JUDGMENT : N.K. Das, J. - The Appellant has been convicted u/s 5(1)(c) and 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and has been sentenced to undergo R.I. for two years and to pay a fine of Rs. 500/. in default to undergo R.I. for five months more on each count for temporary misappropriation of Rs. 1,71495 between 23-6-1971 and 20-11-1971 and obtained pecuniary advantage thereby. 2. The Appellant was the Revenue Officer at Rayagada and during the absence of the S.D.O., Rayagada on leave, he remained in charge of the S.D.O. from 25.5.1971 to 3.7.1971. On 10.6.1971 the appel1ant drew an advance of Rs. 1.714.95 for disbursement of the pay of the Sevaks of the Sevashram Schools. Due to absence of the Sevaks for summer vacation, the Appellant did not disburse the amount. He however returned the said amount to the Nazir P.W. 7 on 20-11-1971. The plea of the Appellant is that he was ill and therefore there was delay in returning the money. 3. The trial Court has held the Appellant guilty on the ground that he could have refunded the money on 3-7-1971 when the S.D.O. resumed his duties and the explanation given by the Appellant for the delay does not appear to be true. 4. The undisputed facts are that on 25-5-1971 the Appellant took over charge of the S.D.O. on 9.6.1971 P.W. 6 the B.D.O. of Kalyansinghpur Block came to Rayagada for taking the pay of the sevaks of the Sevashram Schools for the month of May, 1971; but the Appellant told him that he (Appellant) would disburse the same personally. From the evidence of P.W. 3. it appears that the Appellant had been to Koraput to attend D.D.C. meeting on 14th and 15th of June, 1971. From 13th June, 1971 the Jeep was utilised on some Minister's duty. It is further admitted that the Appellant fell ill from 16-6-1971 and could not attend the office till 13.7.1971 when he went on leave. It is also not disputed that by 11th of June the Sevashram Schools were closed on account of summer vacation and no Sevak was available. The Appellant has stated that he disbursed other amounts to the Gramrakshis on 11-6-1971. It is also not disputed that by 11th of June the Sevashram Schools were closed on account of summer vacation and no Sevak was available. The Appellant has stated that he disbursed other amounts to the Gramrakshis on 11-6-1971. It is also not disputed that on 23-6-1971 the Appellant fell 111 and could not move out and therefore directed a clerk of his office to disburse the amounts as directed by the Appellant. In fact, the Sevaks of the Block received their pay on 9-12-1971 after the Appellant refunded the amount. The Appellant's plea is that on 11-6-1971 he went to the Block for disbursement but he could not disburse the salary to the Sevaks of the Sevashrams on account of their absence for summer vacation, although he disbursed the salary of the Gramrakshis. On 12-6-1971 and 13-6-1971 he had to attend to duties in connection with Minister's visit and on 14-6-1971 and 15-6-1971 he had to attend the D.D.C. Meeting at Koraput. On 15-6-1971 he returned to Rayagada and thereafter he was bedridden and proceeded on leave. He was suspended on 7.10.1971. He states that he had no mala fide intention and when he returnee to Rayagada he refunded the amount. These facts have been admitted by the prosecution witnesses and the documents produced on behalf of the prosecution also support the aforesaid facts. 5. Sections 5(1)(c) and 5(1)(d) Corruption Act lays down. 5. Criminal misconduct. (1) A public servant is said to criminal misconduct (a)... (b) of the Prevention of commit the offence of (c) If he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or (d) If he by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; xx xx 6. In Basudeb Mohapatra v. State of Orissa 38 (1972) C.L.T. 232, this Court has held that in order to sustain the charge either u/s 5(1)(c) or u/s 5(1)(d), the criminal animus would be necessary and negligence to perform duty cast upon a public servant cannot be equated with existence of criminal animus. In Basudeb Mohapatra v. State of Orissa 38 (1972) C.L.T. 232, this Court has held that in order to sustain the charge either u/s 5(1)(c) or u/s 5(1)(d), the criminal animus would be necessary and negligence to perform duty cast upon a public servant cannot be equated with existence of criminal animus. In Banamali Naik v. State of Orissa 1972 C.L.R. 546, it has also been held that no rule of procedure or practice or particular order of any superior authority was produced to indicate that some purchases were to be done on or before a particular date, failing which the amount was to be refunded and under these circumstances, the money entrusted on a particular date and refunded several months thereafter cannot be attributed to dishonest intention of the accused beyond all reasonable doubts. The Supreme Court in Shri Rabindra Kumar Dey Vs. State of Orissa has held: Although the onus lies on the prosecution to prove the charge against the accused, yet where the entrusted 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 the falsity of the explanation given by the accused. Three cardinal principles of criminal jurisprudence are well settled, namely: (1) That the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defence version while proving its case; (2) that in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty; and (3) that the onus of the prosecution never shifts. It is true that u/s 105 of the Evidence Act the onus of proving exceptions mentioned in the Penal Code lies on the accused but this section does not at an indicate the nature and standard of proof require. The Evidence Act does not contemplate that the accused should prove his case with the same strictness and rigor as the prosecution is required to prove a criminal charge. The Evidence Act does not contemplate that the accused should prove his case with the same strictness and rigor as the prosecution is required to prove a criminal charge. In fact from the cardinal principles referred to above, it follows that it is sufficient if (he accused is able to prove his case by the standard of preponderance of probabilities as envisaged by Section 5 of the Evidence Act as a result of which he succeeds not because he proves his case to the built but because probability of the version given by him throws doubt on the prosecution case and, therefore, the prosecution cannot be said to have established the charge beyond reasonable doubt. Once the accused gives a reasonable and probable explanation it is for the prosecution to prove affirmatively that the explanation is false. In a criminal trial it is not at all obligatory on the accused to produce evidence is support of his defence and or 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. In these circumstances, the Court has to prove and consider the materials relied upon by the defence instead of raising an adverse inference against the accused for not producing evidence in support of his defence, because the prosecution cannot derive any strength or support from the weakness of the defence case. The prosecution has to stand on its own legs, and if it fails to prove its case beyond reasonable doubt, the entire edifies of the prosecution would crumble down. 7. Admittedly the amount was handed over to the Appellant on 10th June. He had been to the concerned Block on the next day. But the Seeks could not be available due to summer vacation and he had to return the money even though he disbursed the other amounts to the Gramarakhis. Thereafter he was busy in connection with duty in connection with visit of the minister and he had also to attend the D.D.C meeting he came back an 15th of June, 1971 to Rayagada from 16th June he fell ill till 13th of July when he went on leave. Thereafter he was suspended, and while he was under suspension he voluntarily came to Rayagada and refunded the money to the Nazir. Thereafter he was suspended, and while he was under suspension he voluntarily came to Rayagada and refunded the money to the Nazir. It is also admitted that there is no rule fixing the time limit for disbursement of the amount and there is no order of any public authority to that effect (vide evidence of P.W. 7). In fact on 23rd of June, he had sent a clerk for disbursement of the money in Block in question. Prosecution has tailed to establish that there was any demand to the Appellant for return of the money during the period when he fell ill and then he voluntarily came and returned the money to the Nazir. 8. Considering the facts and circumstances of the case emerging out of the materials available on record in the light of the dictum as stated above, it cannot be said that the Appellant had any criminal animus. During the period of his suspension the Appellant came voluntarily and refunded the money and his bona fides are apparent from these circumstances. There was no time limit for disbursement or for return of the money according to rules or orders of any authority he has ultimately been dismissed from service. Though the Appellant refunded the money on 20-11-1971, yet the charge-sheet was submitted about one and half years there after this delay appears to be very reasonable. 9. On the aforesaid analysis, it is to be that explanation given by the Appellant appears to be reasonable, probable and this explanation has not been proved by the prosecut to be false on the other hand, the explanation is almost admitted by the prosecution witnesses. According to the dictum of the Supreme Court as stated above it should be held that the prosecution has failed to establish the charge to the hilt beyond all reasonable doubts. 10. In the result, the appeal is allowed. The conviction and sentence of the Appellant are set aside and he is acquitted of the charges levelled against him. Final Result : Allowed