S. C. MOHAPATRA, J. ( 1 ) THIS is an appeal against acquittal of the respondent. The trial Court convicted the respondent under S. 409, Penal Code and the learned Sessions Judge, Mayurbhanj, acquitted him. The appellate judgment is assailed in this appeal. ( 2 ) THE respondent was charged under S. 409 of Penal Code for having committed criminal breach of trust of a gross sum of Rs. 5,220. 80 paise during the year 1975-76 between Dec. 1975 and Feb. 1976. ( 3 ) THE prosecution case, in brief, is that the respondent as Sarpanch took advance of a total sum of Rs. 3,180/- for repair of roads and Rs. 304/- for dewatering wells. He incorrectly entered into account a total sum of Rs. 1,330/- showing to have spent the same on various repair works and he could not account for the empty gamy bags whose price is Rs. 190/- and the ration cards whose price is Rs. 226. 80 paise. ( 4 ) THE trial Court held that the gunny bags were not entrusted to the respondent. The appellate Court has also held that the ration cards were not entrusted to the respondent. ( 5 ) THE respondent admitted entrustment of the advance of Rs. 3,180/- and Rs. 304/- and Rs. 1,330/- shown to have been spent. He took the plea that the amounts have been spent for the purposes they were taken and he is not guilty of misappropriation. ( 6 ) THE appellate Court held that the respondent having been able to prove that he had executed some of the works for which he was entrusted with the various amounts, had no dishonest intention of misappropriation and it is a simple case of gross-negligence on his part in not maintaining the accounts properly and following the rules prescribed and as such, he is entitled to benefit of doubt. The appellate Court further held that in the absence of sanction under S. 197, Cr. P. C. the prosecution is bad. ( 7 ) MR. Ajit Rath, the learned Additional Standing Counsel acting in this appeal as the Public Prosecutor submitted that both the grounds on which the respondent has been acquitted are not sustainable. ( 8 ) MRS. A. K. Padhi, the learned counsel for the respondent justified the acquittal both on facts and law. ( 7 ) MR. Ajit Rath, the learned Additional Standing Counsel acting in this appeal as the Public Prosecutor submitted that both the grounds on which the respondent has been acquitted are not sustainable. ( 8 ) MRS. A. K. Padhi, the learned counsel for the respondent justified the acquittal both on facts and law. Her contentions are that: - (I) the cognizance against the respondent is prohibited under S. 197 (2), Cr. P. C. in the absence of sanction of the State Government: (ii) the prosecution is bad in the absence of a notice under S. 138 of the Orissa Gram Panchayat Act, 1964; (iii) one trial for thirty three items of misappropriation is not permissible; and (iv) the removal of the respondent under S. 115 (2) of the Orissa Gram Panchayat Act (hereinafter referred to as 'the Act') having been revoked by the State Government in exercise of the power under S. 120 of the Act, the respondent ought not to be held guilty under S. 409, I. P. C. as the respondent has actually executed the works. ( 9 ) ON the rival contentions, the following points arise for consideration. : - (a) Whether sanction under S. 197 (1), Cr. P. C. is necessary for taking cognizance of an offence under S. 409, I. P. C. against a Sarpanch? (b) Whether notice under S. 138 of the Orissa Gram Panchayat Act, 1964 is necessary for initiating a prosecution against a Sarpanch? (c) Whether one trial for commission of the offence of criminal breach of trust of more than three items during a year is vitiated? (d) Whether the prosecution has been able to bring home the guilt to the respondent? point (a) ( 10 ) IN order to make the protection under S. 197, Cr. P. C. available to a Sarpanch prosecuted it. is necessary to be satisfied that- (i) the accused is a public servant employed in connection with the affairs of a State: (ii) he is not removable from office save by or with the sanction of the State Government; and (iii) he is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. ( 11 ) UNDER S. 143 of the Act, a Sarpanch is a public servant. ( 11 ) UNDER S. 143 of the Act, a Sarpanch is a public servant. A Sarpanch is also employed in connection with the affairs of a State. This is clear from a decision reported in AIR 1966 Raj 125 , (Ramdutt v. State of Rajasthan ). Dissenting from a decision of Andhra Pradesh High Court reported in AIR 1959 Andh Pra 27, (K. Narayana v. B. Veerayya), the Rajasthan High Court observed: -". . . . . . . . . . THE expression 'affairs of a State' has not been defined in the Cr. P. Code. The Gram Panchayats have been established in this State to establish and develop Local Self Government and to take measures conducive to better administration of the villages. Under S. 69 of the Act, it is provided that the State Government shall be the Chief Controlling Authority in respect of all matters relating to administration of Panchayats. Besides, the definition of the term 'state' in Art. 12 read with Entry 5 in the List II of the Seventh Schedule of the Constitution clearly shows that Gram Panchayat too are included in the expression 'the State'. Therefore, Sarpanchas and Panchas who are employed in connection with the administration of Panchayats are employed in affairs of the State. . . . . . . . . . "the observation of the Andhra Pradesh High Court that being elected and not employed a Sarpanch is not a person employed in connection with the affairs of the State was dissented from. I entirely agree with the reasons given by the Rajasthan High Court. The first requirement is thus satisfied. ( 12 ) IT has been laid down by an earlier decision of this Court reported in 1973 Cut LR (Cri) 1, (Madhab Prasad Misra v. State of Orissa) that a Sarpanch is not removable by any authority other than the State Government. This view is binding on me. ( 13 ) A public servant can be said to act or is purported to act in the discharge of his official duty when he can reasonably claim that he had acted within the scope of official duty or in excess of it. The fanciful claim of the public servant will not be a protection to him. Therefore, the question is substantially one of fact to be determined with reference to the act complained of and the attending circumstances. The fanciful claim of the public servant will not be a protection to him. Therefore, the question is substantially one of fact to be determined with reference to the act complained of and the attending circumstances. This has been so held in a decision of this Court reported in ILR (1965) Cut 255, (Biseswar Misra v. Sweta Kumar Panigraphi) relying upon the earlier decision of this Court reported in ILR (1955) Cut 644, (Prasanna Kumar Mohapatra v. State ). The later decisions of this Court are to the same effect. In 1984 (1) Orissa LR 1073, (Bhubaneswar Das v. State of Orissa) it has been held:". . . . . . . . . . WHETHER sanction is necessary to prosecute a public servant on a charge of criminal misappropriation will depend on whether the acts complained of hinge on his duties as a public servant. If they do, then sanction is requisite. " ( 14 ) IN the present case, the respondent was entrusted to execute some repair work which, it is alleged, he has not executed and dishonestly misappropriated the amounts entrusted. R. 33 of the Orissa Gram Panchayat Rules, 1969 made under the Act specifically prohibits a Sarpanch from taking up execution of any work. It reads as follows:-"33. The Sarpanch, the Naib-Sarpanch or the members of the Gram Panchayat as well as the functionaries of the Panchayat Samiti and Zilla Parishad and employees of the Gram Panchayat shall on no account take up the execution of any work". It is true that maintenance of roads and wells is an obligatory function of a Gram Panchayat under S. 44 of the Act and the Sarpanch having the executive powers of the Gram Panchayat under S. 19 of the Act is to act under the authority of the said Gram Panchayat and when a duty is assigned to him by the Panchayat as provided under S. 19 (2) (h) of the Act, he is to discharge such duty. But this assignment of duty is 'save as otherwise provided in this Act or the Rules made thereunder' as categorically provided in S. 19 (2) of the Act. Therefore, the Gram Panchayat has no authority to pass a resolution contrary to Rule 33. The rules are also clear as to how works of the Gram Panchayat are to be executed. But this assignment of duty is 'save as otherwise provided in this Act or the Rules made thereunder' as categorically provided in S. 19 (2) of the Act. Therefore, the Gram Panchayat has no authority to pass a resolution contrary to Rule 33. The rules are also clear as to how works of the Gram Panchayat are to be executed. The provisions of the Act and the Rules are known to all. When a person acts violating the specific prohibition, he cannot claim that he was acting in discharge of the official duty or he purported to so act in excess of it. Therefore, the third condition is not satisfied in this case. ( 15 ) IN view of the fact that the third condition is not satisfied, sanction under S. 197 Cr. P. C. is not necessary and the appellate Court acted contrary to law in this regard. Point (b) ( 16 ) IN the decision reported in 1973 Cut LR (Cri) 1 (supra), it was observed that before prosecuting a Sarpanch notice under S. 138 of the Act is necessary. Section 138 of the Act deals with the suits or other legal proceedings using the expressions "cause of action, the nature of relief sought, the amount of compensation, plaintiff and plaint". The words underlined are common words used in civil proceedings and not in prosecutions. S. 139 of the Act refers to 'suit or prosecution'. When the Legislature in the same statute used the words 'suit', 'legal proceeding' and 'prosecution' each word is to be given its own meaning and omission of the word from a particular provision in the statute is not be lightly brushed aside. Section 139 of the Act was not brought to the notice of this Court while rendering the decision reported in 1973 Cut LR (Cri) 1 (supra ). The observation therein to the effect that notice under S. 138 of the Act was necessary for prosecuting a Sarpanch is contrary to the legislative language. The decision has to be confined to the facts of that case alone and cannot have universal application. Therefore, I hold that notice under S. 138 of the Act is not necessary before prosecuting a Sarpanch. ( 17 ) MOREOVER, S. 138 of the Act uses the phrase 'anything done or purported to have been done under the Act'. The decision has to be confined to the facts of that case alone and cannot have universal application. Therefore, I hold that notice under S. 138 of the Act is not necessary before prosecuting a Sarpanch. ( 17 ) MOREOVER, S. 138 of the Act uses the phrase 'anything done or purported to have been done under the Act'. Since in this case, the respondent was not acting under the Act but in direct violation of the rules made under the Act, the protection under S. 138 of the Act is not available. This is the effect of the observation in 1984 (1) Orissa LR 1073 (supra ). ( 18 ) SINCE protection is available to a Sarpanch under S. 139 of the Act against his prosecution for having acted in good faith, it is to be examined if it can be legitimately inferred that the respondent was so acting. The phrase 'good faith', in the Act is to be interpreted as defined under S. 2 (17) of the Orissa General Clauses Act, 1937. It reads:"a thing shall be deemed to be done in 'good faith' when it is in fact done honestly, whether it is done negligently or not'. Applying the meaning of 'good faith' in the General Clauses Act, 1897, to a similar provision in S. 111 (2) of the Orissa Gram Panchayat Act, 1948, in ILR (1965) Cut 255 (supra) it was held: - "the Sarpanch not having any power to take up judicial function under the Gram Panchayat Act cannot be said to have done the enquiry honestly. "in the reported decision, in absence of specific prohibition and only in absence of specific power having been vested, it was held that the act was done in good faith. In the present case, there being specific prohibition under the Rules, the act cannot be said to have been done in good faith. Therefore, the protection under S. 139 of the Act is also not available to the respondent in this case. Point (c) ( 19 ) IT has been held in the decision reported in AIR 1965 SC 1248 , (Ranchhod Lal v. State of Madhya Pradesh) that the normal rule is that there should be a charge for each distinct offence. This is also the provision in S. 218, Cr. Point (c) ( 19 ) IT has been held in the decision reported in AIR 1965 SC 1248 , (Ranchhod Lal v. State of Madhya Pradesh) that the normal rule is that there should be a charge for each distinct offence. This is also the provision in S. 218, Cr. P. C. As has been observed by the Supreme Court in the aforesaid decision: -"in fact a separate trial with respect to an individual item is the correct mode of proceeding with the trial on an offence of criminal breach of trust. "however, S. 464 (1), Cr. P. C. provides that a finding or sentence would not be invalid on the ground of irregularity in the charge including misjoinder of charges unless a failure of justice has occasioned thereby. ( 20 ) IN this case, the details of the amount, dates and voucher numbers and the works in respect of which, each amount was received, were clearly indicated in the written report (Ext. 9 ). The respondent was represented by a competent lawyer at the trial. The respondent clearly understood the allegations and not only cross-examined the prosecution witnesses but also took the categorical stand that he has executed the works. He also adduced defence evidence in support of his plea that the works had been executed. Neither at the trial nor in the appeal petition before the learned Sessions Judge, a ground of prejudice was taken. In a decision reported in ILR (1975) Cuttack 163, (Anu Khan v. State of Orissa) while it was observed that it would have been better by framing separate charges, there would be no prejudice where the accused was defended by a lawyer and had full opportunity to cross-examine and know the case against him. In 1975 Cut LR (Cri) 33, (Srinivas Misra v. State of Orissa) while finding that the charge was not in accordance with law, it was observed:"the Code of Criminal Procedure is a procedural law. The object of the law is to further the cause of justice and not to hamper it. So an accused has to be told about the offence for which he is tried and the case against him as to be fully explained and he is to be afforded full opportunity to defend himself. The object of the law is to further the cause of justice and not to hamper it. So an accused has to be told about the offence for which he is tried and the case against him as to be fully explained and he is to be afforded full opportunity to defend himself. If this is done and there is a substantial compliance in the outward form of law, mere irregularities in framing charge or an omission therein cannot in all circumstances be regarded as fatal and trial cannot be vitiated on that ground unless it is shown that the accused has been prejudiced. " ( 21 ) SINCE the respondent in this case was supplied with the details in respect of the allegations, he understood the same and the witnesses were examined and cross-examined, he engaged a competent lawyer to defend him and at no stage earlier claimed to have been prejudiced, the contention of Mrs. Padhi that the charge is defective cannot be sustained. Point (d) ( 22 ) IN AIR 1965 SC 1248 (supra) it has been held that dishonest misappropriation of each item is a distinct offence. The appellate Court has given a finding that in respect of some of the items, the respondent has been able to prove that he has executed the work. Therefore, some other items of work are left out unexecuted from the very finding of the appellate Court. ( 23 ) IN order to sustain a conviction under S. 409, I. P. C. the prosecution is required to prove that: (i) the accused, a public servant, was entrusted with property of which he is duty bound to account for; and (ii) the accused has misappropriated the property. See AIR 1981 SC 1646 , (Janeshwardas Aggarwal v. State of U. P.), and (1982) 54 Cut LT 419, (Ramakrushna Tripathy v. State of Orissa ). Where entrustment is proved or admitted, the accused is required to account for the property entrusted with him. Where the accused fails to account for the same, it may in the light of other circumstances lead to an inference of dishonest misappropriation. Thus, where the accused renders an explanation for his failure to account for or where he renders a false account, an inference of misappropriation with dishonest intent may readily be made. Where the accused fails to account for the same, it may in the light of other circumstances lead to an inference of dishonest misappropriation. Thus, where the accused renders an explanation for his failure to account for or where he renders a false account, an inference of misappropriation with dishonest intent may readily be made. In the decision reported in AIR 1930 Pat 209, (Harekrishna Mahtab v. Emperor), it was observed:". . . . . . . SO in cases of criminal breach of trust, the failure to account for the money proved to have been received by the accused or giving a false account of its use is generally considered to be a strong circumstance against the accused. "in the decision reported in AIR 1977 SC 170 , (Rabindra Kumar Dey v. State of Orissa), it was observed:". . . . . . . . . . ALTHOUGH the onus lies on the prosecution to prove the charge against the accused, yet, where the entrustment is proved or admitted it will be difficult for the prosecution to prove the actual mode or manner of misappropriation and in such a case the prosecution would have to rely largely on the truth or the falsity of the explanation given by the accused. . . . . . . . . "keeping the aforesaid principle in mind, the Courts have examined the facts and circumstances of each case in the past either upholding the charge against the accused or absolving him from the same. ( 24 ) THE respondent in this case is a Sarpanch. The statute under which he was elected has made him the executive authority of the Gram Panchayat. He is the custodian of the assets of the Panchayat. The Rules specifically prohibit execution of works of the panchayat by the Sarpanch. The Rules further lay down clear procedure following which the works are to be executed. In respect of small nature of works costing Rs. 250/- or less, the work is to be executed by the Panchayat but under the supervision of the Secretary of the Panchayat. Once on the face of such clear Financial Rules and prohibition, the respondent chose to take advances for executing the works, the dishonest intention is apparent, specially when he did not execute those works. 250/- or less, the work is to be executed by the Panchayat but under the supervision of the Secretary of the Panchayat. Once on the face of such clear Financial Rules and prohibition, the respondent chose to take advances for executing the works, the dishonest intention is apparent, specially when he did not execute those works. He has not given any explanation as to the urgency for his executing the works by taking up the works himself in contravention of the Rules and by taking advances for the same. To add to it, he has not executed some works but has given a false explanation that he had executed the entire works. To cover up his laches, he approached the Minister making allegations against the Officers that they were not undertaking measurement and check-measurement. Not only the Minister geared up the Officers, the State Government also long after the removal of respondent in 1978 reviewed the order of removal and revoked the same in 1981. In these circumstances, it is clear that the respondent took the advances and did not execute the works with dishonest intention of misappropriating the same. He has thus committed the offence under S. 409, I. P. C. ( 25 ) PENALTY for an offence is provided so that the offender is punished for the wrong done by him as well as it becomes a warning to others that the hands of law are too long to catch any offender and they should be restrained from their activities so as not to commit an offence to be imposed penalty. However, with the development of criminology, the retributive character of a punishment is no more favoured. Therefore, Courts while punishing a person on conviction should be careful to see that the punishment is not retributive. ( 26 ) THE misappropriation was committed ten years back in the year 1975-76. Prosecution was initiated three years after in Sept. 1979. Rightly or wrongly, State Government did not feel the removal of the respondent justified. When one department of the Government not being satisfied with the order of acquittal decided to prefer the appeal, another department decided to restore the respondent to office. Prosecution was initiated three years after in Sept. 1979. Rightly or wrongly, State Government did not feel the removal of the respondent justified. When one department of the Government not being satisfied with the order of acquittal decided to prefer the appeal, another department decided to restore the respondent to office. In this background and in the peculiar circumstances of this case, though the nature of the offence and the position of the respondent are such that substantive sentence is called for, I restrain myself from imposing harsh substantive sentence with expectation that the conviction and a lenient sentence would make the respondent and the society aware for observing restraint and the rule of law meticulously. In the circumstances, imposition of substantive sentence till the rising of the Court and imposition of fine of Rs. 5,000/- (five thousand) on the respondent would be sufficient. In default to pay the fine, the respondent shall suffer rigorous imprisonment for six months. ( 27 ) IN the result, the judgment of the appellate Court is set aside and the appeal is allowed. Appeal allowed. .