This is an appeal from a judgment of 31 Jan 1977 by the Special Judge, Assam at Gauhati in Special Case No 7 of 1974 convicting the appellant under section 5 (2), PC Act and section 409, IPC. 2. The case of the prosecution is that the acccused appellant P. N. Baruah was working as a clerk in accounts section in the office of the Divisional Engineer, Telephone (DET) TRA Unit, Dibrugarh during the year 1973. It was not his duty to accept payment of telephone bills and issue receipts to the subscribers. But the accused appellant realised a sum of Rs. 1,301.95 in payment for telephone bill of telephone No. DR 30 and issued receipt dated 2. 2. 73 (Ext-9) to the subscriber Binod Kumar (PW-4). The accused dishonestly and fraudulently misappropriated the amount realised by him. 3. The learned Special Judge framed charge against the accused appellant under section 5 (2) read with sections 5 (1) (c) and 6 (1) (d) of the PC Act and also another charge under section 409, IPC. The accu­sed pleaded not guilty On trial, the learned Special Judge found the accused appellant guilty under section 5 (2) read with section 5 (1) (c), PC Act and also under section 409, IPC and sentenced him, as men­tioned in his judgment. 4. The prosecution relies on the receipt (Ext-9) which is alleged to have been written and signed by the accused. In this regards, the evidence of PW 2 Mrs. Maya Chakravorty (Head Clerk), PW 5 Ashit Kumar Sarkar (Accounting Clerk), PW-7 Surendra Prasad (Accounting Clerk) and PW-8 Khitisha Chandra Dhar ( Sr. Accountant ) is that they are familiar with the hand writing of the accused. Ext. 9 is in his hand writing and Ext 9(1) is his signature. The evidence of PW 4 Binod Kumar, the subscriber of telephone No. DR 30, is that the receipt No. 106 of Book No. 7867, dated 2.2.7 J (Ext. 9) was issued for money paid by his firm against the bill (Ext. 8). Ext-9 was seized from his custody The evidence of PW-9 Amal Ch. Mazumdar, who was the Cashier from May 1972 to 20.3.73, is that he issued receipt No. 106 of Book No. 7867 (Ext-6) to the subscriber of telephone No. DR 30 (PW I) for Rs. 274.90 and that Ext-9 was not in his hand writing and was not issued by him. Mazumdar, who was the Cashier from May 1972 to 20.3.73, is that he issued receipt No. 106 of Book No. 7867 (Ext-6) to the subscriber of telephone No. DR 30 (PW I) for Rs. 274.90 and that Ext-9 was not in his hand writing and was not issued by him. The evidence of PW 10 Samsuddin Bora, who was the Cashier from March 1971 to May 1972, is that he did not issue Exts-6 and 9. 5. The prosecution has produced the evidence of the persons acquainted with the signature and hand writing of the accused and has laid foundation for making the opinion of the witnesses admissible under section 47 of Indian Evidence Act. 6. The question which arises for consideration is whether on the basis of the said opinion, the accused appellant can be convicted. 7. In Sri Baru Ram vs. Smt. Prasanni, AIR 1959 SC 93 the Supreme Court has held that under section 45, the opinion of the hand writing experts relevant while under section 47, the opinion of any person acquainted with the hand writing of the person who is alleged to have signed the document is admissible. However, it is only, if the Court is satisfied that the circumstantial evidence to irresistibly leads to the inference that the persons must have signed the document in question, that the Court can legitimately reach such a conclusion. 8. In Iswanni Prasad vs. Mohammad Isha, 1963 SC 1728, the Supreme Court has held that the evidence given by experts of hand writing can never be conclusive, because it is, after all, opinion evidence. 9. In Ram Narayan vs. State of UP (1973) 2 SCC 86 the Supreme Court had held that it is no doubt true that the opinion of the hand writing expert given in evidence is no less fallible than any other expert opinion adduced in evidence with result that such evidence has to be received with great caution. 10. In Bhagawan Kaur vs. Maharaj Krishan Sharma, (1937) 4 SCC 47, the evidence of hand writing expert, unlike that of the finger prints expert, is generally of a frail character and its fallibilities have been quite often noticed. The Court should, therefore, be wary to give too much weight to the evidence of hand writing expert. 11. 10. In Bhagawan Kaur vs. Maharaj Krishan Sharma, (1937) 4 SCC 47, the evidence of hand writing expert, unlike that of the finger prints expert, is generally of a frail character and its fallibilities have been quite often noticed. The Court should, therefore, be wary to give too much weight to the evidence of hand writing expert. 11. Coming to the present appeal, the evidence of hand writing expert (PW 11) is that he could not give any opinion on the authorship of the questioned signature, namely the Ext:-9(1), the-alleged signature of the accused. The person who actually paid the money on behalf of PVV-4 Binod Kumar's firm has not been examined, the evidence of PW-9 and PW-10 is that it was the duty of the Cashier to receive cash and/or cheques from the subscribers. It was not the duty of the accused to accept payment and issue receipts. I If the person who paid the money to the accused on behalf of the firm is examined, he could explain how the money was paid and to whom the money was paid. The prosecution has not explained why he was not examined. Ext. 53 is a book bearing No 7867 containing copies of the receipts issued to the telephone subscri­bers. The evidence of PW-6 Amul Chandra Mazumdar is that a receipt book contains sheets of receipt form in triplicate. The first copy is given to the party. The second copy is destroyed before use. The third copy is retained as office copy like Ext-53. Ext-53(1) is the copy of the Ext 6. He threw the second co y of the receipt form of Ext-6 into the waste basket after squeezing it. It has already been stat d that book numbers and serial numbers of the Exts.-6 and 9 are identical The case of the prosecution is that Ext 9 is written on the receipt form which was wasted But the prosecution has not explained how the wasted receipts was obtained by the accused. 12. Considering the facts and circumstances of the case and the law laid down by the Supreme Court, I am of the opinion that it will be unsafe to convict the accused on the facts and circumstances of the case and that the accused is entitled to the benefit of the doubt. 13. 12. Considering the facts and circumstances of the case and the law laid down by the Supreme Court, I am of the opinion that it will be unsafe to convict the accused on the facts and circumstances of the case and that the accused is entitled to the benefit of the doubt. 13. In the result, the appeal is allowed and the conviction and sentences passed by the learned Special Judge in Special Case No. 7 of 1974 are set aside.