B. K. BEHERA, J. ( 1 ) THE petitioner stood charged under Sections 408, 468 and 471 of the Indian Penal Code in G. R. Case Nos. 302 of 1975, 18 of 1977 and 17 of 1977 for having committed criminal breach of trust and forgery in respect of a sum of Rs. 204 out of Rs. 17,538 during the year 1971-72, Rs. 228 out of Rs. 18,351 during the year 1973-74 and Rs. 225 out of Rs. 19,275 during the year 1972-73 respectively which had been entrusted with him for disbursement as stipends payable to the children of the displaced goldsmiths by the Gold Control Department by falsely showing disbursements of the aforesaid amounts to Jagatjiban Prusty, who was a student of the Christ Collegiate School, of which the petitioner was the Headmaster, from 14-7-1967 to 30-6- 1969 having been admitted into class VI and who had left the school by obtaining a transfer certificate on 30-6-1969, by forging the signature of Jagatjiban Prusty and for having utilised as genuine the purported signatures of this showing disbursements of the aforesaid amounts. To bring home the charges to the petitioner, the prosecution had examined fifteen identical witnesses with the same serial numbers in each of the three cases and had placed reliance on a number of documents. The petitioner had admitted the entrustment of the aforesaid three sums with him for disbursement as stipends and according to him, the moneys entrusted with him had been disbursed and he had sent back the vouchers after being duly signed by the stipendiaries. His further case was that he had multifarious duties as the Headmaster of the school which had more than one thousand students on the rolls and for this, he had been entrusting different works to different teachers and Petitapaban Tripathy (P. W. 9), an Assistant Teacher of the school, had been entrusted by him with the work of disbursement of these amounts as he (petitioner) had no time for this and it was P. W. 9 who had prepared the claim statements. P. W. 9 had neither placed the Attendance Register nor the Mark Register when he placed the claim statements before him and he signed in good faith believing that P. W. 9 had prepared the statements basing on the records. He had thus no criminal animus and he had not misappropriated the amounts in question. P. W. 9 had neither placed the Attendance Register nor the Mark Register when he placed the claim statements before him and he signed in good faith believing that P. W. 9 had prepared the statements basing on the records. He had thus no criminal animus and he had not misappropriated the amounts in question. The same two witnesses had been examined by him in his defence in the three cases. ( 2 ) ON a consideration of the evidence, the trial court, on the basis of the evidence of the Expert (P. W. 18), who had compared the purported signatures of Jagatjiban Prusty (P. W. 10) with his admitted signatures and with the writings the petitioner came to find that the materials would not show that the petitioner had forged the signatures of P. W. 10, but the purported signatures of P. W. 10 were not his. The trial court accepted the prosecution case, rejected that of the defence and convicted the petitioner under Section 408 of the Indian Penal Code while acquitting him of the other two charges. For his conviction under Section 408 of the Indian Penal Code, the petitioner was sentenced to undergo rigorous imprisonment for a period of three months in each of the three cases. On appeal, the learned Sessions Judge accepted the findings recorded by the trial court against the petitioner, but held that Section 408 would have no application to the cases and that the petitioner could legally be convicted under Section 406 of the Indian Penal Code for criminal breach of trust and he was so convicted by the appellate court which maintained of the sentences passed against the petitioner. ( 3 ) THE learned Sessions Judge has passed one judgment in Criminal Appeal No. 171 of 1979 and another common judgment in Criminal Appeal Nos. 169 and 170 of 1979. The three Criminal Revisions before me have been heard together, as agreed to by both the sides, as common questions of fact and law are involved and will be governed by this order. ( 4 ) MR. 169 and 170 of 1979. The three Criminal Revisions before me have been heard together, as agreed to by both the sides, as common questions of fact and law are involved and will be governed by this order. ( 4 ) MR. R. Mohanty for the petitioner has taken me through the relevant findings recorded by the courts below and the evidence from both the sides and has submitted that no case had been made out against the petitioner under Section 406 of the Indian Penal Code and his plea was a reasonable and probable one and ought to have been accepted by the trial and appellate courts. Mr. S. K. Das, the learned Additional Standing Counsel, has submitted that the findings recorded by both the courts are well-founded and do not call for interference by this Court in revision. ( 5 ) ALTHOUGH the revisional power of the High Court is as wide as the power of the court of appeal, it is now well-settled that normally the jurisdiction of the High Court in revision is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice. Where neither the trial court nor the Sessions Judge committed any error of fact or law in arriving at the conclusions, no interference is called for. In this connection, reference may be made to the principles laid down in State of Orissa v. Nakula Sahu and other1. If, however, the findings recorded by the courts below are found to be unreasonable or perverse, such findings would call for interference by this Court in its revisional jurisdiction. ( 6 ) I have perused the oral evidence and the large volume of documentary evidence on which reliance had been placed by both the sides. If, however, the findings recorded by the courts below are found to be unreasonable or perverse, such findings would call for interference by this Court in its revisional jurisdiction. ( 6 ) I have perused the oral evidence and the large volume of documentary evidence on which reliance had been placed by both the sides. It would not be necessary for me to catalogue the different items of evidence and the documents on which such evidence has been based as, in my view, most of the facts and documents had not been challenged by the petitioner whose case was one of bona fide belief in the acts and conduct of P. W. 9 who had been entrusted with the disbursement of the stipend amounts and I would deal with that part of the evidence which would throw light as to whether the plea of the petitioner in the three cases is a reasonable and probable one. The entrustment of the three amounts during the three years for disbursement as stipends has not been and indeed could not be disputed in view of the large volume of oral and documentary evidence. As a matter of fact, the petitioner had admitted the receipt of such amounts towards the payment of stipends. It admits of no doubt from the evidence of Jagatjiban Prusty (P. W. 10) that lie had left the Christ Collegiate School in the year 1969 after obtaining the transfer certificate and he was not a student of this school at the time of the disbursement of the amounts and was thus not a person entitled to receive the stipends. The question for consideration would be as to whether the petitioner had set up any impostor who signed and received the amounts as Jagatjiban Prusty and had thus committed criminal breach of trust in respect of the three amounts in question during the three years as sought to be established by the prosecution or as to whether the plea or the petitioner that he had no mens rea and he had not committed misappropriation of any amount and the Assistant Teacher P. W. 9 had been entrusted with the work of disbursement and he (petitioner) had signed the statements in good faith, was reasonable and probable. ( 7 ) IN a criminal case, the onus lies on the prosecution to establish its case beyond reasonable doubt and the case of the prosecution cannot be said to be established merely because the defence is found to be weak or false. The accused must be presumed to be innocent unless he is proved to be guilty and the onus on the prosecution never shifts. As to how the defence would establish its case and when can the case of the defence be said to have been proved, it would be useful to quote an extract from the decision of the Supreme Court in case of Rabindra Kumar Dey v. State of Orissa2. Their Lordships observed: - The Evidence Act does not contemplate, that the accused should prove his case with the same strictness and rigour 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 the 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 hilt 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. In other words, the mode of proof, by standard of benefit of doubt, is not applicable to the accused, where he is called upon to prove his case or to prove the exceptions of the Indian Penal Code on which he seeks to rely. It is sufficient for the defence to give a version which competes in probability with the prosecution version, for that would be sufficient to throw suspicion on the prosecution case entailing its rejection by the court TI ( 8 ) KEEPING in mind the aforesaid principles, it is now to be seen as to whether the charge of criminal breach of trust had been established against the petitioner. ( 9 ) SECTION 405 of the Indian Penal Code reads: Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits criminal breach of trust. To constitute the offence of criminal breach of trust, there must be dishonest misappropriation by a person in whom confidence has been reposed. There must be entrustment and there must be misappropriation or conversion to ones own use or use in violation of any legal direction or of any legal contract and such, misappropriation or conversion or disposal must be with a dishonest intention. It is the mental act of fraudulent misappropriation that demarcates an act of embezzlement which is a civil wrong from the offence of criminal breach of trust. For a conviction for criminal breach of trust, the prosecution must prove two essential facts: (i) the factum of entrustment and (ii) the factum of misappropriation of the entrusted property. (See Janeshwar Das Aggarwal v. State of U. P.)3. It is, no doubt, true that in a case of this nature where entrustment is admitted, it would be for an accused person to account for the money entrusted with him and the prosecution may not be in a position to establish as to how exactly an accused person has misappropriated the amount and converted the same to his own use, but the evidence and the circumstances of the case must warrant a conclusion that the accused, in order to cause wrongful gain to himself or wrongful loss to another, has committed misappropriation of the amounts. ( 10 ) IN the instant cases, of the fifteen witnesses examined for the prosecution, P. W. 1, who was the Gold Control Officer from 1. 4. 1974 to 1. 10. 74, had spoken about the sanction of the amounts for disbursement as stipends and had proved the claim statements with stamped receipts therein received from the petitioner after disbursements of the amounts containing his (petitioners) signatures. These facts have not been disputed before me. 4. 1974 to 1. 10. 74, had spoken about the sanction of the amounts for disbursement as stipends and had proved the claim statements with stamped receipts therein received from the petitioner after disbursements of the amounts containing his (petitioners) signatures. These facts have not been disputed before me. P. W. 13 had taken the specimen writings of the petitioner and P. W. 14 had attested the specimen writings. P. W. 15 was the handwriting expert who had compared the signatures purported to be of Jagatjiban Prusty with the admitted signatures of Jagatjiban Prusty and the writings of the petitioner to which reference has already been made. P. W. 4, the Branch Manager of the State Bank of India, had testified about the procedure for payment in the Bank and P. W. 5, the Senior Auditor, had deposed about the procedure for the maintenance of the Cash Book. Their evidence was not of much consequence in view of the cases put forward by both the sides. P. W. 8 Debraj Rout, a Grade I Assistant of the Gold Control Office had testified about the seizure of some documents. P. Ws. 2, 3, 6, 7 and 9 were the Assistant Teachers of the Christ Collegiate School of which the petitioner was the Headmaster. P. Ws. 11 and 12 had investigated into the cases and ultimately P. W. 12 had submitted the charge- sheets. ( 11 ) THE prosecution sought to show by the evidence of the Assistant Teachers of the School that it was the petitioner who had, in fact, disbursed the amounts to the students of the school and that, therefore, it was he who had falsely shown the disbursement of the three amounts to Jagatjiban Prusty (P. W. 10) who was not a student of the school and, in that process, had misappropriated the amounts. It may he kept in mind that all was not well between the five Assistant Teachers (P. Ws. It may he kept in mind that all was not well between the five Assistant Teachers (P. Ws. 2, 3, 6, 7 and 9) on the one hand and the petitioner on the other as on their own showing, they had complained that the petitioner had been harassing them and had gone to the extent of instituting a suit bearing Title Suit No. 109 of 1979 in the court of the Munsif, First Court, Cuttack; against the petitioner with a prayer that he should not be allowed to continue as the Headmaster and they had also prayed for injunction against the petitioner in Miscellaneous Case No. 194 of 1977 to restrain him from discharging the duty of the Headmaster of the school. This would be clear from the admission made by P. W. 2 and from the statements of the other Assistant Teachers examined as witnesses for the prosecution. The evidence of such witnesses in favour of the prosecution and against the petitioner was, therefore, to be examined with great care before its acceptance. ( 12 ) IT is important to note that there was no evidence that it was the petitioner who had, in fact, disbursed the amounts of Rs. 204, Rs. 228 and Rs. 225 during the three years to a person who, he knew, was not Jagatjiban Prusty. It would appear from the evidence of P. W. 3 that the strength of the school at the relevant time was more than one thousand and this was also the evidence of P. W. 9. It would clearly appear from the evidence of P. W. 2 and the other witnesses that the petitioner used to entrust different functions to different teachers, such as, collection of fees, maintenance of library etc. The evidence of P. W. 2 was that the petitioner used to entrust different teachers at different times for collection of fees. P. W. 3 had testified that there was no student by the name Jagatjiban Prusty during the year in which the disputed amounts had been disbursed and he had proved the three Attendance Registers during the three years, but he had admitted that the Attendance Registers had never been placed before the petitioner. His evidence would show that the stipend money was being dealt with by the petitioner with the help of some teachers. His evidence would show that the stipend money was being dealt with by the petitioner with the help of some teachers. He could not say whether the stipend money was being disbursed by the petitioner through one teacher or through different teachers in different years. His evidence would further show that when the stipend money was received in the school notices, such as, Exts. A and B, were being circulated or the Peon used to verbally announce in each class about the receipt of funds and disbursement. P. W. 6 had testified that there was a Notice Book and general notice was being circulated in the class room through respective class-teachers intimating the students to receive the stipends and the subject-teachers used to sign in that book and inform the students. This witness had specifically testified thus: TI. When the Headmaster entrusted the stipend to another teacher the latter used to disburse the money to the concerned students. When the students do not turn up the Headmaster used to personally disburse the money to the students. The disbursement made by the Headmaster usually concerned the defaulter students. I have of course never seen the Headmaster disbursing money to any student, He had further admitted: Ext. A is a notice. P. Tripathy referred to in Ext. A is Patitapaban Tripathy, Assistant Teacher of the school. Ext. A/3 is my signature. Ext. A is not in the handwriting of the accused. But I cannot say in whose handwriting it is, ( 13 ) EXT. A was the order of the Headmaster regarding the payment of the stipend in the N. C. C. Office. P. W. 6 had further admitted that in the year 1966, he had disbursed some stipend money among the students. Ext. A was in the handwriting of Jiten Pradhan, a clerk of the school. In the normal course of his duties, he would be acquainted with the procedure as to how stipend money was being disbursed and as to whether the petitioner was doing it himself or through some teacher. The prosecution did not choose to examine him as a witness although in the circumstances of the case, he would normally be a very material witness for the prosecution. The prosecution did not choose to examine him as a witness although in the circumstances of the case, he would normally be a very material witness for the prosecution. The evidence of P. W. 7 would show that Jagatjiban Prusty was a student till June 30, 1969 as would appear from the transfer certificate book and the transfer certificate was, in fact, granted on 9. 12. 1976. Thus as would appear from the evidence of this witness, although P. W. 10 was not a student of the school during the years in question, he had taken the transfer certificate in December, 1976. According to him (P. W. 7) the teacher used to maintain the attendance Register while the Admission Register was being maintained by Jiten Pradhan, the clerk P. W. 7 had signed in Ext. A, the notice for disbursement of the stipends in the N. C. C. Office. ( 14 ) P. W. 9 Patitapaban Tripathy through whom the petitioner had disbursed the amounts, as sought to be shown by him, had testified that the petitioner used to keep the funds himself and he had not seen who had disbursed the amounts in 1971-72. According to him, in 1972-73 and 1973- 74, he had seen the petitioner disbursing the money and he was present at the time of disbursement and had assisted him in this work. As his evidence would show, the responsibility of the management of the school with its multifarious functions was with the petitioner who used to look after the hostel, stores etc. P. W. 9 had admitted that with the approval of the Managing Committee, the petitioner used to allot different responsibilities to different teachers and disbursement of scholarships and stipends was a part of the management P. W. 9 had further admitted that he had physically made the disbursements to those students who were present during 1973-74. According to him, Ext. A was a notice directing the goldsmith stipendiaries to meet him (P. W. 9) to take the stipend money and different class-teachers had signed the notice. It would be seen from his evidence that in accordance with the said notice, he had disbursed the stipends to students who appeared after having taken the money from the petitioner who was all along present. He had thus been assisting the petitioner in the matter of disbursement. He had admitted that the name TP. It would be seen from his evidence that in accordance with the said notice, he had disbursed the stipends to students who appeared after having taken the money from the petitioner who was all along present. He had thus been assisting the petitioner in the matter of disbursement. He had admitted that the name TP. Tripathyt mentioned in Exts. A and D, the two notices; was his name. ( 15 ) P. Ws. 2, 3, 6 and 7 had not, in terms, stated that the petitioner had physically disbursed the - entire stipend amounts to the stipendiaries during the relevant years. ( 16 ) IT is important to keep in mind that none of the stipendiaries, who had actually received the amounts, had been examined as a witness for the prosecution. I would lay emphasis on this as they would be the best persons to say as to whether it was the petitioner or P. W. 9 or anyone else who was, in fact, in charge of the disbursement. On the other hand, the defence had examined D. W. 2 who had testified thus: TIJ am goldsmith by caste. I was reading in Christ Collegiate School since 1969-70 and left the school in the year 1974-75. I received goldsmith stipend of the year 1971-73 (1973-74 ). The stipend was disbursed in the N. C. C. Office room of the school. The stipend was disbursed by the teacher Patitapaban Tripathy, (P. W. 9 ). (Ext. C) is the relevant entry made by Patitapaban Tripathy. Ext. C/i is my signature. The accused (Headmaster of the school) did not disburse, the stipend. The accused was also not present at the time of disbursement. Before payment was made a notice was circulated in the class room which the class-teachers read over and explained to us. Before 1971-72 a teacher Lakshmikanta Chowdhury disbursed stipend to us. ( 17 ) NOTHING substantial had been brought out in the cross-examination of this witness to discard his testimony. He had, no doubt, stated that he had not been examined by the police authorities in the course of investigation, hut an accused person is to give an account to the court and in order to substantiate his plea, the petitioner had examined D. W. 2. His evidence otherwise acceptable cannot be rejected merely because he had not been examined by the Investigating Officer. His evidence otherwise acceptable cannot be rejected merely because he had not been examined by the Investigating Officer. As has been laid down by this Court in the case of Laxminarayan Hansada and others v. State4, merely because a witness for the defence has not been examined during the investigation, his evidence cannot be brushed aside D. M. 2 has substantially supported the plea of the petitioner and his evidence would show that the petitioner was not present at the time of the disbursement which was made by P. W. 9. The evidence of D. W. 2 had been supported by that of D. W. I, a teacher of the Christ Collegiate School from September, 15 1961. According to D. W. 1, first Laxmikanta Choudhury and then Patitapaban Tripathy (P. W. 9) had been disbursing the stipends in the N. C. C. Office to the stipendiaries and he (D. W. 1), being in charge of the N. C. C. as Civilian Officer from 1973-74 while the N. C. C. Officer was on leave, used to hand over the key of the N. C. C. Office for the disbursement in consequence of the office notice of the oral instructions of the petitioner D. W. I had never seen disbursement of such stipends by the petitioner. The evidence of this witness was not to be thrown out merely because his wife Jayasri Nayak, also a teacher in the Christ Collegiate School, was distantly related to the petitioner. ( 18 ) THE aforesaid facts, evidence and circumstances would show that the case of the petitioner that owing to multifarious duties of his, he had entrusted P. W. 9, to disburse the stipend amounts entrusted with him by the Gold Control Department for distribution to the children of the displaced goldsmiths and that P. W. 9 had, in fact, been disbursing the amounts and he, in good faith, had signed the claim statements believing reasonably that the amounts in question had duly been disbursed along with other amounts to the other stipendiaries and that he had no dishonest intention would be apparent not only from the evidence of the prosecution witnesses themselves to which reference had been made, but also from the evidence of D. Ws. 1 and 2. The trial and appellate courts overlooked and brushed aside the evidence and probabilities in favour of the defence. 1 and 2. The trial and appellate courts overlooked and brushed aside the evidence and probabilities in favour of the defence. No inference should, however, be drawn from the findings recorded by me that P. W. 9 was at fault as it could be that he had also acted in good faith and might have disbursed the amounts without knowledge that the person or persons who received the three amounts in question had falsely personated as Jagatjiban Prusty. As the person entrusted with the sanctioned amounts for proper disbursement to the persons to whom the stipends were payable, the petitioner could be said to be negligent in the performance of his duties for which the three amounts in question had not duly been disbursed, but from mere negligence in the performance of duties, an inference of criminal misappropriation cannot be drawn. It has been laid down by the Court in Surendra Nath Satpathy v. The State5, that the mere act of negligence of the Treasury Officer in complying with the relevant rules of the Treasury Code for removing cash and currency notes would not suffice to hold him guilty of a charge of criminal breach of trust. In Basudev Mohapatra v. State of Orissa6, it has been held that a person cannot be held liable in the absence of criminal animus on his part and a serious breach of duty and utter negligence would not be sufficient to hold him guilty of the charge. The same view has been taken in Subash Chandra Bebarta v. State of Orissa and another7, and G. K. Mishra, C. J. observed in paragraph 3 of the judgment thus: The learned Subdivisional Magistrate ought to have paid due regard to the views of this Court in A. I. R. 1958 Orissa 18 (Surendra Nath Salpathy v. The State) wherein it was observed that mere acts of negligence on the part of the Treasury Officer in complying with the relevant rules of the Treasury Code would not suffice to hold that he willfully suffered the embealement of the money by the Treasurer. ( 19 ) FOR the reasons aforesaid, I would hold that the findings recorded, by the courts below against the petitioner are unfounded and unreasonable calling for interference by this Court in revision. ( 19 ) FOR the reasons aforesaid, I would hold that the findings recorded, by the courts below against the petitioner are unfounded and unreasonable calling for interference by this Court in revision. It could not be said, on the evidence on record, that the prosecution had established its cases of criminal breach of trust against the petitioner. ( 20 ) IN the result, the three revisions are allowed and the orders of conviction and sentences passed against the petitioner ill the three cases against him are set aside. Revision allowed.