should keep a cash chest for the custody of the Government money in his charge and keep the key of it in his possession. The contents of the chest must be counted at least once a month and the amount compared with the cash book balance. If any excess or deficit be found, an entry of it should be made at once in the cash book and a report forwarded to the departmental superior. Rule 265 in Chapter x. VIII at p. 190 prescribes as follows: Members of the office establishments should not be entrusted with Government money, except as advances by cheque on account of the pay of office establishments and for contingent charges, which should as a rule be made payable only to the head or camp clerk, nor should they be authorised to receive payment for forest produce but in the absence of the D.F.O. from headquarters the Head Clerk of a Forest Divisional Office may countersign for or on behalf of the L.F.O. chalans for forest revenue to be deposited into the treasury by the purchaser of forest-produce or by his agent, provided that the Head Clerk shall be held responsible for reporting to the D.F.O. immediately on his rerum to the headquarters the chalans that has so countersigned. All subordinates who have the custody of Government moneys or who deal with the collection of forest revenue should be made to furnish security, in accordance with the rules in force. The Petitioner is note Head Clerk but is only a Lower Division Clerk. He has furnished no security for having custody of Government money. P.w. 5 was confronted with the aforesaid rules. He gave the following answer: xx xx when my office was created, I was given power of drawing and disbursing. I took charge of the office from W.P.O. No. 1. Before bifurcation, W.P.O. No. I was keeping the cash himself. According to the departmental rules, I am the Drawing and Disbursing Officer of the cash. I was not a ware of the provision of the Forest Code that the Drawing and Disbursing Officer himself is required to keep the cash in an iron chest and to keep the key in his custody. So also I was not aware of the provision that Clerical establishment should not be entrusted to keep the cash. The vouchers, cash book and other documents were kept in a locked almirah. (To Court) The accused was keeping the key with him. There was no distribution chart of work amongst the staff of my office. There is no document in the office to show that the cash was kept in charge of the accused. So also the keys of the almirah. It would thus be seen that under the rules p.w. 5 himself was to keep the cash in his own custody. In fact his predecessor from whom he took over charge was keeping the cash himself. It is his personal responsibility to verify the cash from time to time and at least at the end of the month and to make an endorsement in the cash book that he was personally responsible, for its safe custody. On 31-10-1969 he made an endorsement (Ext. A/1) in his own handwriting in the cash book (Ext. 12) showing a cash balance of Rs. 7,873. 63 P. for the safe custody of which he was personally responsible. It is difficult to accept his explanation ?that he asked the Petitioner to keep such heavy amounts of cash in his custody even though the Petitioner furnished no security. There is no office order or paper showing that cash was entrusted to the custody of the Petitioner. 7,873. 63 P. for the safe custody of which he was personally responsible. It is difficult to accept his explanation ?that he asked the Petitioner to keep such heavy amounts of cash in his custody even though the Petitioner furnished no security. There is no office order or paper showing that cash was entrusted to the custody of the Petitioner. The primary responsibility for loss of cash is of p.w. 5 and under the rules the entire cash is entrusted to his custody. The evidence of p.w. 5 without corroboration cannot be accepted as establishing the prosecution case,that the cash of the forest office had been entrusted to the Petitioner. P.w. 5 may not be an accomplice but to shift responsibility it is quite easy for him to say that the cash was with the Petitioner. P.w. 5 himself could be prosecuted for misappropriation of Rs. 3,000/-. At any rate, he has the civil liability to reimburse Rs. 3,000/- to the Government as under the rules he was entrusted with the money. The learned Courts below were not justified in placing reliance on his statement that because his residential house was at a distance and he suspected that theft might be committed therein he entrusted the cash to the Petitioner. On 4.11-1969 an iron chest was purchased. P.w. 5 is a responsible Gazetted Officer. He could have brought his difficulty and danger to the notice of the Chief Conservator of Forests that cash cannot be kept in the office and had been entrusted to the Petitioner. I am not inclined to place reliance on his evidence. 7. P.w. 6 is equally unreliable. Admittedly the cash book (Ext. 12) was also being dealt with by him. Though the entries (Exts. 13, 14 and 15) in the cash book (Ext. 12) are in the handwriting of the Petitioner several entries in the cash book have been written by p.w. 6 himself. P.w. 5 states that after the joining of the Head Clerk (p.w. 6) 111 the accounts work of the office was kept in his charge. He was also entrusted with other duties like writing of cash book. P.w. 6 joined the office on 19-5-1969. He himself admits that after he joined, both he and the Petitioner maintained the cash book. This cash book was kept in an almirah. The almirah had duplicate keys. He was also entrusted with other duties like writing of cash book. P.w. 6 joined the office on 19-5-1969. He himself admits that after he joined, both he and the Petitioner maintained the cash book. This cash book was kept in an almirah. The almirah had duplicate keys. One of the keys was with him and the other was with the Petitioner. The Petitioner suggested to p.w. 6 in cross-examination that p.w. 5 used to hand over vouchers to p.w. 6 who used to hand over the same to the Petitioner to make entry in the cash book and that the D.F.O. is responsible for the disbursement of the cash and that the payments were being made in presence of the D.F.O. P.w. 6 denied these suggestions. He, however, had admitted these facts in his deposition (Ext. B) in Sessions Trial No. 14 of 1973. Therein he stated thus: The officer used to hand over the vouchers to me and I used to hand over the same to the clerk in charge to scribe the same in the cash book. xx xx D.F.O. is responsible for the disbursement of the cash xx xx At the time of disbursement the officer is to sign in the voucher. The payments are made in presence of the officer. The statement in Ext. B had been made by p.w. 6 just a week before he gave his deposition in this case. P.w. 6 is a bold liar and is highly unreliable. 8. Thus p. ws. 5 and 6 are unreliable witnesses. They have no regard for truth. They had very great responsibility in the matter of disbursement of cash. It is very easy for them to shift responsibility to the Petitioner taking advantage of the fact that the relevant entries Exts. 14, 13 and 15 are in the Petitioner?s handwriting. 9. The Petitioner has given an explanation that after receipt of the vouchers the W.P.O. (p.w. 5) used to pass them on to the Head Clerk (p.w. 6) who asked the Petitioner to make necessary entry in the cash book (Ext. 12) which was in the custody of both p.w. 6 and the Petitioner. The onus on the Petitioner is not as heavy as it is on the prosecution. Prosecution is to establish its case beyond reasonable doubt. The onus on the Petitioner is as it is in a civil suit. 12) which was in the custody of both p.w. 6 and the Petitioner. The onus on the Petitioner is not as heavy as it is on the prosecution. Prosecution is to establish its case beyond reasonable doubt. The onus on the Petitioner is as it is in a civil suit. It is governed by the theory of balance of probabilities. If the Petitioner?s explanation is reasonably probable, then he is entitled to an acquittal even though he does not establish his case beyond reasonable doubt. If the evidence of p.ws. 5 and 6 without corroboration is discarded, the Petitioner?s explanation may reasonably be true. 10. Prosecution has successfully established that Rs. 3,000/- was drawn from the cash in excess and the same has been misappropriated. The excess drawal is established by the fact that the vouchers and the cash book were interpolated by indicating an excess amount of Rs. 1,000/- in respect of each. The conclusion of the Courts below that there has been a shortage from the office fund to the tune of Rs. 3,000/- and the same has been misappropriated is correct. The question for consideration is whether the prosecution has established beyond reasonable doubt that it is the Petitioner who misappropriated the sum. Here, prosecution has failed. 11. The learned Judges have somewhat misdirected themselves in saying that there can be criminal breach of trust in respect of the office money kept with the Petitioner contrary to the rules. This bald proposition is undoubtedly correct. If the evidence of p.ws. 5 and 6 had been accepted that office money was being retained in the custody of the Petitioner, then clearly the Petitioner would be guilty of criminal breach of trust even though the same was entrusted to him contrary to the rules prescribed in the Forest Code. That is, however, not the crux of the question. The essence (If the matter is whether the evidence of p.ws. 5 and 6 is acceptable in the absence of any corroboration. 12. On the aforesaid analysis, I am clearly of opinion that prosecution has failed to bring home the charge of an offence u/s 409, Indian Penal Code to the Petitioner. The judgments of the Courts below are set aside and the criminal revision is allowed. The Petitioner be set at liberty forthwith and his bail bond be discharged. Final Result : Allowed