JUDGMENT : B.K. Behera, J. - The appellant stood charged u/s 5(2) read with Section 5(1)(c) of the Prevention of Corruption Act, 1947 (for short, the 'Act') for having dishonestly or fraudulently misappropriated or Otherwise converted to his own use a sum of Rs. 16,760.00 entrusted with him and kept under his control as a public servant while he was functioning as the Executive Engineer in charge of the Electrical Investigation Division-II by utilizing false bills and vouchers bearing No. D. C. V. No. 302-A dated February 18, 1971 and D. C. V. No. 334 dated March 31, 1971 as genuine and u/s 471 of the Indian Penal Code for having fraudulently or dishonestly used as genuine the aforesaid documents having known or having reasons to believe at the time of their use that they were forged documents, with the intention to misappropriate the moneys covered by the vouchers. 2. To bring home the charges, the prosecution had examined fourteen witnesses. The appellant had pleaded not guilty to the charges and according to him, he had not committed either of the two offences. The appellant had examined three witnesses in his defence. 3. On a consideration of the evidence, the learned Special Judge has found that both the charges have been brought home to the appellant who has accordingly been convicted and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 16,000/- and in default of payment thereof, to undergo rigorous imprisonment for a further period of six months u/s 5(2) of the Act undergo rigorus imporisonment for a period of one year u/s 71 of the Indian Penal Code with a direction that the substantive terms of imprisonmenc would run concurrently. 4. Mr. R. Mohanty, the learned counsel for the appellant, has taken me through the relevant evidence and has contended that neither of the two charges has been Substantiated and the order of conviction is unfounded on facts and misconceived in law. He has also submitted that sanction to prosecute the appellant had not been accorded in accordance with the provisions made in Section 6 of Act. The learned Standing Counsel has submitted that sanction has duly been accorded. He has submitted that the evidence on record would not lead a Court to a conclusion that the appellant was guilty of the commission of either of, the two offences. The learned Standing Counsel has submitted that sanction has duly been accorded. He has submitted that the evidence on record would not lead a Court to a conclusion that the appellant was guilty of the commission of either of, the two offences. Thus in view of the submission made by the learned Standing Counsel, no case has been made out against the appellant. I have, however examined the evidence in order to find out as to whether the concession made by the learned Standing Counsel is well-founded and for the reason to follow I find that it is acceptable. 5. Evidence has been led by the prosecution to show that the payment of Rs. 9030/- to R. N. Sahu on behalf of M/s. Minerva against D. C. V. No. 302 dated February 18, 1971 and the payment of Rs. 7730/- to S. Bhatia on behalf of M/s Overseas Trading Corporation against D. C. V No. 334 dated March 31, 1971, purported to have been made towards purchases of spare parts for the departmental jeeps bearing registration Nos. ORC 2650 and ORS 5340 had falsely been shown as M/s. Minerva did not exist at Bhubaneswar and M/s. Overseas Trading Corporation of Calcutta did not deal in motor parts, but the office records showed purchases of such parts which had neither been used in the jeeps nor found in the stock. 6. It is not disputed at the Bar and it cannot be that the appellant was a public servant at the relevant time. The finding of the trial Court is that entrustment of the amount of Rs. 16,760 00 with the appellant has been established. Evidence has been led by the prosecution to substantiate its case that without following the procedural rules in respect of the two transactions, the appellant had passed payment orders as per Exts. 6 and 8 although no spare parts were purchased for the jeeps. 7. Negligence by a public servant in the performance of his duties and irregularities, if any, committed while making some transactions would not, by themselves, saddle him with any criminal responsibility. 6 and 8 although no spare parts were purchased for the jeeps. 7. Negligence by a public servant in the performance of his duties and irregularities, if any, committed while making some transactions would not, by themselves, saddle him with any criminal responsibility. in order to establish both the charges, it was necessary for the prosecution to establish dishonest intention on the part of the appellant to cause wrongful-loss to the State Government and wrongful gain to himself and that with the knowledge or having reasons to believe that the vouchers were false arid fabricated, he had used them as genuine. 8. P. W. 4, who had been working as the Sub divisional Officer, has stated in his evidence that a file was being maintained relating to the spare parts of the jeep bearing registration No. ORS 5340 and the same was available in the office. He could say, if that file was shown to him, if he had sent any, requisitions for spare parts for that jeep. Two log books were also being maintained in the office. These documents had not been produced and proved and had been withheld. It would be just and reasonable, in the circumstances of the case, to draw an adverse inference against the prosecution of such important documents. 9. The prosecution has sought to build its case on the footing that M/s. Minerva was non-existent and M/s. Overseas Trading Corporation had not been dealing in spare parts of automobiles. In this connection, two witnesses, namely, P. Ws. 6 and 11, had been examined. As has been submitted by the learned counsel for both the sides, their evidence would not lead one to a conclusion In favour of the prosecution in this regard D. W. 1, a Grade-II Assistant of the Utkal University, had produced a file from the custody of the University and Exts. A to C would show that M/s. Minerva was in existence and had been supplying articles to the University since 1966. A partner of M/s. Minerva, D. W. 2 has stated in his evidence that they had their office at Lewis Road, Bhubaneswar and they used to supply electrical goods and motor parts to various departments of the Government. D. W, 2 has specifically stated : "...This bill Ext. A partner of M/s. Minerva, D. W. 2 has stated in his evidence that they had their office at Lewis Road, Bhubaneswar and they used to supply electrical goods and motor parts to various departments of the Government. D. W, 2 has specifically stated : "...This bill Ext. 6 has been issued from our firm signed by our partner R. N. Sahu and we have received payments on this bill. Our firm was carrying business from 1965 to 1974 when we closed our business. Out of memory I say that we received payment from the office of the Executive Engineer, Investigation Division, Sambalpur, in April or May, 1971......." Nothing has been brought out in the cross-examination of D. Ws. 1 and 2 to discredit their testimony. 10. D W, 3, a Grade II Assistant of the Orissa State Electricity Board, has produced the file relating to M/s. Overseas Trading Corporation maintained in the office of the Superintending Engineer (purchase) of the Orissa State Electricity Board, Bhubaneswar. He has proved a number of documents evidencing the transactions between the Orissa State Electricity Board and M/s. Overseas Trading Corporation. There is no evidence from the side of the prosecution worth the name that M/s Overseas Trading Corporation had not been dealing in automobile parts. 11. P. W. 2 has testified that under Ext. 7, the amount ha$ been received by M/s. Overseas Trading Corporation and Sri K. M. Naik has made an endorsement (Ext. 6) containing the signature of the appellant. According to him the amount under Ext. 5 had been received by R. N. Sahu on behalf of M/s. Minerva and this writing had also been made as per Ext. 8 with the signature of the appellant. K. M, Naik has not been examined by the prosecution although on the facts and in the circumstances of the case, he was material witness to be examined by the prosecution. No clear and cogent evidence has been led by the prosecution in order to come to a conclusion that the Exts. 6 and 8 are not genuine are false and fabricated documents. 12. The prosecution has not established by its evidence, as has been contended on behalf of the appellant, and fairly submitted by the learned Standing Counsel, that the automobile parts purchased as per Exts. 6 and 8 had not been used in the jeeps. 6 and 8 are not genuine are false and fabricated documents. 12. The prosecution has not established by its evidence, as has been contended on behalf of the appellant, and fairly submitted by the learned Standing Counsel, that the automobile parts purchased as per Exts. 6 and 8 had not been used in the jeeps. The stock registers have not been produced by the prosecution. As already indicated, the registers relating to spare parts maintained in the office of the Sub divisional Officer have not been produced. The log books which were available in the office were not produced. The drivers of the two jeeps have not been examined. 13. For the foregoing reasons, I would accept the contentions raised on behalf of the appellant and the concession made by the learned Standing Counsel and hold that the prosecution has failed to establish its charges against the appellant. 14. Coming to the question of sanction, no serious infirmity is noticed and it cannot be said that sanction had not been validly accorded. In view of the foregoing findings on facts, however, the order of conviction recorded against the appellant in respect of both the offences cannot be allowed to stand. 15. In the result, the appeal succeeds and is allowed. The orders of conviction and sentences passed against the appellant u/s 5(2} read with Section 5( 1)(c) of the Prevention of Corruption Act, 1947 and u/s 471 of the Indian Penal Code are set aside. Final Result : Allowed