J. B. MEHTA, J. ( 1 ) IN this appeal by the accused who was convicted and sentenced on the four counts by the Assistant Sessions Judge he had been proposed to be acquitted by both my learned Brothers who agree on that question of the offence punishable under secs. 467 and 471 of the I. P. C. to the setting aside of the conviction and sentence awarded on this count on the score that resolution Ex. 75. dated November 26 1962 had been forged. Both the Judges agree to set aside the said conviction and sentence and for ordering fine if any recovered from the accused to be refunded to the accused. Both my learned Brothers however differ on the score of appreciation of evidence bearing on the other charge of misappropriation of Rs. 57104. 00under sec. 409 and for falsifying the accounts in this connection under sec. 477a for which the accused had been sentenced to suffer R I. for 5 years and a fine of Rs. 2000. 00 in default R. J. for six months and R. I. for 3 years respectively on these two remaining charges. That is why the matter has come up before me for resolving this difference. ( 2 ) THE charge against the accused at Ex. 3 is that in his capacity as Sarpanch of Dolti Gram Panchayat he had been entrusted with a sum of Rs. 57104 being sale proceeds of 20 plots of land S. No. 198 admeasuring 4 A. 39 G. which had been sold by the Panchayat and the said amount had been dishonestly misappropriated by this accused by converting to his own use. The charge was of criminal breach of trust which rested on the first two acts mentioned in sec. 405 of dishonest misappropriation or dishonest conversion to ones own use and the third aspect in that defin- ition did not form the subject matter of the charge of dishonest user or disposal of the property in violation of any law prescribing the mode in which such trust was to be discharged or in violation of any legal contract express or implied which he had made touching the discharge of the trust. This aspect had been rightly mentioned by my learned Brother Bhatt J. because the trial Judge had dealt with the third aspect which was not the subject of the charge against the accused and therefore Mr. Chhaya could hardly in that context invoke in aid the decision in SUSHILKUMAR GUPTA V. JOY SHANKAR A. I. R. 1971 S. C. 1543 at page 1546 as otherwise there would be great prejudice to the accused in the absence of any charge or relevant evidence on that score. ( 3 ) THE relevant facts which are undisputed must be borne in mind. The accused was from the commencement of this village Panchayat elected Sarpanch since 1956. He was a semiliterate agriculturist rustic villager Sarpanch who would be hardly conversant with any relevant complicated rules. There is another fact that the Panchayat had passed a resolution Ex. 80 dated December 23 1961 for the purchase of this land S. No. 198 from Bhanuben Meram and to borrow funds from this Sarpanch because the Panchayat had not the necessary funds for purchasing this plot. This plot had been purchased on March 4 1962 N. A. permission had been obtained on November 8 1966 Thereafter this land was divided into 20 sub-plots and after due public notice by public auction these plots had been sold on December 4 1967 and 1/4th amount of the sale proceeds was received on that very day while the balance 3/4th amount was received on December 18 1967 The evidence regarding entrustment which had been relied upon by both of my learned Brothers for the amount of sale proceeds of these plots of Rs. 57104 under the sale deed at Ex. A is not challenged by Mr. Trivedi Therefore the only relevant question which arises is whether the accused has from the evidence on record probabilised his explanation that this entire amount had been used by him on the various village projects as state by him and for which various Rajmels and receipts had been relied upon by him along with the relevant prosecution evidence. It is here that a difference has arisen between both my learned Brothers as to whether the accused had on the evidence on record probabilised his plea or his explanation was a false explanation so as to complete chain of circumstantial evidence against him. It is here that a difference has arisen between both my learned Brothers as to whether the accused had on the evidence on record probabilised his plea or his explanation was a false explanation so as to complete chain of circumstantial evidence against him. ( 4 ) THE legal position in this connection is well settled that it is only in the graft cases or prohibition offences where the special exception having been created the general rule of burden of proof of ingredients of the offence being on the prosecution is departed from and onus is shifted to the accused by aid of statutory relevant presumption as laid down by their Lordships in DHANVANTRAI DESAI V. STATE OF MAHARASHTRA A. I. R. 1964 S. C. 575 and RAM KISHAN V. STATE OF MAHARASHTRA A. I. R. 1973 S. C. 247. In these exceptional cases only the burden is a heavy burden on the accused which is not discharged by reason of the fact that the explanation offered by the accused is reasonable and palpables and the accused is to further show that the explanation is a true one. However so far as this offence of misappropriation or forging accounts is concerned under sec. 409 and 477a the burden on the accused is much lighter where there is only a presumption of facts raised under section 114 of the Evidence Act and it can be discharged even by reason of the fact that the explanation offered by the accused is reasonable and palpable. In J. M. DESAI V. STATE OF BOMBAY A. I. R. 1960. S. C. 889 at page 891 their Lordships in terms held that to establish a charge of criminal breach of trust the prosecution was not obliged to prove the precise mode of conversion misappropriation or misapplication by the accused of the property entrusted to him or over which he had dominion. Their Lordships pointed out that the principal ingredient of the offence being dishonest misappropriation or conversion it could not ordinarily be a matter of direct proof. Their Lordships pointed out that the principal ingredient of the offence being dishonest misappropriation or conversion it could not ordinarily be a matter of direct proof. Therefore entrustment of property and failure in breach of an obligation to account for the property entrusted if proved might in the light of other circumstances justifiably lead to an inference of dishonest misappropriation or conversion Their Lordships however added that conviction of a person for the offence of criminal breach of trust might not in all cases be founded merely on his failure to account for the property entrusted to him or over which he had dominion even when a duty to account was imposed upon him but it is only where he was unable to account or rendered an explanation for his failure to account which was untrue that an inference of misappropriation with dishonest intent might readily be drawn. Therefore applying the aforesaid test of readily drawing inference of dishonest misappropriation when the accused was unable to account or rendered explanation for his failure to account which was untrue their Lordships held in KADAR NATH TIWARI V. THE STATE OF UTTAR PRADESH 1967 CAR (CRIMINAL APPEAL REPORTS) 28 at page 30 that where the accused had been unable to account for the loss and it was also evident that an explanation given by him for the loss has been found to be untrue by all Courts the offence had been brought home to him. In that case the explanation regarding shortage of coal had been rejected as false on the basis of the coal register. Therefore even on circumstantial evidence due to the falsity of the explanation the chain was found to be complete for inferring the necessary ingredient of the offence of misappropriation with dishonest intention. In that case the explanation regarding shortage of coal had been rejected as false on the basis of the coal register. Therefore even on circumstantial evidence due to the falsity of the explanation the chain was found to be complete for inferring the necessary ingredient of the offence of misappropriation with dishonest intention. That is why in HAGUN SUNDER DAS V. STATE OF MAHARASHTRA A. I. R. 1970 S. C. 1514 at page 1516 their Lordships in terms pointed out that where the accused were charged with criminal conspiracy to commit criminal misappropriation on the allegation that they had dishonestly and fraudulently misappropriated or converted to their own use some bags of wheat from the bags released from the ship it was no doubt true that the onus on the prosecution was of a negative character and also that the failure on the part the accused to give evidence on the question as to when where and to whom the controversial bags were delivered could not under law give rise to any presumption against them. Their Lordships however pointed out that that did not mean that such negative onus was not capable of being discharged by appropriate circumstantial evidence. If the circumstantial evidence was trustworthy and established facts and circumstances the combination of which did not admit of any safe inference other than that of the guilt of an accused then there could hardly be any escape for him and the Court could confidently record a verdict of guilty beyond reasonable doubt. Caution was however sounded by their Lordships that the Court would of course be well advised in case of circumstantial evidence to be watchful and to ensure that conjectures or suspicions did not take the place of legal proof. The chain of evidence to sustain a conviction must be complete and admit of no reasonable conclusion consistent with the innocence of the accused That is why even in S. L. GOSWAMI V. STATE OF M. P. A. I. R. 1972. S. C. 716 at page 719 their Lordships criticised the entire approach of the Special Judge and of the High Court. S. C. 716 at page 719 their Lordships criticised the entire approach of the Special Judge and of the High Court. The question in that case was whether the accused Head of the Department of Pharmacology and Therapeutics in charge of the research laboratory had not purchased another apparatus for which he had received grant-in-aid from the I. C. M. R. for carrying out a research project and he had worked with the other apparatus already purchased by pretending that it was the same apparatus which he purchased in Bombay. Their Lordships pointed that the investigating officers had even before the F. I. R. known the fact that the accused had produced receipt bill and the letter before the investigating officer who was under a duty to make a full disclosure thereof. It was prosecution which had beyond reasonable doubt to eliminate the probability of the accused having purchased the apparatus as alleged under the aforesaid receipt. What the Special Judge and the High Court had done was to emphasise the fact that the accused had not proved that he had purchased the apparatus in Bombay with the money he got under the draft issued by the I. C. M. R. Their Lordships in terms pointed out that even if the fact may not have been proved by the accused he could take full advantage of the circumstances appearing in the prosecution case itself to probabilise his plea that he did. That is why the strong criticism of the approach of the High Court and the Special Judge by their Lordships that it was not the correct approach. Their Lordships pointed out that the onus of proving all the ingredients of an offence was always upon the prosecution and at no stage did it shift to the accused. It was no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused did not appear to be credible or was palpably false that burden did not become any the less. It was no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused did not appear to be credible or was palpably false that burden did not become any the less. It was only when that burden was discharged that it would be for the accused to explain or controvert the essential elements in the prosecution case which would negative it It was not however for the accused even at the initial stage to prove something which had to be eliminated by the prosecution to establish the ingredients of the offence with which he was charged and even if the onus shifted upon the accused and the accused had to establish his plea the standard or proof was not the same as that which rested upon the prosecution. Where the onus shifted to the accused and the evidence on his behalf probabilised the plea he would be entitled to the benefit of reasonable doubt. Therefore while appreciating the evidence in such cases this essential approach should always be borne in mind that this relevant mens rea or dishonest intention which results in this criminal liability is the ingredient of the offence for which always the burden rests on the prosecution and never shifts to the accused. The prosecution on proof of entrustment and the liability of the accused to render accounts of the amount entrusted would be able to get readily this dishonest intention inferred by establishing a prima facie case in such cases where direct evidence is very rare by relying on the entire circumstantial evidence. But that can be done only when the chain of circumstantial evidence is complete against the accused by showing the explanation to be untrue or false. The burden which the accused carries in such cases is lighter one only to probabilise his explanation and he has not to prove the truth of his explanation and so even if his explanation may not be proved on the test of probabilities the evidence may be such as to affect the ingredient of the offence by displacing the guilty intention. That is why even in Swamis case which has been referred to by both my learned Brothers C. S. D. SWAMI V. THE STATE A. I. R. 1960 S. C. 7 at page 10 their Lordships had in terms held that ordinarily the rule of law is that if there is a prima facie explanation of the accused that he came by the stolen goods in an honest way the presumption of fact which arises under sec. 114 of the Evidence Act and the inference of guilty knowledge was displaced. This was based upon the well established principle that if there was doubt in the mind of the Court as to the necessary ingredient of the offence the benefit of that doubt must go to the accused. Their Lordships pointed out that that is why the legislature had in cases under the Prevention of Corruption Act 1947 deliberately cast a burden on the accused not only to offer a plausible explanation as to how he came by his large wealth but also to satisfy the Court that his explanation was worthy of acceptance by satisfactorily accounting for the possession of the pecuniary resources or property disproportionate to his known sources of income. Therefore if the legislature has not given aid to the prosecution of this special presumption the burden on the accused would be only a light one only to probabilise his plea and then he is entitled to get benefit of doubt. ( 5 ) MR. Chhaya in this connection had invoked in aid sec. 106 of the Evidence Act. In RAZIK RAM V. J. S. CHAUHAN A. I. R. 1975 S. C. 667 at page 688 their Lordships in terms laid down that the principle underlying sec. 106 Evidence Act which was an exception to the general rule governing burden of proof applied only to such matters of defence which were supposed to be especially within the knowledge of the accused. It could not apply when the fact was such as to be capable of being known a so by persons other than the accused. The facts regarding the relevant receipts or accounts which the accused relied upon in regard to Harijanvas Quarters or in regard to his original advance of Rs. It could not apply when the fact was such as to be capable of being known a so by persons other than the accused. The facts regarding the relevant receipts or accounts which the accused relied upon in regard to Harijanvas Quarters or in regard to his original advance of Rs. 6 0 in 1961 or as regards the construction of various works for the benefit of the village community were fully k own to others and the prosecution could lead ample evidence to prove that the receipts which have come from the Panchayat record in that behalf were gotup or that the amounts shown to have been spent in the sub-rojmels in question were not spent on these various works for the village community but not a pie had been shown to have been spent by the Panchayat from the regularly maintained main Rojmels. It is therefore obvious that the prosecution could never rely on sec. 106 of the Evidence Act because these facts did not remain within the special knowledge of the accused alone but became facts of common knowledge. which could be easily proved by the evidence. That is why in MAHOMED USMAN V. STATE OF BIHAR A. I. R. 1968 S. C. 1273 at page 1274 their Lordships in terms held that it was for the prosecution to prove all the ingredients of the offence and sec. 106 of the Evidence Act could not absolve the prosecution from proving its case and therefore their Lordships refused to draw without any relevant evidence a definite inference that the four minors in question were actually employed in the manufacture of explosives on the day in question. The same view is reiterated in SAWAL DAS V. STATE OF BIHAR A. I. R. 1974 S. C. 778 at page 782 that the burden of proving a plea specially set up by an accused certainly lay upon him but neither sec. 103 nor sec. 106 could absolve prosecution from discharging its general or primary burden of proving its case beyond reasonable doubt. It is only when prosecution had led evidence which if believed would sustain conviction or which made out a prima facie case that the question arose of considering facts of which the burden of proof might lie upon the accused. 106 could absolve prosecution from discharging its general or primary burden of proving its case beyond reasonable doubt. It is only when prosecution had led evidence which if believed would sustain conviction or which made out a prima facie case that the question arose of considering facts of which the burden of proof might lie upon the accused. The crucial question was :- Had the prosecution discharged its initial or general and primary burden of proving the guilt of the accused beyond reasonable doubt ? Referring to the plea of alibi which had been considered in the case of GURUCHARAN SING V. STATE OF PUNJAB A. I. R. 1956 S. C. 460 where these observations had been made their Lordships pointed out that the burden of proving such plea based on such special knowledge of the accused and set up by the accused for getting absolved from the criminal liability certainly lay upon him. It was however a different matter that the quantum of evidence by which he might succeed in discharging his burden of creating a reasonable belief that circumstances absolving him from criminal liability might have existed was lower than the burden resting upon the prosecution to establish the guilt of an accused beyond reasonable doubt. Therefore as explained by their Lordships the prosecution must first discharge the initial or general burden of establishing prima facie case of guilt of accused beyond reasonable doubt on all the three relevant ingredients of entrustment failure to account and the explanation being false explanation and it is then that the question could arise of considering facts of which the burden of proof might be even under sec. 106 upon the accused. Even there the accuseds burden is lighter in nature and he has only to probabilise his plea as he has not to prove the truth of the same in the present state of our law because the legislature has not as yet amended this law by laying down the higher burden of proof on the accused to prove the truth of his explanation. Even when sec. 106 of the Evidence Act is invoked the prosecution is therefore not absolved of its burden to prove all the ingredients of the offence and secondly the whole underlying principle of sec. Even when sec. 106 of the Evidence Act is invoked the prosecution is therefore not absolved of its burden to prove all the ingredients of the offence and secondly the whole underlying principle of sec. 106 is that it applies to such matters of defence which are based on facts only within the special knowledge of the accused and not to facts which have been one of common knowledge where prosecution could lead ample evidence. It is in the light of this settled law that the relevant question will have to be examined as to whether the prosecution has discharged its initial or general burden of proving the guilt of the accused beyond reasonable doubt on all the three relevant ingredients of entrustment failure to account and falsity of explanation because otherwise the chain of circumstantial evidence would not be completely forged against the accused. That is why it was emphasised in HATISINGH BHAGAT SING V. STATE OF M. P. A. I. R. 1953 S. C. 468 at page 470 that because of the presumption of the innocence in favour of the accused even when he is not in a position to prove the truth of his story his version should be accepted if it is reasonable and accords with probabilities unless the prosecution can prove beyond reasonable doubt that it is false. (Emphasis supplied ). ( 6 ) IN the present case Mr. Trivedi has relied on various circumstances which more than probabilise the version of the accused because the prosecution has completely failed to discharge even its negative onus to eliminate this reasonable and probable explanation offered by the accused. . . . . . . . . . . . . . . . . . . . . . ( 7 ) THE case being clearly one where the plea of the accused had been probabilised the benefit of doubt must go to the accused. If therefore the charge under sec. 409. I. P. C. could not be sustained for want of necessary mens rea or any dishonesty on the part of the accused the charge under sec. 447a must also fail because that also requires element of dishonesty as its necessary ingredient. In my opinion in the circumstances this appeal must be allowed by setting aside the conviction and sentence of the appellant even on these remaining counts under secs. 447a must also fail because that also requires element of dishonesty as its necessary ingredient. In my opinion in the circumstances this appeal must be allowed by setting aside the conviction and sentence of the appellant even on these remaining counts under secs. 409 and 477a and the accused must be completely set at liberty and his bail bonds must stand cancelled. . . . . . . . . . . . . . . . . . . . . . ( 8 ) WHILE parting I would share the strong feelings and indignation expressed by my learned Brother Sheth J. for in matters of such public embezzlements time has now come when this old state of law requires to be radically altered so that the prosecution is aided by necessary statutory presumptions once the entrustment of the public moneys has been proved by the prosecution so that the accused would have to prove the truth of his explanation. When corruption and embezzlement of public moneys has become so rampant and the opportunities to handle public moneys are so enormous so that one is easily tempted to mix up and divert public moneys for his own use the law must equally keep pace so that adequate legal hardware would be forged to meet such cases and bring the offenders to book. This state of deficient law needs to be remedied at the earliest so that the trafficking in public moneys would not be so easily possible with the accused escaping by such light burden as it is under the existing state of law. However if under the existing state of law the accused is entitled to such benefit of doubt the court is helpless so long as the law is not able to reach the accused. With these observations the matter shall now go back to the Division Bench to dispose of the matter in the light of the afore- said opinion. .