JUDGMENT : V. Gopalaswamy, J. - This appeal is preferred against the judgment dated 8.6.1982 passed by the Special Judge, Vigilance, Sambalpur, in T.R. Case 013 of 1981, convicting the accused-Appellant u/s 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act and sentencing him thereunder to undergo rigorous imprisonment for one year and b pay a fine of Rs. 2000/-, in default, to undergo rigorous imprisonment for six months. The Appellant was convicted u/s 409, I.P.C. as well, but no separate sentence was imposed thereunder. 2. The prosecution case may be briefly stated as follows: The accused was the Range Officer of the Kendu Leaves Division, Keonjhar, during the period from January 1973 to May, 1974 and in his capacity as such Range Officer he was in charge of collection and processing of Kendu leaves. During the relevant period though the accused had collected and processed Kendu leaves of a total quantity of 2960 bags and had shown expenditure for the same, yet from the receipt books it was noticed that the accused had given delivery of only 2906 bags of processed Kendu leaves. Hence it was found that the accused, in his capacity as the Range Officer, dishonestly or fraudulently misappropriated or otherwise converted for his own use 54 bags (2960 minus 2906) of Kendu leaves, the value of which comes to Rs. 7,290/- at the rate of Rs. 135/- per bag (Rs. 135 X 54) and thereby rendered himself liable u/s 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act (in short P.C. Act) and u/s 409, I.P.C. 3. The defence plea is as follows: During the relevant period when the accused was the Range Officer the total collection of processed Kendu leaves was of a quantity of only 2937 bags and not 2960 bags as alleged by the prosecution. Subsequently there was an order that from out of the said 2937 bags of Kendu leaves, there should be rebinding in respect of 82 bags. Accordingly when 82 bags of Kendu leaves were taken up for rebinding, it was found that in respect of 28 bags there was no need for rebinding. Subsequently there was an order that from out of the said 2937 bags of Kendu leaves, there should be rebinding in respect of 82 bags. Accordingly when 82 bags of Kendu leaves were taken up for rebinding, it was found that in respect of 28 bags there was no need for rebinding. When the balance of 54 bags were taken up for rebinding, there was shrinkage of 31 bags and it was only the remaining 23 bags which were rebound, Thus binding charges incurred were in respect of 2960 bags in all, comprising of 2937 bags which were originally bound and 23 bags which were rebound. In view of the shrinkage of 31 bags, the quantity of Kendu leaves which was ultimately delivered was only 2906 bags (2937 bags minus 31 bags). 4. The prosecution has examined in all seven witnesses to prove its case. No witness was examined on behalf of the defence. P.W. 1 was the Sub-divisional Manager, Keonjhar Forest Corporation, during the relevant period. P.W. 2 was the Assistant Conservator of Forests, Keonjhar Kendu Leaves Division, during the year 1974. P.W. 3 was the Divisional Forest Officer, Keonjhar Division, from September, 1974 to April, 1976, P.W. 4 was the Accounts Supervisor, Keonjhar Division, in the year 1975. P.W. 5 is the sanctioning authority, P.W. 6 had audited the accounts of Kendu Leaves Division during the period from 26.4.74 to 29.4.74 P.W. 7 R.N. Mohapatra was the Inspector of Vigilance, who submitted the report Ext 7 to the S.P., Vigilance, and the same was treated as the F.I.R. in the case. 5. P.W. 5, the. Chief Conservator of Forests, is the sanctioning authority and he proves that he had issued the sanction order Ext. 3. That there is a valid sanction for the prosecution of the accused is not in dispute. P.W. 4. was the Accounts Supervisor in the year 1975. He merely states that he cannot say if the accused was advanced a sum of Rs. 4390.67p. There is nothing in the evidence of P.W. 4 to indicate the purpose his examination. So it is the evidence of P.Ws. 1 to 3 and P.Ws. 6 and 7 which merits consideration. 6. P.W. 1 was the Sub-Divisional Manager, Keonjhar Forest Corporation from June 1973 to February, 1975. He deposed that during the relevant period the accused was the Ranger of the Kendu Leaf Range with Headquarters at Dhenkikot. So it is the evidence of P.Ws. 1 to 3 and P.Ws. 6 and 7 which merits consideration. 6. P.W. 1 was the Sub-Divisional Manager, Keonjhar Forest Corporation from June 1973 to February, 1975. He deposed that during the relevant period the accused was the Ranger of the Kendu Leaf Range with Headquarters at Dhenkikot. He merely proves that during the period from 1.8.1973 to 30.4.1974 he has taken delivery processed Kendu leaves of a total quantity of 2906 bags from the Central Godown, Dhenkikot and other godowns of which the accused was in charge and this is not in dispute. P.W. 2 was the A.C.P., Keonjhar Kendu Leaf Division in 1974, His evidence shows that he verified the stock of Kendu leaves in Dhenkikot Central Godown on 7.11.1974 as directed by the D.F.O. By that date the accused was already transferred from the Keonjhar Division. He stated that the Auditor had pointed out shortage of 54 bags of processed kendu leaves but of the total production of the year 1973 in respect of the entire range. It is in his evidence that as he physically verified the stock in the Central Godown, the then Range Officer, Kasina Barik showed him only 23 bags of kendu leaves and the rest of the 31 bags were not available. His evidence shows that in the year 1973 the D.F.O. had passed an order for rebinding and that there was a shrinkage of 31 bags of kendu leaves as a result of such rebinding. He deposed that the leaves found in the said 23 bags of kendu leaves were not fit for bidi-making and he sent a report to the effect marked Ext. 2 to the D.F.O. P.W. 2 explained in his cross-examination that an order for rebinding would be passed, when an inspection it is found that the kendu leaves in the bags are not markatable. The evidence of P.W. 2 discloses that on verification of the records he found that out of the shortage of 54 bags, as pointed out by the Auditor, the shortage of 31 bags of kendu leaves was due to the shrinkage. Regarding the balance of 23 bags. the than Range Officer showed 23 bags of damaged kendu leaves. The evidence of P.W. 2 discloses that on verification of the records he found that out of the shortage of 54 bags, as pointed out by the Auditor, the shortage of 31 bags of kendu leaves was due to the shrinkage. Regarding the balance of 23 bags. the than Range Officer showed 23 bags of damaged kendu leaves. So from the evidence of P.W. 2 it turns out that what is to be accounted for is only 23 bags of kendu leaves and not 54 bags as alleged by the prosecution. There is nothing in the evidence of P.W. 2 to suggest that the accused had taken away the 23 bags of kendu leaves of marketable variety and substituted in their place 23 bags of damaged kendu leaves. 7. P.W. 3 was the D.F.O., Keonjhar Division from September, 1974 to April, 1976. He received the report Ext. 2 from P.W.1 informing him of the fact that the kendu leaves found in the 23 bags in question were not fit for bidi-making. P.W. 3 deposed in chief examination that he did not make any personal enquiry on the report Ext. 2. His further statement is that he must have forwarded Ext. 2 to the Conservator of Forests for necessary action, though there is no mention about It in Ext. 2. The very fact that P.W. 3 did not himself conduct any enquiry even after the receipt of Ext. 2 suggests that the damaged condition of the leaves in the 23 bags was not viewed seriously, As there was nothing in the evidence of P.W. 3 against the accused, the defence had rightly declined to cross-examine him. 8. P.W. 6 is the Auditor of the Forest Department, who from 26.4.1974 to 29.4.1974. audited the accounts of Keonjhar Kendu Leaves Division relating to the period from 1.1.1973 to 31.3.1974. He deposed that in the binding centres, Form No. 4 is maintained which shows the total production of Kendu leaves, and that, these forms were not made available to him for his audit and therefore, he had examined only the cash books. audited the accounts of Keonjhar Kendu Leaves Division relating to the period from 1.1.1973 to 31.3.1974. He deposed that in the binding centres, Form No. 4 is maintained which shows the total production of Kendu leaves, and that, these forms were not made available to him for his audit and therefore, he had examined only the cash books. In his chief-examination he stated that from the cash books he found that the accused had shown collection of 2960 bags of processed kendu leaves and in his cross-examination he explained his said statement by stating that as in the cash book expenditure for processing 2960 bags of kendu leaves has been shown, he came to the conclusion that the production was also 2960 bags. He denied the defence suggestion that he was shown all the sheets of Form No. 4 and that the total production was 2937.6 bags. The audit report given by P.W. 6 Is marked Ext. 5. He proves the three cash books and the same were marked as Exts. 6, 6/1 and 6/2. On a perusal of the audit report Ext. 5, it is seen that the auditor has stated therein that the total figure of production as per the K.L. Forms No. 4 was 2937. bags 6 bundles, thus proving the truth of the defence suggestion which was falsely denied by P.W. 6. 9. P.W. 7 was the Inspector of Vigilance, on 20.12.78 He submitted to the S.P., Vigilance, the written report Ext. 7, which was treated as the F.I.R. in the case. According to the F.I.R., 54 bags of kendu leaves were not duly accounted for Charges were framed against the accused u/s 5(1)(c) read with Section 5(2) of the P.C. Act and u/s 409. I.P.C. for having dishonestly or fraudulently misappropriated or otherwise converted for his own use 54 bags of Kendu leaves of a total value of Rs. 7290/. On a perusal of the judgment it is seen that at the stage of arguments the case of the prosecution was that the accused had to explain for the alleged shortages of 23 bags of Kendu leaves. The plea of the accused that due to the rebinding of 82 bags of kendu leaves, there was a shrinkage of 31 bags was proved through the evidence of P.W. 2 and the prosecution has accepted it as true. The plea of the accused that due to the rebinding of 82 bags of kendu leaves, there was a shrinkage of 31 bags was proved through the evidence of P.W. 2 and the prosecution has accepted it as true. So on its own showing, the prosecution has initiated the criminal proceedings with a grossly exaggerated version regarding the alleged shortage of the Kendu leaves bags which the accused was called upon to explain. This is a circumstance which seriously undermines the credibility of the prosecution. 10. The prosecution has not adduced any reliable evidence to show that the total production during the tenure of the office of the accused was 2960 bags. On the otherhand, the recitals in the audit report Ext. 5 would show that according to the Forms No. 4, the total production was 2937 bags. On a perusal of paragraph 5 of the judgment it is seen that the learned Special Judge came to the conclusion that production was 2960 bags of kendu leaves in view of the admitted petition that in the cash books (Exts. 6, 6/1 and 6/2) expenditure for binding of 2960 bags was shown. When the auditor relied M the entries in the sheets of Form No. 4, the trial Court was not justified in ignoring the same. On the erroneous presumption that the accused was the author of the entries in Forms No. 4, the trial Court observed that much importance may not be attached to it. But a mere look at the Form No. 4. would show that it is maintained by the Forester and the Binding Muharir. So relying on the audit report, it can be, safely held that the production of kendu leaves during the relevant period was only 2937 bags, and not 2960 bags as alleged by the prosecution and was presumed by the trial Court. 11. The total production of kendu leaves was proved to be 2937 bags. Admittedly the accused had delivered 2906 bags of kendu leaves. It is further admitted that during the course of rebinding of 82 bags, there was a shrinkage of 31 bags. So when the accused had delivered 2906 bags (2937 bags-31 bags) of kendu leaves, there is absolutely no basis for alleging that the accused was accountable for non-delivery of any of the bags in question. The same issue can be looked at from a different angle. So when the accused had delivered 2906 bags (2937 bags-31 bags) of kendu leaves, there is absolutely no basis for alleging that the accused was accountable for non-delivery of any of the bags in question. The same issue can be looked at from a different angle. Admittedly orders were passed for rebinding of 82 bags. This is a case of "rebinding" that is, binding for the second time. Admittedly binding charges were incurred earlier in respect of 2937 bags which was the total production. In pursuance of the orders directing rebinding, such rebinding was undertaken. According to the plea of the accused, only in respect of 23 bags of kendu leaves such rebinding was considered necessary. The plea of the accused sounds probable and true, as it fits in with the case of both the parties that expenditure was incurred for the binding of 2960 bags of kendu leaves, because, besides the initial binding charges originally incurred for 2937 bags, rebinding charges had to be incurred subsequently in respect of 23 bags, and thus in all binding charges were incurred in respects of 2960 bags. 12. There are several other interesting features in the case which go very much against the prosecution. The audit was completed by April, 1974 and the report was sent to the D.F.O. in July, 1975. If there was anything incriminating against the accused in the audit report, it is not known why the higher authorities of the Forest Department did not earlier initiation any proceedings for prosecuting the accused. Though the alleged misappropriation related to the period from 1.1.73 to 31.3.74 and P.W. 2 reported about the alleged I damage of 23 bags of kendu leaves to the D.F.O. by his report dated 17.12.1974, yet it was only about 3 years thereafter, on 20.12.1977 the Inspector of Vigilance lodged the F.I.R. against the accused. Then again, more than 3 years had elapsed before the charge-sheet was filed en 31.3.1981 and for these years, it is to be presumed the Vigilance Department was investigating into the case. There is absolutely no explanation from the side of the prosecution for the inordinate delay in the lodging of the F.I.R. as well as in the submission of the charge-sheet, and this is a serious infirmity in the prosecution case. 13. There is absolutely no explanation from the side of the prosecution for the inordinate delay in the lodging of the F.I.R. as well as in the submission of the charge-sheet, and this is a serious infirmity in the prosecution case. 13. The prosecution was not sure of its own case, when it opened its case by charging the accused that he had misappropriated 54 bags of kendu leaves but before the Conclusion of the trial, it had to concede that the accountability of the accused was confined to only 23 bags of kendu leaves. None of the witnesses have stated on oath regarding any this appropriation of the bags of kendu leaves by the accused. Though entrustment is a necessary ingredient of the offences u/s 5(1)(c) of the P.C. Act and 409, I.P.C., yet there is no clear evidence to show that the bags of kendu leaves in question were entrusted to him. 14. In view of my above discussion of the material placed on record, I hold that the conviction of the accused-Appellant, either u/s 5(1)(c) read with Section 5(2) of the P.C. Act, or u/s 409, I.P.C., is unwarranted, as the prosecution has miserably failed to prove either of the charges and, therefore, the accused is entitled to an acquittal thereunder. In spite of the evidence being too meagre and the informities being too serious, it is indeed unfortunate that the accused-Appellant should have had to face the ordeal of a trial and suffer the agency of an order of conviction hanging over his head, like a sword of Damocles, during the period of the pendency of the appeal. It is the trial Court's superficial approach to the facts of the case, which has resulted in the unwarranted conviction of the accused. Any slackness on the part of the Special Judges in the matter of proper appreciation of the evidence on record, is likely to encourage initiation of criminal proceedings without reasonable grounds, as in the present case, and in its turn, it may give rise to the unhealthy feeling in the mind of a public servant that his vulnerability to a frivolous prosecution under the Prevention of Corruption Act is an occupational hazard. 15. 15. In the result, I hereby set aside the order of conviction and sentence passed by the Special Judge, Vigilance, Sambalpur, against the accused-Appellant u/s 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act and 409, I.P.C. and accordingly allow the appeal. Final Result : Allowed