JUDGEMENT This is a revision petition from a judgment and the order dt.1 May 1978 of the learned Sessions Judge (UAD) Jorhat passed in Criminal Appeal No.5(4)/77 dismissing the petitioner's appeal from the judgment and order dt. 7 Oct. 1977 passed by the learned Judicial Magistrate of the 1st Class Golaghat in G.R. Case No.899/73. 2. The case of the prosecution was that the accused-petitioner was the Accountant-cum-Cashier of the Assam Co-operative Sugar Mills at Dergaon. He withdrew Rs.3,758.49 for making payment to 70 centrifugal mazdoors, that is, the accused was entrusted with Rs.3,758.49 for making payment to 70 mazdoors. Out of Rs.3,758.49, Rs.2,011.40 were not paid to 37 of the mazdoors, but entries in cash book and scroll were made by the accused showing payment of Rs.2,011.40. The amount of Rs.2,011.40 were not deposited in the cash box. The accused failed to account for the amount of Rs.2,011.40 entrusted with him. Thus accused dishonestly misappropriated the amount of Rs.2,011.40 entrusted with him. The Courts below have held that the prosecution have proved its case beyond reasonable doubt. Accordingly, the petitioner was convicted under S.408, IPC and sentenced to one year and to a fine of Rs.2,000/-, and, in default of payment of fine, to six months further R.I. 3. Mr. C.C. Deka, the learned counsel for the petitioner, has submitted that one of the circumstances, namely, entries alleged to have been made by the accused in the cash book and scroll showing the payment of Rs.2.011.40, was not put specifically to the accused in his examination under S.313, Cr. P.C., and that it has resulted in miscarriage of justice. Mr. C.R. De, the learned public prosecutor, has submitted that it is for the accused to explain as to how he made the payment after the amount was withdrawn and shown paid in the cash book. I am unable to accept the submission of Mr. De. I approach the matter as follows. 4. It is not possible in every case of breach of trust to prove in what precise manner the accused person has dealt with or appropriated the property. In other words, the prosecution is not obliged in every case to prove precise mode of conversion or misappropriation. De. I approach the matter as follows. 4. It is not possible in every case of breach of trust to prove in what precise manner the accused person has dealt with or appropriated the property. In other words, the prosecution is not obliged in every case to prove precise mode of conversion or misappropriation. It is for the reason that the question is one of dishonest intention which is not, ordinarily, a matter of direct proof, and it is within the knowledge of the accused person how he has dealt with the property entrusted with him. It is also not the law of this country that the prosecution has to eliminate all the possible defence or circumstances which may absolve him from the charge or may exonerate him. The prosecution did not require conclusive proof. Only proof beyond reasonable doubt is required. In the case of criminal breach of trust, there is an obligation on the accused to account for the property entrusted with him. If the accused fails to explain or give statement showing how the property has been dealt with, such a failure to account for the property left in his care is a strong criminating circumstance. But where the accused is unable to account or renders false explanations for his failure to account, as is distinguished from a mere failure to account for, an inference of criminal misappropriation can be made. Whether conviction can be based on such a circumstance is a completely different question. 5. As already stated, the question as to how the accused has dealt with the property is a fact which is within the especial knowledge of the accused. Under S.106 of the Indian Evidence Act, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. However, S. 106 cannot be utilised to cast the burden on the accused to prove his innocence by relieving the prosecution of its burden of proof. The prosecution has to stand on its own legs, and cannot derive any strength or support from the weakness of the defence case. S.106 is intended to meet certain exceptional cases in which it would be impossible or extremely difficult for the prosecution to prove the fact which is especially within the knowledge of the accused and the knowledge of that fact is not available to the prosecution. S.106 is intended to meet certain exceptional cases in which it would be impossible or extremely difficult for the prosecution to prove the fact which is especially within the knowledge of the accused and the knowledge of that fact is not available to the prosecution. But before the burden/ onus is shifted to the accused, the prosecution has to establish strong prima facie case. Thereafter, if the accused fails to account for, or if the accused gives explanation, the failure to account for or the explanation given by the accused shall be considered by the court for its final verdict. 6. In the present case, the prosecution relied on the entries made by the accused in the cash book and scroll showing payment to prove prima facie criminal misappropriation. This subordinate or accessory fact which is a circumstance against the accused was not put specifically to the accused in his examination under S.313, although it has been considered by the courts below. The judgment of the lower appellate court shows that the contention of the learned counsel of the accused that somebody else paid the wages to the mazdoors was rejected. The ground for rejection was that the accused must explain whom he paid and how he paid and that a mere contention was not enough. But the evidence of P.W.4 Hari Prasad Thakur is that the entries in the cash book were made before the actual payment and that there was a clerk whose duty was to pay wages to the mazdoors. Therefore, the above findings have been made by the lower appellate court because of the omission to put a specific question relating to the entries to the accused for the purpose of enabling him personally to explain the circumstances against him, and as such, the omission has resulted in miscarriage of justice. In such a situation, the conviction and sentences are liable to be set aside. In this view of the matter, the contention of Mr. Deka is accepted and that of Mr. De is rejected. 7. The next question which arises for consideration is whether the case is to be remitted to the trial Court for disposal afresh from the stage at which the petitioner should have been properly examined under S.313. The accused has had to face a long and protracted trial and the sword has been hanging for about 14 years. 7. The next question which arises for consideration is whether the case is to be remitted to the trial Court for disposal afresh from the stage at which the petitioner should have been properly examined under S.313. The accused has had to face a long and protracted trial and the sword has been hanging for about 14 years. The accused was suspended in 1972. The evidence on records shows that the account was not audited departmentally and accused was not given an opportunity to explain the case departmentally: and that cash book was written under double entry system and entries were made in the cash book before the actual payment which was made by the pay clerk; and that the clerk took 2/3 days to complete his work of the payment of wages. The pay clerk has not been examined to clarify the matter. The FIR was lodged after about one year of the knowledge of the commission of the offence. Amount involved is Rs.2,011.40 only. It is true that the offence of this kind should not be allowed to go unpunished. Considering facts and circumstances of the case, here, it will meet the ends of justice to terminate the proceedings. In similar circumstances in a case under S.161, IPC, the Supreme Court, in R.R. Chari v. State of U.P., AIR 1962 SC 1573 : (1962 (2) Cri LJ 510), did not also order for a retrial. 8. In the result, the conviction and sentences passed by the learned Magistrate of the 1st Class Golaghat in G.R. Case No.899/73 and affirmed, on appeal, by the learned Sessions Judge (UAD) Jorhat in Criminal Appeal No.5(4)/77 are set aside, and the petition is allowed. Petition allowed.