J. P. DESAI, J. ( 1 ) RESPONDENT Shanabhai Desaibhai Parmar was the Sarpanch of village Bhumel Taluka Chaklasi Dist. Kheda in the month of March 1979. He collected Rs. 850/- from one Ishwarbhai Zaverbhai on 31-3-1979 towards the irrigation cess and issued a receipt signed Exhibit 21 by him. He also collected Rs. 100/- as irrigation cess from one Khushalbhai Bhagabhai and issued receipt Exhibit 24. He did not credit the amounts in the account of the Panchayat. It appears that a notice of demand was issued on 27-6-1979 by Vithalbhai who succeeded as a Sarpanch to the respondent demanding the amount from 357 him whereupon Ishwarbhai approached Vithalbhai and told him that he had paid the amount to respondent Shanabhai who had issued receipt for Rs. 850 A notice of demand was also served on Khushalbhai who also approached the Sarpanch and told him that he had paid Rs. 100/- to the respondent Shanabhai who had issued a recept. Ishwarbhai Zaverbhai on coming to know that the amount was not credited by Shanabhai approached Chaklasi Police Station and gave a complaint about this misconduct of the respondent Shanabhai. The Police Station Officer registered the offence and after necessary investigation submitted chargesheet against the present respondent for an offence punishable under Section 409 I. P. C Charge was framed against the respondent at Exhibit 3 for the above offence. The accused pleaded not guilty and claimed to be tried. In his statement recorded under Section 313 Cri. Pro. Code 1973 he denied to have received any such amount from these two persons but stated that he had nothing to say with regard to the receipts. He stated that he did not want to lead any evidence in defence. ( 2 ) THE learned Judicial Magistrate on appreciating the evidence recorded before him reached the conclusion that the guilt if any of the respondent was not established beyond reasonable doubt and he was entitled to be acquitted. The learned Judicial Magistrate accordingly acquitted the respondent of the offence with which he was charged. Being dissatisfied with the same the State of Gujarat has filed this appeal. ( 3 ) IT appears that a Revision Application being Cri. Revision Application No. 481 of 1980 was also filed by the original complainant but no order has been passed because appeal against acquittal was admitted by this Court. Being dissatisfied with the same the State of Gujarat has filed this appeal. ( 3 ) IT appears that a Revision Application being Cri. Revision Application No. 481 of 1980 was also filed by the original complainant but no order has been passed because appeal against acquittal was admitted by this Court. ( 4 ) ISHWARBHAI Zaverbhai P. W. 1 Exhibit 20 has stated that he knew the accused who was the Sarpanch of Bhumel on 31-3-1979 and that he paid Rs. 850/- as irrigation cess to the accused Shanabhai on 31-3-1979 and that the accused issued the receipt to him at that time. He has deposed that the receipt was given by the accused and was signed by the accused in his presence. The said receipt is at Exhibit 21. It bears the seal of Bhumel Gram Panchayat and the signature of the accused appears above the rubber stamp Sarpanch Bhumel Gram Panchayat Ta. Nadiad Dist. Kheda. The receipt Exhibit 21 of course does not show that the amount was paid as irrigation cess but it does show that receipt for Rs. 850/- was issued in the name of Prabhatbhai Zaverbhai Parmar. The evidence of Ishwarbhai Exhibit 20 shows that Prabhatbhai Zaverbhai is the elder brother of Ishwarbhai and the land stood in the name of Prabhatbhai. Ishwarbhai has stated that the accused signed this receipt in his presence and that because the Talati was on strike he gave this amount to the accused who had to credit this amount with the Panchayat. Ishwarbhai was cross-examined by the learned advocate for the accused. No suggestion was made to Ishwarbhai in cross-examination that he had not paid any such amount to the accused or that the accused had not given any such receipt to him. No suggestion was made to Ishwarbhai in cross-examination that the accused had not signed the receipt Exhibit 21. The only suggestion made to him in crossexamination was the cash which was being realized by the Talati used to be kept in the safe in the Panchayat Office and he admitted that suggestion. He also admitted that he had not read the Rojmel of the Panchayat. He admitted that the accused was a member of the Congress and that Vithalbhai who succeeded the accused as a Sarpanch was a member of Bhartiya Janata Party. He also admitted that he had not read the Rojmel of the Panchayat. He admitted that the accused was a member of the Congress and that Vithalbhai who succeeded the accused as a Sarpanch was a member of Bhartiya Janata Party. There may be political rivalry between the accused and Sarpanch Vithalbhai but one thing is certain that the evidence of Ishwarbhai Zaverbhai that the accused was given Rs. 850/- by Ishwarbhai and that the accused issued the receipt Ex. 21 and signed the receipt in his presence has not been at all challenged in crossexamination. There is thus no reason to disbelieve the evidence of Ishwarbhai Zaverbhai. His evidence thus establishes beyond reasonable doubt that he paid Rs. 850/- to the accused on 31-3-1979 because the Talati was on strike and that the accused issued the receipt Ex. 21 and signed the receipt in his presence. The receipt Ex. 21 as stated earlier does not show on what account the amount was paid to the accused but the oral evidence of Ishwarbhai shows that it was towards irrigation cess and that say of Ishwarbhai is also not challenged and therefore it is also established by the evidence of Ishwarbhai that the amount was paid towards irrigation cess. ( 5 ) ISHWARBHAI Zaverbhai gave complaint Ex. 22 at Chaklasi Police Station on 8-7-1979 wherein also he stated that he paid Rs. 850/- towards irrigation cess to the accused for which the accused had passed a receipt. He also stated therein that Shanabhai Khushalbhai had also paid Rs. 100/- to the accused and that amount was also not credited by the accused. ( 6 ) VITHALBHAI Nathabhai Exhibit 23 who succeeded as a Sarpanch to the accused has also deposed that he assumed office of the Sarpanch of Bhumel Gram Panchayat on 31-5-1979 and that as the amount was outstanding in the names of Prabhatbhai Zaverbhai and Shanabhai Khushalbhai notices of demand were sent to them whereupon a writing was given to him by Khushalbhai Bhagabhai on behalf of Shanabhai Khushalbhai that Rs. 100/- were paid to the accused for which he had issued the receipt which writing is produced by him. He also produced a writing given to him by Prabhatbhai Zaverbhai Parmar on behalf of Ishwarbhai Zaverbhai Parmar stating therein that the amount was paid to the accused for which he passed a receipt. 100/- were paid to the accused for which he had issued the receipt which writing is produced by him. He also produced a writing given to him by Prabhatbhai Zaverbhai Parmar on behalf of Ishwarbhai Zaverbhai Parmar stating therein that the amount was paid to the accused for which he passed a receipt. Vithalbhai Nathabhai has stated that the receipt Exhibit 24 for Rs. 100/- bears the signature of his predecessor the accused before the Court. In cross- examination he stated that the receipts were of 24-3-9179 and 31-3-1479. It appears that he committed a mistake in giving the dates because the receipt Ex. 21 is dated 31-3-1979 while the receipt Exhibit 24 is dated 2-4-1979. He has admitted that the Talati was on strike. He also admitted that when Talatis were on strike the Sarpanch and other members of the staff of the Panchayat used to collect the dues of the Panchayat. He admitted that on 27-4-1979 Rs. 25 435. 54 p. were paid to Gujarat Electricity Board. He stated that he did not know if the accused had got credited Rs. 3102. 80 p. in the Rojmel of the Panchayat. He denied the suggestion that the amounts of the receipts Exhibits 21 and 24 were credited in the Rojmel of the Panchayat. The evidence of this Vithalbhai thus establishes that the receipt Exhibit 24 bears the signature of the accused and there is no cross-examination of this Vithalbhai so far as this aspect is concerned. ( 7 ) SHIVABHAI Dhulabhai Exhibit 26 has stated that he was the Talati at the relevant time. He has stated that he was on strike from 23-3-1979 upto 24-4-1979 alongwith other Talatis and therefore he did not know if water of the irrigation canal was supplied to Ishwarbhai and Khushalbhai by the Panchayat during that period. He has stated that no amount was credited in the account of Ishwarbhai on 2-4-1979 or thereafter. 359 He has also identified the signature of the accused below Exhibits 21 and 24. He has stated that he knows the signature of the accused because the accused used to sign in his presence. He has specifically stated that these two items were not given credit by the accused. He has admitted in cross-examination that he did not know who had paid amounts towards the irrigation cess during the period he was on strike. He has stated that he knows the signature of the accused because the accused used to sign in his presence. He has specifically stated that these two items were not given credit by the accused. He has admitted in cross-examination that he did not know who had paid amounts towards the irrigation cess during the period he was on strike. He has stated that the Sarpanch had given him a Kachcha note on the basis of which Pakka receipts were issued. He admitted that on 27-4-1979 Rs. 4102/- were credited by the Sarpanch towards irrigation cess which amount was recovered by the accused-Sarpanch when he was on strike and that the said amount was paid towards the bill of the Gujarat Electricity Board on 9-4-1979. He also admitted that the total expenditure upto 9 in the Gram Panchayat was Rs. 5435. 54 p. in the form of payment of bills. He admitted that this amount was recovered by the accused when he was on strike. He admitted that the accused did not give a list showing that particular amount was recovered from a particular person. The receipts were handed over by him. A suggestion was made to him specifically that the amount of receipt Exhibit 21 was credited in the Panchayat account but he denied that suggestion. ( 8 ) THE discussion made above goes to show that the prosecution has established by the evidence of the above witnesses that the accused recovered Rs. 850 and Rs. 100/- on 31-3-1979 and 2 as per the receipts Exhibit 21 and 24 and did not credit the said amounts with the Panchayat as he was required to do. It is true that the account-books of the Panchayat have not been produced to show that these amounts have not been credited in the said account-books but it is pertinent to note that the accused does not say that he credited these two amounts also in the account of the Panchayat. He even denies to have recovered the amounts from the aforesaid two persons. As stated by me a little earlier the evidence of Ishwarbhai and other witnesses about recovery of Rs. 950/- by the accused and issuance of receipts Exhibits 21 and 24 by the accused bearing his own signatures has not been at all challenged. The accused in his statement under Section 313 Cri. Pr. Code comes out with a flat denial. As stated by me a little earlier the evidence of Ishwarbhai and other witnesses about recovery of Rs. 950/- by the accused and issuance of receipts Exhibits 21 and 24 by the accused bearing his own signatures has not been at all challenged. The accused in his statement under Section 313 Cri. Pr. Code comes out with a flat denial. When he was questioned about the evidence of Ishwarbhai he only stated that it was false. He also stated that the evidence that Khushalbhai had paid Rs. 100 to him was false. The receipts were shown to him and was asked whether he had to say anything and he stated after seeing the receipts that he had nothing; to say. When it is established by the evidence of the above prosecution witnesses coupled with the receipts Exhibits 21 and 24 that the accused recovered Rs. 850/- and Rs. 100/- respectively as per the receipts Exhibits 21 and 24 and when he denies to have recovered those amounts and when he does not say anything with regard to the receipts Exhibits 21 and 24 an irresistible inference is that the accused has misappropriated the said amounts. So far as the oral evidence of Ishwarbhai is concerned the accused of course states that the evidence is false but as regards the receipts he does not even say that the receipts do not bear his signatures. He does not offer any explanation with regard to the receipts which are proved to have been issued by him and which are proved to bear his signatures. In view of the above prosecution evidence coupled with the above statement of the accused I do not think that any further evidence is required to establish that the accused has misappropriated these two amounts. The accused would have stated that he had recovered the amounts from the 360 aforesaid two persons and had issued receipts but had credited the amounts with the Panchayat. But he has not offered any such explanation. I may mention here even at the cost of repetition that he even does not admit to have recovered those amounts from those two persons. He on one hand comes out with a bare denial with regard to recovery of the amounts from the aforesaid two persons but at the same time does not say anything with regard to the receipts. He on one hand comes out with a bare denial with regard to recovery of the amounts from the aforesaid two persons but at the same time does not say anything with regard to the receipts. I may mention here even at the cost of repetition that the aforesaid witnesses have not been cross-examined at all with regard to the recovery or with regard to the receipts Exhibits 21 and 24. It is true that the evidence of the Talati Shivabhai does show that the accused had credited Rs. 4 102 on 27-4-1979 which he had recovered towards the irrigation cess but that does not necessarily mean that these two items are included in the said amount. The view taken by the learned Magistrate that because the Rojmel and Khatavahi of 31-3-1979 were not produced the prosecution had failed to establish the guilt of the accused is not correct. The learned Magistrate with respect to him completely missed the important aspect of the case viz. that the prosecution evidence as regards recovery of the amounts by the accused and issuance of the receipts was not challenged in cross-examination and that so far as the receipts are concerned the accused did not offer any explanation whatsoever. The learned Magistrate lost sight of the fact that the accused did not even say in his statement that he had not issued the receipts. When it is established that a public servant has recovered some amount from a member of the public and has issued receipt to him then he has to offer an explanation about the said amount and if he does not offer any explanation then the only irresistible inference is that he has misappropriated the said amount. It appears from the cross-examination of the prosecution witnesses that the accused wanted to take up the stand that he had recovered the amounts from those two persons but had credited the amounts with the Panchayat but thereafter while giving statement under Section 313 of the Code he gave up that line of defence and came out with a total denial at the same time offering no explanation about the receipts. In fact he kept mum when he was questioned about the receipts. In fact he kept mum when he was questioned about the receipts. Inspite of this the learned Judicial Magistrate by way of a curious reasoning acquitted the accused holding that because the account-books of 31-3-1979 were not produced the guilt of the accused cannot be said to have been established. The prosecution has in my opinion for the reasons which I have recorded above established beyond reasonable doubt that the accused recovered the aforesaid two amounts of Rs. 850/- and Rs. 100/- respectively and misappropriated the same. That is the only inference which can be drawn in absence of any explanation whatsoever offered by the accused coupled with his total denial about the receipt of the amounts. ( 9 ) THE respondent-accused was the Sarpanch of Bhumel Gram Panchayat and that way he was a public servant. He recovered the amounts as Sarpanch. He had not recovered the amounts in his private capacity. In fact he had recovered several other amounts as irrigation cess and paid bills of the Panchayat out of that amount as is brought out in cross-examination of Talati Shivabhai Exhibit 26. The amount was entrusted to him in his capacity of a public servant and not in his personal capacity. Even Ishwarbhai Exhibit 20 has stated that he handed over the amount to the accused for getting the same credited in the Panchayat. It is thus crystal clear that the amount 361 was entrusted to the respondent-accused in his capacity of a public servant and he by misappropriating the same committed the offence of criminal breach of trust punishable under Section 409 I. P. C ( 10 ) THE learned Judicial Magistrate has taken the view that there was nothing an record to show that any written orders were passed authorising the respondent-accused to recover the amounts on behalf of the Panchayat and therefore he cannot be convicted of the offence punishable under Section 409 I. P. C. With respect to the learned Judicial Magistrate it is difficult to agree with him for the reasons which I have stated earlier. But even if we assume for the sake of arguments that the accused could not be convicted of the offence punishable under Section 409 I. P. C. for the reasons given by the learned Judicial Magistrate at para 6 of his judgment then also the accused cannot be said to have committed no offence. But even if we assume for the sake of arguments that the accused could not be convicted of the offence punishable under Section 409 I. P. C. for the reasons given by the learned Judicial Magistrate at para 6 of his judgment then also the accused cannot be said to have committed no offence. He can in any case be said to have committed the offence of criminal breach of trust punishable under Section 406 I. P. C. if not under Section 409 I. P. C. The learned Judicial Magistrate has referred to a decision reported in Ibari Bakal (1951) Cri. Law Journal 1253 and also a decision reported in Brij Kishor (1964) 2 Cri. Law Journal 325 in taking the view that the accused could not be convicted of the offence punishable under Section 409 I. P. C. So far as the first decision is concerned it is not possible to trace the same. The decision reported at page 1253 of 1951 Cri. Law Journal is not at all on this point. No decision as referred to by the learned Judicial Magistrate in his judgment could be traced on any page of 1951 Cri. Law Journal. So far as the second decision is concerned it is reported in State of Orissa v. Bira Kishore Naik 1964 Cri. L. J. 325 It appears from the facts of that case that the father of the accused was extra Departmental Agent of a Post Office and the accused accepted certain amount from a party for being remitted to another and granted a receipt for the said amount but did not enter it in any of the registers kept in the Post Office and misappropriated the same. It was held that the accused was not a public servant and therefore he could not be convicted of the offence punishable under Section 409 I. P. C It appears that the High Court took the view that the accused was only liable to his father who was the real agent of the payers in relation to the payees and that way the High Court held that the accused cannot be said to have committed the offence of criminal breach of trust. I fail to understand how the ratio of this decision of the Orissa High Court can be pressed into service in the present case. ( 11 ) THE learned advocate Mr. I fail to understand how the ratio of this decision of the Orissa High Court can be pressed into service in the present case. ( 11 ) THE learned advocate Mr. N. S. Desai for the respondent-accused drew my attention to a decision of the Punjab and Haryana High Court reported in Jagroop Singh v. State of Punjab 1980 Criminal Law Journal 68. The ratio of this decision of the High Court is that before a person could be convicted under Section 409 dishonest or criminal intention should be proved. There cannot be any dispute with this proposition of law. In the present case the accused as stated earlier denied having received any such amount from the two persons and did not offer any explanation with regard to the receipts proved to have been issued by him. When he denies to have received the amounts which are proved to have been received by him the only inference which could be drawn is that he dishonestly misappropriated the said amount. Mr. Desai also drew my attention to a decision of this Court reported in Bhanubhai Rambhai v. State of Gujarat 17 GLR 699. It is held therein that primary burden is on the prosecution and the accused has only to probabilise his explanation and not to prove it. It is also held therein that 362 the prosecution must initially establish prima facie guilt of the accused. There cannot be any dispute with this proposition of law also. If the accused had given some explanation then it would have beer necessary for the Court to consider whether it was a probable one. When the accused does not give any explanation whatsoever the question of considering its probability does not arise. The prosecution has also in the present case prima facie established the guilt of the accused by establishing that the amounts were recovered by the accused from the two persons and had issued receipts for the same and had not accounted for the same to which there is no explanation from the accused. ( 12 ) THIS is an appeal against an order of acquittal and I am conscious of the position of law that if the view taken by the Court below can be said to be a possible view this Court will not be justified in interfering with the same. ( 12 ) THIS is an appeal against an order of acquittal and I am conscious of the position of law that if the view taken by the Court below can be said to be a possible view this Court will not be justified in interfering with the same. The view taken by the learned Magistrate cannot be said to be a possible view at all for the reasons which I have recorded earlier. In view of this this is a fit case in which this Court will be justified in interfering with the order of acquittal recorded by the learned Judicial Magistrate. ( 13 ) THE learned Judicial Magistrate recorded the statement of the accused under Section 313 Cri. Pro. Code at Exhibit 4. He put a question to him that the evidence was to the effect that he had recovered Rs. 850/- from Ishwarbhai for which he had issued a receipt and which bore his signature. He also put a question to him that the evidence was to the effect that Khushalbhai had also paid the amount to him. He was then shown the receipts and asked as to what he had to say with regard to those receipts. No question was put to the accused that the evidence was to the effect that he had not paid up these amounts in the Panchayat and had misappropriated the same. Looking to the reply given by the accused denying the allegation about payment to him and having said nothing with regard to the receipts issued by him it would not have made any difference even if a further question about misappropriation was put to him but it would have been better if the learned Judicial Magistrate had put the further question to the accused that he had not paid up the amount to the Panchayat. But the omission on the part of the learned Judicial Magistrate in this regard has not caused any prejudice to the accused looking to the stand taken by him while replying to the questions put to him earlier. While questioning the accused with regard to recovery of Rs. 100/- from Khushalbhai he did not mention that Rs. 100/- were recovered by him. He also did not frame the question proper- ly while questioning the accused with regard to the receipts. A separate question should have been put with regard to each receipt. While questioning the accused with regard to recovery of Rs. 100/- from Khushalbhai he did not mention that Rs. 100/- were recovered by him. He also did not frame the question proper- ly while questioning the accused with regard to the receipts. A separate question should have been put with regard to each receipt. The question again was a vague one. The proper frame of the question in this regard would be as follows:"prosecution evidence is that you recovered Rs. from and issued receipt Ex.-and that it bears your signature. Do you wish to explain this evidence "?but the omission on the part of the learned Judicial Magistrate in not framing the questions properly has not caused any prejudice to the accused in this case looking to the replies given by him as stated by me earlier. The accused is to be examined under Section 313 of the Code with a view to enable him to explain the evidence appearing against him. It is his privilege whether to offer any explanation or not. Hence after drawing the attention of the accused to a particular piece of evidence he should be asked:"do you wish to explain this evidence ? rather than What have you to say about this"?it is also desirable to put to the accused a question:"do you wish to explain why prosecution witnesses (here name the material witnesses whose evidence is against the accused) depose against you"?in all the cases so that if the accused wants to say something in that regard he gets an opportunity to do so. The learned Judicial. Magistrate also did not put a question to the accused whether he wanted to give evidence on oath. He was of course questioned whether he wanted to lead any evidence in defence but that is not sufficient. The accused has a right to examine himself on oath and his attention must be drawn to that aspect by putting a question to him in that regard but omission on the part of the learned Judicial Magistrate in this regard has also not caused any prejudice to the accused. ( 14 ) I may also mention here that while referring to the authorities cited before him the learned Judicial Magistrate has not referred to them in the way in which he should have referred to them. So far as the author of 1964 Cri. ( 14 ) I may also mention here that while referring to the authorities cited before him the learned Judicial Magistrate has not referred to them in the way in which he should have referred to them. So far as the author of 1964 Cri. Jaw Journal 326 is concerned he has referred to the same as Brij Kishore (1964) 2 Cri. Law Journal 325 The proper way of referring to that decision is State of Orissa v. Bira Kishore 1964 (2)Cri. Law Jourhal 325. ( 15 ) AS a result of the aforesaid discussion the appeal is allowed and the order passed by the learned Judicial Magistrate acquitting the accused is hereby set aside and the respondentaccused is hereby convicted of the offence punishable under Section 409 I. P. C. ( 16 ) THE learned Judicial Magistrate acquitted the respondent-accused and therefore the question of hearing him with regard to the sentence did not arise before the learned Judicial Magistrate. Now that I am reversing the acquittal and convicting him he is required to be heard as regards sentence. Hence notice to be issued to the respondent-accused to appear before this Court on 2-9-4985 to have his say about the sentence. 17 to 20. xxx xxx xxx order accordingly. .