JUDGMENT 1. - All the aforesaid four appeals are being decided by this one judgment in view of the fact that a common point has emerged in all of them on which the appeals are decided, but for the embezzlement of different amounts in different years spread over because of legal requirement. They all arise out of one common audit report which was made basis for the prosecution and which is only evidence to substantiate the prosecution case. In this view of the matter though the facts of only one of the appeal being appeal No. 67/80 are reproduced here yet all the appeals are being disposed of. The accused-appellant stands convicted and sentenced in all the four cases as under: In Special Case No. 12/78 : Under S. 409 IPC 2 years' R. I. and a fine of Rs. 1500/-, in default thereof 3 months' S.I. Under S. 5(1)(c) r.w. S. 5(2) of P.C. Act 2 years' R.I. and a fine of Rs. 1500/-, in default thereof 3 months' S.I. Sentences were ordered to run concurrently. In Special Case No. 11/78 : Under S. 409 IPC 2 years' R.I. and a fine of Rs. 4000/-, in default thereof 8 months' S.I. Under S. 5(1) (c) r.w. S. 5(2) of P.C. Act 2 years' R.I. and a fine of Rs. 4000/-, in default thereof 8 months' S.I. Sentences were ordered to run concurrently. In Special Case No. 10/78 ; Under S. 409 IPC 2 years' R.I. and a fine of Rs. 2000/-, in default thereof 4 months' S.I. Under S. 5(1)(c) r.w. S. 5(2) of P.C. Act 2 years' R I. and a fine of Rs. 2000/-, in default thereof 4 months' S.I. Sentences were ordered to run concurrently. In Special Case No. 43/76 : Under S. 409 IPC 2 years' R. I. and a fine of Rs. 4000/-, in default thereof 8 months' S.I. Under S. 5(1) (c) r.w. S. 5(2) of P.C. Act 2 years' R. I. and a fine of Rs. 4000/-, in default thereof 8 months S.I. Substantive sentences were ordered to run concurrently vide judgment, dated January 25, 1980 passed by the Special Judge for ACD case, Jaipur. 2. The Director, Community Development and Panchayat Deptt. 4000/-, in default thereof 8 months S.I. Substantive sentences were ordered to run concurrently vide judgment, dated January 25, 1980 passed by the Special Judge for ACD case, Jaipur. 2. The Director, Community Development and Panchayat Deptt. Rajasthan Government, Jaipur wrote a letter dated 21.11.1971 to D.I.G.P., A.C.D., Jaipur that a special audit and inspection was carried out at Dairy and Poultry Department of Gram-Sewak Training Centre, Sawai Madhopur for a period w.e.f 1.4.68 to 31.8.71. The audit party in its report besides pointing out various irregularities and illegalities committed by the staff of Dairy and Poultry Department also pointed out that there was an embezzlement of about Rs. 10,000/- which requires to be investigated. On receipt of this information a case for offence under S.409 IPC and S. 5 (1)(d) read with S. 5(2) of the Prevention of Corruption Act was registered and investigation commenced. During the course of investigation the investigating officer recorded the statements of the members of the audit party and various other officials of the Dairy and Poultry Department. They checked the accounts pertaining to production and sale of milk and eggs and came to the conclusion that various amounts have been embezzled during the period from 1968 to 1971. The break up position of which has been mentioned in Annexures annexed to the audit report. It was found during investigation that amount had been received by accused-appellant. Moti Lal who was working as `Kukkut Pradarshak'. It was found that he had embezzled a total sum of Rs. 8782.10 within a period from April, 1968 to August, 1971. In order to over-come the difficulty of S. 219 Cr.P.C. four charge-sheets were submitted spliting the amount for different periods. All these cases were tried by learned Special Judge for ACD Cases, Jaipur. Charges were framed for offence under S. 409 IPC and S. 5(1)(c) read with S. 5(2) of the Prevention of Corruption Act. 3. The prosecution examined 11 witnesses in support of each of the case. The accused denied the prosecution story. He came with a positive case that a biased audit had taken place and the audit party has saved other officers and fastened false responsibility on him without taking into account the accounts pertaining to sale of eggs on issuance of coupons. The prosecution examined 11 witnesses in support of each of the case. The accused denied the prosecution story. He came with a positive case that a biased audit had taken place and the audit party has saved other officers and fastened false responsibility on him without taking into account the accounts pertaining to sale of eggs on issuance of coupons. His case is that he was not selling the eggs in cash but he was giving the eggs to the persons on the basis of coupons which were issued to various persons by the cashier who used to receive the amount. Several people who used to give coupons to him for taking eggs have gone scot free making a false plea of sale in cash. The learned trial court held the accused guilty of the offence of embezzlement and convicted the accused in each of the case for offence under S. 409 IPC and S. 5(1) (c) read with S. 5(2) of the P. C. Act. He sentenced the accused as stated above. The learned trial court has based his entire findings on the basis of the annexures filed along with audit report. He also took into consideration the fact of depositing the amount by the accused subsequent to audit in the department, as one of the circumstance against him. He however, did not taken a notice of the defence of the accused about issuance of coupons and brushed aside the defence. He contended by mentioning that entries cannot be regarded as sufficient to show that eggs were sold against coupon and the coupons used to be destroyed because there is no mention about the destruction of coupons in the aforesaid entries. According to him issuance of coupons had no relevancy in the case. 4. The learned counsel for the appellant submits that the audit report is hopelessly incomplete and that the investigating officer has failed to investigate the case properly and fastened the entire liability on the appellant without looking into the record pertaining to sale of eggs by coupons. It is submitted that there were prepaid the coupons as well as coupons issued by the cashier on cash-payment but the appellant was not concerned with the cash at all when he was to supply the eggs on coupons. It is submitted that there were prepaid the coupons as well as coupons issued by the cashier on cash-payment but the appellant was not concerned with the cash at all when he was to supply the eggs on coupons. His submission is that merely because he has calculated the amount of sale according to the coupons he had received and according to the number of eggs produced or the birds sold it cannot be said for a moment that he had received that amount in cash. His submission is that appellant had been stating from the very beginning that real guilty are those who have verified his documents after verifying from the cashier in the department and he his being made the scape goat because he has maintained the registers. 5. The learned Public Prosecutor made all reliance on the audit report and he submits that it is a full proof report. 6. Having heard the learned counsel for the petitioner as well as the learned Public prosector and having perused the entire audit report in the light of the submissions made by the learned counsel for the appellant. I wanted to understand the report with the assistance of the auditor and, therefore, summoned them before this court. I drew a detailed order on 7.7.89 which is as under : "Shri Motilal, accused-appellant, stands condicted for offences under Sec. 409 IPC and S. 5(1)(c) read with S. 5(2) of the P. C. Act. During the course of arguments in appeals against the judgments delivered by the trial court, learned counsel contended that the accused-appellant is innocent in as much as the auditors have saved the cashier and other senior officers of the department in giving biased audit report particularly because while giving such report coupon account has not been considered and the department for the reasons best known destroyed the coupons and the coupon register. This, it is submitted that was done in order to protect the person who was maintaining the accounts about the sale by coupon. This, it is submitted that was done in order to protect the person who was maintaining the accounts about the sale by coupon. Besides that, it is submitted that on one hand the auditors have staled in the report that production of eggs is far below the expectations looking to the number of birds but in schedule, the number of eggs produced is show to be far more, for example at page No. 3 of the report, auditors have mentioned that in the month of April and May, 1968 number of birds being 41 and total number of eggs produced 312 & 326 respectively, i.e., at an average of 11 eggs per day while according to schedule. `Kha' the production of the eggs is shown to be 692 and 642 respectively. Thus, the report is self contradictory. It is, therefore, essential to understand the report submitted by the auditors. This audit report has been prepared by Shri Virendra Singh Ranawat, Accounts Officer, Shanker Lal Sharma, auditor, Damodar Prasad Sharma, Accounts Clerk and Shri Mishri Lal Tanwar, Accounts Clerk as then they were. Out of these four persons, prosecution has examined Mishrilal, Shankerlal and Virendra Singh. They in their cross examinations have admitted that at the time of checking, they were informed that eggs were also being sold by coupons. They however, submit that coupon were not produced before them. How they re-conciled the account in absence of coupon register remains a question to be answered by the prosecution. Learned Public Prosecutor therefore, wants to call the auditors who have audited the account for explaining the circumstances to the court. In my opinion that is essential, Addl. Registrar (Judicial) shall send a copy of this order to Director, Community Development, Jaipur who shall inform any two of the aforesaid four persons to appear in this court on 17.7.89. Director shall find out as to where these persons are posted at present and inform them accordingly. Since the appeal is very old it is expected that he will inform the persons on telephone, if necessary. The case relates to Gram-sewak Training Centre, Sawaimadhopur for the period w.e.f. 1.4.68 to August, 1971. This is mentioned for the ready reference of the Director who filed the F.I.R. along with letter No. F. Lekha/NI/PV/1576 Jaipur dated 21.11.71." 7. Since the appeal is very old it is expected that he will inform the persons on telephone, if necessary. The case relates to Gram-sewak Training Centre, Sawaimadhopur for the period w.e.f. 1.4.68 to August, 1971. This is mentioned for the ready reference of the Director who filed the F.I.R. along with letter No. F. Lekha/NI/PV/1576 Jaipur dated 21.11.71." 7. Incharge of the audit party was Virendra Singh who appeared in court in person along with his colleagues on 11-8-89. He wanted time to refresh his memory by looking into the original report and time was granted to him and that case was taken up on 12-9-89. After going through the entire report he could not satisfy me that the report was complete in all respects. He rather admitted that he himself had suggested in his report further investigation into the matter as according to him the coupon-account has not been placed before him. The learned Public Prosecutor also had to concede that the investigation in the case had not been so fair as no further investigation was carried out in the case beyond audit report. In my opinion he rightly conceded because the case of the defence is already borne out from the cross examination of the witnesses examined in the case. I have referred to in the evidence in appeal No 67/80 which is almost identical in all the cases. PW. 1 Mishrilal was a member of the audit party. He admitted in cross examination that they did not interrogate the cashier about the procedure of sale. At the centre, the milk was sold on coupon and the eggs were sold both, in cash as well as on coupons. He stated that his colleague Shankerlal had examined about the coupons and he cannot say anything about it. He further admitted that no separate report in that respect was prepared. He further stated in his cross examination that he was not at all told that cashier used to issue coupons by taking money and the accused used to issue eggs on them. He however, admitted that some record they have brought together and some they have summoned. He had not brought with him the register having coupon account in respect of eggs. He also expressed his ignorance about the cash memos issued regarding the birds and to say as to whether the amount was with the cashier. Shankerlal PW. He however, admitted that some record they have brought together and some they have summoned. He had not brought with him the register having coupon account in respect of eggs. He also expressed his ignorance about the cash memos issued regarding the birds and to say as to whether the amount was with the cashier. Shankerlal PW. 2 was another member of this audits party. He has however, given a different story. He (illegible) not Mishrilal has stated. He states that it is wrong to say that he was given the charge to examine the account regarding sale of eggs through coupons. According to him the accused had said that eggs were sold in cash and accused had not told that they are sold on coupons. This witness has denied the suggestion made on the strength of the evidence or earlier witness. Chandra Shekhar PW. 3 who was the cashier in the department was cross examined in this respect and he had to admit that eggs used to be sold on coupons and cash, sale was only done when coupons were not available. He states that coupons used to be destroyed later on after their entries having been made in the register. PW. 5 Dharam Singh who was an L. D. C. in the training Centre also admitted that eggs used to be sold on coupons. He has categorically stated that coupons used to be purchased from the office and on the basis of such issued coupon accused used to give material. PW. 7 is Virendra Singh, Incharge of the audit party who also appeared before me in the court. He has categorically admitted in his cross examination that at the time of checking it was told to him that eggs and milk used to be sold through coupons but he was not shown the accounts about coupons. He stated that the accounts regarding sale of goods by coupons were demanded but despite demand the same were not produced before them and he has made a not to this effect in his audit report. He then stated that he has not mentioned it in the report and he cannot give the reason of the same. He has also admitted that it was Shankerlal who was made Incharge of the coupons registers and it may be before him that coupons account might have been produced. He then stated that he has not mentioned it in the report and he cannot give the reason of the same. He has also admitted that it was Shankerlal who was made Incharge of the coupons registers and it may be before him that coupons account might have been produced. I have already mentioned above that Shankerlal has denied this aspect of the case. Virendra Singh has showed his ignorance about collection of money by cashier and denied a positive suggestion that he deliberately did not look into that account in order to save Chandra Sekhar. The investigating officer Shiv Dayal Mathur when asked admitted that he does not know about coupon procedure and he did not investigate from that point of view. He even showed his ignorance as to whether the coupons were sold by cashier. 8. In the light of aforesaid evidence I have absolutely no hesitation in coming to the conclusion that the prosecution has miserably failed to properly substantiate its case. The investigation of the case has been most unfair particularly when the accused is saying from the very beginning, i.e., even before the audit party that he had only been giving eggs mostly on coupons and at times in cash, it was obligatory to have looked into the coupons account and to have investigated as to who was selling the coupons and receiving the amount. Since the appellant was incharge of maintaining the account about the production and show the amount likely to be received because of the total sale, it cannot be inferred for the moment that he had received all that money in cash unless the coupon account is equally tallied. In fact all those who used to issue coupons or used to sell coupon in advance or on the same day were equally responsible, if not more, for the embezzlement in the case. The accused ought not to have been isolated in the manner he has been and his case has been seriously prejudiced because of lack of placement of proper material either before the auditors or before this court. It could be good case for departmental inquiry or otherwise but it is not a fit case for holding the accused guilty of embezzlement on a criminal charge in the absence of material about selling of eggs on coupons and on this ground alone the appeal deserves to be allowed. 9. It could be good case for departmental inquiry or otherwise but it is not a fit case for holding the accused guilty of embezzlement on a criminal charge in the absence of material about selling of eggs on coupons and on this ground alone the appeal deserves to be allowed. 9. The result is that all the aforesaid appeals are allowed. The judgments of the trial court are set aside and the conviction and sentence passed against the accused-appellant in each of the case is set aside and he is acquitted of the charges. He is on bail, he need no surrender to his bail bonds which shall stand discharged. *******