JUDGMENT : R.A. Mehta , J. The petitioner has been convicted for offences punishable under sections 408 and 477A IPC and is sentenced for each offence to undergo simple imprisonment for three years and fine of Rs. 5,000, in case of each default, simple imprisonment of six months. His appeal to the City Sessions Court has failed. This is his revision against the concurrent judgments and orders of the lower Courts. 2. The charge against the petitioner-accused was that during the period Ist January, 1975 to 31st December, 1975 while he was an employee (Chief Cashier and Assistant Accountant) of Ambica Tubes (a division of Shri Ambica Mills Ltd.), he had dishonestly misappropriated a sum of Rs. 6,32,500 (Rs. 6,30,000 plus Rs. 2,500) which was entrusted to him or he had wilfully suffered any other person so to do, and thereby he had committed an offence of criminal breach of trust punishable under section 408 IPC. It was also charged that he had wilfully and with intent to defraud, falsified account books of the company for the year 1975, such as daily cash book, ledger and the account of the Union Bank of India, in respect of the nine cheques of Rs. 6,50,000 mentioned in the charge, while acting as such servant of that company, and thereby he had committed an offence punishable under section 477A of the IP Code; the relevant folio numbers have been mentioned in the charge. It is further charged that the petitioner had dishonestly misappropriated a sum of Rs. 19,012.79 Ps. from the cash balance in his charge during the period between 1st January, 1976 and 2nd February, 1978 and thereby he had committed an offence punishable under section 408 of the I P Code. 3. The Trial Court had convicted the petitioner in respect of all the charge. In appeal, the learned Sessions Judge has given him benefit of doubt in respect of two cheques Exh. 8 and 11 amounts of which were withdrawn by one Shri R J Patel (P Ws) when the petitioner was absent, but the learned Sessions Judge has confirmed the rest of the findings as also the sentence. 4. As regards conviction, there does not seem to be any case for interference. The petitioner is found guilty in respect of the amounts of Rs, 4,50,000 withdrawn by the seven cheques. He has also been found guilty of misappropriating Rs. 4. As regards conviction, there does not seem to be any case for interference. The petitioner is found guilty in respect of the amounts of Rs, 4,50,000 withdrawn by the seven cheques. He has also been found guilty of misappropriating Rs. 19,012.79 Ps. from the cash balance and Rs. 22,500 and he has been found guilty of falsifying the entries in the account books. A very useful summary has been made in the several Annexures to the judgment of the learned Metropolitan Magistrate. They give a clear and comprehensive picture of the mass documentary evidence in the case scattered at different places in different books. Voluminous accounts evidence is admirably concisely summarised and put into focus and a clear picture is given. Those Annexures are summaries of the relevant entries and are as follows: Account/Cash Book Article No. Maintained by Ledger (Article 16) posting entries by Page of paper book 1 2 3 4 5 1. Cash book 20 the accused the accused 99 2. Branch Expenses 17 S.M. Vala. - 100 3. Stores No. 18 R.J. Patel. the accused 101 4. Bank Credit Journal. 15 and 21 S.C. Contractor " 102 5. Expenses Journal. 19 R.J. Patel. " 103 6. Summary of the above (1) to (5) 104 7. Statement of false entries in cash book (art. 20) and ledger (art. 16) regarding of Rs. 22,500. 105 8. Tabular statement of entries is Primary books and ledger. 106-107 9. A statement of cash withdrawals from the Bank. 108 10. A statement of each withdrawals by the nine cheques misappropriated. 109 Account/Cash Book Article No. Maintained by Ledger (Article 16) posting entries by Page of paper book 5. It is not in dispute that the petitioner used to bring cash from the bank and that he alone used to write and maintain the Kutchha and Puckka cash books and the ledger as also to maintain number of the vouchers. It is not in dispute that these seven cheques were encashed by him and the cash was brought by him. It is also not in dispute that this cash is not entered or reflected in the cash book maintained exclusively by him. The vouchers are numbered and preserved by him. It is not in dispute that this cash has not come to the company from whose bank account the amounts were withdrawn. It is also not in dispute that this cash is not entered or reflected in the cash book maintained exclusively by him. The vouchers are numbered and preserved by him. It is not in dispute that this cash has not come to the company from whose bank account the amounts were withdrawn. These things have been duly proved by the witnesses and about which there is no challenge. A statement of cash withdrawals is annexed to this judgment marked W. It is statement (9) annexed with the Trial Court's judgment. Last two columns show that in respect of these nine misappropriated cheques, there is no entry in the cash book and there is no voucher. The witnesses are: P W 1 R V Patel, Chief Accountant Exh. 2 P W 4 S C Contractor, Clerk. Exh. 127. P W 5 B J Patel Clerk. Exh. 164. P W 6 S S Shah, Accountant. Exh. 185. 6. In fact, these findings are virtually accepted by the petitioner in his statement under Section 313 Cr.P.C. It is his explanation that he had withdrawn these amounts under the instructions from higher-ups and these amounts were passed on to his Sethias through the Chief Accountant, Shri R V Patel. In fact, the main grievance of the petitioner is that the Lower Courts have failed to take this defence into consideration. It does appear that he has a serious point to argue; and even though it was raised before the Lower Courts, it is not reflected in the orders of the two Lower Courts. Therefore, I have considered this argument at length and gone through the entire evidence, oral as well as documentary. Even though the petitioner has a serious point on this question, that cannot have any bearing on the question of his guilt and his conviction. The offence is clearly proved to the hilt and there is no manner of doubt that he has knowingly and wilfully seen that huge amounts belonging to the company are withdrawn for purposes not of the company and the amounts have not been brought to the company. Thus the offence under section 408 I P C is clearly proved because he has wilfully and knowingly and with intention of causing, caused wrongful loss to the company of the amounts to which the company was legally entitled. 7. Thus the offence under section 408 I P C is clearly proved because he has wilfully and knowingly and with intention of causing, caused wrongful loss to the company of the amounts to which the company was legally entitled. 7. The learned counsel for the petitioner has argued that though the petitioner has knowingly done this, it cannot be said that he has done it wilfully or intentionally, because what he was doing was as per the orders of his bosses and not of his own volition, and if he had not done this, he would have been discharged from service, and thus he was helpless and compelled to do these things. It is impossible to agree with such a contention. No person can say in defence that he would commit the offences and yet be immune from liability only on the ground that he was compelled to do these things. Apart from absence of any evidence of such compulsion, assuming such compulsion, it cannot be a defence. It would appear as if the petitioner had agreed to be employed for commission of these offences. Any hired person can say that he had committed the offences for the sake of money, remuneration or salary and not of his independent volition. This is no justification, no defence to the commission of the crime. It cannot be even said to be compulsion. 1.2.1984 8. The learned counsel for the petitioner referred to a decision of this Court in the case of Thakorprasad Tribhovandas Pandya v. State of Gujarat and another, 13 GLR 783, and contended that merely because the petitioner allowed the higher-ups to embezzle company's monies, at the most, it could be said that he was negligent in performance of his duties and he cannot be held to be criminally liable. In the fact of the present case, that judgment, on the contrary, would apply against the petitioner. In that case, this Court held that in order to bring home the charge of the offence on the ground that the accused had wilfully suffered another person to commit criminal embezzlement, it must be established that the accused concerned with deliberate intention and with a conscious action allowed that particular act to be done by the hand of another person. In the present case, with full knowledge and awareness, the accused has taken conscious action of repeatedly withdrawing huge amounts of the company from the bank, with deliberate knowledge that this amount is not withdrawn for the purposes of the company. In that case. the Court held that the word "wilfully suffers" connotes intention or knowledge. Here the accused had full knowledge and he deliberately and consciously withdrew money of the company for the purposes not of the company and caused wrongful loss to the company. It cannot be said that he had no intent to cause such wrongful loss to the company. This judgment on the contrary, helps the prosecution case, because the ingredients of "wilfully suffers" as laid down by that judgment are fully satisfied in the present case. 9. In Om prakash Gupta v. State of U.P., AIR 1957 SC 458 , the Supreme Court had considered the ingredients of section 405 I P C. and there the Supreme Court held that "there is essential difference between 'allowing' a person and 'wilfully suffering' a person to do a certain thing. Wilfully pre-supposes a conscious action, while even by negligence one can allow another to do a thing." In the present case, conscious action on the part of the accused is not in dispute, and is proved. Therefore, this judgment also cannot help the accused. 10. In Kesarnath v. State AIR (1985) All 233, the Allahabad High Court held that 'wilful means deliberate or intentional and not accidental or by inadvertence'. This judgment has also considered the question of duty of care and negligence to which I will refer to later in another context. In Abdus Salam v. Emperor, 37 Cri. L J 219, Patna High Court held that 'the fact that the accused himself did not misappropriate or use or dispose of any record in violation of his trust was immaterial, and the second part of section 405, Penal Code brought home the offence to the accused,', because he had wilfully suffered another person to use or misappropriate the trust property'. Thus there does not appear to be any doubt about the offence having been committed by the petitioner accused. 11. The learned counsel for the petitioner has further contended that at the most, the accused would be an abettor; and in absence of prosecution and conviction of the principal offenders, the abettor cannot be convicted. Thus there does not appear to be any doubt about the offence having been committed by the petitioner accused. 11. The learned counsel for the petitioner has further contended that at the most, the accused would be an abettor; and in absence of prosecution and conviction of the principal offenders, the abettor cannot be convicted. Here again, there is no evidence that in fact the offence is committed by other persons. The only material is the statement of the accused which is no evidence. Moreover, there is no proposition of law which lays down that an abettor can in no circumstances be convicted in absence of the conviction of the principal offender. There might be several cases where the principal offender may not be known or may not be available or may be absconding or dead or prosecution may fall against the principal offender because of some technicality, like defect in sanction; but it is proved to the satisfaction of the Court that the offence has been committed and in it further proved that the accused in that case has abetted the commission of that offence. There is no reason why such person against whom the offence of abetting is proved, cannot be convicted. 12. The learned counsel for the petitioner has relied on the case of Faguna Kanta Nath v. State of Assam, AIR 1959 SC 673 , wherein it is held that 'where a person is charged with abetment by aid of an offence under section 161 and the person charged with the offence is acquitted on the ground that he had not committed the offence, no question of intentionally aiding by any act of omission or the commission of that offence arises'. This judgment cannot be of any assistance to us. In that case, the offence under section 161 was not proved and, therefore, the question of abetting such offence would not survive. In the present case, the offence of criminal breach of trust has been proved beyond any doubt, and therefore, there cannot be any difficulty in convicting the present accused. Moreover, the present accused is not charged with abetment of the offence; but the charge is under section 408 of criminal breach of trust and wilful suffering any other person to commit that offence. 13. Moreover, the present accused is not charged with abetment of the offence; but the charge is under section 408 of criminal breach of trust and wilful suffering any other person to commit that offence. 13. In the case of Jamuna Singh v. State of Bihar, AIR 1967 SC 553 , the Supreme Court observed that "it cannot be held in law that a person cannot ever be convicted of abetting a certain offence when the person alleged to have committed that offence in consequence of the abetment has been acquitted. The question of the abettor's guilts depends on the nature of the act abetted and the manner in which the abetment was made. The Supreme Court further held that "it is not necessary for the offence of abetment that the act abetted must be committed." Therefore, there is no difficulty in upholding the conviction of the petitioner accused even if there might be some other persons involved in the commission of the offence. 14. The learned counsel for the petitioner further contended that once the conscience of the Court is satisfied that other persons might have been also involved in the crime and they were not prosecuted, the prosecution and conviction of the petitioner would become illegal and referred to the case of P. Sirajuddin etc. v. the State of Madras, etc., AIR 1971 SC 520 , The Supreme Court has held as under in para 27 of the judgment ; "We are not impressed by the argument that the appellant was singled out from a number of persons who had aided the appellant in the commission of various acts of misconduct and that they were really in the position of accomplices. It was pointed out by the High Court that the prosecution may have felt that "if the subordinate officers were joined along with the appellant as accused, the whole case may fall for lack of evidence". It was pointed out by the High Court that the prosecution may have felt that "if the subordinate officers were joined along with the appellant as accused, the whole case may fall for lack of evidence". In our view, if it be a fact that it was the appellant who was the head of the department actively responsible for directing the commission of offences by his subordinates in a particular manner, he cannot be allowed to take the plea that unless the subordinates were also joined as co-accused with him, the case should not be allowed to proceed." The petitioner accused cannot succeed in getting an acquittal on the ground that some other persons were also possibly involved in the crime. The petitioner is found to have committed offences and the Courts are bound to give effect to law and to punish him for the offences proved against him. 15. The learned counsel for the petitioner also argued that the prosecutor must stand or fall by itself and the prosecution cannot rely on the statement of the accused under section 313 so as to fill in the lacuna in the prosecution case. It is contended that the prosecution has heavily relied on the petitioner's confessional part of the statement to prove its case that the petitioner had committed the offence. The learned Counsel has, in this connection, relied on the judgment in the case of State Govt., Madhya Pradesh v. Seth Parasmal, AIR 1952 Nagpur 10 , where the Court held that "the object of section 342, is to enable the accused to explain any circumstances appearing against him and not to enable the Court to fill up the gaps in the evidence of the prosecution." In the present case, the prosecution has proved the case by leading its evidence and the prosecution has proved that the petitioner has actually withdrawn the cash amounts of the seven cheques; that he has not brought these amounts into the company, that he alone used to write the kuchha and pucca cash books wherein these entries regarding cash withdrawal were required to be made by him and were not made. The prosecution has also proved the false entries of the ledger made by the accused with a view to cover up and explain away the resultant difference due to this misappropriation. The prosecution has also proved the false entries of the ledger made by the accused with a view to cover up and explain away the resultant difference due to this misappropriation. Therefore, it would not be correct to say that the prosecution has proved the case against the petitioner relying on the statement of the petitioner. The prosecution is not succeeding because of any statement of the accused and the prosecution succeeds only by its own evidence. 16. The other charge against the accused is under section 477-A of the falsification off the accounts. The learned Magistrate has annexed with the judgment a comprehensive summary of about 50 exhibits (accounts entries) which is statement No (8) at pages 106 & 107, of the paper book and which is also annexed to this judgment as Annexure-8. This and other Annexures to the judgment of the Trial Court very neatly and succinctly summerise the mess of scattered documentary evidence and thereby admirably and correctly simplify and bring into bold relief the offences and the modus operandi of the accused in the present case. The prosecution witnesses (PW 1,4,5 and 6 Exh. 4, 127, 164 and 183) have proved the original entries in the Primary Books of Accounts such as cash book (muddamal article No. 20), Branch Expenses Journal (muddamal article No. 17), Stores Nodh (muddamal article No. 18), Bank Credit Journal (muddamal articles Nos. 15 and 21) and Expenses Journal (muddamal article No. 19) and they have been duly proved and there is no dispute about that entries in the primary books. When these entries are carried and posted in the ledger (muddamal article No. 16) which is maintained by the petitioner accused, these are materially different in the ledger. Annexure 'B' to this judgment and Exh. 124 shows that the account of the bank in the ledger shows that the accounts entries posted in the ledger are materially and significantly different from the original accounts entries in the ledger are materially and significantly different from the original accounts articles in the primary account books. Annexure 'B' to this judgment and Exh. 124 shows that the account of the bank in the ledger shows that the accounts entries posted in the ledger are materially and significantly different from the original accounts entries in the ledger are materially and significantly different from the original accounts articles in the primary account books. of Rs 1,19,529.63 is posted as Rs.1,91,529.63 of Rs.18,818.87 do Rs.28,818.00 of Rs.2,762.87 do Rs.7,262.87 of Rs.60,646.00 do Rs.80,646.00 of Rs.24,973.00 do Rs.42,973.00 of Rs.31,250.00 do Rs.71,250.00 of Rs.33,994.76 do Rs.34,994.76 of Rs.1,17,738.95 do Rs.1,71,738.95 of Rs.33,679.47 do Rs.38,679.47 of Rs.2,16,237.40 do Rs.2,46,347.40 of Rs.14661.49 do Rs.41,661.49 of Rs.34,236.17 do Rs.38.236.17 of Rs.1,28,564.12 do Rs.1,38,564.12 of Rs.17,633.55 do Rs.27,633.55 etc., and the resultant total of the excess amount posted in the ledger, comes to Rs 6,14,500. It is not in dispute that the ledger is written and maintained exclusively by the petitioner accused. Witnesses (PW 1, 4, 5 and 6) have come and deposed that these entries are in the hand writing of the petitioner. The petitioner has not challenged any of the witnesses regarding their evidence to this effect. The accused has not cross examined these witnesses on the point and put to them that the alleged erasures or corrections in these entries are not in his hand. In fact, practically there is no cross examination whatsoever of any of the witnesses in this respect. The Lower Courts have also seen the original and come to the conclusion that all the entries are in the same hand writing and the alleged corrections are also in the same hand writing. I have also seen the original & I agree. Moreover, the ledger shows the pencil total, from time to time in the hand of the accused, and these totals also reflect the false entries. Therefore, it is very clear and beyond any doubt that the accused has falsified the accounts, namely, the ledger, and further, it is clear that he has done so wilfully and with an intent to defraud the company. Moreover, as regards the cash book which is also written and maintained exclusively by him, there are clear omissions to make entries of the nine cheques of which cash withdrawals were made. The petitioner has made entries of other 24 cheques, of which the cash amounts were withdrawn during the year; but has not made entries of these nine cheques. Moreover, as regards the cash book which is also written and maintained exclusively by him, there are clear omissions to make entries of the nine cheques of which cash withdrawals were made. The petitioner has made entries of other 24 cheques, of which the cash amounts were withdrawn during the year; but has not made entries of these nine cheques. There is no dispute whatsoever about these omissions. The omission of these material entries in the cash book is also falsification of accounts as provided in section 477-A. 17. The learned counsel for the petitioner has contended that merely because the witnesses are not specifically cross-examined regarding these offending entries, the prosecution cannot contend that the evidence of the witnesses is not challenged. The petitioner has challenged the creditworthiness of these witnesses and contended that they are also involved in the crime, and therefore, their evidence as a whole is required to be rejected. However, having regard to the fact that there are clear omissions by the accused himself in the cash book regarding the nine cheques, there is no question of not relying on the evidence of witnesses, because there is no dispute that the petitioner has withdrawn the amounts of the seven cheques, and not credited the same in the cash book. These omissions by themselves are sufficient to prove the offence of falsification of the accounts. Regarding the entries in the ledger also, there is interest evidence in the ledger itself showing that the handwriting of all the entries are the same and the finding is further corroborated from the fact that pencil totals made by the petitioner in his own hand from time to time indicate that the corrected entries have been taken into account by the petitioner while totalling. Therefore, it is amply proved that the offending false entries are made by the petitioner, and therefore, the charge of falsification of the accounts is also proved. 18. As regards the charge of misappropriation of Rs 22,500, said offence is alleged to have been committed by the petitioner by falsifying the entries in the cash book; and by crediting less amounts (Exh 107 and 113) then required as per the vouchers, Exh 108 and 113 and thereby making a difference and misappropriating that difference. 18. As regards the charge of misappropriation of Rs 22,500, said offence is alleged to have been committed by the petitioner by falsifying the entries in the cash book; and by crediting less amounts (Exh 107 and 113) then required as per the vouchers, Exh 108 and 113 and thereby making a difference and misappropriating that difference. A summary of false credit entries is made in the Annexure (7) to the judgment of the Trial Court for an amount of Rs 18,000. A further amount of Rs 4,500 is proved to have been misappropriated while posting the cash book debit entry, Exh 68 of Rs 2,762.87 as Rs 7262.87 Ps and thereby, he had misappropriated the difference of Rs 4,500. All these false entries are proved in the same manner as indicated earlier; and there is no reason why not to believe these false entries having been made by the petitioner, and the resultant misappropriation of Rs 22,500 by the petitioner. This charge is also proved. 19. The charge of misappropriation of Rs 190,12.89 Ps. relates to shortage of cash found on verification on 2.2.76. It has been proved by the oral evidence of PW 1.4,5 and 6 the verification written and signed by the accused at Exh 121. The cash used to remain in his custody in the safe, the key of which used to be with the accused. The accused was on leave for 2-3 days prior to 2.2.76. On that day, the safe was opened in his presence with the key taken from him, and the cash was verified and found to be short by Rs 19,012.29 Ps. The accused could not account for it and the misappropriation is proved. FIR Exh 125 is based on this. Both Courts have believed the oral evidence. There is no rescue to take a different view on this count. Thus all the charges against the accused have been satisfactorily and beyond reasonable doubt proved against him and, therefore, there is no reason whatsoever, for interfering with his conviction and orders of the Lower Courts in that respect. 20. Now coming to the question of punishment, the petitioner has raised a serious point as to the circumstances in which the offence is committed. In both Courts below, these circumstances are not given due consideration. 20. Now coming to the question of punishment, the petitioner has raised a serious point as to the circumstances in which the offence is committed. In both Courts below, these circumstances are not given due consideration. The learned Trial Magistrate has observed that the offences is of misappropriation of a very large amount of Rs 6,52,500 and deterrent punishment was required to be imposed to set an example because the petitioner-accused had committed criminal breach of trust reposed in him by the company. The learned Magistrate also took into account that the petitioner has been suffering from heart disease and, therefore, the sentence of rigorous imprisonment was not ordered, but only simple imprisonment was imposed. In the Appellate Court, there is no consideration on the question of sentence. The learned Trial Magistrate had convicted the petitioner for offences punishable under section 408 and 477A and imposed the sentence of simple imprisonment of three years and a fine of Rs 5,000 for each offence and in each default to pay the fine, simple imprisonment of six months. 21. The learned counsel for the petitioner has argued that the sentence of imprisonment should have been provided to be concurrent and no such direction has been given and, therefore, the petitioner would be required to undergo total sentence of six years under the orders of the learned Magistrate. It is to be noted that the offence under section 408 is of misappropriation of Rs 6,52,500 and the offence under section 477A is also in respect of the falsification of the accounts so as to cover and conceal the offence of misappropriation. Thus, both the offences are in respect of the same series of transactions. If one offence was not committed the other offence would not have been committed. Therefore, really speaking, it is the same series of transactions, and therefore, he is rightly convicted for both the offences, but sentences of imprisonment ought to have been directed to run concurrently. 22. Thus, both the offences are in respect of the same series of transactions. If one offence was not committed the other offence would not have been committed. Therefore, really speaking, it is the same series of transactions, and therefore, he is rightly convicted for both the offences, but sentences of imprisonment ought to have been directed to run concurrently. 22. Next, as regards the circumstances of the crime, the petitioner has contended that even if he is held to have committed the offence under section 408 and held to have wilfully suffered someone else to commit the criminal breach of trust, he has himself not profited by committing the crime and the actual beneficiaries of the crime are others; and he should not be punished for the crimes and sins of others who are far more responsible. There is no evidence that the petitioner had passed on money to the witness (PW 1 Exh 4), the Chief Accountant, RV Patel for onward transmission to the Sethias; and that witness has denied that. The petitioner has stated in his statement under section 313 that under the instructions of the Sethias, he was required to withdraw the cash from the bank from time to time and to pass on the same to them through the Chief Accountant, Shri R V Patel. This statement is no evidence. Even if the petitioner had given oral evidence, such oral word would not have carried much weight in view of his own involvement and interestedness. 23. However, the petitioner has brought out certain circumstances on the record, from which the petitioner wants to raise an inference in support of his defence. The petitioner submits that - (1) According to the prosecution case, right from his joining the services in 1965 till 1975, the petitioner has been indulging in this practice and cases for all these years against him are pending; and criminal case in respect of misappropriations of the year 1975 has been first decided. Thus a very long standing practice of such withdrawals of the cash by the petitioner is alleged by the prosecution itself. (2) The complainant Chief Accountant (Exh. 4) has admitted in his evidence that the accused was the man of confidence of the Sethias. Thus a very long standing practice of such withdrawals of the cash by the petitioner is alleged by the prosecution itself. (2) The complainant Chief Accountant (Exh. 4) has admitted in his evidence that the accused was the man of confidence of the Sethias. (3) Whenever cash is requisitioned, no question is raised by any one including the Accountant (Exh 185) and the Chief Accountant (Exh 4) whose admitted duty it was to inquire and satisfy about the necessity and justification of the cash. (4) After the voucher is prepared, the cheque is required to be signed by two constituted attorneys; and usually, the Chief Accountant, R V Patel was one of the constituted attorneys who used to sign himself most of the cheques. The Chief Accountant (Exh 4) has also submitted that the other constituted attorney would also sometimes inquire on phone about the issuance and signing of the cheque, but in respect of these requisitions, there was never any question raised, by either of the signing constituted attorneys. (5) Even though substantial cash was withdrawn in immediate past, (i.e. a day or two prior to the cheque in question), no question was raised by any one (See Annexure A to this judgment.) (6) Even in absence of the petitioner, if someone else were to requisition cash (witness RJ Patel, Exh 164) has withdrawn Rs 1,80,000 cash by cheques (Exh 8 and 11), no question is raised. This also indicates that there was a definite practice to allow. cash to be withdrawn without any question for some undisclosed but understood reason, even in absence of the petitioner. (7) After the cheque is prepared and signed for encashment, the voucher would go to the petitioner accused and all the vouchers are required to be serially numbered. There are no vouchers to be found in respect of these nine cheques, and the remaining 24 vouchers are serially numbered without any break indicating that the missing vouchers were never numbered. Again nobody raised any question. (8) The accounting system of entrusting kutchha cash book, puckka cash book and the ledger exclusively to one person (namely, the petitioner) is also indicative of the fact that a special confidence was reposed in the petitioner for some special purpose; because the Chief Accountant, R V Patel (P W Exh 4) admits in his evidence that he knew that this was not a healthy accounting practice. (9) The omission of the entries in the cash book and the falsification of the entries in the ledger are so obvious that they cannot remain concealed for any time, much less for number of months or years and the non-detection of all such false entries by anyone and everyone is clearly indicative of the knowledge and interest of the higher-ups. (10) The bank statements are in one separate book (bound file) containing Exh 128 to 163 and the monthly bank statements are at Exh. 134, 138, 143, 147, 151, 155, 159 and 163. There were no misappropriations in the months of June & September, These bank statements contain all the withdrawals from the bank including the nine misappropriation cheques, and these statements were received from the bank between Ist and 10th of the next month, and it was the duty of the witness S C Contractor (Exh 127) to see that there is reconciliation of the bank statement with the account of the bank maintained by the company. The reconciliation statements prepared by him begin with the entry of "balance as per ledger"; but the witness says that he has never looked at the ledger and he took the balance from the previous reconciliation statement. There is another significant and more crucial indication in these bank statements. The company had in fact issued 33 bearer cheques for cash withdrawal during the year 1975, out of which 24 cheques have been properly accounted for and amounts of these nine cheques have been misappropriated. This witness, S C Contractor (Exh 127) who used to prepare the reconciliation statement has tick marked the entries of the 24 cash withdrawals without any word or mark. But as regards these nine cheques, he has made a mark with the word "cash" instead of a tick, thus indicating that he has a noticed or he knows that such cheques are specially different from other 24 cheques. Thus there is a clear indication that not only the accused, but this witness (Exh 127) also has knowledge about the nature and reason of these withdrawals. Thus there is a clear indication that not only the accused, but this witness (Exh 127) also has knowledge about the nature and reason of these withdrawals. (11) It is also not in dispute that these bank statements and the reconciliation statements (Exhs 128 to 163) have all along been with the witness, S C Contractor and the accused had no hand in them; and it is nobody's case that the accused has at any stage dealt with the same. The witness S C Contractor (Exh 127) has admitted that it was he who has written the word "cash" against each of these cheques. It is also admitted position that these cash withdrawals are not entered in the cash book, and yet reconciliation statements proceed on the basis that the amounts of these cheques has also been withdrawn. (12) The omissions of the entries of these withdrawals in the cash books and the falsification of the entries in the ledger are so obvious that they can be so easily detected and non detection is so improbable and unnatural that natural and necessary inference should be raised that the things were known and deliberately ignored by the Accountant, Chief Accountant, Auditors and the higher-ups. (13) It was also sought to be proved by the petitioner that the Sethias had declared huge amounts running into crores under the Voluntary Disclosure of Income and Wealth Act, 1976, and his attempt to summon the witness from the Income-tax Department was resisted curiously by the prosecution (and not by the Sethias themselves) on the ground that the same was confidential and secret and protected from production in any Court under section 12 of the Act, but the resistance by implication submitted that there was voluntary disclosure by these Sethias. 24. From these circumstances, the learned Counsel for the petitioner contends that an inference is inescapable that the misappropriated monies were transmitted to the higher-ups and the petitioner had not benefited by his crime. There is some force in this contention. However, it would be too hazardous to draw any firm conclusion. The circumstances do indicate in the direction suggested by the defence. PW 4, S C Contractor seems to know something special about these nine cheques. There is some force in this contention. However, it would be too hazardous to draw any firm conclusion. The circumstances do indicate in the direction suggested by the defence. PW 4, S C Contractor seems to know something special about these nine cheques. He also states (Exh 127) that:- "When I wrote the word 'cash', it was not my duty to see whether the amount is credited in the cash book or not. Now, I say that I ought to have seen that, but because Shri Dalai (the accused) stated so, I did not see the cash book." Thus witness knows that he should have seen the cash book. Inspite of that, when he is resisted by the accused, he does not do anything. That shows that he has some understanding about the nature of the transaction. When he knows the need of seeing the cash book and wants to see the cash book, and he is resisted, suspicion is bound to arise and he is expected to report and complain to the superiors. His silence speaks. 25. The prosecution has not been in a position to throw any light whatsoever as to why this witness, S C Contractor has made this mention of 'cash' against these nine cheques only. This question was seriously debated from the very first and every day of the hearing which lasted for about a week. This witness is even to day in the employment of the company. An attempt was made to shows that against all the 33 entries of cash withdrawals, the witness had originally written the word 'cash and subsequently, the word 'cash' was erased against 24 entries amounts of which were not misappropriated, and they were marked with tick-mark and against these nine entries, the word 'cash' was allowed to remain. No witness has stated this, and even if that be so, that further fortifies that the offending thing had been noticed, and it is nobody's case that these documents and the tick or the word 'cash' have been tampered with. Moreover, it is also an admitted position that, the accused had no dealings with these bank statements, and it has never been suggested that the accused had any hand in these original or allegedly subsequent tick marks and the word 'cash'. Moreover, it is also an admitted position that, the accused had no dealings with these bank statements, and it has never been suggested that the accused had any hand in these original or allegedly subsequent tick marks and the word 'cash'. If this witness for the prosecution knows something incriminating, it is not unlikely that others in the management would be ignorant of it. This lame explanation of erasure of 'cash' also does not seem to be correct because in the bank statement of January, 1975, it is clear that against the duly accounted cash withdrawals, there is no erasure of 'cash' and no other mark in that place. 26. The prosecution case is that the petitioner was trusted and his honesty was not doubted and, therefore, his dealings were not suspected. But there were two occasions when the accused was absent and cash was requistioned on 20th May, 1975 and 3rd October, 1975. Prior to 3rd October, 1975, cash on 1st October t975 of Rs 1,50,000 was withdrawn and Shri R J Patel had accompanied Shri Dalal for the withdrawal of Rs 1,50,000 on 1st October, 1975. Yet on 3rd October, 1975, in absence of the petitioner, a cash of Rs 1,50,000 is requisitioned by the prosecution witness, Mr RJ Patel and he has brought the case from the bank. This cash is also not entered into the cash book which is required to be maintained by the petitioner. It is the case of the prosecution that on return of the petitioner, Shri R J Patel had given the account of the balance to the petitioner, and the petitioner was required to account for the same and by not making the entries and misappropriating the amount, the petitioner had committed the offence. However, the learned Appellate Judge has given him benefit of doubt in respect of this and the other cheque (Exh B), dated 20th May, 1975 for Rs 30,000. From these, it does appear that even in absence of the petitioner, others would also requisition cash for reasons which were not to be inquired. Regarding these two withdrawals, the witness, R J Patel has stated thus:- "On 20.5.75, I had encashed the cheque (Exh 8) for Rs 30,000. From these, it does appear that even in absence of the petitioner, others would also requisition cash for reasons which were not to be inquired. Regarding these two withdrawals, the witness, R J Patel has stated thus:- "On 20.5.75, I had encashed the cheque (Exh 8) for Rs 30,000. I do not know what was the cheque for." This withdrawal was at his instance and in absence of the petitioner who was on leave, yet this prosecution witness does not know the purposes of the withdrawal, nor anyone was there to ascertain the purpose or justification, and yet withdrawal is made. 'Similarly, as regards the withdrawal of Rs 1,50,000 by cheques; (Exh 11) at his instance and in absence of the petitioner on 3rd October, 1975, the witness states in cross-examination as follows:- "I did not know the purpose for which the cash was being withdrawn on 3.10.75 and I do not know even to-day." Regarding this withdrawal also, there was no question raised about the justification and the withdrawal was made. Thus it would appear that this prosecution witness seems to know that for some unspecified or undisclosed reasons, the withdrawal was to be made. It is unlikely that others who permits these two withdrawals by preparing and sanctioning the vouchers and signing the cheques would not know the same. 27. The non-detection of so obvious and so numerous omissions and falsification of the accounts is also significant. The complainant, Shri R V Patel, the Chief Accountant is a Chartered Accountant. He narrates the duties of the accused under eight categories. He also says that it was the duty of the Accountant, Shri B S Shah to satisfy himself as to how much cash is necessary when the accused asked for the cash. But when asked about his own duties, he stated that his duty was of general supervision and to see that the accounts are properly written. But he stated that it was not his duty to check daily cash or to make surprise checking. He also stated that it was not his duty to confirm bank statement with some of the entries of the Ledger. He seems to be supremely unconcerned about the work being done by his subordinates. He admits that the system of entrusting the work of writing and maintaining kuchha and puckka cash books and ledger to one person was not a healthy thing. He seems to be supremely unconcerned about the work being done by his subordinates. He admits that the system of entrusting the work of writing and maintaining kuchha and puckka cash books and ledger to one person was not a healthy thing. Even then, he never felt any need of any checking whatsoever. He never felt any necessity of inquiry when large cash was requisitioned in immediate succession. The very fact that after detecting the misappropriation of Rs 19,812 on 2nd February, 1976, within only a day, the remaining misappropriation of Rs 6,30,000 by the nine cheques is detected and reported to the Police, shows that the detection did not require any long or complicated exercise. This shows the obvious and apparent nature of the omissions and falsification of the entries, and the non-detection could not due to any complicated nature of the transaction, but due to some unascertainable reason. 28. The matter does not rest here. It is in the evidence that the account books of the company are audited by the statutory auditors. It is admitted position that financial year of the company is from 1st January to 31st December, and the audit work starts sometime in and around August and would be completed in March-April. It is also not disputed that for the month of August, 1975, there was complete checking by the Auditors. Mr AR Gandhi, the Auditor has been examined at Exh 205. He is a Chartered Accountant and partner of N M Raiji & Co, Auditors of the company. They are auditors of the company since 1985. It is an admitted position that they did not detect any misappropriation for any of these years including 1975. He says that, if an expert in accounts like a Chartered Accountant audits the accounts, there can be a check on the working of the company, He states that reconciliation statement is prepared after seeing the balance in the account books of the company. He also admits that even reconciliation statements have been seen by his assistants. He also admits that every cash transaction of the company should be entered in the cash book. Many of these reconciliation statements have been audited by the Auditors and they bear the Auditor's red ticks. He also admits that even reconciliation statements have been seen by his assistants. He also admits that every cash transaction of the company should be entered in the cash book. Many of these reconciliation statements have been audited by the Auditors and they bear the Auditor's red ticks. These Auditors also must have noticed that against 24 of the cash withdrawals, there is pencil tick mark and against the nine cheques, the word 'cash' is mentioned. Even though the Auditors have audited these and even though these nine cheques are not entered in the cash book, they have not detected even a single one of these omissions of the entries in the cash book and the obvious misappropriation of these accounts. These reconciliation statements have the first entry "balance as per ledger". The Auditors have audited and put red tick mark against these items also in the reconciliation statements. It is natural that when the Auditors audited these accounts and the reconciliation statement, they must have noticed that the balance is in fact not as per the ledger and there are serious discrepancies. But that is also ignored. 29. Can we take non-detection by the Auditors also as simple and innocuous as non- detection by any other person ? The Auditors are expert and experience in accounting and they are statutorily required to be appointed as watchdogs to see that financial accounts of the public limited companies are properly maintained and scrutinised. If an expert is appointed specifically with a particular duty and fails to perform that duty, can it be said that it is innocent negligence or there is anything more to be read in it? In the case of Kedarnath v. State, (supra) to which reference was made earlier, Allahabad High Court makes a very apposite observation in this regard in paras 16 and 17 as under:- "16. Apart from the question of loss, another ingredient which runs through every branch of the law of negligence is that there must be a duty to take care. The nature of the duty and the standard of care will vary according to the nature of the office or the contract and the circumstances. Apart from the question of loss, another ingredient which runs through every branch of the law of negligence is that there must be a duty to take care. The nature of the duty and the standard of care will vary according to the nature of the office or the contract and the circumstances. Generally speaking, the standard that the law enjoins is governed by the knowledge and skill that the office or occupation requires, by the magnitude of the task and by the gravity of the consequences that are likely to ensure, if the requisite degree of care is not exercised. 17. Good faith imports the exercise of due care and attention. A person can be excused for having committed an error of judgment only if be exercised due care and attention, and his conduct makes it clear that there was no negligence according to reasonable standard. The standard of care required is that of a reasonably prudent man who acts with the care and caution required of a person in his position dealing with a matter of similar importance. If such a person could have acted in a similar way, then only could the accused be excused for that he calls a mere error of judgment or innocent dereliction of duty." 30. In the present case, can we say that the Auditors had in good faith, in exercise of due care and attention in some bona fide error omitted to detect each and every one of so numerous and so obvious omission and false entries ? When actual audit work is carried by the Auditor's assistants, it may be difficult to come to a firm conclusion about the culpability of the Auditor himself. But Auditor's assistants could not have missed to notice the pencil entries of cash against these nine cheques only, and they would not have failed to detect the omission of all the nine cheques in the cash book and dozens of false entries in the ledger. If not a single false entry or omission is detected, and if there is a total non-detection by the Auditor's assistants, it cannot be taken as a mere innocuous or negligent omission on the part of the Auditor's assistants. If not a single false entry or omission is detected, and if there is a total non-detection by the Auditor's assistants, it cannot be taken as a mere innocuous or negligent omission on the part of the Auditor's assistants. By negligence some of the entries might not be detected; but when there are large number of false entries and not a single is detected, not only in this year, but also in the previous 10 years, that would indicate that the negligence of the Auditor's assistants cannot be simple and innocuous and there has to be some connection with the so-called negligence of many others. There seems to be "method in the madness" of accounts & audit. If a watchdog does not watch; if the Police investigator does not investigate; and if an Auditor does not audit, what to infer ? A story of Sherlock Holmes comes to mind. The dog that did not bark. The dog who should have and naturally would have barked at the commission of the brutal crime, did not bark, none heard him bark. The sharp mind of the master detective Holmes deduced that the culprit must be the owner of the dog ?" 31. The learned Public Prosecutor submitted that the Police had made a proper investigation with success, and the result is conviction of the accused. But it is really curious that the police investigation did not go deeper into these transactions of misappropriation to find out the culpability of different persons concerned, and it rests satisfied with the case placed before the Police authorities by the complainant-informant. In a case of this nature, it was the duty of the Police to go deeper and to make a thorough investigation and report to the Court, the result of such investigation. Such fuller and deeper investigation would inspire confidence in the bona fides of the Police investigation. 32. Each one of the circumstances taken separately, may not lead anywhere; but the cumulative effect of all these circumstances does raise a serious doubt in my mind as to whether all the amounts said to have been misappropriated have remained with the accused-petitioner. It is not unlikely that the defence of the petitioner may have some truth, at least in respect of part of the misappropriated amount. 33. It is not unlikely that the defence of the petitioner may have some truth, at least in respect of part of the misappropriated amount. 33. Therefore, even though the offences charged against the petitioners are fully proved, it would not be just to punish him as if he had personally benefited to the total extent of the misappropriation. The misappropriation is, of course, very large, and even after excluding Rs 1,80,000 (Exhs 8 and 11), the misappropriation is more nearly five lacs rupees. Therefore, the punishment has to be substantial; but at the same time, it is also required to be reduced in view of the totality of circumstances. While reducing sentence of imprisonment, it would also be necessary to consider as to how to deal with the question of fine. The learned Counsel for the petitioner also states that he has no objection, if the fine is enhanced. 34. It is, therefore, directed that in substitution of the order of sentence passed by the learned Magistrate and confirmed by the City Sessions Court, the petitioner is sentenced to suffer simple imprisonment for a period of two years (instead of three years) for each offence punishable under section 408 and under section 477-A of the Indian Penal Code; and these sentences shall run concurrently. The petitioner is further sentenced to pay a fine of Rs 20,000 for each offence (i.e. Rs 40,000 in all). The fine already paid will be given credit and shall be adjusted. In default of payment of fine, the petitioner shall suffer simple imprisonment for a further period of nine months. 35. The learned counsel for the petitioner has also pointed out that a sum of Rs 4,000 cash was recovered under a Panchnama from the petitioner's residence and that muddamal is lying with the Trial Court and no order has been passed regarding disposal of that muddamal. No offence is proved in respect of those currency notes; and therefore, this amount is required to be returned to him and that may be appropriated towards the payment of fine. The learned Public Prosecutor has no objection. 36. A copy of this judgment be sent to the Institution of Chartered Accountants for their information and action as they deem proper; particularly, in light of paragraphs 27 to 30 above. 37. The learned Public Prosecutor has no objection. 36. A copy of this judgment be sent to the Institution of Chartered Accountants for their information and action as they deem proper; particularly, in light of paragraphs 27 to 30 above. 37. In the result, this revision application is partly allowed on the question of sentence, and rule is made absolute to that extent. The order of conviction is confirmed, and rule is discharged in that respect. The petitioner is granted six weeks time to surrender.