JUDGMENT : K.P. Mohapatra, J. - This appeal is against the order passed by the learned Additional Sessions Judge setting aside the order of conviction and sentence imposed on the Respondent by the learned Assistant Sessions Judge, Bhubaneswar under Sections 409 and 182 of the Indian Penal Code ('I.P.C.' for short) and acquitting him of the charges. 2. The prosecution case may be recounted in brief. The Respondent took charge as accountant of the accounts section of the Orissa Secretariat at Bhubaneswar on 15-1-1962. On 30-6-1966 the accounts section was divided into two units named, Cash Unit No. 1 and Cash Unit No. 2. The Respondent continued as the accoutant of cash units No. 1, whereas, P.W. 49 Golak Behari Patnaik took charge of cash unit No. 2 as its accountant. As the accountant, the Respondent was in sale charge of the cash entrusted to him, as well as, encashment and disbursement of cash in respect of twenty departments of the Secretariat on 1-9-1970 he remained in the accounts section till about 10 p.m. and feigned a story that two unknown culprits entered inside the cash room injured him by a sharp weapon and ran away with cash of Rs. 82,819/- kept in seven packets. P.W. 14 Lalbehari Das was the drawing and disbursing officer of a cash unit No. 1. On getting the above information he arrived at the accounts section and through him the Respondent submitted a report (Ext. 88) to the Capital Police Station which was treated as F.I.R. and a case u/s 394, I.P.C. was registered. In course of investigation of the case, it came to light that the Respondent had spinned a story of robbery which was false. On verification of the accounts it further came to light that out of the total cash balance of Rs. 6,08,832.70 there was physical cash balance of Rs. 4,88,028.65 and so there was shortage of cash of Rs. 1,20,804.05. During investigation several amounts of cash advanced to different persons were recovered and so it was found' that there was a net shortage of cash of Rs. 1,11,903.09. After close of investigation charge-sheet was submitted against the Respondent for offences under Sections 409 and 182. I.P.C. 3. 4,88,028.65 and so there was shortage of cash of Rs. 1,20,804.05. During investigation several amounts of cash advanced to different persons were recovered and so it was found' that there was a net shortage of cash of Rs. 1,11,903.09. After close of investigation charge-sheet was submitted against the Respondent for offences under Sections 409 and 182. I.P.C. 3. The Respondent in his defence denied the charges and took the plea that since a long time even prior to his taking over charge as Accountant of the Orissa Secretariat under the control of the Finance Department, there was a practice of making advance of cash from the accounts section under two advance registers, one authorised and the other unauthorised. From time to time over the years officers of different departments took advance which were entered into the authorised register. There was no difficulty to recover such amounts. Several officers and staff of the Orissa Secretariat put pressure on him and took unauthorised advances which were noted in the unauthorised advance register or on slips. Though he knew that the practice was not according to the rules and quite unwholesom, it was not possible on his part to resist, because of the continuity of the practice since a long time and the pressure brought on him by high officials. According to him, the shortage of cash, if any, was occasioned on account of such unauthorised advances taken by many officers and staff of the Orissa Secretariat who did not refund the cash. 4. The learned Assistant Sessions Judge held that the prosecution proved both the charges against the Respondent to the hilt. He rejected the Respondent's defence. He convicted him u/s 409, I.P.C. and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs. 25000/-, in default, to undergo rigorous imprisonment for three months more. He also convicted him u/s 182, I.P.C. and sentenced him to undergo rigorous imprisonment for one month. The learned Additional Sessions Judge, however, came to a different conclusion. 25000/-, in default, to undergo rigorous imprisonment for three months more. He also convicted him u/s 182, I.P.C. and sentenced him to undergo rigorous imprisonment for one month. The learned Additional Sessions Judge, however, came to a different conclusion. Although he accepted the finding of the trial court that the prosecution had established entrustment and shortage of cash, yet he accepted the plea of the Respondent in his defence and held that the explanation offered for the shortage of cash being reasonable and probable, the Respondent could not be convicted u/s 409, I.P.C. With regard to the offence u/s 182, I.P.C. he held that it was not legally established. Accordingly, he recorded an order of acquittal which has been assailed in this Court. 5. Learned Additional Standing Counsel strenuously urged that the reasons assigned by the learned Additional Seasons Judge while recording the order of acquitted is contrary to the spirit of law. If on such reasonings persons accused of criminal breach of trust are held to be not guilty, then dishonest and unscrupulous accountants and cashiers of government offices, public and private undertakings, banks and business houses will be encouraged to misappropriate and go unpunished by taking the plea of the practice of unauthorised advances from out of the cash which were not refunded. In this particular case the Respondent knew that the unauthorised advances of cash were irregular and were not in accordance with rules, yet he advanced heavy amounts to different persons at different times. Even if for the sake of argument his explanation is accepted as reasonable and probable, yet the Respondent did not account for the entire shortage of cash to be on account of unauthorised advances except a small fraction. He summed up by saying that the unauthorised transaction carried on by Respondent were dishonest and so in order to cover up the same a story of robbery was concocted on the date of occurrence. Therefore, this is a case in which two reasonable views cannot be taken and so the order of conviction and sentence passed by the trial court should be restored. Learned Counsel for the Respondent supported the judgment of the learned Additional Sessions Judge. 6. In order to facilitate discussion of the points raised it would be useful to extract some findings and observations form the judgments of the trial court, as well as, the Additional Sessions Judge. 1. Learned Counsel for the Respondent supported the judgment of the learned Additional Sessions Judge. 6. In order to facilitate discussion of the points raised it would be useful to extract some findings and observations form the judgments of the trial court, as well as, the Additional Sessions Judge. 1. Extract from the judgment of the trial court. (i) Para 26, page 56: Taking all these into consideration as discussed above, I find that the closing cash balance as reflected in the Cash Book - Ext. 5 and the amount shown in safe custody register, Ext. 7 on 15-1-62 was actually made over to the accused Gopinath Das at that point of time. The plea taken by the accused that there was a running shortage from 15.1.66 due to any advancement of private loan from out of the Govt. cash in Cash Unit No. 1 in his hand has therefore, to be repelled. (ii) Para 75 page 78: The total shortage therefore, turns to Rs. 1,11,903.09 paise against the accused Accountant which he has to account for. (iii) Para 77, page 80: The above exposition of facts unerringly indicate that, the accused was misusing Government cash for the purpose of advancing loan unauthorisedly in different accounts to same members of the staff, both Gazetted and non-gazetted, of the Secretariat in breach of the trust reported on him with regard to Government cash in his custody. (iv) Para 87, page 89: All these circumstances as elaborately set forth above, lend assurance to the truth of advancement of unauthorised loan for private purpose from out of Govt. cash to different persons in the Secretariat by the accused in his capacity as the Accountant in charge of Govt. cash pertaining to cash Unit No. 1. But that by itself does not absolve the liability of the accused for his having indulged himself in advancing loans as a matter of regular course while dealing with Govt. money and thereby trafficking on the trust reposed upon him as the custodian of Government cash. (v) Para 89, page 91: Under the striking circumstances that the accused used to advance private loans from out of Govt. cash held by him in the, position of a trustee, it cannot but be believed that there was no doubt, some shortage in Govt. (v) Para 89, page 91: Under the striking circumstances that the accused used to advance private loans from out of Govt. cash held by him in the, position of a trustee, it cannot but be believed that there was no doubt, some shortage in Govt. cash that had occasioned on that account which the accused had managed to supress at the time of physical verification of cash. But advancement of private loan by the accused cannot be attributed as the entire cause of shortage. The prosecution has very fairly placed all the documents even including the old chits like Ext. A, that were recovered from the Accounts Section, without making anything secret to the accused. The amount involved in these papers is too small to cover up the shortage which is detected in such huge amount in the Govt. cash held by the accused. Therefore, there has been a mis-appropriation of quite a substantial amount of money so found short by the accused for his own use, besides the money mis-applied in making unauthorised advances at the cost of Government. (vi) Para 42, page 63: ...That being the position, any advance from out of Government cash by the accused Accountant to any body for any purpose other than those which the Rules regulating the business of Accounts Section do not permit, amounts to misappropriation of public funds bringing in its wake, deprivation of Government of their property in money to public loss and if the accused does so, it is certainly at his own risk and peril. II. Extract from the judgment of the Additional Sessions Judge. (i) Para 8, page 22: ...On the whole. I should agree with the learned trial court that the prosecution has been able to establish beyond all reasonable doubts that from out of the entrusted amount the shortage was found at the above stage and for that every inference should be drawn against the Appellant for misappropriation. (ii) Para 12, page 29: ...If such a bad practice was prevalent there might be some other persons in the Secretariat who have taken loans without any authority and have not yet refunded the same. Thus, they should have been examined by the investigating officer. So in absence of all these persons the accused alone cannot be liable to explain the shortage. (iii) Para 13. Thus, they should have been examined by the investigating officer. So in absence of all these persons the accused alone cannot be liable to explain the shortage. (iii) Para 13. page 31: ...Had the prosecution examined all the persons of the Secretariat there might have been some persons who have though taken advance unauthorisedly have not yet repaid the same. So taking into consideration these statements, the admission of the prosecution regarding recovery of Rs. 3130/-, the receipts marked Ext. 335 to 362, the note given by Deputy Secretary in Ext. E and etc. one would certainly speak that the explanation given by the accused is never untrue. On the other hand, I would say that the investigating machinary lagged behind in not making further enquiry into the matter by examining almost all the staff of the Secretariat in order to ascertain the definite amount which Appellant might have misappropriated himself. (iv) Para 14, page 33: ...There is no definite case of the prosecution as to what amount actually the accused has misappro-priated or converted to his own use. There was still scope for the government as well as the Investigating Officer to make thorough investigation into the matter as to how much money still remains unrecovered from officers and staff and how much still remains with the accused to be explained. Having failed in this regard, prosecution should not bank upon the 342, Code of Criminal Procedure statement of accused. In such a doubtful position a conviction cannot lie in view of the Supreme Court decision already referred to. 7. From the findings recorded by both the courts below the following facts are established: (1) The Respondent was the accountant of the Orissa Secretariat under the control of the Finance Department and after bifurcation of the accounts section into two units, he continued to remain as the accountant of cash unit No. 1. (2) As the accountant of cash unit No. 1, the Respondent was entrusted with government cash. (3) There was Shortage of Rs. 1,11,903.09 of cash unit No. 1. (4) The Respondent maintained an unauthorised register (Ext. 50) showing unauthorised advances of money out of government case. Some such advance were realised and some were not realised from the persons who took such unauthorised advances. This practice of giving unauthorised advances from government cash had been continuing from a long time. 1,11,903.09 of cash unit No. 1. (4) The Respondent maintained an unauthorised register (Ext. 50) showing unauthorised advances of money out of government case. Some such advance were realised and some were not realised from the persons who took such unauthorised advances. This practice of giving unauthorised advances from government cash had been continuing from a long time. (5) The Respondent did not account for the shortage of cash except offering an explanation that the shortage was due to the unauthorised advances which could not be realised. 8. I would profitably quote from Jaikrishnadas Manohardas Desai and Another Vs. The State of Bombay with regard to the principle of burden of proof in a case u/s 409, I.P.C. It was held: ...The principal ingredient of the offence being dishonest is appropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if proved, may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion. Conviction of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the property entrusted to him, or over which he has dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an inference of misappropriation with dishonest intent may readily be made. I would also quote the following from Shri Rabindra Kumar Dey Vs. State of Orissa regarding the burden that lies with the accused to prove his defence: ...The Evidence Act does not contemplate that the accused should prove his case with the same strictness and rigour as the prosecution is required to prove a criminal charge. In fact from the cardinal principles referred to above, it follows that, it is sufficient if the accused is able to prove his case by the standard of preponderance of probabilities as envisaged by Section 5 of the Evidence Act as a result of which he succeeds not because he proves his case to the hilt but because probability of the version given by him throws doubt on the prosecution case and therefore, the prosecution cannot be said to have established the charge beyond reasonable doubt. In other words the mode of proof by standard of benefit of doubt is not applicable to the accused where he is called upon to prove his case or to prove the exceptions of the Indian Penal Code on which he seeks to rely. It is sufficient for the defence to give a version which competes in probability with the prosecution version for that would be sufficient to throw suspicion on the prosecution case entailing its rejection by the Court. also see Iswar Chandra Sethi v. the State 60 (1985) C.L.T. 537. In the light of the above principles the point that arises for consideration is whether the explanation offered by the Respondent for shortage of cash was reasonable and probable. It is undisputed that Ext. 50 was the unauthorised advance register. It began on 1-12-69 and ended on 29.8.70. The total amount advanced during this period which appears from the last entry was Rs. 9,428.65 paise. Even if Respondents explanation is accepted, then the shortage of government cash can at best be explained upto the extent of Rs. 9428.65 paise. During investigation some cash was received from officers of the cadre of Assistant Secretary. Under Secretary and Deputy Secretary of the Orissa Secretariat who had taken advances. Exts. 336 to 354 show advances to one N.C. Mohanty a non-gazetted employee of the Orissa Secretariat note executed on 2-4-70 by one Pramoda Chandra Patnaik, Private Secretary to the Minister of Education showing receipt of Rs. 5000/-. This promissory note was recovered from the cash chest. Similarly P.W. 49 Golak Behari Patnaik by Ext. 148 took Rs. 10,000/- on 17-7-70 another sum of Rs. 5000/- on 22-7-70 by Ext. 149 and had taken a further sum of Rs. 500/- on 1-2-66 by Ext. 150. These are a few examples to illustrate how advances beginning from petty sums to huge amounts were made out of the government cash by the Respondent which included a loan on promissory note. These unauthorised advances were not on government account nor for public purposes, Though the expression 'unauthorised advances' has been used, as a matter of fact, they were pure and simple loans, In other words, the Respondent being entrusted with the sacred duty of guarding and accounting for every pie of government cash, flouted all rules and restrictions and advanced loans from out of the same which could not but be in his private capacity. This goes to show that the Respondent converted government cash to his own use by advancing loans to the employees of the Secretariat. Such an unwholesome system cannot be sanctified by law on the ground that it was an old practice. If the court of law will take a liberal attitude and opine that the explanation of the Respondent of existence of a system of unauthorised loans out of government cash was reasonable and probable, then the remifications shall be devastating not only to government departments, but also to public and private undertakings, as well as, banks. After rnisappropriation of huge cash, cashiers and accountants of the above category of the institutions will come forward with the explanation that unauthorised advances or loans were given to employees and others and it the courts of law would accept such explanation as reasonable and probable than there shall be huge irrecoverable financial loss to such institutions. The expression 'a reasonable and probable explanation' in defence of the accused a laws means 'a reasonable and probable explanation' which is honest and not dishonest, legal, but not illegal. If a cashier takes the defence that he was robbed and cash was stolen, such an explanation is within the bounds of law even if, as a matter of fact, it may be untrue. But a cashier cannot take the defence that he advanced government cash as loans to third parties and that is how the shortage of government cash occurred. Advancement of government cash as loans to third parties is not in accordance with rules. That is not the way how government cash has to be dealt with. So the very idea of unauthorised advances of government cash or advancing loans from out of government cash to third parties in abhorrent and in my opinion cannot he accepted as a reasonable and probable explanation. Reverting to the present case, as rightly pointed out by the learned trial judge even if for the sake of argument it is assumed that for long standing practice which the Respondent could not resist, unauthorised advances were made to the employees of the Orissa Secretariat, yet, the amount of such advances brought to light was a fraction of the huge shortage that occurred in this case. In the aforesaid view of the matter in agreement with the learned trial judge and in disagreement with the learned Additional Sessions Judge, I find the conclusion inseparable that the prosecution established its case of criminal breach of trust against the Respondent and the explanation offered by him cannot be called honest, reasonable and probable within the bounds of law. In taking the aforesaid view, I am not oblivious of the principle which has been laid down by a series of decisions that when two reasonable view are possible, the High Court shall not interfere with an order of acquittal. The facts of the present case are so clear that offence against the Respondent u/s 409, I.P.C. has been so cogently and clearly established that two reasonable views on the same set of facts and evidence cannot be taken. 9. Now the offence u/s 182 I.P.C., The learned Additional Sessions Judge acquitted the Respondent of this charge because in his opinion, a complaint by public servant was not filed u/s 195(1)(a) of the Code of Criminal Procedure ('Code' for short) and so cognizance of the offence u/s 182, I.P.C. was not in accordance with law. It is a fact that a public servant did not file a complaint before the Magistrate in accordance with the provisions of Section 195(1)(a) of the Code making allegations of commission of an offence u/s 182 I.P.C. On the other hand, the Respondent submitted a report (Ext. 88) making allegations of robbery which after investigation was found to be false and the offence u/s 182, I.P.C. was included in the charge-sheet for the offence u/s 409, I.P.C. submitted to the court on 19-7-1971. So, the question for consideration is whether according to the definition of the word 'complaint' in Section 2(d) and the word 'report' in Section 2(i) of the Code a charge-sheet submitted by the police can be deemed to be a complaint. This question has been answered by this Court after considering the definition of the word 'complaint' in Section 2(d) of the Code and it was held that charge-sheet submitted by the police in respect of a cognizable offence cannot be held to be a 'complaint' as defined in the Code, see Surajmani Srimali v. State of Orissa. This question has been answered by this Court after considering the definition of the word 'complaint' in Section 2(d) of the Code and it was held that charge-sheet submitted by the police in respect of a cognizable offence cannot be held to be a 'complaint' as defined in the Code, see Surajmani Srimali v. State of Orissa. This being the view of this Court, in the absence of a regular complaint petition by a public servant cognizance of the offence u/s 182, I.P.C. was not in accordance with law as the provisions of Section 195(1)(a) of the Code was not strictly complied with. In view of this lacuna the order of acquittal of the Respondent passed by the learned Additional Sessions Judge u/s 182, IPC, cannot be assailed. 10. Now the question of sentence. The learned Assistant Sessions Judge while imposing the sentence considered the age and state of health of the Respondent. He observed at the time of delivery of judgment that the Respondent was aged about 68 years and had a very feeble state of health. Considering the aforesaid facts, he sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs. 25,000/-, in default, to undergo rigorous imprisonment for three months more u/s 409, I.P.C. About seven years more has in the meantime passed and the Respondent is now aged about 75 years. The offence was committed in 1970. At this distant point of time and in view of time age and state of health of the Respondent, I consider it inexpedient to restore the substantive sentence imposed on the Respondent. Ends of justice will be served, if he is sentenced to undergo rigorous imprisonment for the period already undergone. The amount of fine and the default sentence imposed by the learned Assistant Sessions Judge are restored. The directions with regard to disposal of cash are also restored. 11. In the result, the appeal is allowed in part. The order of acquittal of the Respondent u/s 409, IPC passed by the learned Additional Sessions Judge, Bhubaneswar is set aside. The order of conviction passed by the learned Assistant Sessions Judge. Bhubaneswar is restored and the sentence is modified to the extent indicated above. Final Result : Allowed