JUDGMENT : K.B. Panda, J. - The Petitioner stands convicted u/s 409 of the Indian Penal Code and sentenced to undergo R.I. for two years and to pay a fine of Rs. 1,500/-, in default to undergo R.I. for a further period of six months which has been confirmed in appeal. 2. The Petitioner was the Sarpanch of Jhunmura Grama. Panchayat from 1967 till his removal on 11-6-1970. As per the Gram Panchayat Rules he was not allowed to keep cash more than Rs. 150/- in his hand at a time. Any excess amount he was required, to deposit in the Pass Book of the Grama Panchayat. On several occasions it was found that he had infringed the rules and had kept much higher amount without depositing the same in the Panchayat Pass Book. He ignored the directions of the authority to that effect. While auditing the Panchayat fund in August, 1969 it was detected that a sum of Rs. 1138.76 paise was with the Petitioner. According to the audit report he was directed to deposit the excess amount in the post office. Subsequently, the Grama Panchayat was inspected by the Block Development Officer (B.D.O.) and the Petitioner was directed to carry out the directions given in the audit report. The Petitioner, it is alleged, avoided to be present at the time of the inspection of the B.D.O. The Petitioner also did not comply with the directions in spite of the notice served on him and so he was relieved of his duties as Sarpanch by one Dayal Tirkey on 11-6-1970. At that time the cash balance in the hand of the Petitioner was Rs. 1138.76 but he made over only 35 paise to his successor and could not account for the balance. The matter was duly reported to the police and the Petitioner was charge-sheeted and convicted as aforesaid. 3. The defence was that he was not the custodian of the cash of the Grama Panchayat but the Secretary who was maintaining the cash book. He admitted to have handed over 35 paise to his successor anti stated that the rest being with the Secretary he had directed him to deposit it in the post office but he (Secretary) defatted his orders. Substantially his plea was that no money had been entrusted to him and so he had committed no breach of trust in respect of any amount. Substantially his plea was that no money had been entrusted to him and so he had committed no breach of trust in respect of any amount. Before the Courts below certain legal pleas had also been taken, namely, that as per Rule 123 of the Orissa Grama Panchayat Act the Secretary is the custodian of the cash and that the Petitioner being a public servant his prosecution without sanction u/s 197(1) Code of Criminal Procedure is without jurisdiction. The learned Courts below on a thorough discussion of the Panchayat Rules, the plea of the Petitioner vis-a-vis the evidence negatived those contentions. 4. Mr. Patel, learned Counsel for the -Petitioner re-agitated the same points raised before the Courts below, namely, that u/s 123-b of the Panchayat Act the Secretary is the custodian of all records documents and cash and valuable securities belonging to or vested in or under the direction, management or control of the Grama Saba as prescribed; and that according to Section 143 of the Orissa Grama Panchayat Act the Sarpanch is deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code and therefore he should not have been prosecuted without a prior Section 197(1), Code of Criminal Procedure and that not having been done the prosecution as well as the conviction are without jurisdiction. Incidentally, certain questions of facts were canvassed, namely, that the cash was with the Secretary and not with him; that he had directed the Secretary to deposit the amount in the postal Savings Bank but he did not obey his orders; that he was not aware of the inspection made by the B.D.O. and that he deposited 35 paise which was the difference as found by the B.D.O. on 23-8-1969 i.e. Rs. 1138.44 and the latest entry Rs. 1138.76/-. 5. The Petitioner has in fact admitted all the incriminating circumstances appearing against him and his only plea is that the cash remains with the Secretary whom he directed to deposit but the Secretary did not do so. He made out a grievance at the time of learning that the Secretary was neither a co-accused nor was examined against him. The learned Courts below have discussed this aspect of the case also and have concurrently held against the Petitioner. He made out a grievance at the time of learning that the Secretary was neither a co-accused nor was examined against him. The learned Courts below have discussed this aspect of the case also and have concurrently held against the Petitioner. It is unnecessary to reiterate the same in detail and I find no compelling reason to differ from the findings of facts of the Courts below. 6. True, u/s 123 of the Panchayat Act in defining the powers, duties and functions of the Secretary it is stated that he should remain in custody of the cash and valuable securities but it is under the general control of the Sarpanch as contemplated u/s 19. u/s 19(c) it is the Sarpanch on whom lies the over-all responsibility and the Secretary is to carry out his order. It is the Sarpanch who is to exercise such other powers and discharge such other duties and perform such other functions as are necessary for the smooth working of the Grama Panchayat. So the Petitioner cannot take cover u/s 123 of the Panchayat Act and throw the entire responsibility, on the shoulder of the Secretary. Even otherwise, the fact and not what has been laid down in Grama Panchayat Act is to be looked into. In this particular case the evidence is unassailable that the Petitioner was handling the cash himself. For instance he has admitted to have received cash on behalf of the Panchayat on several occasions in the 342, Code of Criminal Procedure examination and particularly when this Grama Panchayat was bifurcated from Andali Gram Panchayat, the Petitioner himself received Rs. 900/- as Sarpanch of Jhunmur Gram Panchayat from p.w. 13 on granting the receipt (Ext. 10). The Pass Book (Ext. 11) indicates that the funds of Jhunmur Gram Panchayat were being deposited in the post office through its Sarpanch. Ext. 12, the cash book indicates that the Appellant was signing the same at the closure of the transactions of the day. The Secretary is merely to keep the records and the cash book but not handle the cash by way of receiving money or spending money. In the 343, Code of Criminal Procedure examination the Petitioner admitted to have handed over charge to his successor (p.w. 8) on 11-6-1970 and only made over 35 paise to the latter and endorsed the same in the cash book - vide Ext. 12/1. In the 343, Code of Criminal Procedure examination the Petitioner admitted to have handed over charge to his successor (p.w. 8) on 11-6-1970 and only made over 35 paise to the latter and endorsed the same in the cash book - vide Ext. 12/1. It is really intriguing why he would only hand over 35 paise and not the entire' cash balance. If really, it is Secretary who had kept the cash as the Sarpanch he should have taken drastic action against him for disobeying his orders in not depositing the money in the postal savings Bank. But nothing appears to have been done by the Petitioner. Even till he was suspended and prosecuted no where he blurted out that the Secretary was responsible for the defalcation if any. Though the audit report was there and B.D.O's. enquiry was there directing him to deposit the excess amount in the post office yet the Petitioner remained unconcerned. This is hardly compatible with his plea that the Secretary was responsible for the defalcation and had disobeyed his orders. It is only in his 342, Code of Criminal Procedure examination that he came out with the plea that the Secretary was responsible for the defalcation and not at any time before that. This clinches the issue against him so far as the question of entrustment and the fact of misappropriation are concerned. 8. So far as the legal contention that there has been no, sanction u/s 197(1) Code of Criminal Procedure is concerned, that has also no fore. The learned trying Court has discussed that plea of the Petitioner and on the basis of the Supreme Court decision reported in Shreekantiah Ramayya Munipalli Vs. The State of Bombay, has not accepted the same. Law is now well established that: It is not every offence committed by a public servant that requires sanction for prosecution u/s 197(1), Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his official duties; but where the act complained of is directly concerned with his official duties so that, if questioned it could be done by virtue of the office, then sanction would be necessary. What is important is the quality of the Act and the protection contemplated by Section 197 of the Code of Criminal Procedure will be attracted where the act falls within the scope and range of his official duties. An offence may be entirely unconnected with the official duty as such or it may be committed with in the scope of the official duty, if it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable see 1966 S.O. 220. Relies on AIR 1948 P.O. 128 and AIR 1948 P.G. 156 and AIR 1949 117 (Privy Council) and A. I. R. 1954 S.C. 455. In the instant case the defalcation was not at all in connection with the performance of his official duties nor that was the plea of the Petitioner. On the contrary his plea was that the Secretary had misappropriated the amount and not he. In the facts and circumstances of the case, particularly regard being had to the admissions of the Petitioner in his 342, Code of Criminal Procedure examination, the mere plea that the Secretary is responsible for the defalcation has been rightly held to be an empty ruse to shift the responsibility on to the Secretary though' he himself is responsible for the misappropriation alleged. I find no substance in the contentions raised on behalf of the Petitioner to interfere with the conviction and sentence of the Petitioner and as such the petition stands dismissed. Final Result : Dismissed