JUDGMENT : J. Das, J. - This appeal arises out of the conviction and sentence dated 27-2-1982 passed by Sri R.N. Panda, (Vigilance), Sambalpur in T. R. Case No. 11/1981 convicting the Appellant u/s 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act u/s 409, I.P.C. and sentencing him to undergo R.I. for 3 months and to pay a fine of Rs. 2,200/-, in default to undergo R. I. for 3 months for the offence u/s 5(1)(c). read with Section 5(2) of the Prevention of Corruption Act. However, no substantive sentence for the offence u/s 409, I.P.C. has been imposed on the Appellant. 2. As there in discrepancy between the F. I. R. version and the charge sheet and misdirection in the charge, I am bound to stick to the F. I. R. version. 3. As per the F. I. R. version, the Appellant Jaleswar Dhar was the Sub-Assistant Engineer, R. E. Sub-division, Sambalpur the was also in charge of the store and entrusted with the stock of cement and other construction materials of the Government. On 31-3-1974, the accused Sri Dhar entered 862 bags of cement in his Stock Issue Register and showed the issue of the same to the Sub-Asst. Engineer, R. E. Division, Deogarh. Sri R. N. Panda, S. A.K. Deogarh, however, lifted 80 bags of cement on 6-4-1974. The remaining 600 bags and 182 bags were accounted for in the Stock receipt Register on 6-41974 and 31-5-1974 respectively. Sri Dharwant on transfer in the month of October, 1975. While making over charge of the store to his successor, 80 bags of cement were shown to be the shortage as per the bin card (Ext-4). Thus it is alleged that Sri Dhar misappropriated 80 bags of cement. In this circumstance, F. I. R. was lodged and after due Investigation charge sheet was submitted. 4. Although the F. I. R. is confined only to 80 bags of cement and the documents referred to in the F. I. R. also relate to 80 bags of cement, surprisingly in the charge sheet there is allegation that the accused misappropriated 320 bags of cement. Unfortunately, learned Special Judge also framed charge as if the accused-Appellant misappropriated 320 bags of cement. The investigation appears to have been misdirected. Similarly, the learned Special Judge also appears to have misdirected himself at the time of framing the charge. 5. Unfortunately, learned Special Judge also framed charge as if the accused-Appellant misappropriated 320 bags of cement. The investigation appears to have been misdirected. Similarly, the learned Special Judge also appears to have misdirected himself at the time of framing the charge. 5. The defence plea is one of denial. 6. In all, 8 witnesses have been examined. Of them P.Ws. 2, 3 and 4 are the most important witnesses. Out of the exhibits,Exts. 1/1 and 2/1 are the most material exhibits. 7. Ext. 2/1 is the relevant entry in the Issue Register. This entry shows as if 680 bags of cement had been issued to the Sub-Asit. Engineer, R. E. Section. Deogarh (P.W. 4). Ext. 1/1 is the relevant entry in the Receipt Register and it appears from the Ext.1/1 that on 6-4-1974, 600 bags of cement were received from the S. A. E., Deogarh. Thus, 80 bags of cement are found to be in excess when the 2 entries are taken together. 8. R.N. Panda has been examined as p. 4 and at the relevant time he was the Sub-Asst. Engineer, R.F. Division, Deogarh. He has stated that he took 680 bags of cement and other materials and granted a hand-receipt (Ext. 8) to the accused. He further states that he did not physically lift the material and kept them in the custody of the accused. It was on 31-3-1974. He has further stated that on 6-4-1974, he took 80 bags of cement out of 680 bags of cement and the remaining 600 bags of cement were shown as returned to the accused and in evidence thereof, a receipt (Ext. 6) was granted by the accused. The above statement of P.W. 4 explains the entries vide Ext. 2/1 and 1/1. Added to this, it is clear from the above statement of P.W. 4 that he had actually taken 80 bags of cement from the accused. The entire allegation relates to this 80 bags of cement as it appears from the materials on record and when P.W. 4 has admitted that he has taken 80-bags of cement physically, there is absolutely no basis to make the accused liable for the same. 9. Patel Chandra Rout (P.W. 3) was the Work Sarkar at the relevant time. The entire allegation relates to this 80 bags of cement as it appears from the materials on record and when P.W. 4 has admitted that he has taken 80-bags of cement physically, there is absolutely no basis to make the accused liable for the same. 9. Patel Chandra Rout (P.W. 3) was the Work Sarkar at the relevant time. He has also stated that the S. A. E, Deogarh, R.N. Panda (P.W. 4) actually lifted 80 bags of cement and the remaining 600 bags of cement remained in the store. P.W. 3 also supports Sri Panda in other respects. In the light of the evidence of P.Ws. 3 and 4 and exhibits 1/1 and 2/1. it cannot be said that the accused misappropriated 80 bags of cement as alleged by the prosecution in the F. I. R.. The Learned Special Judge has not taken these materials into consideration. 10. It appears from the impugned judgment that the learned Special Judge has relied upon the entries in the bin card and has come to his conclusion. There is absolutely no evidence to show as to at what point of time, the bin card was prepared. The bin card also contains various entries. The first entry is of 1- 9-1975. Thereafter. entries have been made upto 15-10-1976 and after the last date. 15-10-1975, the entry dated 26-3-1974 and 6-4-1974 have been made. It apparently goes to show that the entry dated 26-3-1974 and dated 6-4-1974 have been made much later. There is absolutely no evidence as to in what circumstance these 2 entries were made. There is also no evidence as to the source of the bincard. In such circumstances pleading much liance on the bin card would certainly lead to miscarriage of justice and that is what the learned Special Judge has done. He has not considered the primary evidence which is clinching and decisive and relying upon the bin card, authenticity of which is not convincing, the learned Special Judge has convicted the accused v. 11. Fakir Mohan Mishra was the Sub-Asst. Engineer, Belkote R. E Section-II at the relevant time and he has been examined as P.W. 6. He has stated that he had granted the receipt. Ext-13 for supply of, 240 bags of cement and at that time the accused was in charge of Central Store, Sambalpur. Fakir Mohan Mishra was the Sub-Asst. Engineer, Belkote R. E Section-II at the relevant time and he has been examined as P.W. 6. He has stated that he had granted the receipt. Ext-13 for supply of, 240 bags of cement and at that time the accused was in charge of Central Store, Sambalpur. P.W. 6 has also stated that he lifted 240 bags of cement through the contractor R.P. Goalaand Ext-14 is the receipt granted by R.P. Goala. P.W. 6 bas further stated that in his Stock Register (Ext-15) he has shown receipt of 240 bags of cement. The above statement of P.W. 6 explains that 240 bags of cement was actually lifted by P.W. 6 from the accused. 12. In the circumstances discussed above, even though the charge is misdirected yet in the light of the evidence of P.Ws. 4 and 6 and Exts. 2/1 and 1/1 and other exhibits referred to above, it has been clearly established that 320 bags of cement were actually lifted by P. Ws 4 and 6 from the stores in charge of the accused. Hence, the charge is completely baseless and the same cannot be sustained. In consequence of that the order of conviction and sentence passed against the Appellant must also be set aside. 13. I also find that the authenticity and genuineness of the sanction order is doubtful. The Sanctioning Authority (P.W. 8) has stated in his cross-examination that he did not verify any document connected with the accused except the detailed report of investigation and-this goes to show that the Sanctioning Authority has been misled by the report of investigation and he does not appear to have applied his mind before granting the sanction. He also does not appear to have intelligently appreciated the materials on record. As it appears, P.W. 8 has contributed his signature mechanically. These circumstances vitiate the sanction order and in consequence of that, the trial is vitiated. In the result, the appeal is allowed conviction and sentence passed against the aside and the order of Appellant is set Appeal allowed. Final Result : Allowed