Judgment Ram Chandra Prasad Sinha, J. Appellants Gulab Singh and Sheodas Singh have been convicted and sentenced to pay a fine of Rs. 2000/- each, In default, to undergo simple imprisonment for six months each under section 420 of the Indian Penal Code. Appellants Pramod Kumar Chadda and Babulal have been convicted and sentenced to pay a fine of Rs. 500/- each in default to undergo simple imprisonment for six months each under section 420 of the Indian Penal Code. Appellants Gulab Singh, Pramod Kumar Singh and Sheodas Singh have also been convicted under section 468 of the Indian Penal Code, but no separate sentence has been passed. Besides, all the appellants have been held guilty and convicted under section 477 A of the Indian Penal Code and section 5(1) (d) read with section 5(2) of the Prevention of Corruption Act, and 120 read with section 420, 468 of the Indian Penal Code and section 5(1) (d) read with 5(2) of the Prevention of Corruption Act, but no separate sentence has been passed against any of the appellants under the aforesaid sections. One Makhan Lal Lodh was also tried along with the aforesaid appellants and convicted but he is not an appellant here. 2. The prosecution case, in brief, is that all the appellants were employees of the Madhuband colliery which previously was a private concern but subsequently the same was nationalised and its management was taken over by the Bharat Coking Coal Limited (For short, B.C.C.L.) and during the period 1973 to March, 1974 the appellants were the employees of BCCL. The Chief Personnel and Relations Officer of B.C.C.L. issued a circular No. BCCL/IR-III/72/4209 dated 3.7.1972 (Ext. 5) directing all Group officers/Area officers to examine the cases of all the contractors and to ensure that no employee should continue as contract or undertake any contract in his own name or in the name of his relation. Appellants Gulab Singh, P.K. Chadda, Sheodas Singh and Babulal and one Makhan Lal Lodh (not an appellant) were mason, stone cutter, peon, assistant surveyor and cashier in the aforesaid colliery of B. C. C. L. respectively during the period 1973-74. 65 Isolation stopings in top and bottom in sections of 19A seam of the said colliery at an estimated cost of Rs. 65 Isolation stopings in top and bottom in sections of 19A seam of the said colliery at an estimated cost of Rs. 47051/- were to be constructed, Three undated quotations were placed in the file in the fictitious names of Gyanchand, Sheo Charan and Kaushlendra Singh. The body portions of the quotation in the name of Gyanchand were in the writing of appellant Babulal. The signature purporting to be of Gyanchand was in the pen of appellant Gulab Singh. The signature on the quotation in the name of Kaushalendra Singh was in the pen of appellant Sheodas Singh. No person bearing the name of either Gyanchand or Sheo Charan could be traced but Kaushalendra Singh was a minor son of appellant Sheodas Singh aged about 10 years in 1913. He was a student of middle standard having his date of birth as 12.12.1963 in the school admission register. Appellants Gulab Singh and P.K. Chadda were executing the contract work for the construction of Isolation stoppings in the fictitious name of Gyanchand. Appellant Sheodas was executing the contract attending in the name of Kaushlendra Singh. According to the prosecution, the motive for taking the works in fake names was obviously to overcome the hurdles in taking contracts put by Ext. 5 and to defraud the administration. Three bills dated 30.6.1973, 12.7.1973 and 27.9.1973 were submitted in the name of Gyanchand for Rs. 1981.57, Rs.919.57 and Rs. 1368.43 respectively. Out of the aforesaid bills the bills dated 30.6.1973 and 12.7.1973 were in the pen of appellant Babulal signed by appellants Gulab Singh and P.K. Chadda respectively as Gyanchand. The bill dated 27.9.1973 was signed by appellant Gulab Singh as Gyanchand. Nine bills was submitted in the name of Kaushlendra Singh. Five of the aforesaid bills were in the pen of appellant Babulal and all the nine bills were signed by appellant Sheodas Singh as Kaushalendra Singh. A sum of Rs. 4267.57 was paid to appellant Gulab Singh for the aforesaid three bills in the name of Gyanchand by accused Makhan Lal Lodh, cashier. Appellant Gulab Singh forged the signature on the vouchers in his presence. Accused Sheodas received a sum of Rs. 4998.91 for the nine bills by forging the signature of Kaushalendra thereon as well as on the vouchers. An the payment were made by the aforesaid cashier to appellant Sheodas Singh. Appellant Gulab Singh forged the signature on the vouchers in his presence. Accused Sheodas received a sum of Rs. 4998.91 for the nine bills by forging the signature of Kaushalendra thereon as well as on the vouchers. An the payment were made by the aforesaid cashier to appellant Sheodas Singh. Appellants Gulab Singh, P. K. Chadda and Sheodas Singh were well known to him. During the surprise check of Isolation stoppings constructed by appellant Gulab Singh, P. K. Chadda and Sheodas Singh, they were found to be under measurement and below specification. The width was found to be less than 3 feet as against the specification of 3 feet 3 inches thickness and the payment was also made for the lame specification. During investigation it was found that the appellants had entered into criminal conspiracy to defraud tile B. C. C.L. and to obtain undue pecuniary benefit to themselves by corrupt and illegal means by abusing their position as public servant. Further case was that in furtherance of the said conspiracy undated quotations were introduced in the file in fake and fictitious names and work orders were fraudulently obtained, bills with inflated measurement were submitted and payments were taken under forged signature to conceal their identity. 3. On receipt of information through a source, Narendra Nath Singh, then Inspector of Special Police Establishment, Bihar Branch, Patna (P.W. 23) drew up first information report (Ext.23) and registered a case against 10 persons including the appellants under sections 120B/420/468/477A of the Indian Penal Code and 5(2) read with section 5(1) (d) of the Prevention of Corruption Act, and took up investigation on completion of investigation, chargesheet was submitted by Inspector Gulam Kumar (P. W. 22) against the appellants and accused Makhan Lal Lodh and after taking cognizance of the offences the trial was held by the Special Judge (CBI). 4. All the appellants denied the charge and claimed to be innocent. Further defcnce of appellants Gulab, Sheodas and P.K.Chadda was that the, did not file any quotation for the construction of Isolation stoppings nor did they execute the work nor received any payment. They denied their signatures and writings on the quotations, bills and vouchers. Similarly appellants P.K. Chadda and Babulal disowned their writings on the quotations and bills. 5. At the trial 26 witnesses were examined on behalf of the prosecution. No witness was examined on behalf of the defence. 6. They denied their signatures and writings on the quotations, bills and vouchers. Similarly appellants P.K. Chadda and Babulal disowned their writings on the quotations and bills. 5. At the trial 26 witnesses were examined on behalf of the prosecution. No witness was examined on behalf of the defence. 6. Learned counsel appearing on behalf of the appellants has submitted that on the facts found by the learned Special Judge no offence under any of the aforesaid sections for which the appellants have been found guilty is either made out or proved against them. On the other hand, it has been submitted by learned counsel appearing on behalf of C.B.I. that all the ingredients of the aforesaid sections have been proved to be present in the case and the case against all the appellants stands well proved. 7. On consideration of the evidence, the learned Special Judge has given the following findings:- (i) The appellants were whole time employees of B.C.C.L. They had filed two undated quotations in the names of Gyanchand and Kaushalendra Singh for the construction of 65 Isolation Stoppings in 19A Seam which were accepted in spite of Ext. 5 and work orders were obtained in the fake names of Gyanchand and Kaushalendra Singh and the execution of the work was taken up by the accused persons. (ii) Quotation were in the pen of appellant Babulal and signatures thereon were of appellants Gulab Singh and Sheodas respectively. (iii) Gyanchand was a non-existent person and Kaushalendra Singh was a minor son of Sheodas Singh. (iv) Appellants Gulab Singh and Sheodas Singh managed to get work order and appellants Gulab and Pramod Kumar Chadda executed the work in the name of Gyanchand and appellant Sheodas executed the work in the name of Kaushalendra. (v) Tue prosecution has failed to prove that the accused persons obtained inflated payment for the work. 8. Though the aforesaid findings have not been challenged seriously by Mr. Braj Kishore Prasad, but he has drawn my attention to the evidence of Bahadur Singh (P.W.4) who was working in Madhuband Colliery since 1956. He has stated in his examination-in-chief that Madhuband colliery was nation. Used in 1974, and before Chadda 1974 appellants and Gulab Singh were working in P.K. Karamch and Thaper Company. The evidence of S.K. Mishra, personnel Manager (P.W.19) has also been referred to. He has stated that Ext. He has stated in his examination-in-chief that Madhuband colliery was nation. Used in 1974, and before Chadda 1974 appellants and Gulab Singh were working in P.K. Karamch and Thaper Company. The evidence of S.K. Mishra, personnel Manager (P.W.19) has also been referred to. He has stated that Ext. 5 was of his office and this was in force in 1976. On the basis of the aforesaid statement learned counsel has submitted that it has not been proved by prosecution that the aforesaid two appellants were employees of Madhuband Colliery under B.C.C.L. and that Ext 5 was not applicable at the time when the contract works were given to them. But in cross examination P.W.19 has very clearly stated that the circular (Ext.5) was in force since 1972, Besides, there is other evidence to snow that the appellants were employees of Madbuband Colliery under B.C.C.L. in the year 1973-74. There is also evidence to show that the collieries are nationalised in the year 1971 (vide P.W.10, para 26). All the appellants nos 1, 2, 3, and 4 have admitted in their statements under section 313 of the Code of Criminal Procedure that they were mason, stone cutter, peon and Assistant surveyor respectively during the period 1973-74 in Madhuband colliery of B.C.C.L. On the basis of the evidence it has rightly been hold by the Special Judge that they were employees of Madhuband colliery of B.C.C.L. during the period in question. 9. The gravamen of all the charges against the appellants is that they bring employees of Madhuband Colliery during the year 1973-74 took contract in the names of fake and imaginary person as well as in the name of Kaushalendra, a minor son of appellant Sheodas Singh, for the construction of 65 Isolation Stoppings in 19-A Seam of the said colliery which is not permissible under the circular (Ext.5). Before considering the other points involved in the case I proceed to consider as to whether the prosecution has succeeded in proving that Gyanchand was a non-existent and imaginary person and Kasuhalendra son of appellant Sheodas was minor in the year 1973-74. 10. In order to prove the minority of Kaushalendra the prosecution has examined Narain Sharma (P.W.8) a clerk of Sakurabad High School who has proved certain entries in the admission register which has been marked Ext.7. He has also proved one certificate granted by Sheo Ratan Sharma. 10. In order to prove the minority of Kaushalendra the prosecution has examined Narain Sharma (P.W.8) a clerk of Sakurabad High School who has proved certain entries in the admission register which has been marked Ext.7. He has also proved one certificate granted by Sheo Ratan Sharma. Headmaster Incharge of the said school, which has been marked as Ext.8, Ext.7 shows that one Kaushalendra Sharma son of Sheodas Sharma of village Hasanpur was admitted in the said school On 20.1.1976 whose date of birth has been shown in the admission register as 12.12.1963,. Ext. 8 is dated 4.2.1977. It shows that one Kaushalendra Sharma, son of Sheodas Sharma of village Hasanpur was a student of class VIII of the School and his date of birth, according to the admission register, is 12.12.1963. Ext. 7 does not bear the signature of the father or guardian of Kaushalendra Sharma and there is no evidence on the record of the case to show that Ext. 7 and 8 refer to Kaushalendra Singh son of appellant Sheodas, Besides, P.W.8 has also stated that there is no signature of the guardian in the column of the admission register which is meant for the signature of guardian of father of the student. He has not further stated that the guardian of a ward gives declaration in the case of the first admission. He has also stated that he has seen the declaration of the guardian of Kaushalendra, Besides, Ext. 7 and 8 are document of the period during the pendency of the case. This is not all, P.W.4 in paragraph 6 has stated that Kaushalendra son of Sheodas was the contractor whose work were supervised by Ramrup. He has further stated that Kaushalendra is aged about 28 years. The evidence has been given by him in the month of September, 1978. According to this witness, he was major in the year 1973-74. In the statement under section 313 of the Code of Criminal Procedure, the following question was put to appellant Sheodas:- Ques.:-It is in evidence that Kaushalendra Singh is your son who was minor in the year 1973-74. What have you to say? Ans- My son Kaushalendra was major in 1973-74. In the statement under section 313 of the Code of Criminal Procedure, the following question was put to appellant Sheodas:- Ques.:-It is in evidence that Kaushalendra Singh is your son who was minor in the year 1973-74. What have you to say? Ans- My son Kaushalendra was major in 1973-74. It has not been put to him that his son was a student of Sakurabad High School in the year 1976 and his date of birth as entered in the admission register was 12.12.1963 and as such the aforesaid documents are not of any avail to the prosecution as he was not given opportunity to explain the same. 12. The case of the prosecution that the employees of Madhuband colliery of B.C.C.L. were prevented from taking contract work of the said colliery is based on Ext. 5. It has been mentioned to be a confidential document. Its copies were forwarded to all the Colliery Managers of Madhuband group for information. From the perusal of Ext. 5 it appears that all Group officers and Area Officers were requested to examine the cases of contractors and ensure that no employee continued as contractor or undertakes any contract either in the same colliery or in any other colliery either in his own name or in the name of his relations. By this document a duty was cast upon Group Officers and Area Officers not to allow any employee to continue as contractor and that no employee should be given any contract in any colliery either in his own name or in the name of his relations. On the basis of this it has been submitted by learned counsel appearing on behalf of the C.B.I. that the appellants in conspiracy with each other fraudulently and dishonestly took the work in the fictitious name of Gyanchand and Kaushalendra who was a minor by forging writings and signatures on the quotations and other documents and the administration or the colliery was induced to live contract which was forbidden by Ext.5, and thus they fire guilty or cheating under section 420 as well as sections 468 and 477 of the Indian Penal Code. 13. As mentioned above. Ext. 5 has been described as a confidential document and no evidence has been brought on the record of the case to show that the appellants were aware of Ext.5. 13. As mentioned above. Ext. 5 has been described as a confidential document and no evidence has been brought on the record of the case to show that the appellants were aware of Ext.5. Assuming that Kaushalendra was a minor and Gyanchand was a fictitious name it cannot be held that the appellants had mens rea and that they took work order with this guilty intention and illegal motive. 14. Alternatively it has been submitted by learned counsel of the C.B.I. that if they are not guilty under section 420 of the Indian Penal Code, charges under sections 468, 471, 477 and 120B of the Indian Penal Code have been proved against the appellants. In support of his contention he has strongly relied upon the case of Dr. Vimka v. The Delhi Administration. The facts found in the said case were that Dr. Vimla had purchased an Austin 10 Horse Power Car on 20.1.1953 with her own money in the name of her minor daughter Najini aged about 6 months. Transfer of the car was notified in the name of Nalini to the Motor Registration Authority. The car was insured against the policy issued by the Bharat Fire and General Insurance Co. Ltd. On the request made by Dewan Ram Swarup, huusbandd of Dr. Vimla the said policy was transferred in the name of Nalini. Dr. Vimla visited the Insurance Company office and signed the proposal from as Nalini. Subsequently she also filed two claims. She signed the claim forms as Nalini and also the receipts acknowledging the payment of compensation money as Nalini, Dr. Vimla and her husband were tried for the offences under sections 120B, 419, 457 and 468 of the Indian Penal Code. They were acquitted by the trial court but on appeal by the Government Dr. Vimla’s acquittal under sections 467 and 468 of the Indian Penal Code was set aside and she was convicted under those sections It has been held as follows:- "The expression 'defraud' involves two elements, namely, deceipt and injury to the person deceived, Injury is something other than economic loss that is, deprivation of property. whether movable or immovable or of money, and it will include any harm wharever caused to any person in body, mind reputation or such others. In short, it is a non-economic or non-pecuniary loss. whether movable or immovable or of money, and it will include any harm wharever caused to any person in body, mind reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even In those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied." Applying the aforesaid principle laid down in the case it was held as follows:- ………….Certainly, Dr. Vimal was guilty of deceipt, for though her name was Vimla, she signed in all the relevant papers as Nalini and made the insurance company believe that her name was Nailini, but the said deceipt did not either secure to her advantage or cause any non-economic loss or injury to the insurance company any.” The facts found in the present case are that the contractors did not receive more money than the works done by them and there is nothing to show that the colliery was put to any loss either economic or non-economic which are necessary ingredients for holding one guilty, either under section 468, or 471 or 477A of the Indian Penal Code because the word 'Fraudulently' is there in some form or the other in all the aforesaid sections. So the case of Dr. Vimla (Supra) is not of any assistance to the prosecution. 15. Mr. Pandey also put much reliance on the case of G.S. Bansal V. The Delhi Administration. The facts of the aforesaid case, in brief were as follows appellant Bansal was son of Janki Prasad who held a ration depot in Delhi. In 1948 he purchased three Post Office National Savings Certificate of the face value of Rs.250/-in the name of the Controller of Rationing, Delhi and deposited the same with him as security. Subsequently in February, 1952, Jamuna Prasad transferred the aforesaid ration depot in favour of his grandson, i.e., the son of the appellant. In April, 1952 Janki Prasad applied to the Rationing authority for release of the said security on the ground that he had transferred the said ration depot to his grand son who had given a fresh cash security. Before the release of the said security Janki Prasad died in June, 1952. On 1st June, 1952. In April, 1952 Janki Prasad applied to the Rationing authority for release of the said security on the ground that he had transferred the said ration depot to his grand son who had given a fresh cash security. Before the release of the said security Janki Prasad died in June, 1952. On 1st June, 1952. The rationing authority wrote a letter to him not knowing that he had died informing him that the security deposited had been released and that he should get the pledged certificates transferred in his favour by filling in the prescribed form sent along with the letter and presenting the same along with the certificates returned at the post office. Janki Prasad by that time had died. The appellant filled up the said form for transfer, affixed the signature purporting to be that of his father, attested the said signature and affixed the stamp of Ministry of Home Affairs, Government of India, beneath his own signature or attestation and presented the said form and certificates at the Post office. Though the clerk of the post office had some doubts as to the genuineness of signatures of Janki Prasad but he issued fresh certificates in the name of Janki Prasad in July, 1952 on assurance given by the appellant. On September 3, 1952, the appellant signed the three certificates on their back as Janki Prasad in token of their cancellation and placed his own attestation and stamp of his office thereon. He gave a letter of authority in favour or Bhawani Shankar, a daftari attached to his office for encashing the same who presented the certificate at the post office and received Rs.275/-in payment thereof on his furnishing the necessary receipt, which amount was paid to the appellant who was put on trial for the offence under section 467 of the Indian Penal Code and after trial he was convicted by the learned Additional Sessions Judge and his conviction was also upheld by The High Court. There was concurrent finding of fact by both the courts that the appellant put the signature of his father on the relevant document, attested them and got the securities transferred in the name of his father and received money from the post office. There was concurrent finding of fact by both the courts that the appellant put the signature of his father on the relevant document, attested them and got the securities transferred in the name of his father and received money from the post office. His conviction was also upheld by the Supreme Court and on consideration of sections 24 and 25 and other relevant provisions of the Code it was held as follows: "On the said facts we have no doubt that the appellant had made the false documents with an intention to cause wrongful gain to himself for by adopting the aforesaid device he secured for himself again as otherwise he would have had to incur some expense for obtaining a succession certificates. Even on the assumption that he would have received the money after satisfying the rationing authority and the Post Master General, he secured an advantage by resorting to the said device, as he was relieved of the trouble of satisfying the rationing authority and the postal authority that he was the sole heir of his father and avoided the risk of their refusal, which would have entailed further delay. In that event he has secured an uneconomic advantage in the former case the false documents dishonestly and in the latter case fraudulently. In either case he committed forgery within the meaning of s. 468 of the Indian Penal Code." The case of Dr. Vimla (supra) was also considered and distinguished. 16. The facts of the present case are quite different from the facts of the case of G.S. Bansal (Supra) and, in my opinion, the aforesaid case is not applicable to the present case. 17. Benami transactions are very much prevalent in India. They are taken even without any motive and merely on the basis that the contract works were taken in fictitious name of Gyanchand and Kaushalendra, who was minor in 1973-74, it can not be inferred there from that the contract works were taken with guilty and dishonest intention, for holding one guilty of the charge under section 420 of the Indian Penal Code, mens rea (dishonest intention) must be proved. This views gets full support from the case of Anil Kumar Bose v. State of Bihar in this case it has been held that for holding a person guilty under section 420 of the Indian Penal Code, the evidence adduced in the case must establish beyond reasonable doubt, the mens rea on his part, On consideration of the evidence in that case it was held that there was a failure on the part of the accountant to perform his duties or to observe the rules of procedure laid down in the duty chart in a proper manner but beyond that there was nothing to show that he had a guilty intention which is one of the essential ingredients of the offence of cheating under section 420 of the Indian Penal Code, It was also held that there was no material to hold that he did not purposely sign on these forged bills with a view to get himself absolved of the responsibility. 18. Similarly in the case of the cashier (A.K, Bose) it was held that the requisite mens rea has not been established against him and On consideration of the evidence, facts and circumstances of the case, it was held that at the highest the aforesaid persons can be guilty of either error of judgment or breach of performance of duty which cannot be equated with dishonest intention. 19. Similarly in the present case there is nothing to show that the works were taken with guilty or dishonest intention. At lest it can be said that in taking the works there was breach of the circular (Ext .5) and that the works were taken in the name of other persons, as in India benami transactions are very much prevalent and they are taken even without any motive. As mentioned above there is nothing on the record to show that the appellants were aware of Ext.5 and as submitted by learned counsel appearing on behalf of the respondent the same does not put any embargo on the appellant from taking contract. Mr. Pandey has very clearly submitted that though there was no prohibition against the managers in giving contract works to the employees. Mr. Pandey has very clearly submitted that though there was no prohibition against the managers in giving contract works to the employees. Before holding the appellants guilty under section 420 of the Indian Penal Code it was incumbent upon the prosecution to prove all the ingredients of the offence which, in my opinion, the prosecution has failed to prove in this case. 20. Learned counsel appearing on behalf of the respondent has further submitted that obtaining of work order of contract work from the management either in the name of non - existant or minor by forging their signatures on certain documents the offence of cheating under section 420 of the Indian Penal Code is complete. On the other hand, it has been submitted that work order or the contract work is not a property and that neither the administration has been put to any wrongful loss nor the appellants have obtained any wrongful gain. As held by the trial Court the appellants were not paid more than the work done by them but still it held that the work order was property and the appellants dishonestly induced the colliery to deliver the works. Mr.Pandey appearing on behalf of the respondent Submitted that though the work order or contract work had no money value in the hands of the colliery, but it had value in the hands of the persons who took the work order or contract work and in support of his submission he relied upon the case of Nrasingh a Chakraberty v. State of West Bengal In this case the Supreme Court held passport to be property On the ground that the same is a political document for the benefit of its holder and as it recognises him as a citizen of the country granting it and is in a nature of request to the other country for the free passage there and therefore, it is a document of considrable value. Reliance has also been placed on the case of Ishwarlal Girdharilal Parekh v. Stale of maharashtra where an assessment order of the income in Department has been held to be property. Both the aforesaid authorities in my opinion, do not help the respondent for holding that here the work order or contract work is property. 21. Reliance has also been placed on the case of Ishwarlal Girdharilal Parekh v. Stale of maharashtra where an assessment order of the income in Department has been held to be property. Both the aforesaid authorities in my opinion, do not help the respondent for holding that here the work order or contract work is property. 21. In the case giving of contract work or work order meant that the appellants got licence to construct Isolation stoppings, merely on the basis of the work order none of the appellants could have received payment without doing the work. The case of Hari Sao and another v. The State of Bihar fully supports the case of the appellants. It was held by the Supreme Court in the above mentioned case that the charge under section 420 read with Section 34 of the Indian Penal Code has not been established on the ground that the false representation made by the appellants obtaining the railway receipt in the form in which it was issued did not cause any additional liability on the railway and the issue of the railway receipt, therefore, was not likely to cause any damage or harm to the railway, No question of cheating the railway or the Station Master, therefore, arose in the case. It was further held as follows :- It is therefore clear that the railway administration may be liable for loss, destruction or non-delivery of the goods under section 73 if it fails to use reasonable foresight and care in the carriage of the same and would also be similarly liable even in respect of goods carried at special reduced rate if there was negligence and misconduct on its part or any of its servants. .Such liability on the part of the railway arises whenever it issues a railway receipt. The question therefore arises as to whether the railway ran any additional risk or liability. Rick on the part of the railway arises whenever it issues a railway receipt, the question therefore arises as to whether the railway ran any additional risk or liability in acting upon the representation of the appellants and mentioning in the railway receipt the goods consigned were said to be 251 bags chillies when in fact they were only 197 bags of straw, There can be little doubt that the railway did not run any additional risk. In case the goods were consumed by fire or even stolen from the wagon due to any wagon negligence on the part of railway administration the owner would have to prove that he had put on rail 251 bags of chillies. He would also have to prove the weight of the chillies and the approximate value thereof. For this be would have to call evidence to show how and when he acquired the goods and the price he paid for them and exactly what quantity he loaded in the wagons. There would be no presumption that the goods put in the wagon were chillies because the railway did not accept the consignment as such and described it as 251 bags allegedly containing chillies." The facts of the instant case are very much similar to the case of Bari Sao (supra) and it fully supports the case of the appellants. In this case also as it has been observed earlier On the facts proved the appellants would not have been entitled to any payment without the construction of Isolation stoppings. 22. Similar view has been taken in the case of Abdulla Mohammed Pagerkar vs. State Union Territory of Goa, Daman Diu In this case a Public Servant and a contractor were prosecuted under the Prevention of Corruption Act, and section 420, 468 and 471 Penal Code for defrauding the Government by submitting false bills of the work done. Though the work was to he done departmentally it was alleged that in fact the public servant got the work done through the contractor whose tender was not accepted. In the case it was found that the work was not done by appellant no. 1, rather it was being carried out by appellant no. 2 and no muster roll was maintained in respect of the labourers employed by appellant No.1. Appellant No.2 prepared statements of work or summaries which be submitted to appellant no. 1 who then signed typed copies thereof and forwarded the same for sanction of the I.L.D. on receipt of such sanction appellant no. 1 prepared contingent bills and signed each of them along with a certificate that the work was being carried out departmentally in accordance with Rule 141 of the G.R.R. as per the attached summary. Each bill was then submitted along with the summary to the Accounts Department which issued the corresponding cheque to appellant no 1. 1 prepared contingent bills and signed each of them along with a certificate that the work was being carried out departmentally in accordance with Rule 141 of the G.R.R. as per the attached summary. Each bill was then submitted along with the summary to the Accounts Department which issued the corresponding cheque to appellant no 1. The amount of the cheque was then realised by appellant no. 1 and paid over to appellant no.2. It was also found that appellant no.2 was fully aware that the tender had not been accepted and that appellant no.1 had been directed to carry out the work departmentally. None of the bills could have been sanctioned for payment by the Accounts Department but for the certificate appended by appellant no. l to each of them that work was being carried out departmentally under Rule 141 of the G.R.R. On consideration of the evidence it was held by the Supreme Court that the prosecution had failed to prove that the work actually executed had not really been shown to he worth anything less than the amount paid for it to appellant No.2 i.e. Rs.4,73,537.50 paise and the other findings were not absurd or set aside. In view of the aforesaid findings it was held that the aforesaid persons did not commit the offence of cheating. The aforesaid case fully supports the case of the appellants. 23. On consideration of the evidence facts and circumstances and the law involved in the case I am of the opinion that the prosecution has failed to prove the charge against the appellants. For the reason stated above the appeal succeeds and, accordingly, it is allowed. The convictions and sentences passed against the appellants are set aside and they are acquitted. Appeal allowed.