Judgement: The accused in C.C.No. 1 of 1971 on the file of the Sessions Court of Coimbatore (West) Division and the Special Judge of Coimbatore, has filed this appeal challenging the judgment of the Sessions Judge convicting him of offences punishable under section 5(2) read with section 5(1)(c)of the Prevention of Corruption Act, 1947, and under section 409, Indian Penal Code, and sentencing him to undergo rigorous imprisonment for a period of one year on each count (the sentences to run. concurrently). 2. The crux of the indictment against the appellant was that he being a Material Clerk in charge of stores in the office of the Senior Electrical Chargeman, Southern Railway, Erode, and as such a public servant, dishonestly and fraudulently misappropriated, between 4th June, 1969 and 3rd June, 1970, at Erode, 5945 litres of high speed diesel oil entrusted to him or placed under his control as a public servant. The Senior Electrical Chargeman at Erode, under whom the petitioner was working, has been examined as P.W. 21. The duties of the accused, according to the prosecution, are to place indent for the necessary stores in the name of P.W. 21. as mentioned in Exhibits P-3 and P-59 When Thiru P.P. Musa Vannan (P.W. 11 the stock verified, on 3rd June, 1970 checked the stocks of H.S.D. oil by the dip measurement method in the presence of the petitioner and P.W. 21, he found that none of the seals on the barrels containing the diesel oil was intact, and also that the oil available there was only 5170 litres instead of 5870 litres as mentioned in Exhibits P-44 and P-45 the shortage being 700 litres. P.W. 1 prepared Exhibit P-1, the stock verification entry, certified by the petitioner-accused and informed the matter to his superior officers. Thiru Gopal (P.W.2) as per the directions of P.W. 22, the Electrical Engineer, Southern Railway, checked the stocks and found several irregularities in about 13 items and sent a report as per Exhibit P-31, according to which there was a deficiency of 6365 litres of diesel oil and an oral complaint was made to P.W. 27, the then Inspector of police, Special Police Establishment, who took up investigation and examined witnesses and found that there was criminal breach of trust in respect of large quantities of diesel oil i.e., about 6365 litres, valued at more than Rs. 4,000. 4,000. He obtained sanction from P.W. 22 as per Exhibit P-60 and laid the charge-sheet on 24th August, 1971. 3. The appellant-accused, when questioned with reference to the evidence appearing against him, stated that he was not aware of Exhibit P-59, that his duty was Over when he prepared the indent, that his duty was not to distribute or receive the goods, that on the instruction of P.W. 21, he wrote Exhibits P-2, P-8 and P-9, that he was not in charge of the stores, that there might have been deficiency on 3rd June, 1970 but he attested only as a witness indicating that he was one present at the time of checking the stocks, that he was not the custodian of the stocks when P.W.2 checked the stocks, that the Day Books were maintained only subsequent to 1970, that there would be entries in L.M. 171 for supply of various quantities of high speed diesel oil, that if local supplies were made no challans were prepared, that he never misappropriated any oil, that he received goods only on barrel basis and not after measuring the same by dip measurement, that two barrels were not given to him on 12th Jure, 1969, that there was no supply on 5th March, 1970 at all and therefore there was no necessity for him to meet P.W . 17 that the key of the stores would always be with the Assistant Electrical Foreman, that though the several entries were in fact made by him he was not responsible for the stores as he v as not the custodian of the oil, that no explanation was asked of him, that owing to pressure of work there might have been some omissions to writing and that he did not steal any high speed diesel oil. No witness was examined by him. But, he marked Exhibits D-1 to D-6. The prosecution examined P.Ws. 1 to 27 and Marked Exhibits P-1 to P-76. After a detailed discussion of the entire evidence, the lower Court found that the charges framed against the petitioner-accused were made out and convicted and sentenced him as mentioned above. 4. No witness was examined by him. But, he marked Exhibits D-1 to D-6. The prosecution examined P.Ws. 1 to 27 and Marked Exhibits P-1 to P-76. After a detailed discussion of the entire evidence, the lower Court found that the charges framed against the petitioner-accused were made out and convicted and sentenced him as mentioned above. 4. N.T. Vanamamalai, learned Counsel for the appellant, would urge that the judgment of the lower Court suffers for lack of proper appreciation of the defence of the accused explaining that he was not at all responsible for the custody of the goods alleged to have been misappropriated, that the lower Court ought to have held that the prosecution has not proved its case beyond all reasonable doubt and that it ought not to have accepted the evidence of P.W. 21, whose evidence is analogous to that of an accomplice. Further, he submitted that the evidence of the prosecution witnesses is highly artificial and unacceptable, and the prosecution has utterly failed in proving the necessary ingredients that would constitute the offences charged. 5. After hearing both sides, I think that the main prints for consideration in this case can be classified as follows: (1) what are the duties and responsibilities of the appellant who was the Material Clerk in charge of the stores in the office of the senior Electrical Chargeman, Southern Railway, Erode and whether the responsibility was a joint responsibility of the accused and. P.W. 21 who was working as a Senior Electrical Chargeman at Erode, or the sole responsibility of the accused alone? (2) whether the prosecution has proved the entrustment of the goods in question with the accused by letting in sufficient and reliable evidence? (3) whether the prosecution has satisfactorily proved that all the items, which are 13 in number, have been entrusted to him? (4) whether the evidence adduced on the side of the prosecution is sufficient to prove the alleged fake entries said to have been mace by the accused resulting in wrongful loss to the Railways? (5) whether there is sufficient evidence to show that the accused, by his subsequent mala fide conduct, has tried to cover up the deficiency in the goods? (5) whether there is sufficient evidence to show that the accused, by his subsequent mala fide conduct, has tried to cover up the deficiency in the goods? (6) has the accused accounted for the entrustment of the goods properly and explained the circumstances under which the alleged less is said to have occurred, thereby showing that he was not responsible for the loss? (7) whether the prosecution had made out all the ingredients that would constitute the offences charged? 6. Now, I shall take up the first point. It is not disputed that the appellant was working as a Material Clerk in charge of stores in the office of the Senior Electrical Chargeman, Southern Railway, Erode, between 4th June, 1969 and 3rd June, 1970 and in that capacity he was a public servant and. that he was an Assistant to P.W. 21, Thiru Chathukutty, who was working as a Senior Electrical Chargeman at Erode since 1968. P.Ws. 1, 2, 7 and. 2l speak about the respective duties and responsibilities of the accused and P.W. 21. P.W. 1 testifies to the fact the Railway Stores are classified into two categories, viz., imprest and non-imprest, of which imprest stores are those which are necessary for day-to-day working of the various departments in Railway, whilst the non-imprest stores are those required for extraordinary contingencies like break-down etc., that High Speed Diesel Oil (the goods in question in this case) falls under the category of Imprest stores, that the imprest stores are checked once in two years and that the accused as a clerk was Assistant to P.W. 21. The evidence of P.W. 2 is to the effect that there is an Assistant Electrical Foreman in Erode under whose jurisdiction all the Railway electric installations West of Podanur fell and that under him there is a Senior Electrical Chargeman (Power). In the office of Assistant Electrical Foreman, there are two clerks, of whom one is to assist the Assistant Electrical Foreman and the other to assist the Senior Electrical Chargeman. According to him, the duties of the Senior Electrical Charge-man are to inspect and to maintain all electrical installations within his jurisdiction, whilst the duties of the Material Clerk was to receive the supply of stores from Madras and issue them after making the relevant entries in the relevant registers and to maintain the correct accounts for the materials received and issued by him. The post of Material Clerk was formerly known as Semi-Technical Clerk. Exhibit E-3 is the copy of the circular No. J/E/150/1/5/ STC form the Divisional Office, Electrical, Olavakot, dated 10th February, 1964, which gives the details of work to be carried cut by each Semi-Technical Clerk of that branch. The goods concerned in this case are High Speed Diesel Oil which was one among the consumable stores supplied from time to time by the District Controller of Stores, Southern Railway, Perambur, in response to indents placed by the Senior Electrical Chargeman, which have to be accounted for. These goods are taken delivery of by the Material Clerk under the acknowledgment issued in the Store Van Delivery Service and thereafter the Material Clerk has to enter the goods received in the Imprest Register and Tally Card. He would also enter the receipt of the goods against the particular entries in the office copy of the indent is the Indent Register and thereafter the goods pre stored in a room allotted for that purpose. It is the positive evidence of P.W. 2 that the keys of that room are in the custody of the Material Clerk. Continuing his evidence, this witness states that when goods are issued, the Material Clerk enters it in the Day Book Issues and the party to whom the issues are made acknowledge against the relevant entries in that register, and that at the end of each day all the issues for that day would be brought in what is known as “L.M 17l Voucher”. It would reveal the gross total of each item issued on that day. Thereafter the issues are entered in the Imprest Ledger as well as in the Tally Card. P.W. 2 further deposes that the depot at the Erode junction is a major depot feeding the minor depots in places like Salem, Karur, etc. When issues are made to these minor depots, entries are made in the Day Books of Issues, Imprest Register and Tally Card. Challans are prepared and issued to the receiving minor depots for acceptance by the Material Clerk. The challan is prepared in triplicate, the original which is kept in the issuing depot and. the duplicate and triplicate carbon copies are taken along with the goods by the receiving depot which returns one of the two carbon copies with the endorsement of acknowledgment to the issuing depot. The challan is prepared in triplicate, the original which is kept in the issuing depot and. the duplicate and triplicate carbon copies are taken along with the goods by the receiving depot which returns one of the two carbon copies with the endorsement of acknowledgment to the issuing depot. The copy evidencing the acknowledgment is pasted to the original kept in the major depot, whilst the other carbon copy (triplicate) is kept in the receiving depot. P.W. 7, who was the Assistant Electrical Foreman (Maintenance), Erode, during the relevant period, corroborates the evidence of P.W. 2, stating that the Material Clerk was to issue materials and account for the materials so issued. He was in charge of the keys of the stores. Similarly, P.W. 21, who was the Senior Electrical Chargeman of that depot at that tine, aware that only the Material Clerk (accused) used to make the indent in his name and the Material Clerk would receive the goods from Perambur and that it is his duty to make the entries in the Day Book and issue the goods thereafter. He would further say that Exhibit P-3 is the circular from the Divisional Office, Olavakkot, giving details of the work of the Material Clerk. It is the duty of the said clerk to make Credit and debit entries in Exhibits P-2, P-8 and. P-9. He testifies that the store key would always be under the custody of the Material Clerk and that be had never issued any goods so far to anyone and that if the goods are to be issued to other departments, the goods are so issued only after the Material Clerk obtained his permission and under challan with acknowledgment of the person receiving the goods. Thus, the evidence given by the above witnesses is to the effect that the Material Clerk was responsible for the issue of goods to the various departments and minor depots and he was having the dominion over the goods which had been entrusted to him. Now, I shall go to the documentary evidence Exhibit P-3, which gives the details of work to be carried out by each Semi-Technical Clerk (now designated as Material Clerk) of the branch under the jurisdiction of the Divisional Office, Electrical, Olavakkot. This circular was issued in February, 1964. Now, I shall go to the documentary evidence Exhibit P-3, which gives the details of work to be carried out by each Semi-Technical Clerk (now designated as Material Clerk) of the branch under the jurisdiction of the Divisional Office, Electrical, Olavakkot. This circular was issued in February, 1964. Out of the various duties to be performed by the Material Clerk regarding the issue of goods from the depot, as mentioned in Exhibit P-3 (copy of which is marked as Exhibit P-59), the following may be extracted as relevant for the purpose of this case: “.......(9) issuing consumable stores to staff for daily maintenance and accounting them. (10) Taking delivery of stores from Goods Shed, Parcel Office or Store Van. .................. (14) Posting imprest ledgers.” The accused, who was the Material Clerk of the concerned depot at Erode junction, in his statement under section 342, Criminal Procedure Code, has stated that it was true that he was working as a Material Clerk in the said depot, but would say that he had not seen Exhibit P-59 (Exhibit P-3) at any time and. that he used to make indents, but he had. never issued or received the goods though he had. written Exhibits P-2, P-8 and P-9. The accused had categorically denied his responsibility for the goods stores in the depot. He would further say that he was not the actual custodian of the oil and he was not responsible for the stores. Mr.N.T. Vanamamalai, appearing for the appellant, contradicting the argument advanced by the prosecution that the accused was responsible for the goods entrusted to him, submitted that only the Senior Electrical Chargeman, who is P.W. 21 in this case, was responsible and the goods were under his custody. In support of this submission, he would bring to my notice certain admissions made by the witnesses in the cross-examination. He would rely on the admission of P.W. 1 in his evidence that the Senior Electrical Chargeman is the depot official and custodian of the stores including High Speed Diesel Oil that he is in charge of the stores, that the Electrical Clerk has to work under the instructions of the Senior Electrical Changeman who is responsible for the stocks in the sores and answerable for any shortage and. that be does not know whether the key was under the custody of the Senior Electrical Chargeman. that be does not know whether the key was under the custody of the Senior Electrical Chargeman. Then, he would bring to my notice the admission made by P.W. 2 that Exhibit P-3 was found only in the file of the Senior Electrical Chargeman, that Exhibit P-3 does not prescribe the duties of the Senior Electrical Chargeman, that no security is taken either from the Material Clerk or from the Senior Electrical Chargeman and that technically the Senior Electrical Chargeman is in custody of the stores, but it is the Material Clerk who actually bandies the stores in day-to-day dealings. It is elicited from this witness that the Senior Electrical Chargeman is expected to verify every day L.M. 171 voucher and he has to sign afterwards. According to this Witness, the Senior Electrical Chargeman, at the time of verifying L.M. 171 voucher, could know any defect, especially in the absence of any voucher, and if any defect is known it is the duty of the Senior Electrical Chargeman to draw the attention of the Material Clerk and get the defects rectified then and there. Regarding the key, Mr. Vanamamalai points out that this witness, though has stated in the chief examination that the key used to be in the custody of the Material Clerk, has not stated that fact during the investigation. Contending that Exhibit P-3 could not have been seen by the accused Material Clerk, it was urged that even P.W. 1 has admitted that he bad not seen Exhibit P-3 before and that the Senior Electrical Chargeman is the custodian of the stocks. Coming to the evidence of P.W. 21, Mr.N.T. Vanamamalai, would attack his evidence stating that his evidence cannot be accepted for a moment, because he was the man who was responsible for the deficiency in the goods. Then, it was brought to my notice that P.W. 21 has admitted that for the shortage of 700 litres of H.S.D. Oil found on 3rd June, 1970, the charge-memo was issued to him. Exhibit D-4 dated 4th June, 1971 is the reply to the charges. In that reply P.W. 21 has stated that the shortage was due to improper measurement, evaporation and for other reasons or due to slight leakage anywhere at the bottom of the barrel. Exhibit D-4 dated 4th June, 1971 is the reply to the charges. In that reply P.W. 21 has stated that the shortage was due to improper measurement, evaporation and for other reasons or due to slight leakage anywhere at the bottom of the barrel. The learned Counsel would urge that P.W. 21 has nowhere stated in Exhibit D-4 that the accused (Material Clerk) was in charge of the stores or that he was responsible for the shortage. Then, reliance was placed on Exhibit D-2, copy of the letter dated 1st September, 1970 for the accused handing ever charge and P.W. 1 taking it over from him. It is mentioned in this letter that all the records such as register, passbooks etc., had been correctly handed over by the accused and taken over by P.W. 1. This letter is signed by Chattukutti, P.W. 21, and it was pointed cut that there is no reference to stores at all. This fact is admitted by P.W. 21 saying that in Exhibit D-2 he has not mentioned anything about the stores. Thus relying the evidence of this witness and the documents Exhibits D-2 and D-4, Mr. Vanamamalai would vehemently contend that P.W. 21 alone was solely responsible for the custody of the goods and if at all there is any deficiency in the goods, he alone is responsible. According to the learned Counsel, the key of the stores was not with the accused and that as no responsibility has been fixed either in Exhibit D-2 or in Exhibit D-4, the case of the prosecution now fixing the responsibility on the accused cannot be accepted. After scanning the evidence of these witnesses and considering the respective contentions of the learned Counsel and the learned Public Prosecutor, I hold that the prosecution has fixed the responsibility for the custody of the goods on the accused by letting in overwhelming and formidable evidence, both oral and documentary, that the accused was dealing with the goods by having actual dominion ever them. 7. 7. The main ingredients that would constitute an offence of criminal breach of trust, as defined under section 405, Indian Penal Code, are: (1) that there must be an entrustment of property or dominion ever the said property, and (2) that it must be proved that there has been a dishonest misappropriation or conversion by a person for his own use of that property or that there was dishonest use or disposal of that property in violation of any direction of law prescribing the mode in which such trust was to be discharged or of any legal contract, express or implied, which he has made touching the discharge of such trust or that he wilfully suffered any other person to do so. In this case, there is convincing and acceptable evidence to show that the accused appellant has received the goods from the main depot of issue and was in actual and physical possession of the goods. “Possession”, as we ordinarily understand, implies first, some actual power over the object possessed, and secondly, some amount of will to avail oneself of that power. The accused, in his statement under section 342, Criminal Procedure Code, has accepted that he is the person who has made all the entries in Exhibits P-2, P-8, P-9, P-10, P-24, P-27, P-34 and P-37, viz., the tally cards, day book and the delivery registers and the Store Van Register. The evidence of P.W. 2, as I have discussed above, is to the effect that though technically the Senior Electrical Chargeman P.W. 21 is in custody of the stores, actually the goods were handled in the day-to-day dealings only by the appellant in his capacity as the Material Clerk working under him. Certain admissions made by the witnesses in the cross-examination, which are relied on by Mr. Vanamamalai, would, if at all, indicate only that the Senior Electrical Chargeman P.W. 21 was in legal custody of the goods, but was not having the actual and physical control over the goods and he did not handle the goods. Learned Counsel for the appellant tried to make out a case that P.W. 21 was in custody of the properties both legally and actually by relying on the evidence of P.W. 11, who was working as Junior Clerk under the Assistant Electrical Foreman at Ennore at that time. Learned Counsel for the appellant tried to make out a case that P.W. 21 was in custody of the properties both legally and actually by relying on the evidence of P.W. 11, who was working as Junior Clerk under the Assistant Electrical Foreman at Ennore at that time. This witness has not supported the case of the prosecution and has been treated as hostile. Though I am not rejecting the admission of the witness in favour of the accused in toto on the only ground that he has turned hostile, I an not inclined to accept his evidence since it transpires that this witness and the appellant-accused were working together for some time and he has also made certain entries in certain records such as Exhibit P-29, in which entry he has also not obtained the acknowledgments of the recipient for the issue of 440 litres of oil. Probably, this witness was under the grip of apprehension that he might also be taken to task in future and in those circumstances, by way of caution, he has tried to throw the blame even at this stage on P.W. 21 by saying that he was the legal and actual custodian of the goods entrusted. Therefore, the appellant cannot avail and make use of the admissions made by this witness P.W. 11 in his favour. 8. The next contention of Mr. Vanamamalai that P.W. 21 has not fixed the responsibility, of the accused under Exhibit. D-4 cannot be a factor in favour of the accused. It is seen from Exhibit D-4 that P.W. 21, though has not specifically fastened the accused with the responsibility for the shortage, has stated as follows: “Since the depot is not provided with a standard dip measurement red, and keeping confidence on the S.T.C. (Semi-Technical Clerk) since the S.T.C. is a long-standing employee and dealing with stores, I had taken over on trust.” The Semi-Technical Clerk mentioned in that explanation admittedly refers only to the Material Clerk, i.e., the accused. Therefore, it transpires that P.W. 21, besides the reason given in that explanation, has unequivocally stated that one of the reasons for the shortage might be due to the handling of the goods by the accused who was dealing with the goods in the stores. Therefore, it transpires that P.W. 21, besides the reason given in that explanation, has unequivocally stated that one of the reasons for the shortage might be due to the handling of the goods by the accused who was dealing with the goods in the stores. Coming to Exhibit D-2, though this satement would show that at the time the accused handed over charge to P.W. 11, the registers, pass books etc., had been correctly handed over and taken over by the successor, it would not stand as a guarantee that the goods in the stores were properly handled. For the above reasons, I hold that the duties are responsibilities of the accused in his capacity as a Material Clerk in charge of the stores in the office are fixed properly on him by oral evidence as well as the documentary evidence Exhibit P-8. The accused’s explanation that he had not looked into that circular cannot be given much weight as every employee is expected to note his duties and responsibilities in the course of his discharge of duties. 9. Mr. Vanamamalai, would contend that the responsibility was only a joint responsibility or co-responsibility of the accused and P.W. 21 and no sole responsibility could be fixed on the accused. As I have discussed above, there is abundant and convincing evidence to show that the goods were under the actual and physical possession of the accused who was laving actual dominion over the goods. The evidence would also clearly indicate that the key was only in the custody of the accused. Therefore, one of the main ingredients necessary to constitute the criminal liability under section 409, Indian Penal Code, viz., dominion ever the goods have been well-established. Whether, P.W. 21 would be liable for any departmental action for his dereliction of duty, if any, in not keeping watch diligently ever the goods, I am not called upon to decide in this case. Therefore, so far as the actual loss of the goods is concerned, I hold that the accused alone is responsible. 10. Now, we shall come to points 2 and 3, viz., regarding the entrustment of the H.S.D. oil to the appellant-accused. Therefore, so far as the actual loss of the goods is concerned, I hold that the accused alone is responsible. 10. Now, we shall come to points 2 and 3, viz., regarding the entrustment of the H.S.D. oil to the appellant-accused. P.W. 3, who is now working as a clerk in the Indent Cell in the office of the District Controller of Stores, Perambur, has deposed that he was working as a Store Van Clerk for two years till about Jure, 1970 and that he would go with the van to various stations which had sent the indents and delivered the goods. He has marked Exhibit P-32, one of the diaries, in the month of January, 1969, showing his halts in certain particular stations. From the entries in Exhibit P-32, it is seen that he had. halted at Erode from 16th January, 1969 to 21st January, 1969. He would further state that in the Store Van Clerk Delivery Register the clerk would enter the various materials delivered to the indentors and obtain acknowledgements for the receipt of the materials either from the particular indentors or their authorised representatives. Exhibit P-33 is the Store Van Clerk Delivery Register. Entry at page 20 of the said register reveals that certain items of goods had been delivered to the Electrical Chargeman at Erode, one of such items being 2200 litres of High-Speed Diesel Oil, receipt of which was acknowledged on 20th January, 1969. According to him, all these items were taken delivery of by the appellant-accused who had acknowledged receipt of all the items under his signature in his presence. The acknowledgment is marked as Exhibit P-34. I may point out here that the accused has accepted this signature for the receipt of the goods, in his answer to question. No. 25 in his statement under section 342, Criminal Procedure Code. P.W. 4, who is the Store Van Clerk in the office of the District Controller of Stores, Perambur says, with reference to his Movement Diary for September, 1969 (Exhibit P-35), that he had delivered 2000 litres of High Speed Diesel Oil to the accused-appellant on 27th September, 1969 and the same was acknowledged by the accused under his signature in his presence under Exhibit P. 37. The indent Exhibit P-5 was for 2745 litres while the supply made was only 2000 litres. The indent Exhibit P-5 was for 2745 litres while the supply made was only 2000 litres. The accused had also made entries in Exhibit P-9 (Tally Card) in respect of the same. 11. P.W. 5, who is also a Store Van Clerk in the office at Perambur, would say that on 18th February, 1970 he delivered 2050 litres of High Speed. Diesel Oil among other items, delivery of which had been acknowledged by one Muthukrishnan (P.W. 8) as a representative of the Electrical Chargeman. That acknowledgment is marked as Exhibit P-40. P.W. 8 has stated that he in turn handed over all the goods including the High Speed Diesel oil received by him to the accused who had made an entry of the same in Exhibit P-2 under his hard. It is also further seen that Exhibit P-28, the entry in the Day Book of Issue, is in the hand-writing of the accused. Under Exhibit P-6 also there is an entry relating to these 2050 litres which were supplied against the original indent of 3200 litres. Thus, there is sufficient evidence to show that 2050 litres of High Speed. Diesel Oil were entrusted to the accused on 18th February, 1970 and it is evidenced by the various entries made in the various registers maintained by the accused. 12. Then, we have got the evidence of P.W. 6, who is the Statistical Clerk in the Erode Diesel Shed. He speaks about the issue of 5000 litres of oil under a special indent for Gandhi Dharshan Special and Mr. Brown (P.W. 11) had acknowledged the same as per Exhibit P-43 on 20th January, 1970. The indent in this case is as per Exhibit P-41 by P.W. 7. The entry in Exhibit P-2 would show that the accused had acknowledged the same. Exhibit P-43, the entry in the Fuel D-5 Register (Stock Book maintained by P.W. 6) indicates that there was a delivery of 5000 litres to P.W. 11. Thus, the prosecution has let in evidence to show that there was entrustment of sufficient quantity of oil with the accused. The thirteen items of goods which are said to have been misappropriated by the accused are as follows: Serial No. of Item Quantity of H.S.D. Oil said to have been misappropriated. Date of entry in the Day Book of Issue. 1. 50 litres 12-6-1969 2. 840 " " 3. The thirteen items of goods which are said to have been misappropriated by the accused are as follows: Serial No. of Item Quantity of H.S.D. Oil said to have been misappropriated. Date of entry in the Day Book of Issue. 1. 50 litres 12-6-1969 2. 840 " " 3. 410 " No entry for the issue 4. 410 " " 5. 405 " " 6. 410 " " 7. 410 " " 8. 170 " " 9. 210 " 24-1-1970 10. 440 " 3-2-1970 11. 1050 " 17-2-1970 12. 440 " 20-3-1970 13. 420 " No entry for the issue Total 5665 " This shortage or deficiency is in addition to the deficiency of 700 litres noted by P.W. 1 on 3rd June, 1970. Hence, in all, the total quantity of deficiency would come to 6,366 litres. But, as the learned trial Judge himself has put it, since the charge is only in respect on a total quantity of 5,945 litres of High Speed Diesel oil, we have to see whether these items had been entrusted to the accused. The period within which the said offence is said to have been committed is between the dates 4th June, 1969 and 3rd June, 1970. The entries in the tally cards Exhibits P-2, P-8 and P-9 with reference to the above shortages ranged from 12th June, 1969 to 20th March, 1970. According to the prosecution, this is the period within which the goods are said to have been misappropriated. Thus, the prosecution has satisfactorily established that there was entrustment of High Speed Diesel oil as spoken to by the prosecution witnesses P.Ws. 3 to 6 and shown by the documentary evidence Exhibits P-2, P-8 and. P-9, the tally cards which are admittedly under the handwriting of the accused in regard to the receipt of the High Speed Diesel oil received by the depot at Erode. 13. Now, we shall come to the next question whether the prosecution has satisfactorily proved the alleged misappropriation as raised under point No. 4. I shall now take up this question with reference to each item as mentioned above. 14. The first item is with reference to a quantity of 50 litres of High Speed Diesel oil shown to have been issued as per the entries in the tally card Exhibit P-8 on 12th June, 1969. I shall now take up this question with reference to each item as mentioned above. 14. The first item is with reference to a quantity of 50 litres of High Speed Diesel oil shown to have been issued as per the entries in the tally card Exhibit P-8 on 12th June, 1969. But, it is seen from the entry in Exhibit P-10 for the date 12th June, 1969 that no one had acknowledged the receipt of these 50 litres. This entry is admittedly made by the accused. P.W. 10, the former Works Inspector who is said to have received a quantity of 650 litres of oil, has denied that any such oil was received by him. Further, it will also be seen that M.O. 1 which is the challan book prepared by the accused, does not contain any challan for the date l2th June, 1969 relating to the issue of 50 litres. It is pertinent to note that the pages in this challan book are machine numbered and this book is marked by the prosecution to show that there were no corresponding challans for certain disputed items of issue in, this case. As I have already indicated, according to the evidence of P.W. 2, the procedure is that the challans are prepared in triplicate and issued to the receiving minor depots for acceptance by the Material Clerk, the original of which is kept in the issuing depot and then one of the carbon copies would be sent back by the receiving depot to the issuing depot to evidence the acknowledgment of the goods. Mr. Vanamamalai would contend that as admitted by P.W. 10, he was not working in that section on 12th June, 1969 and that he does not know who wrote Exhibit: P-47, which is the entry in the Day Book of Issues of High Speed Diesel oil, and the person who has initialled therein is still alive but has not been examined, and therefore the prosecution, by merely relying on Exhibit P-10, cannot be said to have discharged the burden of proof laid on it. Secondly, he would say that as suggested by the defence, this oil should have been used for the trip made by the lorry of P.W. 10’s depot to Cauvery Railway Station and Salem and that since the trip-sheet is not filed in this case, it cannot safely be concluded that the oil has not been issued for the trip of the lorry. By this, the learned Counsel wants the Court to infer that the 50 litres of oil could have been supplied by the accused for the lorry. I am unable to understand this argument, because P.W. 10 is very definite that at no point of time they have received any goods, much less High Speed Diesel oil from the Erode Stores and that there was no en try for the date 12th June, 1969 showing the receipt of High Speed Diesel oil. Even if there is any initial for the receipt, the accused is the proper person to say who has initialled. If really there had been an acknowledgment, I am not abb to visualise the reason why the accused has not entered the name of the person who has acknowledged the same. If at all it had been given to the lorry, the accused would have summoned the trip-sheet in order to probabilise the fact that the lorry came to the depot on that particular day. Even then, how could the trip-sheet show that 50 litres of oil were given to the lorry unless there is a receipt for the same? Further, it is seen from M.O. 1 that there is a challan for the date 11th June, 1969 and the next challan is dated 15th June, 1969. This is a very clinching circumstance to show that on 12th June, 1969 there was no supply of oil. Further, it is seen from Exhibit P-47 that for the date l2th June, 1969 the issue is mentioned as ‘nil’. Thus, it is seen that the entry in Exhibit P-10 showing the issue of 50 litres is not a genuine entry and the accused has not accounted for the same. 15. The second item relates to 840 litres said to have been issued on l2th Jure, 1969 as per the entry in Exhibit P-8. The corresponding entry for that date in the Day Book of Issues is marked as Exhibit P-11. 15. The second item relates to 840 litres said to have been issued on l2th Jure, 1969 as per the entry in Exhibit P-8. The corresponding entry for that date in the Day Book of Issues is marked as Exhibit P-11. In this case also, the name of the person who has acknowledged the goods is not mentioned in Exhibit P-11. Admittedly, this entry is also made by the accused. There is nothing on record to show that this quantity of 840 litres of oil was actually delivered to any person. Thus, this entry also is proved to be false. 16. The third item relates to the transaction said to have been made on 21st July, 1969 covered under Exhibit P-9 tally card in respect of 410 litres, but, to whom this quantity of oil is alleged to have been supplied is not noted. At the relevant page in the Day Book of Issues for the date 21st July, 1969, marked as Exhibit P-12, no supply of diesel oil is found entered. In M.O. 1, there is no challan for the date. The challan book show that there was entry for 16th July, 1969 and the next challan is dated 31st July, 1969. Thus, there is positive evidence to show that this quantity of oil has not been issued to any department. 17. The fourth disputed item relates to 410 litres found entered in Exhibit P-9 tally card. The person to whom the supply is said to have been made is not noted in. Exhibit P-9. Similarly, there is no entry in the Day Book of Issues, Exhibit P-13, or in the challan M.O. 1. In M.O. 1 there is a challan. for the date 2nd August, 1969 and the next challan is for the date 5th August, 1969. Thus, this item of misappropriation is also proved by the prosecution. 18. Next, item 5 is dated 16th September, 1969, relating to the issue of 405 litres as per the entry made in Exhibit P-9. As regards this item also, there is no entry corresponding to the page Exhibit P-14 in the Day Book of Issues, noting down the name of the person to whom the issue was made. There is no challan in M.O. 1 for this date. As regards this item also, there is no entry corresponding to the page Exhibit P-14 in the Day Book of Issues, noting down the name of the person to whom the issue was made. There is no challan in M.O. 1 for this date. As it is seen from M.O. 1 that after the date 15th September, 1969, the next challan is on 17th September, 1969, it is evident that there is no challan for 16th September. 1969. 19. The sixth item is for the date 19th September, 1969 in respect of 410 litres found entered in Exhibit P-9 as having been issued. Exhibit P-15 is the page in the Day Book of Issues. There is no entry in Exhibit P-15 noting down the name of the party to whom it was issued. No challan is also made out for this date. It is seen from M.O. 1 that there is a challan for the date 17th September, 1969 and the next challan is for the date 23rd September, 1969. The seventh item relates to an entry showing the issue of 410 litres of High Speed Diesel oil for the date 12th October, 1969. There is no corresponding entry in the Day Book of issue as per Exhibit P-16. Though a chalan is found dated 12th October, 1969 in M.O. 1 it does not relate to the entry in question. There is no acknowledgment for the issue of this item. 20. The 8th item is in respect of the issue of 170 litres of High Speed Diesel oil on 14th November, 1969 as per the entry in the tally card Exhibit P-9. Exhibit P-17 is the page in the Day Book of Issues. In that page Exhibit P-17 there is no entry with regard to the supply of 170 litres of High Speed. Diesel oil under the date 14th November, 1969. In M.O. 1 after the date 1st November, 1969, the next challan is only for the date 1st December, 1969. There is no challan for the date 14th November, 1969 vouching the issue under this item. 21. The learned Counsel made a common argument in respect of items 3 to 8, contending that all these entries were made by the accused as per the direction given by P.W. 21. There is no challan for the date 14th November, 1969 vouching the issue under this item. 21. The learned Counsel made a common argument in respect of items 3 to 8, contending that all these entries were made by the accused as per the direction given by P.W. 21. Further, he would submit that sometime the acknowledgments from the persons who received the goods would not be taken either due to oversight or by inadvertance, To substantiate his contention, he would rely on the evidence of P.W. 21 who has stated that on 11th February 1973 there is an entry showing the issue of 1189 litres and on 16th February, 1973 for the receipt of 800 litres, but there is no acknowledgment for the receipt of these goods. Similarly, it is admitted by P.W. 21 that there is an entry on 3rd May, 1971 for the issue of a 7.5 H.P. motor and ball-bearings. But it is not entered in the Day Boot. P.W. 21 has given an explanation that these entries might have been omitted to be made. Similarly, on 11th October, 1971 though ball-bearings were supplied for a 12.5 H.P. motor, there are no corresponding entries in the day book. This P.W. 21 explains by saving that like the above there are certain entries which are omitted to be made in the day books. P.W. 11 has also admitted that on 3rd February, 1970 he issued 440 litres of High Speed Diesel oil, but no signature was obtained from the recipient due to oversight. Relying on the above admissions made by P.W. 21 and P.W. 11, the learned Counsel would urge that even in respect of items 6 to 8, the accused might well have omitted to take the acknowledgments of the persons who had taken delivery of the goods and therefore no criminality can be attributed or the part of the accused. I am unable to accept the above contention of the learned Counsel for the reason that regarding items 3 to 8 it is not as if the accused has just omitted to take the acknowledgments of the recipients. But, the fact is that he has not entered the name of the person to whom the goods were supplied and he has also not followed the procedure of making the corresponding entries mentioning the name of the recipient, etc., in the Day Book. But, the fact is that he has not entered the name of the person to whom the goods were supplied and he has also not followed the procedure of making the corresponding entries mentioning the name of the recipient, etc., in the Day Book. No challan has been made in respect of these items. Therefore, the cumulative effect of these factors would go to show beyond any doubt that these entries showing the issue of items 3 to 8 are not genuine entries. 22. The ninth item is in respect of 210 litres of diesel oil as found entered in Exhibit P-2 on 24th January, 1970. The entry Exhibit P-24 in the Day Book of Issues is disputed. This issue is said to have been supplied to Mobile Generating Van R. M. 4045. Exhibit p-24 is also said to have been signed by one Elumalai acknowledging receipt of this issue, P.W. 9 is a fitter from Olavakkot. According to P.W. 2, the duties of P.W. 9 were to overhaul the engines and attend to periodical repairs in the stations coming under the Olavakkot Division. P.W. 2 examined Elumalai and got a statement from him, wherein P.W. 9 has denied having received 210 litres of oil, but has stated that on 24th January, 1970 he received only 30 litres of Rotella-30 oil and he made an acknowledgment for the receipt thereof and that the entry for the receipt of Rotella oil is just above the entry relating to 210 litres of Diesel oil in the Day Book of issues. That entry is marked as Exhibit P-26. P.W. 9 has sworn to a statement that High Speed Diesel oil was not intended to his work and that he had never received High Speed Diesel oil for his work. He admits his signature in Exhibit P-24 and would say that he signed in Exhibit P-24 only in acknowledgment of receipt of 30 litres of Rotella oil and not for 210 litres of High Speed Diesel oil. Further, he would say that this entry showing the supply to him of 210 litres of High Speed Diesel oil was not made on the day when he signed the document. Further, he would say that this entry showing the supply to him of 210 litres of High Speed Diesel oil was not made on the day when he signed the document. According to him, there was only an entry for 30 litres of Rotella oil as found in Exhibit P-26 at the time when he signed it, but now it is seen from Exhibit P-26 as if 130 litres of Rotella oil had been supplied to him on that day. Learned Counsel for the accused would urge that the entry for the supply of this quantity of High Speed Diesel oil is on the same line on which P.W. 9 has signed and therefore this must be taken as an acknowledgment for the receipt of High Speed Diesel oil also. But, the evidence of P.W. 9 is that on the day when he received the Rotella oil, he did not sign on the line on which it was entered, but one line below that entry. Learned Counsel would bring to the notice of this Court, the admission of P.W.9 that except in Exhibits P-24 and P-28, in all other entries has signed on the same line as that of the relevant entry and therefore the evidence of P.W. 9 that he signed on the next line below the entry relating to the issue of 30 litres of Rotella oil, only in acknowledgment for the receipt of the said oil and not for the alleged issue of High Speed Diesel oil, cannot be accepted. It was urged that since P.W. 21 has admitted that on 28th February, 1973 and 1st March, 1973. P.W. 9 had received 500 litres and 20 litres respectively and had signed in acknowledgment of the same, the explanation given by P.W. 9 that High Speed Diesel oil was not handed for his work cannot be accepted. The other question is whether, P.W. 9 had by mistake signed below the line relating to the supply of Rotella oil or whether he so signed for having received High Speed Diesel oil also. It is seen that these two entries relating to the issue of Rotella oil and High Speed Diesel oil are bracketed. The entry in Exhibit p-24 shows that 210 litres of High Speed Diesel oil were issued to R.M. 4045. It is seen that these two entries relating to the issue of Rotella oil and High Speed Diesel oil are bracketed. The entry in Exhibit p-24 shows that 210 litres of High Speed Diesel oil were issued to R.M. 4045. Originally, under the column “Work for which issued and party to whom transferred”, it is seen that the letters “E.R.M.” were written, and then they have been scored off. Above these letters E.R.M., it seems that firstly some other letters were written, over which the letters “R.M.” are now written. But, we find a corresponding entry in Exhibit P-2 for the date 24th January, 1970 showing that 210 litres of oil had been issued to R.M. 4045 and this issue has been deducted in writing the balance. Of course, when we scrutinize the entry made in Exhibit P-28 relating to item No. 11, an impression is created that this accused must be in the habit of making false entries taking advantage of the fact that the recipient has not signed against the line showing the actual issue but signed only one line below it where there is no entry. The prosecution has clearly shown that the accused has in Exhibit P-28 made a false entry with reference to the issue of High Speed Diesel oil, about which I shall discuss while dealing with item-11. The argument of the learned Public Prosecutor (Mr.P. Rajamanikkam) is that the accused had taken advantage of the signature of P.W. 9 and had made a false entry in respect of item-9 also as has been done with reference to item 11. Though this argument has some force, I am inclined to give the benefit of doubt to the accused in respect of the entries relating to the issue of item 9 in view of the fact that the prosecution has not proved beyond doubt that the entries in Exhibit P-24 and P-2 are false. Accordingly, I find that the prosecution has not proved its case against the accused in respect of item 9. 23. Item No. 10 relates to the issue of 440 litres of High Speed Diesel oil on 3rd February, 1970 for use in Cauvery Stand-by Set, as entered in Exhibit P-2. This issue is found noted in Exhibit P-27, the relevant page in the Day Book of Issues. 23. Item No. 10 relates to the issue of 440 litres of High Speed Diesel oil on 3rd February, 1970 for use in Cauvery Stand-by Set, as entered in Exhibit P-2. This issue is found noted in Exhibit P-27, the relevant page in the Day Book of Issues. There is no acknowledgment by anyone for the receipt of this quantity of oil in Exhibit P-27. According to P.W. 2, the normal consumption of the Cauvery Stand-by Set is about 12 litres per hour. Mr. Vanamamalai would attack the prosecution case relating to items 2 and 10, by saying that the log-book maintained in the Cauvery Pump House is not produced, which, if produced, would have shown the receipt and consumption of High Speed Diesel oil and therefore the prosecution cannot be said to have discharged its burden fully. He would rely on the evidence of P.W. 1 who has stated that though he asked P.W. 21 to produced the log-book, he did not Produce the same before him. P.W. 2 has admitted that such a log book is maintained in the Cauvery Plant Room, that book has not been properly maintained. According to P.W. 1, on the date of his inspection on 3rd June, 1970, there were four barrels of High Speed Diesel oil in Cauvery Pump House. It is true that the log-book has not been produced in this case. But, the non-production of this document cannot whittle down the case of the prosecution since items 2 and 10 are satisfactorily proved by the prosecution that for the 840 litres of diesel oil on 12th June, 1969 (item 2) and the issue of 540 litres of High Speed Diesel oil on 3rd February, 1970 (item 10), there is absolutely no acknowledgment and all these entries are made under the hand of the accused I have already given my reasons for the acceptance of the prosecution case in respect of item-2 while I dealt with that portion of the case. If at all the log book is produced here, perhaps it may show whether any such oil has been received at the pump house on the particular dates. If the defence wanted to rely on the entries in the logbook, the accused himself would have summoned that document in support of his defence. If at all the log book is produced here, perhaps it may show whether any such oil has been received at the pump house on the particular dates. If the defence wanted to rely on the entries in the logbook, the accused himself would have summoned that document in support of his defence. Therefore, inasmuch as the accused had not taken any step to summon that document, now he cannot throw the blame on the prosecution stating that because the log-book has not been produced, the evidence adduced by the prosecution otherwise carrot be looked into. Therefore, the contention of the learned Counsel attacking these two items falls to the ground. 24. Then, we come to item 11. This item of dispute is dated 17th February, 1970 and is in respect of the issue of 1050 litres of High Speed Diesel oil, as mentioned in Exhibit P-2. Exhibit P-28 is the entry in. the relevant page of the Day Book of Issues for that date, as though 2050 litres of High Speed Diesel oil had been issued. As against this entry, the signature of P.W. 9 is found. It is argued by the prosecution that in Exhibit P-28. the lower portion is an interpolation. P.W. 2 hiss deposed that P.W. 9 in his statement Exhibit P-25 has stated that he did not take delivery of any oil on that day and Elumalai signed in Exhibit P-28 only acknowledging receipt of the other items of goods mentioned therein. On a perusal of Exhibits P-2 and P-28, I am not able to understand as to why 2050 litres of High Speed Diesel oil were entered in Exhibit P-28, whilst 1050 litres alone are entered in Exhibit P-2. This, in my view, is clearly a false entry entered for the purpose of boosting up the figure in Exhibit P-28, over the figure entered in Exhibit P-2, Exhibit P-28 for the date 17th February, 1970 reads as though 2050 litres; of High Speed Diesel oil have been issued on that date to P.W. 9. There are four lines of entry relating to four items of goods including the disputed items of High Speed Diesel oil. P.W. 8, who is said to have issued the goods to P.W. 9, has deposed that he issued only the three items of goods. They are (1) waste cotton white, (2) waste cotton-coloured, and (3) soap. There are four lines of entry relating to four items of goods including the disputed items of High Speed Diesel oil. P.W. 8, who is said to have issued the goods to P.W. 9, has deposed that he issued only the three items of goods. They are (1) waste cotton white, (2) waste cotton-coloured, and (3) soap. Further he would say that these three entries are under his handwriting and that at the time when P.W. 9 signed on the fourth line viz., below the above three lines relating to the issue on the above three items, there was no entry at all on the fourth line for the alleged issue of High Speed Diesel oil. Admittedly, thee words “High Speed Diesel oil-Lit. 2050” were written by the accused on the line on which P.W. 9 has signed. It is seen from these entries that there are tick marks against the three items of goods mentioned above and the fourth line is not ticked. If we compare the quantify of the issue of 2050 litres of High Speed Diesel oil with the tally card Exhibit P-2, it shows that only 1050 litres have been issued on that date. From Exhibit P. 2, it is seen that the balance of oil available on 3rd February 1970 was 3420 litres, and P.W. 9 has not brought the balance to 2370 litres as on 17th February, 1970 after deducting the issue of 1050 litres. Therefore, as per the record Exhibit P-2, the quantity that was issued on 17th February, 1970 was only 1050 litres. Obviously, the entry corresponding to this in Exhibit P-28 viz., “2050 litres” is false entry. That entry, in my view, has been made by the accused, taking advantage of the signature of P.W. 9 on that line in acknowledgment for the receipt of the three items of goods mentioned by P.W. 8 on the three lines just above. If realty 2050 litres of High Speed Diesel oil had been supplied simultaneously with the other goods on the same day, definitely P.W. 8 himself would have made the entry showing the issue of this quantity of High Speed Diesel oil also. The accused, in answer to question No. 11 in his section 342 statement, has admitted that the entries made in ExhibitsP-2 and P-28 are in his handwriting. The accused, in answer to question No. 11 in his section 342 statement, has admitted that the entries made in ExhibitsP-2 and P-28 are in his handwriting. Therefore, in view of the above evidence given by P.W. 8 as mentioned above and the admission of the accused and his handwriting in Exhibits P-2 and P-28 relating to his item of issue of High Spied Diesel oil, I am not inclined to accept the argument of the learned Counsel. But, on the otherhand, I am of the view that the prosecution has made out its case that if is a false entry made by the accused. 25. Item No. 12 relates to the issue of 440 litres of High Speed Diesel oil on 20th March, 1970 (as mentioned in Exhibit P-2). The corresponding entry in the Day Book of Issues is Exhibit P-29. In this case, there is no acknowledgment for the supply of this item. But this entry is made not by the accused, hut by P.W. 11, who has turned hostile by denying having written Exhibit P-29 at the instance of the accused. The evidence, adduced by the prosecution relating to this item is wholly unworthy of acceptance. Therefore, I hold that this item cannot be said to have been proved by the prosecution. 26. The last item relates to the supply of Diesel oil to Gandhi Dharshan Special P.W. 7 says that he applied for a special indent of 5000 litres as per Exhibit P-7. There is a corresponding indent Exhibit P-41 as spoken to by P.W. 6. The fact that 5000 litres were received is also found entered in Exhibit P-2 by the accused. P.W. 12 has deposed that he issued three barrels with the total capacity of 680 litres under Exhibit P-18 and that only one barrel was issued and two barrels were returned to Erode. Thus, the dispute under this item relates only to 420 litres. According to P.W. 12, he sent these two barrels containing 420 litres through P.W. 13 as per Exhibit P-21. P.W. 13 has stated that he came to Erode with the two barrels of oil and went to the office of S.C.L.C., but neither the officer nor the foreman was present, but he found only the accused, and therefore he handed over a tapal to the accused and told him that he had brought two barrels of oil. P.W. 13 has stated that he came to Erode with the two barrels of oil and went to the office of S.C.L.C., but neither the officer nor the foreman was present, but he found only the accused, and therefore he handed over a tapal to the accused and told him that he had brought two barrels of oil. The accused, according to him, told him that he would send the challan by post and asked him to go away, leaving the oil there. P.W. 13 would say that he unloaded them at the Erode Railway Station at the platform. Thus, the evidence of P.W. 13 is to the effect that the accused took delivery of the same and premised to send an acknowledgment by post. P.Ws. 14 and 15 have stated that these two barrels were taken delivery of at the platform itself as found Exhibits P-48 and P-49. P.W. 13 has given a statement under Exhibit P-22 to P.W. 2. The accused had given his statement under Exhibit P-23 to P.W. 2, admitting having received two barrels, but would add that they were loaded again into the Gandhi Dharshan Special. There is no entry for this issue in any tally card. N r is there any challan for the same. Thus, there is nothing on record to show that these two barrel were loaded into the Gandhi Dharshan Special. According to the learned Public Prosecutor, inasmuch as the accused himself has admitted in Exhibit P-23 that he received the barrels and as the evidence of P.Ws. 14 and 15 is to the effect that the two barrels were received, it is conclusively proved that the two barrels of High Speed Diesel oil had been returned to the accused and therefore it is for the accused to show by satisfactory evidence that be reloaded them into the Gandhi Dharshan Special. In the absence of such accounting by the accused, the prosecution has made out its case. It is submitted on behalf of the accused that the evidence of P.W. 13 is just like a cock-and-bull story and no reliance could be placed on it. In the absence of such accounting by the accused, the prosecution has made out its case. It is submitted on behalf of the accused that the evidence of P.W. 13 is just like a cock-and-bull story and no reliance could be placed on it. Then, he made comments on the evidence of P.W. 12 with reference to Exhibit D-1 and said that inasmuch as P.W. 13 has admitted that these two barrels were consigned to the Assistant Electrical Foreman and as there is no reference to the Senior Electrical Chargeman in Exhibit D-1 and as no further reminder has been sent by P.W. 12, his evidence that P.W. 13 told him that he handed over the barrels to the accused cannot stand the test of scrutiny. Coming to the evidence of P.W. 15, it was submitted that P.W. 15 is the parcel clerk whose duty is to give platform delivery. This witness has admitted that he did not take the signature of the person who took delivery. Therefore, it is commented that the evidence of P.W. ]5 cannot also be accepted. Regarding Exhibit P-23, an argument was advanced that that statement cannot amount to a confession admitting the offence. Exhibit P-23 read as follows: “Out of 3 barrels of High Speed Diesel Oil containing 630 litres sent under Challan No. CP/70/7 of 21st June, 1970 E.L.C./SA had returned 420 litres by 69 of 30th January, 1970 under his Challan No. SA 5 of 30th January, 1970 which was taken delivery of but not taken into account. This consignment was kept on the platform and loaded into the Gandhi Dharsan Exhibition Special while passing through E.D. for which necessary challan was not prepared." This statement is signed by the accused on 27th August, 1970. It is very clear from this document that two barrels have been taken delivery of, but not taken into account. To question No. 14, in his statement under section 342, the accused has stated that the two barrels might have been taken delivery of by the Assistant Electrical Foreman but he did not take delivery of that. So, when this answer is taken along with his statement under Exhibit P-23, it would show that these two barrels were brought to Erode Junction by P.W. 13. So, when this answer is taken along with his statement under Exhibit P-23, it would show that these two barrels were brought to Erode Junction by P.W. 13. Therefore, there is nothing to suspect the evidence of P.W. 13 when he says that he took the two barrels containing 420 litres of High Speed. Diesel oil. The next question is whether the accused took delivery of the said oil or the Assistant Electrical Foreman. As the statement given by the accused is very clinching and. as he has not stated in his statement that they might have been taken by the Assistant Electrical Foreman., I have nothing to suspect the case of the prosecution that these two barrels were entrusted to the custody of the accused and the explanation now given by the accused is not satisfactory. Hence, I hold that the prosecution has proved its case regarding this item also. 27. Thus, the prosecution has clearly proved the false entries except with regard to items 9 and 12, viz., that the accused had made false entries as though he had issued High Speed Diesel oil to various departments as entered by him in the tally card as well as in the Day Book of Issues with reference to all the disputed items mentioned above except with regard to items 9 and 12, relating to the issue of 210 litres of High Speed Diesel oil as per Exhibit P-24 on 24th January, 1970 and 440 litres as per Exhibit P-20 on 20th March, 1970. 28. Since the accused has not challenged the evidence of P.W. 25, the Handwriting Expert, there is no need to discuss the evidence of P.W. 25. P.W. 23 is a witness who has given the price of diesel oil at Rs. 692-30 per kilo-litre. The prosecution, besides letting in evidence, in proof of the mis-deeds committed by the accused, has also examined P.W. 17 to show that the accused had tried to cover up his criminal action by approaching the said witness at. Olavakkot and requesting him to give him in writing that five barrel were received in the godown in connection with the Gandhi Dharshan Special. Olavakkot and requesting him to give him in writing that five barrel were received in the godown in connection with the Gandhi Dharshan Special. P.W. 17 has deposed that in the month of September, 1970, the accused met him at Cochin Harbour and requested him to give him a challan to the effect that the five barrels of oil had been spent away for the Gandhi Dharshan Special and this witness refused to give such kind of Chllan, Mr. Vanamamalai would submit that the accused was transferred even on 6th August, 1970 from that station and therefore he could not have approached. P.W. 17 and requested him to give him the challan. This argument cannot be accepted, because even if the accused had been transferred, it is for him to account for the oil received at the depot which was under his control. Therefore, naturally this accused could have anticipated some trouble in the future and in order to account for the oil, would have made this request to P.W. 17 even after his transfer. I do not find any reason to suspect the evidence of P.W. 17. Thus, it is shown by the prosecution that the accused was fully aware of the fact that he has committed some criminal acts and that he was trying to cover up the same by approaching P.W. 17. This piece of evidence is let by the prosecution only to show the subsequent conduct of the accused. 29. Next, it was submitted by the learned Counsel for the accused that the non-production of L.M. 171 for the whole year in question should be viewed very seriously and it must be considered in favour of the accused. The learned Public Prosecutor, in reply to the above argument, has urged that the accused has not prepared L.M. 171 and therefore the prosecution cannot be expected. to produce L.M. 171 forms and therefore the question of non-production does not arise. The empty form of this L.M. 171 is marked in this case as Exhibit D-3. The explanation given by the learned Public Prosecutor appears to be more convincing and acceptable than the argument of the defence Counsel. 30. The next point that was urged by Mr. Vanamamalai is that as P.W. 21 was also in joint possession, having custody of the goods, no criminal liability can be attributed to the accused. The explanation given by the learned Public Prosecutor appears to be more convincing and acceptable than the argument of the defence Counsel. 30. The next point that was urged by Mr. Vanamamalai is that as P.W. 21 was also in joint possession, having custody of the goods, no criminal liability can be attributed to the accused. I have already discussed about the question of joint liability supra and I have come to the conclusion that the accused was having dominion over the goods, having exclusive control over the goods in question.. In my view, there is no question of joint liability in. this case so as to fasten on P.W. 21 with the criminal liability for misappropriation of the goods which were handled and dealt with by the accused as narrated above. 31. The next question for consideration is whether the elements necessary to constitute an offence of criminal misappropriation have been established in this ease. The Supreme Court, in Krishnakumar v. Union of India1, has observed as follows.- "It is not necessary or possible in every case to prove in what precise manner the accused parson has dealt with the appropriated goods of his master. The question is one of intention and not a matter of direct proof, but giving false account of what he has done with the goods received by him may be treated as a strong circumstance against the accused person. In the case of a servant charged with misappropriating the goods of his master, the elements of criminal offence of misappropriation will be established if the prosecution proves that the servant received the goods; that he was under a duty to account to his master and had not done so.“ In my view, the above ratio laid down in the Supreme Court decision directly applies to the facts of this case. In this case, the explanation given by the accused is not at all satisfactory. 32. In this case, the explanation given by the accused is not at all satisfactory. 32. The Supreme Court, in a recent decision Sri Rabindra Kumar Dey v. State of Orissa1, which was a case of criminal misconduct under section 5 (2) read with section 5(1)(c) and under section 5(1)(d) of the Prevention of Corruption Act, 1947, has held as follows: “Although the onus lies on the prosecution to prove the charge against the accused, yet where the entrustment is proved or admitted, it will be difficult for the prosecution to prove the actual mode or manner of misappropriation and in such a case the prosecution would have to rely largely on the truth or falsity of the explanation given by the accused.” There is no doubt that in a criminal case, as their Lordships have Put in the above decision, it is not at all obligatory on the accused to produce evidence in support of his defence and for the purpose of proving his version he can rely on the admissions made by the prosecution witnesses or on the documents filed by the prosecution. Of course, in this case there are certain admissions made by the prosecution witnesses with regard to the joint responsibility of P.W. 21 in the custody of the goods in the course of his official duty. But, it is to be noted that the said admissions are qualified by the witnesses by saying that though P.W. 21 was in legal custody of the goods, the actual and physical custody of the goods remained only with the accused who had the exclusive dominion over the goods in question. I have considered and scrutinized the entire evidence on both sides: but I do not find any admission which is capable of shaking the entire edifice of the prosecution case. The admissions of the prosecution witnesses on which the defence places reliance do not affect the prosecution case and absolve the accused from the criminal liability. Apart from the fact that the accused has not given any reasonable probable explanation as to the deficiency of the goods, it is clear to my mind that the prosecution has affirmatively proved its case by cogently convincing evidence, both oral and documentary. 33. Finally, it was urged that there used to be certain excess or shortage of oil in the stores due to various reasons. 33. Finally, it was urged that there used to be certain excess or shortage of oil in the stores due to various reasons. For that be would rely on the evidence of P.W. 1 who has stated that on 27th August, 1970 there was a shortage of 1287 litres and on 9th August, 1970 there was a shortage of 1244 litres and on 26th and 27th September, 1970 there was an excess of 80 litres, and on the admission of P.W. 21 who has stated that on 26th September, 1971 there was an excess of 240 litres of oil in the Cauvery Pumping Section. Relying on the above evidence, it was submitted that there used to be some shortage or excess in the quantity of the High Speed oil kept in the various places at the time of taking of the accounts due to reasons other than misappropriation of the goods. According to the appellant’s contention, there was such shortage cither due to evaporation or due to leakage and sometimes, there used to be errors in the dip-rod measurement, thereby giving an incorrect picture of the actual quantity. According to the prosecution, the stock of diesel oil was kept (1) in the Power House, (2) in the old Railway Station building, and (3) in the Cauvery Pump House, which are all at a distance of about 1½ to 2 miles from the office of the Senior Electrical Charge man. As regards the evidence now relied upon by the defence relating to he shortage of the oil after August, 1970 i.e., beyond the period mentioned in the charges, we have no definite evidence as to whether any action has been taken or not by the department with reference to these shortages. However, the defence cannot take advantage of this fact to account for the shortage that has been proved by the prosecution in this case. However, the defence cannot take advantage of this fact to account for the shortage that has been proved by the prosecution in this case. As I have already pointed cut after an elaborate discussion, the prosecution does not rest its case only on the shortage in the quantity of oil, but it has positively proved the following omissions, viz., omissions to make entries in the documents and registers with regard to all or some of the particulars like the name of the person to whom the oil has been supplied, the acknowledgment of the person to whom it has been so supplied and date of entry in the Day Book of Issues, and omission to prepare the challans as per the directions given by the department in their circular under Exhibit P-3. Thus, it has satisfactorily demonstrated that the accused has dishonestly of fraudulently misappropriated the goods entrusted to him or placed under his control in his capacity as a public servant. The accused, while answering question No. 4 in respect of the shortage of 700 litres of High Speed. Diesel Oil as per the evidence of P.W. 1, he has stated it is true that there was shortage and he has not come forward with the defence that this shortage was due to causes like evaporation, leakage etc. Therefore, the above contention of the learned Counsel cannot be accepted. 34. For the foregoing discussion, I hold that the prosecution has clearly brought home the guilt of the accused under section 5(1)(c) of the Prevention of Corruption Act and under section 409, Indian Penal Code, in that the accused has dishonestly or fraudulently misappropriated the oil entrusted to him except 650 litres covered by items 9 and 12 and has thus committed the offence of criminal breach of trust. Accordingly, I confirm the conviction of the accused under both the above charges. 35. Coming to the question of sentence, there is no special reason to reduce the period of imprisonment to less than the minimum period prescribed under the Prevention of Corruption Act and therefore I confirm the sentence imposed on the accused, viz., to undergo rigorous imprisonment for a period of one year under section 5(2) of the said Act. 35. Coming to the question of sentence, there is no special reason to reduce the period of imprisonment to less than the minimum period prescribed under the Prevention of Corruption Act and therefore I confirm the sentence imposed on the accused, viz., to undergo rigorous imprisonment for a period of one year under section 5(2) of the said Act. Similarly, I confirm the judgment of the lower Court sentencing the appellant to suffer rigerous imprisonment for one year under section 409, Indian Penal Code, and directing that both the sentences shall run concurrently. The appeal is dismissed. S.J. ----- Appeal dismissed.