STATE OF GUJARAT v. KALIDAS NANJIBHAI PARMAR — 1979 DIGILAW 54 (GUJ)

M. K. SHAH, J. ( 1 ) THIS appeal is directed against the order of acquittal passed by the learned Assistant Sessions Judge Mehsana on 30th December 1975 in sessions case No. 121 of 1974 in which case the respondent accused stood his trial for the offence under sec. 499 of the Indian Penal Code. ( 2 ) A few facts will have to be set out to appreciate the contentions, which are raised in this appeal. ( 3 ) THERE was an All India Speakers Conference held at Gandhinagar between December 28 1973 and December 31 1973, which was attended by the Speakers from all over India. After the conference a tour programme was arranged and the delegates were taken to various places of interest in Gujarat. Several committees were formed to look after the accommodation and other needs of the delegates as also the organizational part of the conference; and the Secretariat of the Gujarat Legislature was in charge of these arrangements. There is an establishment branch in this secretariat and there is a cash section for dealing with cash transactions. A grant of an amount of Rs. 2 0 0 was obtained from the Government for the purpose of meeting with the expenses to be incurred in connection with the said conference; and even after the conference was over certain payments had to be made accounts to be completed and it was also felt that the expenses would increase the amount of grant in which case additional amount also would have to be obtained. ( 4 ) IT is the prosecution case that the accused that was attached to the cash section of the said branch as an Assistant at the relevant time was attending to the work as a cashier. In the premises allotted to the cash section there was a safe which could be opened by use of two keys. Key No. 1 used to remain with the accused who was the cashier at the relevant time and key No. 2 used to remain with prosecution witness Kathiria who was attached as a Superintendent; and it was the practice that the accused in the morning would obtain from Kathiria the second key and by applying both the keys viz. the one which was kept with him and the one supplied by Kathiria he would open the safe. the one which was kept with him and the one supplied by Kathiria he would open the safe. He would then take out the cash box lying in the safe and fix it on his table. The key of the cash box used to remain with the accused and in the evening he would close the cash box and deposit the same into the safe and lock the safe by applying the aforesaid two keys i. e. the one which was lying with him and the one which was with Kathiria; and he would then return Kathirias key to Kathiria carrying his keys with him. There vas a cash book maintained in this section and that used to be written exclusively by the accused as a cashier. It is also the prosecution case that in February 1974 as the accounts were not completed and as payments had to be made for pending bills G. B. Joshi who was the Under Secretary at the relevant time and who was inter alia in charge of the establishment branch reminded the accused to obtain drafts and make payments. It may be noted at this stage that on 31-12-1973 an amount of Rs. 81 0 had been withdrawn from the Bank by the accused and on 17-1-1974 an amount of Rs. 61 (3) has been likewise withdrawn. These amounts were deposited in the said safe and so far as the accounts in connection with the Speakers Conference are concerned the accused used to make payments from this amount. It may also be mentioned that as per the prosituation case the accused was being pressed by Joshi to complete the writing of the cash bank and he was also directed to deposit the amount into the Bank and obtain drafts for payments to be made. The accused wrote the cash book upto 27-2-1974. On 28-2-1974 there was no transaction and thereafter he left the office without getting the cash verified by witness Joshi saying that as he was not feeling well he would complete the accounts the next morning. The accused remained absent on 1 as also on 2-3-1974 without sending any report for leave. 3 was a Sunday. On 4-3-1974 also he did not report for duty but sent a leave report for leave from 1-3-1974 to 7-3-1974 on the ground that his father-in-law was sick. The accused remained absent on 1 as also on 2-3-1974 without sending any report for leave. 3 was a Sunday. On 4-3-1974 also he did not report for duty but sent a leave report for leave from 1-3-1974 to 7-3-1974 on the ground that his father-in-law was sick. ( 5 ) IT is then the prosecution case that on this conduct of the accused witness Joshi became suspicious and not finding the accused at his place when he visited the same in the evening he contacted witness D. G. Desai the Secretary of the Department at night. Desai then gave written instructions by passing an order on the night of 4-3-1974 Inter alia directing that Deputy Secretaries Sutaria and Barot and Under-Secretaries Thakkar and Joshi and Superintendents Bhatt and Dalal should attend the office at night with Parmar that is the accused and cash section superintendent Kathiria and verify the cash on hand with the cash book and passbook and make a panchnama and report in the presence of each other and if any deficit was found a criminal complaint may be filed with the police and action may be taken forthwith. This order was passed at 11-30 p. m. on that day. ( 6 ) AS the prosecution witnesses say Parmar was contacted and he came to the office with keys of the safe as well as the cash box which were with him. The safe was opened by the accused by applying the two keys one taken from Kathiria and one which was with him and after taking out the cash box he opened the same by means of the key which was with him and the cash was then counted and it was found to be of Rs. 5 468 paise instead of Rs. 45 293 paise as per the closing balance shown in the cash book as on 27-2-1974 which entry had been made by the accused himself. There was also some amount of Rs. 907-82 paise lying in the cash box but that was not to be accounted for because that was the amount received from the guests of the conference for allowances etc. ( 7 ) A report was then written out as per Ex. There was also some amount of Rs. 907-82 paise lying in the cash box but that was not to be accounted for because that was the amount received from the guests of the conference for allowances etc. ( 7 ) A report was then written out as per Ex. 19 recording the facts and circumstances under which the safe was opened in the presence of the said seven officers by the accused and on tallying the amount found from the safe in cash with the balance shown in the cash book Ex. 93 written by the accused a deficit of Rs. 40 825 paise being found as also an additional amount of Rs. 907-82 paise which was outside the account. This was signed by the said officers at 4-30 a. m. on 5-3-1974 and some of them put even the time. On the right hand side of the signatures of these officers the accused made an endorsement to the effect that he had read the said report and that the statement contained therein with regard to the deficit was correct and he placed his signature along with date 5 below the said endorsement. Sutaria the complainant then contacted P. I. Shukla of Gandhinagar Police Station and on his arrival a complaint was written down in the handwriting of Under Secretary Thakkar as no police writer was available with Shukla. ( 8 ) IT is also the prosecution case that original or Ex. 19 was shown to P. I. Shukla but it was not handed over to him as it was required to be shown to the Secretary and the Speaker but a copy was later given to him after the Secretary had seen it and endorsed with the words Seen at 11 a. m. on 5-3-1974. After receiving the complaint at about 5 Oclock in the morning the accused was apprehended by Shukla. Before that the accused had requested that if time was granted of a day or two he would pay up the deficit amount. Sutaria refused to give time. Joshi when he reported in the morning at about 6 O clock as to what had happened to Secretary Desai also reported to him the request made by the accused but Desai said that as the matter was with the police they could not do anything in the matter. Sutaria refused to give time. Joshi when he reported in the morning at about 6 O clock as to what had happened to Secretary Desai also reported to him the request made by the accused but Desai said that as the matter was with the police they could not do anything in the matter. At the instance of the Secretary investigation was taken over by C. I. D. Crime Branch Ahmedabad on and from 8-3-1974 and thereafter P. I. Patil of the said Branch carried on further investigation and after completing the investigation submitted a charge sheet against the accused. The accused was then tried after having been committed to the Sessions before the learned Assistant Sessions Judge for the offence under sec. 409 of the Indian Penal Code; and on the evidence led before him the learned Judge came to the conclusion that the prosecution had failed to establish the necessary ingredients that the accused was entrusted or was having dominion over the amount and that the accused committed a criminal breach of trust with respect to the alleged sum. He therefore recorded a finding of acquittal for the offence under sec. 409 of the Indian Penal Code by his order dated 30th December 1975 aggrieved by which order the State has preferred this appeal. ( 9 ) MR. G. N. Desai the learned Public Prosecutor appearing for the State submits that inspite of cogent reliable and unimpeachable evidence on record establishing the guilt of the accused the learned Judge has erred in recording a finding of acquittal. ( 10 ) ON the other hand Mr. M. R. Barot the learned advocate appearing for the accused submits that there is no scope for interference with the order of acquittal passed by the learned Judge who had the advantage of marking the demeanour of witnesses and who after carefully assessing the material on record found it fit not to rely on the evidence of the prosecution witnesses. M. R. Barot the learned advocate appearing for the accused submits that there is no scope for interference with the order of acquittal passed by the learned Judge who had the advantage of marking the demeanour of witnesses and who after carefully assessing the material on record found it fit not to rely on the evidence of the prosecution witnesses. ( 11 ) WHILE considering the rival contentions the following well settled principles which would be applicable in cases of appeals against acquittal will have to be kept in the fore-front :- ( 12 ) ONLY if the court finds that the conclusions of the trial court are not based upon any evidence or they are such as no reasonable body of men properly instructed in law can reach on the evidence or they are so palpably wrong as to shock the sense of justice then this court will be justified in taking a contrary view by giving its own reasons in which case the unworthiness of the conclusions of the trial court having regard to all the relevant evidence or record will have to be demonstrated clearly (vide SATBIR SINGH AND ANOTHER ETC. V. STATE OF PUNJAB A. I. R. 1977 S. C. 1294 ). ( 13 ) AFTER Satbir Singhs case (supra) the Supreme court has consistently recognised the right of the appellate court to review the entire evidence and to come to its own conclusion bearing in mind the consideration mentioned by the Privy Council in Sheo Swarups case (A. I. R. 1934 P. C. 227 ). If two reasonable conclusions can be reached on the basis of the evidence on record the appellate court should not disturb the finding of the trial court and as the Supreme court has recently observed in the case of K. GOPAL REDDY V. STATE OF ANDHRA PRADESH A. I. R 1979 S. C. 387. "this of course is not a new principle. It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible one must necessarily concede the existence of a reasonable doubt. but fanciful and remote possibilities must be left out of account. It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible one must necessarily concede the existence of a reasonable doubt. but fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views the possible view in favour of the accused must be as nearly reasonably probable as that against him If the preponderance of probability is all one way a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is therefore essential that any vies of the evidence in favour of the accused must be reasonable even as any doubt the benefit of which an accused person may claim must be reasonable. "and as further observed by the Supreme Court :-"where the trial court allows itself to be beset with fanciful doubts rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible it is the obvious duty of the High court to interfere in the interest of justice lest the administration of justice be brought to ridicule. "we may at the outset mention that after going through the record through which we have been taken by the learned Advocates appearing for both the sides in the instant case we find that the lower court has crept into this error in allowing itself to be beset with fanciful doubts rejecting creditworthy evidence for slender reasons and has taken a view of the evidence which is in our opinion not even barely possible and this court is therefore in duty bound to interfere with the said order as observed by the Supreme Court. This will be manifest during the course of the judgment when we will refer to the material part of the evidence on record its assessment and the conclusions which can be drawn therefrom. This will be manifest during the course of the judgment when we will refer to the material part of the evidence on record its assessment and the conclusions which can be drawn therefrom. ( 14 ) AGAIN while dealing with circumstantial evidence the court has to bear in mind as to whether the circumstances on record are of a definite tendency unerringly pointing to the guilt of the accused and further whether the said circumstances taken cumulatively form a chain so complete that there is no escape from the conclusion that within ail human probability the crime was committed by the accused and none else meaning thereby that the circumstances are incapable of explanation on any reasonable hypothesis save that of the accuseds guilt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 15 ) THE prosecution has examined Deputy Secretary complainant Sutaria P. W. 4 Ex. 22 and five out of the six other officers in whose presence on the night of the 4th and early morning of the 5th of March 1974 the safe was opened by Parmar and moneys counted from the cash box and on tallying the same with the closing balance in the cash book it was found that there was a deficit of an amount of Rs. 40 825 paise. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 16 ) OVER and above these witnesses the prosecution also examined secretary D. G. Desai P. W. 1 Ex. 12. He has referred to the circumstances under which he passed the said order at Ex. 12 and his being later informed that shortage was found on the safe being opened and cash being counted in the early morning of 5-3-1974. unmet ( 17 ) THE prosecution has also examined P. W. 16 Ex. 12. He has referred to the circumstances under which he passed the said order at Ex. 12 and his being later informed that shortage was found on the safe being opened and cash being counted in the early morning of 5-3-1974. unmet ( 17 ) THE prosecution has also examined P. W. 16 Ex. 186 B. 15. Shah according to whose evidence though he was appointed as a cashier 17 in fact the accused was working as a cashier from 17 74 to 28-2-1974 and that it was the accused who had also written the cash book during this period. He admits that special pay as a cashier was granted to him but even after his appointment in January 1974 Parmar continued to work as a cashier and he had not handed over charge to him as a cashier and Parmar was also in charge of the Conference accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 18 ) THE prosecution has also examined steward Shukla Ex. 186 and peon Arjun Pandurang Ex. 29 inter alia to show that so far as the legislature secretariat building is concerned there is a main gate on the ground floor where S. R P. personnel is on duty. Then one has to go to the first floor on the first floor on the right hand side there is Secretarys room and on the left hand side chambers of the Deputy Secretary and Under Secretary and thereafter there is a main door after opening which one can enter the respective branches. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 19 ) THE prosecution has also examined as P. W. 8 R. V. Shah (Ex 41) who is also working in the establishment branch and he also supports the prosecution case with regard to one key of the safe and key of the cash box remaining with Parmar and Parmar opening the safe and the cash box by taking one key from Kathiria. ( 20 ) REFERENCE may also be made to the evidence of P. K. Patel P. W. 12 who is examined at Ex. 168. This witness was working at the relevant time in the cash section of the concerned branch for a period of four months during which period the accused was the cashier and as he says the accused worked as a cashier upto 28-2-1974. He also supports the other witneses with regard to the keys of the safe and the cash box remaining with the accused and the accused opening the same and being in charge of the same with one key of the safe remaining with Kathiria. This witness was operating from a place at a distance of about a foot and a half or two feet from the safe and it is his say that if anybody opens the safe it would not miss his attention and he saw only Parmar opening the same. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 21 ) WE may lastly also have a look at the evidence of the two investigating officers viz. P. I. Shukla P. W. 20 Ex. 225 and P. I. Patil P. W. 21 Ex. 229. . . . . . . . . . . . . . . . . . . . . . . . . . . . P. I. Shukla P. W. 20 Ex. 225 and P. I. Patil P. W. 21 Ex. 229. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 22 ) APART from the said oral evidence relied upon by the prosecution documentary evidence on which reliance has been placed by the prosecution consists of the complaint Ex. 227 which was recorded by P. I. Shukla on the morning of 5-3-1974; proceedings Ex. 19 inter alia containing a writing from the accused to the effect that he had read the contents thereof and that the statement with regard to deficit of cash was correct; Exs. 24 25 and 26 which are documents on which Parmar had signed as a cashier at the relevant time; Ex. 27 which is Parmars application for leave dated 4-3-1974 for the period from 1-3-1974 to 7-3-1974; Ex. 93 cash book which is exclusively in the handwriting of Parmar written upto 27 Ex. 95 conference account book which is in the handwriting of the accused containing entries from 12-11-1973 to 27-2-1974 which shows the closing balance at Rs. 41 547 paise and Ex. 16 which is a circular dated 15-2-1974 issued by Parmar giving intimation to the various committees appointed for the conference work to send all particulars with regard to unpaid bills immediately and to get such bills and send them to the concerned branch in which the accused was working for payment immediately. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 23 ) BEFORE considering as to whether this evidence on record is cogent reliable and unimpeachable evidence establishing the prosecution case that Parmar in his capacity as a person dealing with cash that is as a cashier was entrusted with or was having dominion over the funds belonging to the Assembly Secretariat that is the Government funds and whether he dishonestly misappropriated or converted to his own use the said funds and thereby committed criminal breach of trust in respect of the said funds in his capacity as a public servant punishable under sec. 409 of the Indian Penal Code the first question that will have to be decided will be whether the complaint Ex. 227 can be properly admitted as an F. I. R. in view of the fact that prior to the recording of the said Report there was telephonic conversation between complainant Sutaria and investigating officer P. I. Shukla with regard to cash deficit and misappropriation of Secretariat funds. ( 24 ) MR. Barot the learned Advocate appearing for defence in this connection points out that complainant Sutaria in terms admits in crossexamination that he informed the police on telephone to come because there was cash deficit and that he had also informed that there was a case of misappropriation and in view of the fact that P. I. Shukla visited the Secretariat in response to this telephonic conversation the said telephonic message from Sutaria to Shukla should be considered as F. I. R. since it contained information relating to the commission of a cognizable offence to an officer in charge of a police station. ( 25 ) MR. G. N. Desai the learned Public Prosecutor for the State on the other hand contends that the information conveyed on telephone by Sutaria to Shukla was in the first instance with regard to only misappropriationpunishable under sec. 403 of the Indian Penal Code and not criminal breach of trust committed by a public servant being in any manner entrusted with or having dominion over Government funds punishable under sec. 403 of the Indian Penal Code and not criminal breach of trust committed by a public servant being in any manner entrusted with or having dominion over Government funds punishable under sec. 409 of the Indian Penal Code. Again submits Mr. Desai the cryptic message conveyed on telephone was too vague and did not contain the necessary facts and it therefore does not amount to information with regard to a cognizable offence. Mr. Desai in this connection strongly relies on TAPINDER SINGH V. STATE OF PUNJAB AND ANOTHER A. I. R. 1970 S. C. 1566. Here also before lodging of a regular F. I. R. a telephonic message had been sent to the police conveying information in regard to an offence and the police had actually started investigation on the basis of that information. The person conveying the information did not disclose his identity nor any particulars and all that was conveyed was that firing had taken place at the taxi-stand Ludhiana; and the Supreme Court observed as follows in this connection:-"but prima facie this cryptic and anonymous oral message which did not in terms clearly specify a cognizable offence cannot be treated as first information report. " ( 26 ) MR. Desai also relied on a later decision of the Supreme Court in SOMABHAI V. STATE OF GUJARAT A. I. R. 1975. S. C. 1453. In this case in point of fact a telephonic call was booked by P. S. I. Patel to Surat by which he conveyed the information that the appellant in that case had killed two persons by firing at them and this High Court had held that this constituted first information report within the meaning of sec. 154 of the Code and the statement therefore made by the complainant before the police would be hit by sec. 162 of the Code. The Supreme Court disagreed with this view and observed as follows :-"it is true that under sec. 159 of the Code the first information is the earliest report made to the police officer with a view to his taking action in the matter. 162 of the Code. The Supreme Court disagreed with this view and observed as follows :-"it is true that under sec. 159 of the Code the first information is the earliest report made to the police officer with a view to his taking action in the matter. In the instant case the complainant had made the report regarding the occurrence having taken place to the P. S. I. Patel who however before reducing it into writing by way of abundant caution tried to seek further instructions from the main Police station at Surat and that is why he had booked a call to Surat. The message given to the Surat Police Station was too cryptic to constitute a first information report within the meaning of sec. 154 of the Code and was meant to be only for the purpose of getting further instructions Further more the facts narrated to the P. S. I. Patel which were reduced into writing a few minutes later undoubtedly constituted the first information report in point of time made to the police in which necessary facts were given. In these Circumstance therefore we are clearly of the opinion that the telephonic message to the Police station at Surat cannot constitute the F. I. R. and the High court was in error in treating the F. I. R. lodged in the present case as inadmissible in evidence. " ( 27 ) APPLYING this ratio it would be seen that in the instant case also the message which was sent on telephone to the effect that there was deficit of cash in the Assembly Secretariat that there was misappropriation of funds and that P. I. Shukla should come to the Secretariat was too cryptic a message to amount to information with regard to a congizable offence. The necessary facts constituting a cognizable offence were not related to the police on phone. Again as P. I. Shukla himself stated as full facts were not available he had gone to make inquiry though he admitted that the complainant had informed him that there was a case of misappropriation in the Secretariat. In answer to a specific question he stated that he did not feel by this telephonic conversation that any offence had been committed and he had gone there to find out as to why there was deficit. In answer to a specific question he stated that he did not feel by this telephonic conversation that any offence had been committed and he had gone there to find out as to why there was deficit. In the background of these facts on record the telephonic message conveyed by Sutaria to P. I. Shukla cannot be regarded as first information report particularly when P. I. Shukla himself did not take it as information with regard to a cognizable offence and particularly when on his arrival a complaint containing all necessary facts with regard to a cognizable offence was given to him which would constitute the first information report. ( 28 ) MOREOVER it would be significant to note that mere misappropriation unless it is done by a public servant entrusted with or having dominion over the property would not constitute an offence punishable under sec. 409 of the Indian Penal Code which is a cognizable offence. ( 29 ) IT has submitted by Mr. Barot that when misappropriation is with regard to funds of the legislature Secretariat an infererence would be that an employee in the Secretariat had misappropriated them. Such cannot be the only inference. It may be that somebody not attached to the Secretariat and not in the employment of the Secretariat may also misappropriate such funds in which case the offence constituted would be one of misappropriation simpliciter punishable under sec. 403 of the Indian Penal Code which offence would not be cognizable. Thus in any view of the matter a conclusion is inescapable that Ex. 227 should be treated as the first information report and not the telephonic message received by P. I. Shukla prior to the recording of the said first information report. We may however add here that even if Ex. 227 is not treated as an F. I. R. thus depriving the prosecution of a corroborative piece of documentary evidence of some Importance yet there is other ample evidence on record proving the prosecution case beyond reasonable doubt. ( 30 ) THE next controversial issue concerns Ex. 19. It has to be decided as to whether it is properly admitted on record and can be relied upon by the prosecution particularly that part of Ex. ( 30 ) THE next controversial issue concerns Ex. 19. It has to be decided as to whether it is properly admitted on record and can be relied upon by the prosecution particularly that part of Ex. 19 which is marked A/5 and which is alleged to have been written by the accused in his own hand writing and signed by him at the very time on the morning of 5-3-1974 when the said report was written by Sutaria and signed by the seven officers. Of course there is no dispute that Ex. 19 except the portion written by the accused that is A/5 came into existence on the early morning of 5-3-1974 before the police were called by Sutaria. There is also no dispute that the portion marked A/5 on Ex. 19 is in the handwriting of the accused and is signed and dated by him. The controversy is with regard to the aspect as to whether the same was written by the accused at the very time and place when the rest of Ex. 19 was written as is the case of the prosecution or was it obtained later from the accused after the complaint was filed and investigation started. There are a few peculiar features with regard to this document which require to be considered and on which Mr. Barot strenuously relies in support of his case that A/5 cam into existence not at the same time when rest of Ex. 19 was written but later. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 31 ) THE defence first of all in cross-examination of P. W. 2 Barot put to the witness that in Ex. 19 at no time the accused had placed time to which the witness replied that mostly the witness and other officers as also the accused had not noted the time. Then in cross-examination of the complainant it was put to him that the writing of the accused meaning thereby A/5 on Ex. 19 was obtained after the police came. 19 at no time the accused had placed time to which the witness replied that mostly the witness and other officers as also the accused had not noted the time. Then in cross-examination of the complainant it was put to him that the writing of the accused meaning thereby A/5 on Ex. 19 was obtained after the police came. In further crossexamination it was put to the complainant that after filing the complaint apprehending that the prosecution was not likely to succeed in their case against the accused and in order to save Joshi the complainant and other officers later thought about such extra judicial confession having been made by the accused before the officers to which also the witness emphatically replied in the negative. To the investigating officer Patil yet another case was put by the defence viz. While the accused was in police custody the investigation officer using coercion as a police officer on the accused obtained the said writing A/5 on Ex. 19 to which the witness replied in the negative and when this circumstance about Ex. 19 was pointed out to the accused in his examination under sec. 313 of the Code he gave the following explanation:-"such writing was not shown to me on that day i. e. on 4-3-1974 but when I was in police custody and when the investigation was entrusted to P. S. I. Patil I heard other police officers saying as to what investigation these people were doing in which there was not even one piece of evidence assisting proving of the prosecution case and thereafter Patil told me that my remaining period will be over within 2-3 days and I would be taken on remand thereafter and would not be released and he also gave a threat of heating if I did not pass a writing as stated by him and under such illegal coercion Patil get the said writing written signed and dated by me as per his say. "it is obvious that this explanation given by the accused during the examination under sec. 313 of the Code is a false one. As stated earlier there is intrinsic evidence in the writing itself showing that it was written by the accused at the time when the rest of Ex. "it is obvious that this explanation given by the accused during the examination under sec. 313 of the Code is a false one. As stated earlier there is intrinsic evidence in the writing itself showing that it was written by the accused at the time when the rest of Ex. 19 was written and if the police obtained it under coercion while the accused was under police custody and under remand the police would not be satisfied with such an apparently innocuous writing as the accused passed as per A/5. This circumstance viz. the falsity of the plea put forward in defence of the accused would be one among the circumstances which would go against the accuseds innocence as observed by the Supreme Court in MOHANLAL PANGASA V. THE STATE OF U. P. A. I. R. 1974 S. C. 1144 and such false explanation would then be an additional link which completes the chain of circumstantial evidence against the accused (vide DEONANDAN MISHRA V. THE STATE OF BIHAR A. I. R. 1955 S. C. 801 ). ( 32 ) BUT it was then contended by Mr. Barot that in view of the fact that no copy of this document viz. Ex. 19 including the writing passed by the accused thereon marked A/5 had been supplied to the accused at the time when the report under sec. 173 of the Code was submitted to the court or even when the trial started the prosecution cannot place reliance on this document. The test in such cases would be as to whether any prejudice in fact is caused to the accused by non-supply of the copy of a document before commencement of the trial. As observed by the Supreme court in NARAYAN RAO V. STATE OF ANDHRA PRADESH A. I. R. 1957 S. C. 737-"noncompliance with these provisions has not the result of vitiating those proceedings and subsequent trial. The word shall occurring both in sub-sec. (4) of sec. 173 and sub-sec. (3) of sec. 207a is not mandatory but only directory because an omission by a police officer to fully comply with the provisions of sec. 173 should not be allowed to have such a far reaching effect as to render the proceedings including the trial before the court of Sessions wholly ineffective. (4) of sec. 173 and sub-sec. (3) of sec. 207a is not mandatory but only directory because an omission by a police officer to fully comply with the provisions of sec. 173 should not be allowed to have such a far reaching effect as to render the proceedings including the trial before the court of Sessions wholly ineffective. However if it is shown in a particular case on behalf of the accused persons that the omission on the part of police officers concerned or of the Magistrate before whom the committal proceedings had pended has caused prejudice to the accused in the interest of justice the court may reopen the proceedings by insisting upon full compliance with the provisions of the Code. "in our opinion non-supply of copy of Ex. 19 including the portion marked A/5 has not resulted in any prejudice being caused to the accused for the following reasons :-THE accused himself wrote the specimen of A/5 before the panchas much before he was charge sheeted and that was on 17-4-1974 as would be evident from the panchnama Ex. 70. The accused therefore did come across the entire writing of Ex. 19 on that day and he could have applied for a copy if he so wanted. ( 33 ) ON the very first day of the commencement of the trial which commenced on 9-9-1975 this document Ex. 19 containing the portion marked A/5 as also the endorsement seen at 11. a. m. by Secretary Desai was produced by prosecution witness No. 2 Barot and an objection was raised by the defence to the production on the ground that no copy was given. A copy was immediately supplied on the very day to the defence. The matter was adjourned to 10-9-75 when also this witness was not cross-examined but a new witness viz. P. W. 3 was examined and crossexamined. P. W. No. 4 that is the complainant was also examined on 10 when also Ex. 19 was shown to him and the cross-examination was postponed to 11-9-75 of the witness. It was only on 18-9-75 that crossexamination of the first witness who had produced Ex. 19 viz. P. W. 3 was examined and crossexamined. P. W. No. 4 that is the complainant was also examined on 10 when also Ex. 19 was shown to him and the cross-examination was postponed to 11-9-75 of the witness. It was only on 18-9-75 that crossexamination of the first witness who had produced Ex. 19 viz. P. W. 2 Barot was taken up and finished hand the defence put all possible questions in cross-examination to shake the testimony of this witness with regard to the circumstances under which the writing marked A/5 had been taken on Ex. 19. In the meanwhile P. W. 4 also had been cross-examined at length on Ex. 19. The defence thus had ample opportunity to meet the prosecution case with regard to the circumstances under which Ex. 19 including the portion marked A/5 containing the writing passed by the accused came into existence. Many other witnesses were examined thereafter who referred to Ex. 19 and they were cross-examined with regard to the same. Thus a protracted trial between examination of the first witness who introduced Ex. 19. viz. P. W. Barot and the last witness who was also thoroughly cross-examined with regard to Ex. 19 viz. the investigating officer Patil took place and the defence had sufficient opportunity and in fact it availed of the said opportunity to cross-examine the witnesses on this document. There is therefore no foundation for any submission that prejudice in fact has been caused by non-supply of the copy of Ex. 19 to the accused as provided in the Code. It would be significant to note at this stage that evidence of P. W. 2 Barot who categorically referred to Ex. 19 including A/5 was not challenged by referring to or bringing on record any omission from his police statement in this respect and so also the evidence of Joshi whose statement was recorded at the earliest possible opportunity viz. on 5-3-1974 itself. The defence is inconsistent with regard to Ex. 19 and as earlier observed the statement of the accused made in his examination under sec. 313 of the Code contains a false explanation which itself lends support to the prosecution case and supplies the missing links if any in the prosecution case. Ex. 19. therefore is a corroborative piece of evidence which supports the prosecution witnesses with regard to the following matters viz. 313 of the Code contains a false explanation which itself lends support to the prosecution case and supplies the missing links if any in the prosecution case. Ex. 19. therefore is a corroborative piece of evidence which supports the prosecution witnesses with regard to the following matters viz. that the accused was the cashier at the relevant time that it was the accused who was called to the office of the Secretariat on the night of 4-3-1974 that one key of the safe used to remain with the accused that the accused opened the safe in the presence of 7 officers on the night of 4-3-1974 and on the morning of 5-3-1974 and counted the cash and that the said cash when it was tallied with the cash shown in the cash book written by the accused showed a deficit of Rs. 40 825 paise; that cashier Parmar was absent from 1-3-1974 to 4 that there was some other amount of cash with which the accused was not concerned and that these acts of checking the cash etc. were done in the presence of 7 officers and the accused and the said 7 officers signed the said proceedings at Ex. 19 after which the accused read the said report or proceedings and stated that the shortage found was correct. It is true this writing by the accused by itself does not amount to a confession of guilt by the accused as Such and that way it is not an extra judicial confession of the accused. But it is a piece of documentary evidence which considerably supports the prosecution case and it also contains an admission of the accused with regard to several matters on which there was a controversy between the parties such as whether the accused was a cashier whether the accused had one of the keys of the safe and whether the accused opened the safe and counted cash in the presence of 7 officers on that day. We may however make it clear that even leaving aside Ex. 19 i. e. A/5 there is sufficient cogent and reliable evidence on record proving the prosecution case as will be presently seen. We may however make it clear that even leaving aside Ex. 19 i. e. A/5 there is sufficient cogent and reliable evidence on record proving the prosecution case as will be presently seen. ( 34 ) NOW these facts established if taken along with the circumstances which are on record and to which we will presently refer clearly shot that the prosecution has discharged the burden of bringing home the guilt of the accused so far as criminal breach of trust in respect of the said amount of Rs. 40 825 paise is concerned. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 35 ) WE will now take up some of the important circumstances in the case to test the probability of the prosecution story. First of all we will start with a query in the following form:- Is there any one else save and except the accused in the Secretariat department who had the opportunity and the means and facilities to deal or tamper with the cash at the relevant time ? The first person on whom the attention in this behalf will be focussed naturally would be witness B. D. Shah who was appointed as a cashier from 17-1-1974. But in the light of the mass of material which is on record showing that the accused was exclusively dealing with the cash and cashiers work even after 17-1-1974 B. D. Shah would be ruled out. Parmar had been signing as a cashier Parmar was exclusively writing the cash book Ex. 93 Parmar was exclusively writing the conference accounts Ex. 95 with Shah at times merely assisting him. Simply because Shah gets a special pay it does not mean that in fact he was acting as a cashier. As a matter of fact there is no regular post of a cashier in the concerned branch but for a number of years the Assistant in the branch used to work as a cashier and Parmar was thus working when B. D. Shah was appointed. As a matter of fact there is no regular post of a cashier in the concerned branch but for a number of years the Assistant in the branch used to work as a cashier and Parmar was thus working when B. D. Shah was appointed. As per the requirements of the rules a clerk must be assigned this job and therefore it was impressed that a clerk should be appointed to do the work of a cashier and hence B. D. Shah who was a clerk was appointed to work as a cashier. But in fact because of the difficulty of completing the conference accounts Parmar continued to act as a cashier and though Shah demanded the charge from him Parmar said that he would hand over the same after completing the conference accounts and Shah was expecting latest by 28-2-1974 or in any event by 5 to have the charge from Parmar. ( 36 ) BESIDES if Shah was the person acting as a cashier and in charge of the keys of the safe and cash box then there is no reason why at the dead of night when the cash was to be checked Parmar should be called. There is also no reason why Joshi should refer to Parmar as a cashier and express his apprehension that as a large cash was in the safe and Parmar was not attending the office he was suspecting him and why Secretary Desai should also in his order describe Parmar as the cashier and ask the officers to check the cash in the presence of Parmar if B. D. Shah was the cashier. ( 37 ) WAS Joshi who was the Under Secretary and also the Drawing and Disbursing Officer a person who had the opportunity to open the safe take out cash box open cash box and misappropriate the amount during the period from 1-3-1974 to 4-3-1974 as alleged by the defence ? It is -true Joshi had a duplicate set of keys of the safe. Let us now see if there is any reasonable possibility of Joshi having tampered with the cash during the period between 1-3-1974 and 4-3-1974 when Parmar was absent. Joshi had we will assume it for the sake of argument both the keys of the safe. It is -true Joshi had a duplicate set of keys of the safe. Let us now see if there is any reasonable possibility of Joshi having tampered with the cash during the period between 1-3-1974 and 4-3-1974 when Parmar was absent. Joshi had we will assume it for the sake of argument both the keys of the safe. But during office hours if he goes into the cash section from; his chamber he would be attracting the attention of all the members of the Staff including P. K. Patel who was operating from his table at a distance of 1 1\2 to 2 from the safe and as Patel stated if anybody operated the safe it would not miss his attention. It was not put to Patel or anybody else in the office who was examined as a witness that during this period; between 1-3-1974 and 4-3-1974 Joshi came to the cashsection went into the room where the safe is kept and opened the safe. No such suggestion was even made to Joshi. The only suggestion which was made to Joshi in cross-examination for the first time after several witnesses had been examined on the topic was to the effect that keys of the cash box did not remain at the house of the accused and a suggestion was also made for the first time thereafter to B. D. Shah in cross-examination that the keys remained in the safe. Now this suggestion has to be dismissed as absurd because that was not even the case of the accused when his statement was recordedunder sec. 313 of the Code. In any event if Joshi went to tie office during office hours he would attract attention It would be risky and no sane person tak-ing into consideration normal human conduct would enter on such a hazardous course of entering the office and opening the safe in the absence of Parmar. Strangely enough there is no suggestion that Joshi had the keys of the cash box. His being able to open the safe would not enable him to take out any moneys from the cash box lying therein unless he had the key of the cash box. It was never put to Joshi that he had the keys of the cash box Thus there is no reasonable possibility of Joshi tampering with the cash during officehours. His being able to open the safe would not enable him to take out any moneys from the cash box lying therein unless he had the key of the cash box. It was never put to Joshi that he had the keys of the cash box Thus there is no reasonable possibility of Joshi tampering with the cash during officehours. Now outside office hours it would be still more difficult and more risky for Joshi to perform the feat. As the evidence shows there are armed guards at the Assembly premises. One who has to enter the cash section will have to first pass these guards. He will then have to go to the main door. The main door which will be closed after office hours has got to be opened by getting keys from the person in charge and after opening the main door one has to go to the concerned branch the keys whereof in the instant case used to remain with peon Arjun Pandurang. Arjun Pandurang will have therefore to be called and he will have to be asked to open the branch and it would be thereafter that one would be able to have an access to the safe. It was never put to Arjun that Joshi came after office hours and he opened the door for Joshi. There is therefore no reasonable possibility of Joshi tampering with the safe out. side office hours also. No such suggestion was put to Joshi also. ( 38 ) THE most important circumstance which supplies are integral link in the chain of circumstances establishing the prosecution case as earlier observed is that at the dead of night only Parmar was called and none else to go to the concerned branch to open the safe for counting cash. It is difficult to understand why all the 7 officers without any exception as also a person of the status of a Secretary should involve an innocent man leaving the guilty one. ( 39 ) IF we judge the conduct of the accused in the context of the events that have happened the same speaks volumes and is consistent with his guilt and inconsistent with his innocence. He is in exclusive charge of the safe case box and the accounts including Conference account. He has been asked specifically to complete the accounts by 28-2-1974. He is in exclusive charge of the safe case box and the accounts including Conference account. He has been asked specifically to complete the accounts by 28-2-1974. He has to hand over the charge as a cashier to B. D. Shah as early as possible. He has to get cash verified on the last day of the month. Now let us look to his conduct on 28-2-1974. He does not complete the accounts so that charge can be handed over to B. D. Shah. He leaves earlier complaining that he was not feeling well without getting the cash physically verified promising that he would come the next day. Cash remains unverified cash book shows a large amount of cash in the safe. Bills are pending and payments have to be made as early as possible and accounts are to be finalized. This would therefore naturally cause worry to Joshi. Next day is the first day of the month which is an important day in the sense salaries have to be paid to the employees. The safe could not be operated because the cashier does not attend on that day nor does he put any leave note. Temporary arrangements are therefore made by getting the amount from the bank and employees are thus paid their salaries. The accused does not come on 2nd March 1974 3 March 1974 is a Sunday. On the 4th also he does not turn up but sends a note of leave to the ground that his father-in-law is seriously sick and he is removed to the T. B. Hospital at Naroda. Naturally Joshi would be suspicious about this conduct of the accused which causes lot of disruption not only in the ordinary routine of the cash section but in completing the Conference accounts by the deadline which has already been crossed. Joshi therefore in the evening after office hours personally goes to the house of Parmar and as his evidence shows he finds the father-in-law of Parmar hale and hearty and Parmar not in his house. He therefore suspects and apprehends that there is something wrong with the cash. ( 40 ) IT is in these circumstances that he contacts the Secretary and obtains the order (Ex. 12) and then he and others in pursuance of the said order go to Parmar. Parmar accompanies them with the keys to the Secretariat. He therefore suspects and apprehends that there is something wrong with the cash. ( 40 ) IT is in these circumstances that he contacts the Secretary and obtains the order (Ex. 12) and then he and others in pursuance of the said order go to Parmar. Parmar accompanies them with the keys to the Secretariat. If Parmar was not the cashier or had nothing to do with the moneys lying in the safe and the cash box the first reaction on his part would be to inquire as to why at such an unearthly hour he was called and not B. D. Shah who was the cashier. But nothing of the sort happens and he comes without any such protest. If we look at his statement recorded under sec. 313 of the Code in this connection he says that Joshi never came to his place to call him nor had he the keys of the safe but a message was sent to him that there was some urgent work in the office and he should therefore attend. Accordingly he went to the office. where he found many employees present and the safe was open. Now this explanation of his is also apparently false in view of the preponderance of evidence on record showing that the accused went along with Joshi and others being called to the secretariat and after taking the key from Kathiria he opened the safe by means of two Keys taking out the other from him and then opened the cash box and counted cash. Again even if Joshi had not gone and a message was sent yet his natural reaction would be to ask the messenger as to why he was troubled when he had nothing to do with cash of the safe and the person concerned was either B. D. Shah or Joshi and why he was disturbed at night. This conduct therefore of the accused as observed earlier is more consistent with his guilt rather than his innocence. If in juxta position is placed the conduct of Joshi It is natural and consistent with his innocence so far as tampering with the cash is concerned. . ( 41 ) WITH regard to the main questions which arise viz. This conduct therefore of the accused as observed earlier is more consistent with his guilt rather than his innocence. If in juxta position is placed the conduct of Joshi It is natural and consistent with his innocence so far as tampering with the cash is concerned. . ( 41 ) WITH regard to the main questions which arise viz. (1) whether there was cash box in the safe in the cash section of the concerned branch; (2) whether the accused was working as a cashier at the relevant time and (3) whether the accused had one key of the safe and two keys of the cash box there is ample evidence on record establishing these facts. ( 42 ) WE will now take up the various submissions which Mr. Barot made in support of his contention that no case for interference with the order of acquittal is made out by the prosecution. ( 43 ) MR. Barots first submission is that in the instant case certain documents have been brought on record through the witnesses for the first time without there being any investigation in respect of these documents and any copies of these documents having been supplied to the accused at the time of the report under sec. 173 of the Code or even at the time of commencement of the trial. In Mr. Barots submission this amounts to collection of evidence not by the investigating agency but by the witnesses themselves. No collection of new evidence is permitted once the trial commences. If the prosecution wants to bring any additional evidence on record it can do so by making an application and getting courts permission but that too would be restricted to that evidence which has already been collected by the investigating agency before commencement of the trial. Mr. Barot in this connection particularly refers to the following documents which have been brought on record through witnesses:-EX. 12 which is the order passed by P. W. 1 Secretary Desai on 4 at 11-30 p. m. Ex. 13 14 15 and 16 which are notes or orders of the various officers of the Legislature Secretariat in connection with the Conference account. THESE documents were brought on record through witness Desai. The investigating officer had not taken charge of these documents nor copies of these documents had been supplied to the accused before the commencement of the trial. 13 14 15 and 16 which are notes or orders of the various officers of the Legislature Secretariat in connection with the Conference account. THESE documents were brought on record through witness Desai. The investigating officer had not taken charge of these documents nor copies of these documents had been supplied to the accused before the commencement of the trial. He also refers to documents Exs. 214 and 215 which were brought on record in pursuance of the order passed below Ex. 205 application for production of additional documents by the prosecution. ( 44 ) IT is true that the prosecution is bound to supply copies of documents on which it relies to the accused and a document for the first time through a witness without any prior notice to the accused should not be brought on record as has been done in the instant case. With regard to Exs. 12 13 14 15 and 16 though this is an irregularity unless it is shown that any prejudice is caused to the accused these documents cannot be ruled out of consideration. ( 45 ) SO far as Exs. 12 13 14 15 and 16 are concerned late production in our opinion does not cause any prejudice to the accused. In any event even if these documents are not taken into consideration there is sufficient oral and documentary evidence on record justifying the conclusion with regard to the guilt of the accused. It would be significant to note that the documents at Exs. 12 to 16 were admitted on record without any objection from the side of the defence nor was their genuineness seriously challenged and the submissions now made in this behalf by Mr. Barot are misconceived. ( 46 ) WITH regard to Exs. 214 and 215 though an application for production of these documents was made by Ex. 205 and the defence had raised objection at Ex. 212 the learned Judge passed an order below Ex. 205 permitting production of these documents; but their proof is not dispensed with and it was therefore improper to take these documents on record on their production along with list Ex. 203 which was annexed to application Ex. 205. These two documents therefore are wrongly admitted on record because no witness has proved the same and we shall not therefore consider the same. ( 47 ) MR. 203 which was annexed to application Ex. 205. These two documents therefore are wrongly admitted on record because no witness has proved the same and we shall not therefore consider the same. ( 47 ) MR. Barots next submission was that in the instant case the investigation has been carried on in such a manner that it has caused lot of prejudice to the accused and he is deprived of an opportunity to properly defend himself. The investigating officer when he received complaint Ex. 227 did not attach the safe or cash box or any keys of the safe or cash box nor did he make any panchnama with regard to the safe cash box and the keys as also the cash which was found in the cash box. A panchnama which was made was one made at 5-30 p. m. that is12 hours after the incident on 5-3-1974 and that is at Ex. 37 and that is with regard to the room where the safe was kept as also the safe and the cash box. As the panchnama mentions the safe and the cash box which were closed had to be opened by keys supplied by the complainant and thereafter moneys were counted. This panchnama after 12 hours had no meaning and one does not know what happened during the intervening period. Again as submitted by Mr. Barot Ex. 19 which is an important proceeding and which bears a writing and signature of the accused though shown so the investigating officer was also not attached nor signed nor initialled nor any panchnama made in this behalf. ( 48 ) IT is true the investigation in this case has not been upto the mark the investigating officer has not been vigilant there are irregularities in the investigation and the action of the investigating office in not attaching the cash box and the keys and in not making a panchnama immediately on receiving the complaint is indefensible and the learned Public Prosecutor fairly concedes this. Police did not even direct investigation with regard to the duplicate set of keys. All this is very annoying But it cannot be said that the investigation is dishonest or by these lapses prejudice has been caused to the accused hampering his defence and resulting in injustice to him. Police did not even direct investigation with regard to the duplicate set of keys. All this is very annoying But it cannot be said that the investigation is dishonest or by these lapses prejudice has been caused to the accused hampering his defence and resulting in injustice to him. As observed earlier in this case there is ample cogent reliable and unimpeachable evidence showing that the accused was the cashier that he was in charge of the safe and the cash box that he had exclusive access to the safe and the cash box that he was in charge of the conference funds and he used to write accounts exclusively of the conference expenses as also Secretariat funds and that he was the only person who had an opportunity to misappropriate the amount which was found short when the safe and the cash box were opened in the presence of 7 officers by the accused himself. The infirmities pointed out by Mr. Barot at the most may cause a few dents in the structure built by the prosecution from the evidence on record but the structure otherwise remains intact and the solid foundation thereof is not undermined nor is the core of the prosecution case affected thereby. ( 49 ) MR. Barot further submits that in the instant case the trial was conducted in such an irregular and disorderly manner and improvements in the prosecution case were made from time to time in such a fashion that the accused was hampered in his defence and the trial which he faced was not a fair one. Mr. Barot referred to several aspects of the case and in particular to the meetings which the Secretary of the department used to have with the prosecution witnesses the presence of the Secretary all throughout the trial in court room and the prosecutor being practically swept of his feet and led in the conduct of the trial by the Secretary and other officers of the department. To illustrate the point which he was making Mr. Barot specifically referred to the evidence of P. W. 17-G. M Bhatt Ex. 191. This witness first of all in examination-in-chief stated that the keys of the safe used to remain with the Under Secretary Desai. To illustrate the point which he was making Mr. Barot specifically referred to the evidence of P. W. 17-G. M Bhatt Ex. 191. This witness first of all in examination-in-chief stated that the keys of the safe used to remain with the Under Secretary Desai. He was referring to the practice before Joshi took over and it was in connection with the period from 1968 to 1971 when the witness was attached to this branch. In answer to a further question in examination-in-chief he stated that the safe had two keys and that Parmar was the cashier and that he used to take keys from the officer on the opening of the office in the morning and used to hand over the same at the close of the day. In cross-examination he changed and stated that during that period one key used to remain with Under Secretary Desai and the other key used to remain with Parmar and for certain period when Joshi was the Under Secretary one key used to remain with the witness who was a Section Officer and one key with the cashier because Joshi as drawing and disbursing officer had given the key to the witness and this was the position for 2-3 months when Joshi was in charge. Thereafter when Desai took over as Under Secretary and drawing and disbursing officer one key used to be kept with Desai. He was then asked the reason why he had changed the story to which he stated that that was because by slip he used the word keys instead of key. He was then asked as to whether after the examination-in-chief and before he was cross-examined he was reprimanded by Desai the Secretary who was present in the court and whether therefore he was trying to correct himself on the ground of mistake of language by explaining that instead of word key he had used keys to which his reply was that if the head of the department expressing feeling told the true facts and advised that a witness should tell the true facts it would not be considered a reprimand nor a threat and that he was hot giving any evidence under threat but he was correcting the mistake of language. In further cross-examination he stated that when the Secretary told him that he should tell the truth he admitted before him that the mistake was because off his slip concerning the language. He had the said talk with the Secretary in the court compound after his examination-in-chief was over and when he was in between the court room and the office of the public prosecutor. This evidence is an indication that the witness changed the story after examination-in-chief but it does not mean that the public prosecutor was at fault for this. May be he had some discussion with the Secretary and it may also be that the Secretary was a bit overenthusiastic but it cannot be said that there is no fair trial or that the witnesses were tampered with or made to say as the Secretary wanted them to say or that they made statements with ulterior motive particularly when the Secretary had no opportunity to have his say in the matter. In this connection one should not miss sight of the fact that any head of a deptt. when he comes across a case of defalcation of such a large amount may get anxious disturbed and concerned and there is nothing improper in his taking more than routine or normal interest with regard to the checking of the cash balance putting the criminal law into motion against the suspect and supplying the necessaty information and help to the investigating agency and in seeing that the case goes to trial after thorough preparation and the trial is efficiently conducted; but he has to act with propriety and in his allotted field and he should not cross the line and try to usurp the function of the investigating officer or the public prosecutor. ( 50 ) IT is true a public prosecutor has to act in an independent manner and has to ably discharge the duties of the high office which he occupies and that in the instant case his performance is not upto the mark. ( 50 ) IT is true a public prosecutor has to act in an independent manner and has to ably discharge the duties of the high office which he occupies and that in the instant case his performance is not upto the mark. He has not taken care to see that the trial is conducted in an orderly manner that copies of all the documents on which the prosecution proposes to rely are handed over to the accused before the trial commences and to that extent the public prosecutor has failed to discharge his duties so as to inspire confidence of the defence and as the obligations of his office would demand from him. But it is far from saying that there has not been a fair trial and the defence of the accused has been hampered and that the accused has suffered prejudice on this count. ( 51 ) LET us now turn to the main reasons which weighed the learned Judge in recording an order of acquittal against the accused. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 52 ) IT is thus clearly demonstrated that the conclusions arrived at by the learned Judge are such as no reasonable body of men properly instructed in law can reach on the evidence and they are so palpably wrong as to shock the sense of justice. This is not a case in which two reasonably probable and evenly balanced views of the evidence are possible in which case one must necessarily concede the existence of a reasonable doubt the benefit whereof must go to the accused as a matter of course. But this is a case in which the preponderance of probability is all one way and there is no bare or remote possibility of another view in view of the mass of cogent reliable and unimpeachable evidence on record establishing the prosecution case. But this is a case in which the preponderance of probability is all one way and there is no bare or remote possibility of another view in view of the mass of cogent reliable and unimpeachable evidence on record establishing the prosecution case. We therefore hold that the learned Judge was patently in error in recording a finding of not guilty and in acquitting the accused for the offence for which he was charged in the instant case and the order of acquittal therefore will have to be set aside and substituted by an order convicting the accused for the offence under sec. 409 of the Indian Penal Code with which he was charged. ( 53 ) BEFORE considering the question of sentence we may observe that in the instant case we find that the learned Trial Judge made certain remarks which were neither relevant nor called for with regard to the prosecution in general and some prosecution witnesses in particular. It is true it is a principle of cardinal importance in the administration of justice that proper freedom and independence of Judges and Magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by anybody. But as observed by the Supreme Court in the STATE OF UTTAR PRADESH V. MOHAMMAD NAIM A. I. R. 1964 S. C. 703:-"at the same time it is equally necessary that in expressing their opinions Judges and Magistrates must be guided by considerations of justice fair play and restraint. IT is not infrequent that sweeping generalisation defeat the very purpose for which they are made. It has been judicially recognised that in the matter of making dispuraging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them it is relevant to consider (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case as an integral part thereof to animadvert on that conduct. "in our opinion none of the three requirements laid down by the Supreme Court are satisfied in the instant case and certain remar ks of the learned Judge to which we will presently refer were uncalled for and unjustified These remarks are the ones which hint at conspiracy amongst the prosecution witnesses against the accused; the observations imputing ulterior motive to some witnesses and the remarks that some witnesses were made to make a particular statement during the course of their examination in court. There was no basis nor occasion to make these remarks. They cannot be termed as sober or temperate and we therefore strongly disapprove the same. ( 54 ) IN parting we may observe that for bringing offenders to book and for dispensation of justice a rather sophisticated and complicated machinery is set up to ensure a free and fair trial and dispensation of justice according to law and it has four important limbs or parts which are; (1) the investigating agency that is the investigating officer and members of the police force ailing him:- (2) the prosecuting agency that is the public prosecutor (3) the defending agency that is the defence counsel and (4) the justice dispensation agency that is the presiding Judge. Every limb or part of this body-machinery has to function so as to faithfully perform the specific roles assigned to the said limb and though each has to operate within its alloted filed it has to so operate that the machinery as a whole operates with maximum precision and efficiency resulting in the conduct and completion of a fair just and impartial trial. If any one limb displays any lapse lethargy or lack of vigilance on its part that will be reflected on the other limbs as also on the machinery as a whole marring and impairing its working and performance which may ultimately result in failure of justice. ( 55 ) IN the result therefore we allow the appeal set aside the order of acquittal passed by the learned Assistant Sessions Judge and convict the accused for the offence under sec. 409 of the Indian Penal Code with which he was charged. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409 of the Indian Penal Code with which he was charged. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 56 ) APPEAL allowed. Order of acquittal passed by the learned Assistant Sessions Judge is set aside and the accused is convicted for the offence under sec. 409 of the Indian Penal Code and is sentenced to three years R. I. and to pay a fine of Rs. 41 0 in default further R. I. for one year. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Per Surti J. ( 57 ) I had the advantage of listening the judgment delivered by my learned brother and I must say that I am in entire agreement with the reasoning and the ultimate conclusion arrived at by my learned brother. ( 58 ) BEFORE we part with the case I may also add a few words about the investigation the conduct of the Public Prosecutor the concept of a fair trial and the right of the presiding Judge to criticise the witnesses who have given evidence before him. ( 59 ) IN the instant case we must frankly say that the investigation was not upto the mark and that fact was even conceded by the learned Public Prosecutor Shri G. N. Desai who argued the appeal before us with all fairness ability and thoroughness. We will be equally failing in our duty if we do not say that in the instant case the learned Public Prosecutor before the learned trial Judge had merely acted as a conduit pipe by conducting the trial in a manner as desired by the officers of the Assembly Secretariat. We will be equally failing in our duty if we do not say that in the instant case the learned Public Prosecutor before the learned trial Judge had merely acted as a conduit pipe by conducting the trial in a manner as desired by the officers of the Assembly Secretariat. It is high time that we must remind our State Public Prosecutors functioning in the State that they should never forget that they hold a statutory office and on them lies a heavy responsibility to see that a citizen in the dock even if an order of conviction is passed against him takes away an impression that he had a fair trial. This can be best achieved only if the Public Prosecutors who are at the helm of the trial conduct the trial with a certain standard of circumspection detachment dispassionate approach to the whole case irrespective of the heinous nature of the alleged crime and the aloofness from the prosecution witnesses however will placed they may be in life. ( 60 ) IN the instant case the said principle was flagrantly violated as can be seen from the record. Irregular investigation by the police close association of the prosecution witnesses with a public prosecutor even at the time of the very conduct of the trial in the court room non-supply of copies of documents relied upon by the prosecution to the defence in time and consistent and continuous objection of a prosecutor to the questions put by the defence (though all may not cause prejudice to the defence) may spoil the fair name of a fair trial which is an enviable and admirable legacy which we have inherited from the Rulers of the past. Thus a detached and dispassionate attitude on the part of the a public prosecutor holding such a high and responsible office is of utmost importance and we are sure that if Public Prosecutors maintain that spirit the same will add prestige and glory to the administration of justice in criminal matters in the State. Thus a detached and dispassionate attitude on the part of the a public prosecutor holding such a high and responsible office is of utmost importance and we are sure that if Public Prosecutors maintain that spirit the same will add prestige and glory to the administration of justice in criminal matters in the State. It should never be forgotten that a trial Judge a Public Prosecutor and a defence counsel have got to make an united effort to do justice and in that sacred pursuit all should act as anxious searchers of real truth from a mass of circumstantial and direct evidence sometimes tainted with falsehood but ultimately the onerous task of finding the real truth is in the hands of the learned trial Judge who is supposed to have been fairly assisted by a public prosecutor and a defence counsel. I need hardly ring a warning bell for the defence counsel also. He also owes a heavy responsibility while defending the liberty of a citizen inasmuch as he should not put any annoying and flimsy suggestions to the prosecution witnesses so as to ridicule the prosecution witnesses and play upon the gallary as in my view the same can hardly assist in achieving an admirable object of giving a fair trial either to a citizen or to a State and may stigmatise the sobriety serenity and seriousness of the same. In the instant case we must necessarily note the record made by the learned trial Judge and reproduce the same The learned trial Judge while recording evidence of prosecution witness G. B. Joshi Ex. 201 has noted as follows:-"each and every question is objected. (by the public prosecutor ). " . ( 61 ) WITH regard to the right of the presiding Judge to criticise any witness it is well settled by now that the very basis of judicial independence is the right of every Judge or Magistrate to fearlessly criticise a witness of course subject to judicial sobriety and temperate language. I need hardly say in utter pain that the present time have in reality made our subordinate judiciary crippled to some extent and the same should not be made further crippled by adversely affecting the right of a Judge or a Magistrate to fearlessly criticise any witness. however well placed he may be in life as that is the very basis of judicial independence. however well placed he may be in life as that is the very basis of judicial independence. With these observations I must say that on this point I am also in entire agreement with what my learned brother has said in the judgment. Appeal allowed: Acquittal set aside. .