JUDGMENT 1. - This is an appeal directed against the judgment dated 28-2-81 passed by the Judge, Special Court (RPE Cases), Rajasthan, Jaipur, whereby the accused appellant has been found guilty for the offence under section 5 (2) read with section 5 (1) (c) of the Prevention of Corruption Act, 1947, and under section 409-207 of the Indian Penal Code. 2. Brief facts giving rise to this appeal are that in the month of November and December, 1970, a tour named as `Rajasthan Durshan' was organised by Shri J. N. Simlot, the Welfare Commissioner, Mica Mines, Labour Welfare Fund, Bhilwara (Rajasthan). A group of 50 Mica Miners working in different Mica Mines of Rajasthan were taken for 'Rajasthan Darshan'. A sum of Rs. 9000/- was sanctioned by the Government of India for incurring the expenditure over the said tour and a sum of Rs. 20/- from each participating Mica Miner was to be collected. The sanction order No. 8 (33)/70-M. III dated 2-11-70 for incurring the aforesaid expenditure was addressed to the Welfare Commissioner, Mica Mines Labour Welfare Fund, Bhilwara (Rajasthan) thereafter, an authority for drawing an advance of Rs. 9000/- was given to Shri J. N. Simlot runs as follows : "The amount will be drawn by Shri J. N. Simlot Welfare Commissioner, Mica Mines Labour Welfare Fund, Bhilwara, on the abstract Contingent Bills from Bhilwara Treasury. The amount so drawn should be adjusted as soon as possible but not latter than 31st March, 1971." That after receipt of aforesaid sanction, Shri J. N. Simlot was the authorised Drawing Officer under the said order of Government for the said amount. 3. That under the orders of Shri J. N. Simlot a group of 50 Mica Mines was formed by calling them at Bhilwara from different Mica Mines. That group of Miners started for the said Rajasthan Darshan on the 22nd of November, 1970 in a Bus hired from Rajasthan State Roadways Transport Corporation. 4. It is an admitted fact that Shri Simlot, the authorised Drawing Officer accompanied the touring group along with his subordinate staff including the appellant, as well as Shri Gafoor Mohammed and Govind on 22-11-1970. Shri Simlot almost visited all the places except 3 to 4 places visited by the touring group. 4. It is an admitted fact that Shri Simlot, the authorised Drawing Officer accompanied the touring group along with his subordinate staff including the appellant, as well as Shri Gafoor Mohammed and Govind on 22-11-1970. Shri Simlot almost visited all the places except 3 to 4 places visited by the touring group. The accused appellant was nominated as Incharge of the tour party though no such orders is issued in writing nor he ever would as an Incharge as is the case of the appellant. The prosecution case further is that the appellant was given advance in order to incur the expenses of the touring group at various places and for each advance separate receipts were obtained from the accused appellant, as per the details given by the prosecution. It is alleged that the appellant was given Rs. 2000/- on 17-11-70 for hiring the Bus and receipt Ex. P. 85 was given by the appellant. Similarly an amount of Rs. 2500/- and 2000/- were given to the appellant on 21-11-70 and 3-12-70 respectively and receipts Ex. P. 87 respectively were given by the appellant. 5. During the course of arguments, receipts of the aforesaid amount and the issuance of the receipts have not been disputed by the learned counsel for the appellant but he submits that certain items of the expenditure shown in the statement of account for which vouchers were also given, have been wrongly disbelieved by the learned trial Court. 6. The case of the prosecution further is that an amount of Rs. 3000/-was also given to the appellant for incurring the expenses of the tour party and receipts were also obtained from the appellant but this part of the allegation of the prosecution has been denied by the accused, who alleged that the said receipt for the amount of Rs. 3000/- has been obtained from the appellant under pressure and the same is without any consideration and further that as per the prosecution, the said amount is alleged to have been given to the appellant after the completion of the tour programme when no expenses were needed, there was no occasion for Shri Simlot or any other person concerned to have given the said amount. The case of the prosecution further is that because the statement of account has been filed by the appellant along with the vouchers duly verified by the appellant. The case of the prosecution further is that because the statement of account has been filed by the appellant along with the vouchers duly verified by the appellant. So, the appellant is responsible for the misappropriation of the money and therefore has been rightly convicted by the learned trial Court. 7. It has been found by the learned trial Court that an amount of Rs. 568/- has been misappropriated by the appellant from the amount of Rs. 6500/- account and vouchers of which have been admittedly filed by the appellant so certain items shown in the statement of account have been disbelieved by the learned trial Court. Similarly, from the statement of account for the amount of Rs. 3000/- misappropriation of Rs. 1568/- has been found by the learned trial Court as against the appellant and because of this finding the appellant has been convicted and sentence is passed by the learned trial Court against which judgment this appeal is filed. 8. It has been alleged that at the relevant time, the accused appellant was working as an Assistant Welfare Inspector in the office of Welfare Commissioner, Mica Mines, Bhilwara, which has not been disputed by the appellant. 9. On the basis of a report lodged with the aforesaid allegation, the investigation was conducted by the CBI and a challan was filed against the accused and the learned trial Court framed charges against him for the offence for which he has been found guilty and also for the offence under sections 467 and 477 Indian Penal Code. The prosecution in all produced 53 witnesses including a number of documents. The accused denied the allegations levelled against him by the prosecution witnesses, in his statement under section 313 Criminal Procedure Code and produced 9 witnesses in defence including certain documents. 10. Heard learned counsel for the parties and perused the entire record. 11. The main contention of the learned counsel for the appellant is that for the amount of Rs. 6500/- which was given advance to the appellant to incur the expenditure of the tour, the correct statement of account along with vouchers was filed by the appellant and certain items have been wrongly disbelieved by the learned trial Court. 11. The main contention of the learned counsel for the appellant is that for the amount of Rs. 6500/- which was given advance to the appellant to incur the expenditure of the tour, the correct statement of account along with vouchers was filed by the appellant and certain items have been wrongly disbelieved by the learned trial Court. He further submits that for the items which have been disbelieved by the learned trial Court, the witnesses for the prosecution themselves admitted that the money was invested from the amount of Rs. 6500/- also. The learned counsel contended that this account was never entrusted to the appellant still the learned trial Court wrongly held otherwise. He further submits that for the amount of Rs. 3000/- certain vouchers were given to him by Shri Simlot which have been verified by the appellant under pressure and the same have been countersigned by Shri Simlot. Even otherwise this amount has also been actually invested for the purposes of aforesaid tour as the same is verified by the Simlot and the learned trial Court erred in disbelieving the said expenses. It has, further, been submitted by the learned counsel for the appellant that looking to the entire facts and circumstances of the case Mr. Simlot was the person who only misappropriated the amount if any from the total amount sanctioned for the purposes of aforesaid tour. It has further been submitted that most of the prosecution witnesses have supported the defence version and most of the witnesses who have been cited as witnesses in the calendar by the prosecution have been produced in defence and that a number of witnesses cited as witnesses in the calendar by the prosecution have not been produced by the prosecution. These circumstances were sufficient to acquit the accused. But the learned trial Court completely ignored all these facts that the perusal of judgment of the trial Court, it will appear that an error apparent has been committed by the learned trial Court and that the judgment of the learned trial Court is erroneous and pet verse. 12. The learned counsel for the CBI supported the judgment of the trial Court and submitted that there is evidence to support the findings recorded by the learned trial Court. 13. I have considered the points raised by both the learned counsel. 14. 12. The learned counsel for the CBI supported the judgment of the trial Court and submitted that there is evidence to support the findings recorded by the learned trial Court. 13. I have considered the points raised by both the learned counsel. 14. As said earlier that in the instant case entreatment of Rs. 6500/- has not been denied by the appellant and he admits the receipts Ex. P 85, Ex. P 86 and Ex. P 87 which had been given by him. The case of the appellant is that none of the vouchers of the money spent by him, from the said amount of Rs. 6500/- are false, and money claimed through these vouchers was paid. Payment of which is also admitted by the prosecution. 15. In the statement of accounts expenditure of Rs. 6499.10 has been shown for 15 items out of which the expenditure of the following items have been disbelieved by the learned trial Court: Amount Details of Expenditures (1) Rs. 127.50 Charges for Scindia Museum. (2) Rs. 382 50 Offering for various Temples. (3) Rs. 152.00 City Palace, Jaipur and Ajmer. (4) Rs. 127.50 Agra Fort, Fatehpur Sikri, Taj Mahal. (5) Rs. 142.50 Bundi Restaurant. 16. 1 have gone through the entire evidence in order to decide as to whether the learned trial Court was justified in disbelieving this expenditure for the aforesaid items my findings for these items is as follow :Reg. Scindia Museum : It is alleged that vouchers Ex. P 107, Ex. P 108 and Ex. P 109 were falsely made to claim this amount whereas labourers had not gone to see the Scindia Museum and as such no expenditure was incurred for the same. In this connection, the prosecution has examined H.B. Lohani (PW 9) who has deposed that there were two rates for seeing the Seindia Museum viz. Rs. 2.50 and Rs. 1.25 and in two days, i.e. 25th Nov., 1970 and 26th Nov., 1970 only 37 tickets worth Rs. 88.75 were sold. It was argued that prima facie the expenditure of Rs. 127.50 spent on 26th November, 1970 for showing Scindia Museum to 51 labourers was false. There was no evidence by the prosecution to show that Ex. P 107, Ex. P 108 and Ex. P 109 bore forged signatures of the labourers. 88.75 were sold. It was argued that prima facie the expenditure of Rs. 127.50 spent on 26th November, 1970 for showing Scindia Museum to 51 labourers was false. There was no evidence by the prosecution to show that Ex. P 107, Ex. P 108 and Ex. P 109 bore forged signatures of the labourers. On the contrary Raghu Raj Singh (PW 18), Chuni Lal (PW 421, Roop Narain (PW 45), Shankar Lal (PW 47) Hari Narain (PW 51) examined by the prosecution say that they had visited the Scindia Museum and Bhura (PW 41) says that he of the Museum, but none of the labourers examined by the prosecution denied to have seen the Scindia Museum at Gwalior. Kanhaiya Lal (PW 5), Udai Singh (DW 6), Bhairon Singh (DW 7) and Kana Ram (DW 8) have said that they had seen the Museum at Gwalior. Kanhaiya Lal had also said that they had signed the vouchers prepared for the visit to the Museum. These DWs were cited as proposed prosecution witnesses in the challan and they had come in the Court also for their examination but the learned Prosecutor in his sweet discretion had returned them without their evidence bring record before the Court. Thus admittedly when there is no evidence, of the prosecution and there is direct evidence of so left out prosecution witnesses then simply on the basis of the statement of Shri Lohani that in total even 51 tickets were not sold on the relevant day, it cannot be infrred that the accused appellant Roshan Lal has committed any forgery or has made any false claim. The question for consideration here is not whether the money was paid to the authority of Scindia Museum for the purchase of the tickets or they had charged but not issued the tickets but the question is whether the accused appellant had spent Rs. 127.50 and paid this amount or without making any payment the receipts Ex P 107, Ex. P 108 and Ex. P 109 were prepared. The evidence of DW 6, DW 7 and DW 8 leave no doubt that the payment was made by the accused appellant and the Ex. P 107, Ex. P 108 and Ex. P 109 bear their signatures and therefore, it cannot be said that the accused appellant had committed any misappropriation on this account. Offerings in Temples : 17. Vide Ex. P 107, Ex. P 108 and Ex. P 109 bear their signatures and therefore, it cannot be said that the accused appellant had committed any misappropriation on this account. Offerings in Temples : 17. Vide Ex. P 110 and Ex. P. 111 and Ex. P. 112 an amount of Rs. 382.00 is claimed on account of the expenditure made in making offerings in temples at various places by the workers who went in the tour party. 18. First, it is contended that this was an unauthorised expenditure and secondly this expenditure was not made and thus a misappropriation is alleged to have been made by the accused appellant. As far as the question of expenditure made unauthorised is concerned, it is observed that the Welfare Commissioner Shri Simlot in his evidence has accepted that any deviation from the authorised programme could be made by getting approval for it. Visit to Delhi and visit to Bundi were not in the proposed programme but later visits to these places were conducted with the approval of Shri Simlot, Welfare Commissioner but there was no written order to this effect. Vouchers of the offerings in the temples were also put before the Welfare Commissioner and he had made no objections and the payments were passed under his orders. Thus the only point remains for consideration is whether in fact, any amount was paid for the purpose or without making any payment the amount has been claimed by the accused appellant. 19. In this connection there is the evidence of 8 prosecution witnesses namely, Raghu Raj Singh (PW 18), Bhura (PW 41) Chuni Lal (PW 42), Roop Narain (PW 45). Shankar Lal (PW 47), Mohan Lal (PW 48), Hari Narain (PW 51) and Beni Das (PW 52) but the learned trial Court has taken into consideration the evidence of only 5 witnesses namely Roop Narain (PW 45) Mohan Lal (PW 48), Bakta war PW MI), Hari Narain (PW 51) and Beni Das (PW) 52. Even while considering the evidence of these witnesses there has been misreading of evidence. Other 4 prosecution witnesses namely Raghu Raj Singh (PW 18), Bhura (PW 41), Chuni Lal (Pw 42) and Shankar Lal (PW 47) had been omitted from consideration altogether. Even while considering the evidence of these witnesses there has been misreading of evidence. Other 4 prosecution witnesses namely Raghu Raj Singh (PW 18), Bhura (PW 41), Chuni Lal (Pw 42) and Shankar Lal (PW 47) had been omitted from consideration altogether. Mohan Lal (PW 48) and Beni Das (PW 52), who have denied to have received any money for making offerings, in the temples are tiers of the first grade because they have gone to the extent of refusing to have any knowledge about their officer Shri Simlot and they have also said that they do not know as to when they had reached the different places, they do not know whether they stayed there, what food they had and what sites they visited during the tour. Moreover, their evidence stand contradicted by their fellow labourers examined on behalf of the prosecution as well as from the side of defence. As to Hari Narain, (PW 51), he does not say that no expenditure was made for making offerings in the temple but he simply says that they had asked Roshan Lal to make offerings himself. Roop Narain (PW 45) has said that money was not paid to them for making offerings in the temple and the vouchers were got signed by Shri Govind at Nathdwara, so this is no evidence against the appellant Roshan Lal because it is not the case of prosecution that Govind was doing this work for him (Roshan Lal) Raghu Raj Singh (PW 1), Bhura (PW 41), Chuni Lal (PW 42) and Sankar Lal (PW 47) categorically say that they had received money for making offerings in the temples. 20. For the aforesaid conclusion reliance can be placed of the state-ments of Raghu Raj Singh (PW 18), Bhura (PW 41), Chuni Lal (PW 42), Roop Narain (PW 45), Shankar Lal (PW 47), Bakhtawar (PW 50), Mohan Lal (PW 48), Beni Das (PW 52) and Hari Narain (PW 51) and on/the testimony of Kanhaiya Lal (DW 5), Udai Singh (DW 6), Bhairon Singh (DW 7) and Kana Ram (DW 8) who have specifically said that they were give Rs. 7/- or Rs. 8/- per person by the respective leaders of their party. Kana Ram (PW 8) had also said that the receipt would be with the leader of the Party. 7/- or Rs. 8/- per person by the respective leaders of their party. Kana Ram (PW 8) had also said that the receipt would be with the leader of the Party. Not only these defence witnesses but four other witnesses examined by the prosecution have also said that they were paid money for offerings in the temples. These aforesaid four defence witnesses were cited by the prosecution as their witnesses in the challan but were later not examined before the Court and as such their evidence gets greater importance in the case. If the money claimed was paid to labourers for making offerings in the temples, as has been deposed by most of the labourers examined during the trial, it will not make any difference whether the expenditure made was an authorised one or not because even if the expenditure was not an authorised one, it will not make the act of the accused appellant an offence punishable under the Indian Penal Code, but the remedy lie only under the relevant disciplinary Services Rules. 21. Thus under the circumstances of this case it cannot be said that the amount of Rs. 382/- claimed by the appellant for offerings made in the temples by the labourers was a false claim.Visit to Agra Fort, Fatehpur Sikri and Taj Mahal : 22. The amount of Rs. 127.50 is claimed by Ex. P 113 and Ex. P 114 on account of expenditure made in purchasing tickets for visit to Agra Fort, Taj Mahal and Fatehpur Sikri on 27-11-1970 and 28-11-1970. Visit to Fatehpur Sikri was made on 27-11-1970 which happened to be a Friday and an amount of Rs. 75.50 was spent for purchasing the tickets for its visits. As far as visit to two sights at Agra on 28-11-1970 is concerned the learned trial Court has not found the charge to be correct because it was not Friday and under rules entry to these places was not without any fee. However, since 27-11-1970 was a Friday and under the rules no entry fee is chargeable for the entry on Friday as per the evidence of Satya Prakash Gupta (PW 29). The learned trial Court held that appellant committed misappropriation of a sum of Rs. 75.50 only. However, since 27-11-1970 was a Friday and under the rules no entry fee is chargeable for the entry on Friday as per the evidence of Satya Prakash Gupta (PW 29). The learned trial Court held that appellant committed misappropriation of a sum of Rs. 75.50 only. Satya Prakash Gupta who was employed as a clerk in the office of Superintendent Archaelogical Department at Mal Road, Agra has agreed that he was not posted at Taj Mahal or Fatehpur Sikari but would go there only for sight seeing or when there was some official work. No booking-clerk of chowkidar or any other person working at Fatehpur Sikari was examined to prove that no tickets were, in fact, sold or this Rajasthan Darshan Tour Party was allowed entry without any charges. When this direct evidence was available, the prosecution, which had the duty to prove its case beyond all reasonable doubts, cannot be allowed to shirk its responsibility by producing presumptive evidence for the purpose. This was all the more necessary when there was no labour examined as a witness to say that they had not signed the receipt. 23. Out of 14 labourers witnesses named by the prosecution in the challan and who had been examined during the trial, six only have deposed on this point. It is to be written for the above conclusion, reliance can be placed on the statement of Raghu Raj Singh (PW 18), Roop Narain (PW 45), Mohan Lal (PW 48) Bakhtawar (PW 50), Kanhaiya Lal (DW 5) and Kana Ram (DW 8). The position of this direct ocular evidence in that the first three witnesses cannot say whether tickets were purchased or not there is only one witness to say that tickets were not purchased whereas two witnesses say that tickets were certainly purchased. The star witness of the prosecution Roop Narain PW 45) says that he does not remember the day exactly but they bad seen Agra and Fatehpur Sikari on one and the same day. If Roop Narain (PW 45) is to be believed and it was so, then like Agra places tickets were chargeable on the day of visit at Fatehpur Sikari also and it cannot be said that the prosecution has proved beyond all reasonable doubts that Fatehpur Sikari was visited. Friday and no entry fee was chargeable on that day. If Roop Narain (PW 45) is to be believed and it was so, then like Agra places tickets were chargeable on the day of visit at Fatehpur Sikari also and it cannot be said that the prosecution has proved beyond all reasonable doubts that Fatehpur Sikari was visited. Friday and no entry fee was chargeable on that day. Since the appellant had incurred expenditure he was perfectly justified in claiming the amount of Rs. 127.50 vide Ex. P 113 and Ex. P 114.Bundi Restaurant 24. There are two receipts Ex.P 18 and Ex. P 19, both together amounting to Rs. 142.50. These receipts are said to have been issued by Durga Restaurant Bundi. Shri Durga Lal (PW 6), who is owner of the Restaurant has produced Ex. P 17 which is the carbon copy or the bill issued by his Restaurant for the material supplied to the labourers of the Mica Mines and it amounts to Rs. 22.60 only. He has denied his signature on Ex. P 18 and Ex. P 19 but accepted that Ex. P 17 was prepared by his servant Mangi Lal. 25. Durga Lal (PW 6) is a hearsay irrelevant witness because admittedly, as agreed to by him, he was not present at the shop when the goods were sold to at the labourers of the Mica Mines and bill No. 17 was prepared by his servant Mangi Lal. The Bill book containing Ex. P. 17 cannot be said to be a book kept properly in the ordinary course of business because there are some blank papers also in it before and after Ex. P 17 and no account of total sales of the relevant day i.e. 23-11-1970 was maintained and produced. 26. Mangi Lal who is said to have signed Ex. P. 17 was also not examined by the prosecution. The is no reason for not producing Mangi Lal who alone was at the relevant time working and present at the restaurant and who could have said whether goods worth Rs. 142.50 were sold to the labourers of the Mica Mines on that day or not, and whether bills Ex. P. 18 and Ex. P 19 were issued and signed by him for Durga Restaurant at that time or not. 27. 142.50 were sold to the labourers of the Mica Mines on that day or not, and whether bills Ex. P. 18 and Ex. P 19 were issued and signed by him for Durga Restaurant at that time or not. 27. The learned trial Court has misread the evidence on this point in coming to a finding that Mangi Lal had left the service of Durgalal many years ago. In fact, the evidence of Durgalal is that Mangilal left his service three years before his statement in the Court. It was the duty of the Investigating Officer to have examined Mangilal and ascertained from him the aforesaid relevant facts. In its absence it cannot be said that the goods mentioned in bills Ex. P 18 and Ex. P 19 were not sold on 23-11-1970, and that these bills were not issued by the Durga Restaurant Bundi. 28. The dispute in these bills is with regard to money spent on purchasing sweets for the labourers. The prosecution case is that no sweets were purchased no expenditure on that account is falsely claimed. Out of 50 labourers who had consumed the sweets at Durga Restaurant Bundi 14 in all have been examined by the prosecution and the defence both. 29. Out of the 14 labourers witnesses named in the challan, and examined in the trial Court, only 9 have deposed on this point. Out of these nine witnesses, four examined by the prosecution and four examined by the defence, i.e. in all eight have said that they had eaten sweets at Bundi, while the remaining one had said that he could not then remember if at any time during the tour he had eaten sweets. For the above observations reliance can be placed on the statement of Bhura (PW 41), Chuni Lal (PW 42), Devilal (PW 43), Shankar Lal (PW 47), Hari Narain (PW 51), Kanhaiya Lal (DW 5), Udaisingh (DW 6), Bhairon Singh (DW 7) and Kana Ram DW 8. 30. As such, in view of this direct evidence of the labourers and the fact that the prosecution has failed in its duty to produce witness Mangi Lal before the Court, the amount claimed vide Ex. P 18 and Ex. P 19 cannot be held to be a false claim. 31. Apart from the sum of Rs. 30. As such, in view of this direct evidence of the labourers and the fact that the prosecution has failed in its duty to produce witness Mangi Lal before the Court, the amount claimed vide Ex. P 18 and Ex. P 19 cannot be held to be a false claim. 31. Apart from the sum of Rs. 6500/- given directly to the appellant Roshan Lal, it is alleged that a sum of Rs. 3000/- taken as advance by Shri Simlot was also passed on to Roshan Lal in three instalments of Rs. 700/- on 28-11-1970, Rs. 2000/- on 6-12-1970 and again Rs. 300/- on 6-12-1970. 32. As regards the sum of Rs. 700/- the learned trial Court has disbelieved its entreatment to the appellant. As to Rs. 2000/- said to have been given to Roshan Lal on 6-12-1970 at Bhilwara against receipt Ex. P 89, the fact which needs consideration is that an advance of money is paid only when there is a requirement and demand for it, and even if there is a requirement but there is no demand then also the advance is not paid. In this case of further advance of Rs. 2000/- and Rs. 300/- after the end of Rajasthan Tour, there was no such demand or application, the prosecution does not even allege that there was any requirement or demand, while in the case of earlier advance of Rs. 2000/-, Rs. 2500/- and Rs. 2000/-given to Roshan Lal he had always given applications for the same. 33. The amounts of Rs. 2000/- and Rs. 300/- is alleged to have changed hands on 6-12-1970 i.e. after the completion of the tour. Advances for doing some job is known to office rules but further advance after completion of the work is not heard of. In this case also neither there was any requirement nor any demand. So there was not even a remote possibility of giving Rs. 2000/- and Rs. 300/- to Roshan Lal after completion of the tour on 6-12-1970 except that without payment to accused Roshan Lal two receipt were obtained from him by his superior officer. In this case also neither there was any requirement nor any demand. So there was not even a remote possibility of giving Rs. 2000/- and Rs. 300/- to Roshan Lal after completion of the tour on 6-12-1970 except that without payment to accused Roshan Lal two receipt were obtained from him by his superior officer. It is also worth noting that appellant Roshan Lal as reached Bhilwara at about 2.00 p.m. and then had that very day gone to Ajmer for returning the bus, so when there was no requirement there was no need for Roshan Lal to go for taking the money and no opportunity for Shri Simlot for contacting and giving the sum of Rs. 2000/- and Rs. 300/- to appellant Roshanlal. However, even if it is assumed that a sum of Rs. 2300/- paid against signed receipts was made over to Roshanlal then the question arises how the sum of Rs. 700/- with Gafoor was spent during the Rajasthan Tour. Prosecution is perfectly silent about it, as such it will have to be looked into the light of other evidence of the case. It is an admitted position of the case that Shri Simlot was upto Agra with the tour party and then was absent at these places viz., Mathura, Delhi and Pilani. It has also come in evidence as discussed in II observation above, that in the absence of Shri Simlot, Gafoor and Govind used to provide money for the expenditure so it can well be presumed that when Shri Simlot was going away he handed over a sum of Rs. 700/- to Gafoor for meeting with the expenditure at Mathura Delhi and Pilani. There is the evidence of Devilal (PW 43) on this point which not only supports this contention on behalf of the appellant, but goes to prove that Shri J.B. Simlot was the Incharge of his affairs and in his absence Gafoor or Govindram used to look after the affairs and give money for various expenditures. Then at Jaipur Shri Simlot had appeared on the scene and took the command in this hands. As such, even if it is taken for granted that Shri Simlot had given away the amount of Rs. 3000/- advanced to him, then this fall into two heads. Rs. 700/- given to Gafoor and thereafter Rs. 2300/- given to Roshanlal. Then at Jaipur Shri Simlot had appeared on the scene and took the command in this hands. As such, even if it is taken for granted that Shri Simlot had given away the amount of Rs. 3000/- advanced to him, then this fall into two heads. Rs. 700/- given to Gafoor and thereafter Rs. 2300/- given to Roshanlal. Since the prosecution failed to deal with separately the advance of Rs. 700/- to Shri Gafoor and the alleged advance of Rs. 2300/- to Roshanlal, as either the benefit under all the heads is to go to the accused appellant Roshanlal that means it is not certain for any of the expenses incurred whether they were made by Shri Gafoor or Roshanlal or the aforesaid observation that Gafoor was to make expenditure at Mathura, Delhi and Pilani holds the ground. On the basis of bills for the following items verified by the accused, it has also been held that the amount of these bills is misappropriated which finding according to the accused is perverse. To decide this contention again considered the expenses incurred on these items and my finding is as under :Mathura Stay : 34. It is alleged that vide Ex. P 42, an amount of Rs. 306/- has been falsely claimed for the stay of the Rajasthan Darshan Tour Party at Marwadi Panchayati Dharamshalla, Bengali Ghat at Mathura on 28th November, 1970. Ras Bihari (PW 13) has said on the basis of the passengers register Ex. P 41 that no such tour party had stayed in his Dharamshalla on 28th or 29th November, 1970 and there is no other Marwadi Panchayati Dharamshalla in Mathura. His evidence is a negative one. He had also said that Ex. P 42 is signed in the name of Ram Niwas but no person by his name ever remained in their employment, and the witness produced Ex. P 44, specimen receipt of his Dharamshalla. It has been contended that Ex. P 42 prepared on a cyclostyled form could have not been issued by the Dharamshalla of Ras Bihari (PW 13). 35. It is pertinent to note here that the name of the Dharamshalla appearing in Ex. P 42 is Mathura Panchayati Dharamshalla, Bengali Ghat, Mathura, while the name appearing in Ex. It has been contended that Ex. P 42 prepared on a cyclostyled form could have not been issued by the Dharamshalla of Ras Bihari (PW 13). 35. It is pertinent to note here that the name of the Dharamshalla appearing in Ex. P 42 is Mathura Panchayati Dharamshalla, Bengali Ghat, Mathura, while the name appearing in Ex. P 44 i.e. in the subsequent receipt form of the year 1972 produced by Rasbihari, the name of the Dharamshalla is Shri Jamuna Bhawan Marwadi Ashram Marwadi Panchayat Dharamshalla, Bengali Ghat Mathura, and as such, it cannot be said that both the Dharamshallas were one and the same, and the prosecution witness, Ras Bihari represented the Dharamshalla, which had issued Ex. P 42. Moreso, when the man, Ram Niwas, employed at the Dharamshalla issuing Ex. P 42, was not known to Ras Bihari, obviously he being a man of some other Dharamshalla. As far as the evidence of Ras Bihari regarding the fact that no other Marwadi Panchayati Dhararnshalla existed in Mathura. Ras Bihari had no authority to issue such a certificate. The Hotels and Dharamshalla are registered under the Shops and Commercial Establishments Act in the Labour Department of the State concerned; such record may also be available in the Municipal Department of the area concerned and if any such evidence was to be produced by the prosecution. some Labour Officer or any other authority of that Department or any responsible officer of the Municipality should have been examined by the prosecution in this respect. In this case also when there is no evidence of the kind referred to above, it is not proved that there was no Marwadi Panc hayati Dharamshalla at Mathura, which had issued Ex. P 42. 36. The subsequent specimen receipt Ex. P 44 presented before the Court related to the year 1972 while the Rajasthan Tour was conducted in the year 1970 and the receipts of 1970 should have been produced for comparison, if any, but any comparison or any inference cannot be drawn on the basis of any receipt which related to a year two years latter to the period, in question. There is no evidence to show that the accused appellant, Roshan Lal, had made the stay arrangements of the party at the Dharamshalla or the receipt Ex. P 42 was obtained by him or that this receipt was forged by him. There is no evidence to show that the accused appellant, Roshan Lal, had made the stay arrangements of the party at the Dharamshalla or the receipt Ex. P 42 was obtained by him or that this receipt was forged by him. Shri Roshan Lal stayed with the welfare Commissioner. 37. None of the Labourers who had gone on tour in the Rajasthan Dharshan has been examined by the prosecution in this regard. There is only one such labour, Kanhaiya Lal, who was left by the prosecution but examined by the defence as Kanhaiya Lal (DW 5). He is corroborated by the star witness of prosecution Gafoor (PW 32). 38. Thus, it cannot be said that the Rajasthan Tour Party had not stayed in Dharamshalla at Mathura and Rs. 306/- have been claimed falsely on this account.Delhi Stay : 39. That after leaving Mathura, the Rajasthan Party reached Delhi, where it stayed in Delhiwali Dharamshalla, Delhi and Ex. P 33 and Ex. P 34 for Rs. 255/- for the stay charges were produced. The case of the prosecution is that the party did not stay in any Dharamshalla, but at the Railway Musafirkhana, Delhi and so the amount claimed vide Ex. P 33 and Ex. P 34 was not incurred. Yashwant Lal Nagar (PW 9), whose signatures appear on these receipts has come to say that he was no doubt the Manager of Delhiwali Dharamshalla, but that Dharamshalla was in Nathdwara and not at Delhi and Sugan Singh (PW 53). Investigating Officer has said that he could not find any Delhi wali Dharamshalla in Delhi. Four labourers, namely : Roop Narain (PW 45); Mohan Lal (PW 48) Bakhtawar (PW 50) and Beni Das (PW 52) have said that they had stayed at Railway Musafirkhana and not in any Dharamshalla. 40. As to the question whether any Delhiwali Dharamshalla existed in Delhi in the year 1970, there is no evidence of the competent authority like that of the Delhi Municipal Corporation or any other authority of the Labour Department to prove this fact, so it cannot be held proved that there was no Delhiwali Dharamshalla at Delhi in the year 1970. 41. Shri Yashwant Lal Nagar (PW 9) has said that while signing Ex. P 32 on the false pretext that copies have to be forwarded further, he signed blank forms of Ex. P 33 and Ex. 41. Shri Yashwant Lal Nagar (PW 9) has said that while signing Ex. P 32 on the false pretext that copies have to be forwarded further, he signed blank forms of Ex. P 33 and Ex. P 34 and handed them over to the appellant, Roshan Lal. This witness is a liar because he could not have named and recognized, Roshan Lal, as he had seen him only once in the year 1970, and the reason given out for signing the blank forms also does not appear to be convincing. Yashwantlal had committed forgery in Ex. P 32 because he admitted that in its copy Ex. D 2 the number of persons is not written while in Ex. P 32 he inserted the number `50' to show that only appellant but 50 labourers had also stayed with him. Yashwant Lal Nagar had not admitted the writing of the body of Ex. P 33 and Ex. P 34 so it should have been investigated whether Yashwant Lal Nagar or the appellant. Roshan Lal or somebody else had written it. The Investigating Officer, Shri Sugan Singh (PW 53) did not like to do. 42. It is also worth mentioning here that the learned trial Court has itself held proved that the amount of Rs. 700/- was not given to Roshan Lal by Gafoor (PW 32) and there is no account of this amount given by Shri Gafoor. So, it was most probable that Gafoor would have had made the arrangements at Delhi and obtained the receipts, which were later on passed on to the appellant Roshan Lal, for submitting them with the accounts Ex. P 83. 43. As against the evidence of four labourers, who have said that they did not stay in any Dharamshalla at Delhi, there is the specific evidence of 8 other labourers who have been examined in the case, four by the prosecution itself and four examined by the defence side. These witnesses say that they had stayed in Dharamshalla at Delhi and money was also paid on account of the stay in the Dharamshalla. 44. As regards verification of the receipts, it has already been discussed above that the appellant Roshan Lal had not verified the disputed vouchers but later on Shri Simlot asked him to do it with the assurance that he would countersign them, i.e. the whole responsibility would lie with the Welfare Commissioner. 44. As regards verification of the receipts, it has already been discussed above that the appellant Roshan Lal had not verified the disputed vouchers but later on Shri Simlot asked him to do it with the assurance that he would countersign them, i.e. the whole responsibility would lie with the Welfare Commissioner. Morever, in this connection a memo was also issued on 26th of April, 1972 by the successor of Shri Simlot vide Ex, D 8 stating : "As already discussed, he is directed to verify all vouchers irrespective of the expenditure incurred by him of not as the A.G. Rajasthan is pressing for its submission of account."Pilani Stay : 45. When the tour party reached at Pilani, it stayed at Raja Baldev Das Guest House and there is no dispute about this fact. An amount of Rs. 25.50 was paid vide Ex. P 37 on account of the stay in the Guest House. 46. However, the amount of Rs. 25.50 claimed vide Ex. P 39 on account of the sweeping charges paid at the Guest House is disputed alleging that no sweeping charges were charged from the labourers of the Rajasthan Darshan Tour. 47. Mansha Ram (PW 11) Chowkidar of the Guest House Pilani is examined by the prosecution, who has proved the entry in register Ex P 38, which goes to show that on 1st of December, 1970, 51 persons had stayed in the Guest House. The receipt Ex. P 37 was issued by Shri Braj Mohan, Cashier but he has not been examined by the prosecution. It is very strange that rather than examining the Cashier who had issued the receipt, the prosecution has brought the Chowkidar to say something about the receipt and also about the fact that no sweeping charges were paid by the Tour Party. This register Ex. P 39 has an entry of Rs. 51/-, which has not been explained by the prosecution. Ex. P 39 is not on a printed form but it should be remembered that the amount claimed by it was paid for sweeping charges, and as such, the person who actually took the amount and gave the receipt may not have been a very literate person and when in the register there is the entry of Rs. Ex. P 39 is not on a printed form but it should be remembered that the amount claimed by it was paid for sweeping charges, and as such, the person who actually took the amount and gave the receipt may not have been a very literate person and when in the register there is the entry of Rs. 51/-, in all probabilities it seems to be comet that sweeping charges, though might have not been chargeable as per the Rules, but they were actually taken from the Tour Party and accounted for in their register. The prosecution cannot be allowed to make any capital out of the fact the Ex. P 39 was not on a printed form when the entry in the advance column of the register Ex P 38 clearly shows the figure of Rs. 51/-. The prosecution has not cared to explain this entry of Rs. 51/- but the learned trial Court on its own made an ingenuous observation that the entry may not be correct because in the figure Rs. 511- (Fitly One) the length of digit 1 is more than that of digit 5. This contention also does not held good because the amount of Rs. 51/- does not appear in the Register Ex. P. 38 only in figures but in words also the amount of rupees fifty one is writ:en. As such, when an amount of Rs. 51/- was deposited with the Guest House and there are two receipts Ex. P 37 and Ex. P 39 to account for this amount of Rs. 51/- it cannot, by any stretch of imagination, be said that there has been any misappropriation by the appellant, Roshan Lal.Bundi Stay : 48. The Rajasthan Darshan Tour Party first of all visited Bundi. It reached there on the night of 22-11-1970 and stayed at Dhan Mandi Dharamshalla. A sum of Rs. 155.30 was charged vide receipt Ex. P 29, issued by the said Dharamshalla. 49. It is alleged by the prosecution that in fact only a sum of Rs. 6.05 was charged for the stay of the Tour Party and in proof thereof Ex.P. 28, which is said to be the carbon copy of Ex. P. 29, has been produced by Badri Lal (PW 8). 50. In Ex. P 29, three things are disputed. 49. It is alleged by the prosecution that in fact only a sum of Rs. 6.05 was charged for the stay of the Tour Party and in proof thereof Ex.P. 28, which is said to be the carbon copy of Ex. P. 29, has been produced by Badri Lal (PW 8). 50. In Ex. P 29, three things are disputed. Firstly, there is the writing : Bgjus ds 150 dqy Secondly, there are the signatures in the name of Roshan Lal and thirdly, there is verification of the sum claimed vide this Ex. P. 29. 51. As far as the verification in the sum of (Ex. P 29) Rs. 155.30 claimed is concerned, it has been proved to be in the handwriting of the appellant, Roshan Lal, by the Hand writing Expert, Shri S. K. Saxena (PW 44) and there is no dispute also of this fact because the accused admits to have verified the voucher for Rs. 155.30 but it was done by him after Shri J. N. Simlot had assured him of this counter-signing the same and the issuance of the memo, dated 26th of April, 1972 (Ex. D 8) by Shri N. L. Sharma directing the appellant to verify all the vouchers irrespective of the fact whether the expenditure was incurred by him or not as the A. G., Rajasthan was pressing hard for the submission of the accounts. As to the writing : Bgjus ds 150 dqy and the signatures, it has not been proved to be in the hand of the appellant, Roshan Lal. The learned trial Court had as such acquitted the accused appellant from the charges under sections 467 and 477-A IPC. 52. As regards signatures on Ex. P 28 and Ex. P 29 they do not tally with each other and if they were prepared in one and the same process, then they must have tallied. As such, it cannot be said that Ex. P 29 bears the signatures of the appellant, Roshan Lal, which was done by him while signing the paper of which Ex. P 28 bears the impression in its carbon copy. There are erasers in it for which no opinion could be given by the expert and for this fact also, it cannot be said that the accused had signed it and that too in the same process. 53. P 28 bears the impression in its carbon copy. There are erasers in it for which no opinion could be given by the expert and for this fact also, it cannot be said that the accused had signed it and that too in the same process. 53. Since the accused appellant was not disputing the fact of verification of the voucher for a sum of Rs. 55.30 there was no question of producing an expert to prove the contrary. As such, in fact, the handwriting expert Shri Krishan Charan (DW 9) had not given his opinion for the portion of verification written by the accused appellant on the disputed Ex. P 29. 54. Badri Lal (DW 6) was produced by the prosecution to prove signatures of Roshan Lal on the disputed documents. 55. The evidence of this witness does not lead us anywhere because the witness has not a vary bad eye-sight and cannot be expected to note and give his opinion about any writings and particularly when he says that he names the accused for signing the particular entry only because it appears in his name. 56. Shri Krishan Charan (DW 9) has given his clear opinion about Q 1 and Q 2 that it was not written out by the appellant, Roshal Lal, as it differed from his specimen signatures. The signatures on Ex. P 28 and Ex. P 29 are in pencil and therefore, Shri Krishan Charan (DW 9) bad compared these documents with the specimen signatures of the appellant Roshan Lal, which were made in pencil. 57. Shri S.K. Saxena (PW 44), Handwriting Expert had, on the contrary, compared the disputed signatures in pencil with the specimen signatures given in ink. Shri Saxena has admitted in his evidence, "It is correct that in pencil writings the speed of a person may be somewhat slower than that of ink writings. While preparing carbon copies, the speed gets more slower; depends upon the paper used, carbon paper used, instruments used and upon the writers also." 58. At the same time Shri Krishan Charan (DW 9) has said, "In comparison of disputed signatures Q1 and Q2, I have referred only specimen S. 15 and no other specimen because the disputed signatures are written out by pencil and S. 15 is also in pencil, while other specimen were in pen. 59. At the same time Shri Krishan Charan (DW 9) has said, "In comparison of disputed signatures Q1 and Q2, I have referred only specimen S. 15 and no other specimen because the disputed signatures are written out by pencil and S. 15 is also in pencil, while other specimen were in pen. 59. Thus, it is crystal clear that the opinion of Shri Krishan Charan (DW 9) was more scientific and sound and could have been given a preference over the opinion of Shri S.K. Saxena (PW 44). 60. Therefore, the only thing which could be conclusively said to be in the hand writing of the appellant Roshan Lal, on Ex. P 29 is his verification of the amount of Rs. 155.30 on the basis of which the learned trial Court has held him guilty for the offence under section 409 IPC, although it has acquitted him from the offences under sections 461 and 477-A IPC. 61. It has not been proved by the prosecution that the words : Bgjus ds 150 = dqy 155-30 were written by the accused himself or had got it done for him by some body else or that the receipt when it came into the hands of the appellant, Roshan Lal, it was not bearing these words or that the expenditure and stay arrangements at Bundi were made by the accused himself. 62. Therefore, it cannot be said that the accused had committed any misappropriation. Moreover, when there is the evidence of PW 35, and there is Ex. P 8 dated 26th of April, 1972 issued by Shri N.L. Sharma Welfare Commissioner to the accused appellant, Roshan Lal, stating, G As already discussed, he is directed to verify all vouchers irrespective the expenditure incurred by him or not, as the A.G., Rajasthan is pressing for its submission of accounts." 63. The fact of verification by itself does not carry much importance because it was done by the appellant. Roshan Lal, under the orders of his superior officer and he had no knowledge about the expenditure incurred through such vouchers, but he was taken use of as a tool to submit them with the account Ex. P 83. 64. The fact of verification by itself does not carry much importance because it was done by the appellant. Roshan Lal, under the orders of his superior officer and he had no knowledge about the expenditure incurred through such vouchers, but he was taken use of as a tool to submit them with the account Ex. P 83. 64. In view of the circumstances explained above, the appellant, Roshan Lal cannot be held responsible and convicted not only under sections 467 and 477-A IPC, but also under section 409 of the Indian Penal Code, as the offence was not brought home to the accused appellant Roshan Lal, after meeting all the probabilities of the case.Kota Stay : 65. The next station of visit after Bundi was Kota, where the Rajasthan Darshan Tour Party reached on 23rd of November, 1970 and stayed at Hindu Dharamshalla, Kota. Ex. P 23 for a sum of Rs. 122.50 was produced for the stay charges. It was verified by the appellant Roshan Lal for a sum of Rs. 122.50, but it is alleged that in fact, the receipt was issued for a sum of Rs. 22.50 and later on the figure of 1 was prefixed and the amount was made to appear as Rs. 122.50. There is no dispute about the fact that the Tour Party had stayed at Hindu Dharamshalla, Kota. and Ex. P 23 receipt was given to Shri Gafoor (PW 32), bat there is no evidence to the effect as to who committed the forgery adding the figure of one to make the receipt to appear for a sum of Rs. 122.50. 66. The prosecution has examined Mool Chand (PW 7) as employee of the said Dharamshalla to prove that necessary entry of arrival in the Dharamsnalla Register Ex. P. 21 was made in the name of Shri Roshan Lal and only a sum of Rs. 22.50 was charged for the stay of the Tour Party. There is no sign made at the time of the departure, and therefore, simply on the basis of the entry having been made in the name of Shri Roshan Lal and his signatures taken at the time of arrival of the Tour Party in the Dharamshalla on 21st of November, 1980, it is alleged that the payment was also made by Shri Roshan Lal, although the receipt was obtained by Shri Gafoor. It is worth remembering that the payment is made and finalised only at the time of departure from any Hotel or Dharamshalla and, therefore, it can be well presumed that when Shri Gafoor (PW 32) obtained the receipt Ex. P 23, the payment was finalised by him. 67. Mool Chand (PW 7) had seen the accused appellant only once in 1970 and as such, there can be no chances of his recognising him after a a lapse of 6 years in the Court, and remember that Roshan Lal had deposited the sum of Rs. 22.50 with him because according to his own statement, he had not given out to the Investigating Officer in his statement during investigation that the amount of Rs. 22.50 was deposited by Roshan Lal, and his other evidence discussed as above also, does not go to prove that the payment was made by Roshan Lal. 68. The pertinent question that arises is that when it had come to light that a forgery has been committed in the receipt it was the bounden duty of the prosecution to make efforts and find out who had done it. But it seems that although the receipt Ex. P. 23 was obtained by Shri Gafoor and the first person to be asked and enquired about the fact of forgery should have been Shri Gafoor, but either he was left out although found involved in it, or no enquiry was made in this connection and simply on the basis of verification made by the appellant Roshan Lal, he is being implicated in the case.The first offence about Ex. P 23, which has been committed, is of forgery but curiously enough, neither it has been enquired into nor it has been charged against the appellant, Roshan Lal or any other person. However, simply on the basis of verification, leaving it wide open as to who committed the forgery the appellant is charged for an offence under section 409 IPC. If in fact the receipt when handed over to Shri Roshan Lal was to the amount of Rs. 122.50 i.e. figure of 1 had already been added to it, then the question of any kind of misappropriation by the Roshan Lal does not arise. 69. Thus, it appears that the appellant is being implicated falsely and the real culprit, who has committed the forgery in receipt Ex. 122.50 i.e. figure of 1 had already been added to it, then the question of any kind of misappropriation by the Roshan Lal does not arise. 69. Thus, it appears that the appellant is being implicated falsely and the real culprit, who has committed the forgery in receipt Ex. P 23, is being saved at the cost of the Roshan Lal. In these circumstances, it cannot be held proved against the accused appellant that he committed a misappropriation of Rs. 100/- by changing the figure of amount in Ex. P 23.Shivpuri Stay : 70. From Kota, the Tour Party went to Shivpuri and stayed there at Shivpuri Hindu Lodge, for which receipt Ex. P 52 for a sum of Rs. 75/- has been presented in Account Ex. P 83. 71. The prosecution has produced Braju Singh (PW 15) of Shivpuri Lodge to prove that none of the persons belonging to the Rajasthan Darshan Tour Party stayed at his Lodge while another witness, Shri Subhash Chand (PW 33) of Shivpuri Hotel, Shivpuri is examined to prove that only Shri J. N. Simlot and one other person had stayed at his Hotel, but no other person of the Rajasthan Darshan Tour Party stayed there. 72. As far as the negative evidence of Braju Singh (PW 15) is concerned, this is a worthless evidence because the incident related to the year 1970, and Shri Virender Kumar, the owner of Shivpuri Lodge, who used to keep the accounts was not produced by the prosecution. The disputed document Ex P 52 was not shown to Braju Singh (PW 15) during investigation or at any time before his statement in the Court in the year 1976, and the Attendance Register of all the employees of Shivpuri Lodge shown to the Investigating Officer was not seized in the case. 73. Shri Subhash Chand (PW 33) has said that Shri Simlot and one other person had stayed in his Hotel. Purposely, the prosecution did not let it come on record by the evidence of Shri Subhash Chand (PW 33) who this another man was, but Shri Simlot (PW 49) has himself, in his evidence, accepted the fact that Roshan Lal (appellant) had stayed with him in a Hotel and the other members of the Tour Party had stayed at some other place. 74. 74. It is alleged by Shri J. N. Simlot (PW 49) that the labourers of the Tour Party had stayed not in any Dharamshalla or Lodge at Shivpuri but at the Bus Stand, Shivpuri, and as such, no charges were paid on account of their stay and the amount of Rs. 75/- claimed vide Ex. P 52 was falsely claimed. It this connection, a reference to the evidence of Shri J. N. Simlot, Welfare Commissioner, who himself was with the Tour Party and looking after all the affairs, would throw light on the fact that under what circumstances and how the arrangements were made for the stay of the labourers in Shivpuri, and he has stated as under : " f'koiqjh dksVk dh rjQ ls jkr esa nsjh ls igqWaps Fks ogka gekjk igys ls :dus dk dksbZ izksxzke ugha FkkA exj jkT; ljdkj ds vkns'kkuqlkj V~sfQe MskdksbV buosLVsM ,fj;k gksus ls cUn dj fn;k x;k Fkk] vr% :duk vko';d gks x;k FkkA ;g lgh gS fd jkf= esa f'koiqjh igqWaps] eSaus o dqN lkfFk;ksa us Jfedksa dksa Bgjkus gsrq fdlh edku dh ryk'kh dh Fkh] exj blesa dke;kch blh dkj.k ls ugha gqbZ fd Bgjkus dh cgqr mWaph jsVl~ ekaxh tk jgh Fkh vkSj odlZ dh ykpkjh ls yksx ,slk dj jgs FksA " 75. In view of the above i.e. the four of deposits in the area of Shivpuri and when search being made for some kind of Hotel or some other suitable accommodation, it can well go understood that the Tour Party would have stayed at some other reasonable place of stay and not in the open at a Bus Stand. The other fact which comes to light is that Shri Simlot was himself making the arrangements for stay and getting the same done with help of its workers and was the Incharge of whole affairs. 76. In this regard, there is also the evidence of many workers, who had gone with the Rajasthan Darshan Tour Party and were examined in the case on behalf of the prosecution or the defence side. Out of the 13 such witness, 10 have said that they had stayed in a Dharamshalla. 77. Thus, from the evidence of the aforesaid workers, it can well be inferred that in fact they had stayed at some lodge near the Shivpuri Bus Stand and the amount of Rs. 75/- claimed vide Ex. Out of the 13 such witness, 10 have said that they had stayed in a Dharamshalla. 77. Thus, from the evidence of the aforesaid workers, it can well be inferred that in fact they had stayed at some lodge near the Shivpuri Bus Stand and the amount of Rs. 75/- claimed vide Ex. P. 52 was actually incurred and not falsely claimed.GW ALIOR STAY : 78. At the next station. i.e. at Gwalior, the Rajasthan Darshan Tour Party had stayed at Shri Krishan Bhawan and vide Ex. P 55 and Ex. P 56, an amount of Rs. 180/- was claimed on account of the party charges. 79. The prosecution has examined Shri Purushottam (PW 17) of Shri Krishan Dharamshalla, Gwalior to prove that the accused Roshanlal, and 54 other persons had stayed in his Dharamshalla from 25th of November, 1970 for which necessary entry exists in Register Ex. P 54 at S. No. 1970 and only an amount of Rs. 3/- was charged from them, and Rs. 2/- was donated in the Gaushalta Box. This witness has further said that no receipt of income was issued till the year 1970. No receipt was issued for electric charges and the charges for supply of cots. The amount received on account of electricity and cot charges was taken down on a piece of papers, which was maintained in the office and at the time of the investigation. It was given (silt to the Investigating Officer that those charts were with the Auditor but no such charts were seized nor there is any evidence of the Auditor nor any of those charts was produced in evidence. 80. This witness has also accepted that it is not possible for him to say how much amount was taken on account of the electricity and cot charges from the persons whose names appear in the Register from S.No. 1965 to 1982, i.e., including the disputed entry 1970. The Register of the employees maintained at the Dharamshalla was also not seized and produced by the prosecution. The Register of the employees maintained at the Dharamshalla was also not seized and produced by the prosecution. This witness seems to be a cooked up witness for the prosecution because he had seen the accused appellant Roshan Lal, only once in the year 1970 and there was no chance of his recognising him after a lapse of 6 years on 25th of August, 1976 when he was examined in the Court, secondly, even while admitting that he did not know who put what amount in the Gaushala Peti at the time of departure and he did not make note of the fact that the appellant, Roshan Lal donated a sum of Rs. 2/-in the Gaushala Peti, still on the day of his examination in the Court, he said that he remembered appellant Roshan Lal had put Rs. 2/- in the box of Gaushala donations. 81. From the evidence of this witness, Purushottam (PW 17) and the record of the Dharamshalla where no receipts are issued for the advance received, electric and cots charges received and no receipt is passed of the income made by the Dharamshalla it could not be safely inferred that the amount of Rs. 180/- was in fact not paid to the Dharamshalla and for the stay, electric and cots charges of as many as 55 persons only an amount of Rs. 3/- was actually charged. The entry does exist in the name of the appellant Roshan Lal, but it could not be said with certainty that except for the entry of arrival, the payment was actually made by the Roshanlal (appellant), but it could not be said with certainty that except for the entry of arrival, the payment was actually made by the Roshanlal (Appellant) and not any body else. 82. Particularly when all the labour witnesses examined during the trial admit that there were four committees and the expenditure was incurred through them by obtaining money from Shri J.N. Simlot, and in his absence from Shri Gafoor or Shri Govind, it could not be safely inferred simply on the basis of entry of arrival in the name of the appellant (Roshan Lal) that the payment was made by him and not anybody else. The witness Purushottam (PW 17) is not a witness of sterling worth because, from his evidence, it is clear that he is siding with the prosecution, firstly, because he has tried to recognise the accused (Roshan Lal) even after a lapse of six years having seen him only once in the year 1970 and also trying to remember orally what amount was donated by him in the Gaushalla Box, and wants us to believe him when he says that for the stay, electric and cots charges of 55 persons only a sum of Rs. 3/- was taken from them, although such electric and cots changes were changed from the passengers. 83. Ex. P 55 and Ex. P 56 are signed by one Shri Ramprasad and the witness Purushottam (PW 17) has come to say that any Ramprasad was not in his Dharamshalla in the year 1970. There was an Attendance Register and Acquaintance Roll of the Dharamshalla maintained there, which were shown to the police but were not seized. When the identity and employment of Ramprasad was to be disputed, it was the bounden duty of the prosecution to produce either Ramprasad or the Attendance Register of the Dharamshalla of the year 1970 to prove that nobody by that name was in the employment of the Dharamshalla, at the relevant time. This test evidence has been with held by the prosecution from which it should be inferred that they have tried to suppress the correct facts and instead of this best documentary evidence, hey have tried to fill up the gap by the ocular evidence of a witness like Purushottam (PW 17) who is not reliable witness. 84. Moreover, the Welfare Commissioner Shri J.N. Simlot (PW 49) has himself said as under : " Xokfy;j esa Je vk;qDr dh vksj ls Jfedksa dh Bgjkus dh O;oLFkk esa enn dh xbZ FkhA ml dk;kZy; us Jfedks dks Bgjkus dk bUrtke /keZ'kkyk esa fd;k x;k Fkk] tks lgh gSA Jfedksa dks /keZ'kkyk crk nh xbZ Fkh] tgka os :ds FksA " 85. It is pertinent to note here that Simlot was present with the tour party at Gwalior, he had made the stay arrangements but purposely he has not disclosed the name of the Dharamshalla where the labourers had stayed so that there remains a could of doubt and the appellant be implicated falsely. It is pertinent to note here that Simlot was present with the tour party at Gwalior, he had made the stay arrangements but purposely he has not disclosed the name of the Dharamshalla where the labourers had stayed so that there remains a could of doubt and the appellant be implicated falsely. And when these facts were before the investigating and prosecuting agencies, it was their bounden duty to produce the Labour Commissioner or anybody from his office to let the Court know in which Dharamshalla the labourers had in fact stayed. No effort in this regard by the prosecution clearly shows it is trying to hide important facts and correct position of the case. 86. In view of the above observation, it cannot be held proved beyond reasonable doubt that the amount of Rs. 180/- was not spent for the stay of 55 persons at the Dharamshalla at Gwalior and the amount claimed vide Ex. P 55 and Ex. P 56 was a false claim.Ajmer stay : 87. For the stay of the Rajasthan Darshan Tour Party at Ajmer, receipt Ex. P 13 for a sum of Rs. 153/- issued by Sancheti Yatri Niwas, Ajmer was submitted with the account Ex. P 83. 88. It is disputed by the prosecution on the basis of that although in this Hotel, Shri Roshan Lal had stayed and paid a sum of Rs. 4/- for the stay charges but as far as other labourers are concerned, they had not stayed there but had stayed at Sant Kanwar Ram Dharamshalla on that day and an amount of Rs. 13.75 was paid Thus, in all an amount of Rs. 17.75 was paid and a false claim to the extent of Rs. 139.25 was alleged to have been preferred. 89. In this case, the prosecution itself has come out to say that the Roshan Lal (appellant) had stayed in Sancheti Yatri Niwas on 4th of December, 1970 and at the same time it alleges that Roshan Lal with the labourers had stayed in Sant Kanwar Ram Dharamshalla also on the same day i.e. 4th of December, 1970 and had paid a sum of Rs. 13.75, Shri Kewal Ram (PW 5) of Sant Kanwar Ram Dharamshalla, Ajmer has said that on the basis of entry of arrival made in Register Ex. 13.75, Shri Kewal Ram (PW 5) of Sant Kanwar Ram Dharamshalla, Ajmer has said that on the basis of entry of arrival made in Register Ex. P 14 made by his clerk Gurumukh Das he can say that Roshan Lal with 53 persons had come to stay in his Dharamshalla and that at the time of departure." " rk0 4&12&70 dks jks'ku yky pk<+fo;k bUlisDVj 53 vknfe;ksa ds lkFk /keZ'kkyk esa vk, Fks eSa ;g lc bZ,Dl&14 jftLV~j dk ist 36 ij bUnzkt , ls ch ns[kdj dgrk gwWaA ;g bUnzkt xqj eq[k nkl DyZd dk gS] vkus dkA tc os x, rc esa Fkk dqy 13 :i;s 75 iSls pktZ fd, ckdh 6 :0 35 iSls xksfoUn jke dks fn, FksA jks'ku yky esjs ikl ugha vk;sA " he had returned Rs. 6.25 to Shri Govind Ram (PW31) and got his signatures. Gurumukh Das in whose presence, it is alleged that Roshan Lal had visited the Dharamshalla and who had take money and made the entry was not produced by the prosecution to prove these facts. Simply because the voucher of Rs. 153/- was verified by Shri Roshan Lal, it is alleged that he had committed misappropriation to the tune of Rs. 139.25. Shri J.N. Simlot, who had left the company of the Rajasthan Daarshan Tour Party at Agra had already joined them from Jaipur onward and was present with the Tour Party at Ajmer also. In the Log-book of his Jeep, Ex. P 9 it is clearly written that he was doing the stay arrangements. This shows that the Welfare Commissioner was in fact the Incharge of the Tour Party and was very much looting after all its affairs including the stay arrangements at various places and whatever was being done by his subordinates was according to his directions. 90. Raghuraj Singh (PW 18) has said that in Ajmer and Nathdwara they had changed Dharamshalla, but the prosecution has not led only evidence to prove in which Dharamshalla they went first and in which Dharamshalla they ultimately stayed, so every thing remains shrounded in mystery and it is also one of the probabilities that first went to Sant Kanwaram Dharamshalla and then they went to the Sancheti Yatri Niwas. " vtesj vkSj ukFk}kjk esa igys ,d /keZ'kkyk esa mrjs fQj nwljh /keZ'kkyk esa mrjs vkSj fQj nwljh /ke'kkZyk esa tkdj BgjsA " 91. The receipt Ex. " vtesj vkSj ukFk}kjk esa igys ,d /keZ'kkyk esa mrjs fQj nwljh /keZ'kkyk esa mrjs vkSj fQj nwljh /ke'kkZyk esa tkdj BgjsA " 91. The receipt Ex. P 13 is on the printed form of Sancheti Yatri Niwas and it has not been proved by the prosecution that the body of the receipt was in the hand of the appellant Roshan Lal or was forged by him or at his instance. Iqbal Bahadur (PW 4) has not disputed that the form of the receipt did belong to his Yatri Niwas. He simply says that Mr. Roshan Lal alone had come on 4th of December, 1970, stayed there for one day and paid Rs. 4/- for his stay and 51 labourers had not stayed in his Yatri Niwas on that day nor anybody paid Rs. 153/- on that account. This witness was evidently deposing under pressure because his wife was working under Shri Simlot and after he divulged the correct facts to C.B.I. she was suspended. " ;g lgh gS fd esjh iRuh fle yksV welfare commission dh ekrgr esa lady social workers gSA esjh iRuh suspend gks xbZ gSA eq>s Bhd ls ;kn ugha fd og esjs C;ku lh0ch0vkbZ0 esa gksus ds ckn suspend gqbZ gksA " Some entries of relevant register Ex. P 11 was in the hand of Rajender but he was not examined by the prosecution. However, till such time the printed receipt Ex. P 13 is there, and the entries there in are not disputed, any such statement coming out even from an employee of the Hotel concerned cannot go to dispute the payment of the amount mentioned therein whether the payment made was accounted for in the books maintained by the Hotel or not was for the owner and employees of the Hotel and not the concern of the passenger who receives the receipt for the payment made by him because the prosecution itself has proved that Shri Roshan Lal had stayed at Sancheti Yatri Niwas, then there could not have been any question of his staying at the Sant Kanwar Ram Dharamshalla at the same moment. 92. In view of the aforesaid, the evidence of Shri Kewal Kam (PW 5) does not inspire any confidence and he could not be relied upon. 93. 92. In view of the aforesaid, the evidence of Shri Kewal Kam (PW 5) does not inspire any confidence and he could not be relied upon. 93. In the Register of Sant Kanwar Ram Dharamshalla there are the signatures of Govind Ram and not of Roshan Lal and, therefore, he could not be held responsible for any kind of entries and bungling which took place between Govind Ram and Kewal Ram. 94. However, since Ex. P 13 is a printed receipt of Sancheti Yatri Niwas and its contents are not proved to be not in the writing of any of the employees of Sancheti Yatri Niwas or proved to be in the hand of the Roshan Lal (appellant), it cannot be said that it was a forged receipt and the amount claimed thereby was a false claim.Nathdwara Stay : 95. The last station visited by the Rajasthan Darshan Tour Party was Nathdwara. For the stay of the labourers there, a receipt Ex. P 35 for a sum of Rs. 100/- issued by the Panchayati Dharamshalla was produced, which is being disputed by the prosecution. 96. It is alleged that on 5th of December, 1970 the appellant (Roshan Lal) with 50 members of his Party had stayed in Delhiwali Dharamshalla. Nathdwara and had to pay only a sum of Rs. 7.50 for their stay. Secondly, it is said that there was no Panchayati Dharamshalla in Nathdwara, and, therefore, the receipt of Rs. 100/- issued in the name of the Panchayati Dharamshalla was not a correct receipt. 97. Shri Yashwant Lal Nagar (PW 9) has said that Roshan Lal with his party of 50 persons had come and stayed there and receipt Ex. P 32 for a sum of Rs. 7.50 was issued. Ex. D 2 for a sum of Rs. 7.50 was issued. Ex. D 2 with which this witness is confronted has been admitted to be the copy of Ex. P 32. While in Ex. D. 2 there is no mention about the number of persons in Ex. P 32, the number of persons being 50, is mentioned. Thus, it is clear that the number 50 was not originally there and in order to implicate falsely, the appellant (Roshan Lal), this was done later on. 98. P 32. While in Ex. D. 2 there is no mention about the number of persons in Ex. P 32, the number of persons being 50, is mentioned. Thus, it is clear that the number 50 was not originally there and in order to implicate falsely, the appellant (Roshan Lal), this was done later on. 98. As discussed earlier, while discussing the stay arrangements at Mathura, the evidence of Devi Lal (PW 43) Gafoor (PW 32), J.N. Simlot (PW 49) and Kanhaiya Lal (DW 5) had been discussed to establish the fact that the appellant (Roshan Lal) used to stay with Shri J.N. Simlot, and separately. So at Nathdwara also it was quite probable and correct that he had stayed at Delhiwali Dharamshalla, while the labourers had stayed at Panchayati Dharamshalla. There is no evidence of any authority of the Labour Department or the Municipality Committee of Nathdwara to establish the fact that there was in fact, no Panchayati Dharamshalla three and as such, simply on the basis of a bald statement of Sudarshan (PW 10), it could not be believed that there was no such Dharamshalla in Nathdwara. 99. Ex. P 35 is signed by one Shri Hari Ram and Sudarshan (PW 10) says that Hari Ram was the Manager of Chhoti Dharamshalla in the year 1970 and the Passenger Register of the year 1970 was maintained there. Shri Yashwant Lal Nagar (PW 9) had also admitted that there was one Chhoti Dharamshalla near his Delhiwali Dharamshalla and Hari Ram was the Manager of that Dharamshalla and Shri Roshan Lal had gone to see that Dharamshalla when he had gone to Nathdwara. Raghuraj Singh (PW 18) has said that at Ajmer and Nathdwara they had changed Dharamshalla but the prosecution has not led any evidence to prove in which Dharamshalla they went first and in which Dharamshalla they ultimately stayed so every thing remains shrounded in mystery and it is also one of the probabilities that they first want to Delhi wali Dharamshalla and then they went to the Dharamshalla of Shri Hari Ram. 100. The aforesaid facts go to suggest that in fact the arrangements for the stay of the labourers were made at some other Dharamshalla of which Shri Hari Ram was the Manager who had issued the receipt Ex. P 35 and there was the Dharamshalla in which the appellant Roshan Lal had stayed. 100. The aforesaid facts go to suggest that in fact the arrangements for the stay of the labourers were made at some other Dharamshalla of which Shri Hari Ram was the Manager who had issued the receipt Ex. P 35 and there was the Dharamshalla in which the appellant Roshan Lal had stayed. Staying in two nearby Dharamshallas is most probable also. It was also most probable that when the Investigating Officer would have enquired into the matter from Shri Yashwant Lal Nagar and about Shri Hari Ram, who had signed the Ex. P 35, the witness Shri Yashwant Lal Nagar must have told the Investigating Officer about the fact that Shri Hari Ram was the Manager of the nearby Dharamshalla and if in fact that receipt was not issued and signed by that Hari Ram, it was most probable and the bounden duty of the Investigating Officer to make inquiries from the Manager of the nearby Dharamshalla Shri Hari Ram and to seize the relevant records of the year 1970 and produce them in the Court to prove it beyond reasonable doubt that the claim made was a false one but in this case, there is ample material in the evidence of Shri Yashwant Lal Nagar (PW 9) and Sudarshan (PW 10) as stated above, to make it very probable that the labourers had not stayed in Delhiwali Dharamshalla but in the Dharamshalla of Shri Hari Ram for which the stay charges of Rs. 100/-were paid to them. The charge against the appellant Roshan Lal, thus is not established.Coolie charges : 101. Ex. P 93 to Ex. P 99 on account of the Coolie charges to the extent of Rs. 195 having been incurred during the Rajasthan Tour have been produced. Shri Kesav Lal (PW 39) has been produced by the prosecution to prove that the vouchers were made by him in the year 1971 after the Rajasthan Darshan Tour and were falsely made by him. This witness according to his own statement had committed the forgery and was liable to be prosecuted as an accomplice in the case and his evidence cannot be accepted against the co-accused, Roshan Lal without any independent corroboration. Moreover, from his evidence it is clear that whatever forgery was committed by him was under the orders of Shri J.N, Simlot (PW 49) Welfare Commissioner. 102. Moreover, from his evidence it is clear that whatever forgery was committed by him was under the orders of Shri J.N, Simlot (PW 49) Welfare Commissioner. 102. What has been alleged by Keshav Lal (PW 39) is quoted as under : " eqyfte us dgk jktLFkku n'kZu ;k=k dh dqN MqIyhdsV jlhns rS;kj djuh gSA fle yksV tks gSM fMikVZesUV gS us dgk gS mlds ,d ekg igys fleyksV us dgk Fkk fd jks'kuyky ogkWa vk jgs gSa lks tSls os dgs oSls gh vdkmUVl cuk nsukA " 103. Thus, if these receipts were to be taken as forged receipts then the person who forged may be Shri Keshav Lal or the person at whose orders this was done may be Shri J.N. Simlot. So if he is to be believed, these two persons could be Termed as culprits and this accomplice witness is not to be believed for making the forged vouchers. 104. Out of the 14 labour witnesses, 10 have supported the version that Coolie charges were actually incurred during the Rajasthan Tour, whereas only 4 of them have denied this fact, Even Gafoor (PW 32) and Govind (PW 31) has accepted the fact that Coolie charges were incurred at some places during the Rajasthan Tour. 105. As such, from the above discussions, it is clear that although a few of the witnesses have tried to deny it under the influence of the prosecution, most of them have supported that Coolie charges were incurred during the Rajasthan Tour, it cannot be said that no expenses were incurred on this account and as such, the amount of Rs. 195/- was falsely claimed. The charge against the accused appellant Roshanlal thus fails.City Palace, Jaipur : 106. An amount of Rs. 102/- has been claimed for showing City Palace. Jaipur to the labours and Ex. P 15 Ex. P 16 and Ex. P 17 dated 3rd of December, 1970 are produced on this account, which are disputed by the prosecution simply on the basis that Shri Ashok Kumar Das (PW 23), Director, City Palace Museum has said that no tickets of Rs. 2/- were issued on that day. 107. Receipts Ex. P 15, Ex. P 16 and Ex. P 17 are signed by the labourers, who had gone to visit the City Palace and they go to show that the amount was paid to them. 2/- were issued on that day. 107. Receipts Ex. P 15, Ex. P 16 and Ex. P 17 are signed by the labourers, who had gone to visit the City Palace and they go to show that the amount was paid to them. At least 14 labour witnesses had come in evidence but these receipts were not confronted with any one of them to prove that the amount was not paid and they had not signed the relevant receipts. There is no labour witness who denies to have seen the City Palace, Jaipur but as many as 7 labour witnesses have said in specific terms that they had seen the City Palace, Jaipur. 108. The un-controverted evidence on record is of Ex. P 115, Ex. P 116 and Ex. P 117 vide which payment was made to the labourers and, therefore, although the witnesses have even said that thy had purchased tickets for seeing the City Palace and the fact stands established, but even if assuming for argument sake that the tickets were not purchased, the fact remains that the amount was paid to those labourers for visiting the City Palace, Jaipur and the receipts were got signed from them for the payment made to them. The claim of Rs. 102/- based on these receipts cannot, therefore, be disputed in view of the aforesaid clear evidence of the labourers and no effects by the prosecution to controvert the fact by putting them in confrontation to any of the labour witnesses examined during the trial. This charge also fails against the accused appellant Roshan Lal, for the reasons mentioned herein above.Purchase of Soap & Oil at Ajmer : 109. During the stay of the Rajasthan Darshan Tour Party at Ajmer on 4th December, 1970, the labourers were supplied soap cakes and oil, for which bill Ex. P 60 for a sum of Rs. 177-90 on account of purchase of these items from Swastik General Store was verified by the Appellant Roshan Lal. 110. It is alleged that there was no shop in Ajmer by the name Swastik General Store and the revenue stamp affixed on the Bill was issued on 15th of November, 1971, whereas the Bill related to the year 1970, and as such, the Bill was fake and the claim was false. 111. 110. It is alleged that there was no shop in Ajmer by the name Swastik General Store and the revenue stamp affixed on the Bill was issued on 15th of November, 1971, whereas the Bill related to the year 1970, and as such, the Bill was fake and the claim was false. 111. The prosecution has produced Shri N.N. Asopa (PW 22), Assistant Labour Commissioner on this point; but his evidence is of no consequence because he has admitted that in the year 1970 he was not working in Ajmer and for the first time he came in that City on 23rd of July, 1974. The record on the basis of which he had written letter to the C.B.I. was also not available with the witness to support his evidence in the Court. He had made inquiries from the clerks concerned to reply the letter of the C.B.I. but neither the report of the clerk was produced nor he remembered the names of the clerk whom he had consulted for drafting the reply and orally he showed his inability to give out even the number of the shops which were registered and unregistered in the City of Ajmer in the year 1970. 112. What has been alleged by Shri Nar Narain Asopa (PW 22) is as under ; " lk{kh us dgk ebZ 1970 esa eSa vtesj bl in ij dk;Z ugha dj jgk FkkA esjh loZizFke fu;qfDr vtesj uxj esa fnukad 23&7&1974 dks gqbZ FkhA eSaus tks&tks fjdkMZ lh0ch0vkbZ0 dks i= fy[kus ls iwoZ ns[kk FkkA og eSa vkt ysdj ugha vk;k gwWa D;ksafd og vc esjs vf/kdkj {ks= esa ugha gSA eSa ekSf[kd :i ls vkt ugha crk ldrk fd lu~ 1970 esa fdruh nqdkus iathd`r FkhA eSa mDr le; ds lEcfU/kr fyfidksa ds uke ugha crk ldrkA " 113. The evidence of the above witness not only shows that there was no record or document to support his version although he had alleged that he had consulted the clerk for this purpose, but it also goes to show that there were some unregistered shops also in Ajmer. As such even if a shop was not registered and had committed violation of the provisions of the shops and Commercial establishments Act, it does not go to prove that there was no shop by the name Swastik General Store' in Ajmer. 114. As such even if a shop was not registered and had committed violation of the provisions of the shops and Commercial establishments Act, it does not go to prove that there was no shop by the name Swastik General Store' in Ajmer. 114. Hari Prasad (PW 24) the Postman was also examined to prove that there was no shop by the name `Swastik General Store' at Ajmer in the year 1970. This postman was examined in the trial Court in the year 1977. He has said that in the year 1970 there was no shop by the name `Swastik General Store'. The witness has not said that there is no shop by the name 'Swastik General Store' in Naya Bazar, Ajmer but he has tried to say emphatically that in the year 1970 there was no shop. The witness did not name any of the General Stores but has admitted that there were 7 or 8 shops in Naya Bazar, Ajmer. 115. This witness has further admitted that whenever a new shop is opened, an information is sent to the Post Office and in a Register maintained there, it is entered. The register was not produced before the Court and he could not remember which new shops were opened in that locality in the year 1969 and 1970. 116. It is impossible for a person to remember that in a particular area there was no shop of a particular name until and unless he comes to say that there is no shop and there was no shop of this name and when a record of particular kind is maintained, such information must be supported by the entry maintained in that record. 117. This evidence also, therefore, does not conclusively prove that there was no shop by the name `Swastik General Store' in the year 1970 at Ajmer. 118. So now the question remains whether any expenditure was incurred on the purchase of soap and oil and if these items were supplied to the labourers at Ajmer, then certainly those items were purchased also and then the genuineness of the Bill Ex. P/60 cannot be doubter, although the shop from which the purchase was made might be an unregistered shop. For this purpose, one will have to refer to the evidence of the various labour witnesses examined during the trial, who have deposed on this point. 119. P/60 cannot be doubter, although the shop from which the purchase was made might be an unregistered shop. For this purpose, one will have to refer to the evidence of the various labour witnesses examined during the trial, who have deposed on this point. 119. Out of 13, as many as 9 witnesses, have said that they were supplied soap and oil at Ajmer and out of the remaining four, who have said that they were not given any soap and oil Ajmer, one has said that he does not remember whether these items were supplied at Ajmer or not and one has said that he does not know whether the item were purchased or not but since he does not say that he was not so supplied. It thus becomes apparent that the items of soap and oil were in fact purchased at Ajmer and supplied to the labourers. Devi Lal (PW 43) has said that when there was no oil, Govind had brought the up of oil which goes to show that the purchases of these items was made by Govind at the instance of Shri J. N. Simlot, Welfare Commissioner, who had joined the Rajasthan Darshan Tour again after leaving the Tour Party at Agra. 120. Ganeshi Lal (PW 20), Assistant Post Master, has said that the revenue stamp affixed on the Bill, in question, was issued on 15th of November, 1971. The prosecution has, therefore, alleged that the voucher was false and made sometime after 15th of November, 1971, and as such, the claim made vide voucher Ex. P. 60 was a false claim. 121. From the evidence of Roop Lal (PW 34), Cashier and Shri Arpan Ghosh (PW 35), it is clear that the account for the Rajasthan Tour had already been submitted by the accused appellant, Roshan Lal much before 15th of November, sand at no time they had allowed Roshan Lal to made any entries in the account already submitted by him. 122. After returning from the tour, the appellant Rosban Lal had submitted the account on 20th of December, 1970, as his signatures on the account appear in that date and that can be inferred from the evidence of PW 34 and PW 35 also. From what has been quoted here in above, it is quite evident that the account Ex. 122. After returning from the tour, the appellant Rosban Lal had submitted the account on 20th of December, 1970, as his signatures on the account appear in that date and that can be inferred from the evidence of PW 34 and PW 35 also. From what has been quoted here in above, it is quite evident that the account Ex. P 83 was submitted atleast earlier than 22nd of February, 1971 i.e. about 9 months before the date of issue of the revenue stamp found affixed on the Bill Ex. P 60. 123. Since the appellant Roshan Lal had already submitted the account and it was in the safe custody of the accounts Branch of the Department and there is no allegation by the side of the prosecution that it was ever taken away from there and any interpolations were committed by him after the submission of the accounts; the vouchers produced by the appellant Roshan Lal could not have been the voucher which could bear the revenue stamp issued after many months of its submission. It was for the prosecution to explain who did it, when was done and how it was done but one thing is certain that Roshan Lal had no access to the vouchers after its submission. So anybody in authority or interested in passing of the accounts could have done it; but then again it was for the prosecution to enquire into. At least this was not the burden of the appellant and for a voucher which evidently could not have been submitted by him with account Ex. P 83 he could not be held responsible. 124. However, this voucher Ex. P 60 has got the verification made by the appellant Roshan Lal but verification on the vouchers, which were disputed and not verified by the appellant Roshan Lal, earlier, had to be done by him later under the instructions of Shri J. N. Simlot and then of Shri N. L. Sharma, for which may refer to the evidence of Arpan Ghosh (PW 35), Accountant; Jai Bhagwan Sharma Clerk (DW 2) in the Accounts Branch of the Department; Shri Ram Pandey (DW 3), Assistant Welfare Inspector and Dharampal Singh (DW 4) U.D.C. in the Establishment Section and the document Ex. D 8. 125. D 8. 125. For arriving at a conclusion whether Shri J.N. Simlot was the real person who was entrusted with the amount to be spent on the tour expenses, the following points need special consideration : 1. the sanction order, Ex. P 8, was in the name of the Welfare Commissioner, Sh J.N. Simlot and, not only that the amount was sanctioned and addressed to his same, but the responsibility of getting the same adjusted not later than 31st March, 1971 was also fixed on the Welfare Commissioner. 2. that there was no written order from the Welfare Commissioner or any other authority in the name of the accused appellant (Roshan Lal) which could make him the leader and the person responsible and accountable for the expenses incurred during the tour whereas the documents on record show that Shri J.N. Simlot was entrusted with the responsibility of the advance sanctioned by the Government. 3. Shri Simlot himself was present with the tour party during the most of the places visited and being a very high superior officer, as per the normal code of wording, he was the leader of the group and not expected to act under the guidance of an inferior employee. 4. Shri Simlot has himself that he had written letters to Assistant Labour Commissioner, Kota, Labour Commissioner, Gwalior and Officers at other places also for making stay arrangements for the tour party in the Log-book, also there is a mention that Shri Simlot had gone to Jaipur for making stay arrangement. 5. that Gafoor (PW 32), Raghuraj Singh (PW 18), Bhoora (PW 41), Chunni Lal (PW 42), Devi Lal (PW 43), Shankar Lal (PW 47), Hari Narain (PW 51), Govind (PW 31), Kanhaiya Lal (DW 5), Udai Singh (DW 6). Bhairon Singh (DW 7) and Kana Ram (DW 8), all say that committees were formed by the Welfare Commissioner for the jobs entrusted to them and expenses were distributed to the labourers through the leaders of their groups. 6. the Welfare Commissioner has deposed that he and the Accounts Officer took the decision as the situation demanded. He had also agreed to the suggestions that programme of Bundi was not in the itinerary of the tour but he had included it and that he had said in Bundi that as regards the programme of Delhi visit he would take a decision later. 7. He had also agreed to the suggestions that programme of Bundi was not in the itinerary of the tour but he had included it and that he had said in Bundi that as regards the programme of Delhi visit he would take a decision later. 7. Shri Simlot (PW 59) has, agreed that the accounts were not submitted the accused appellant Roshan Lal by the stipulated date i.e. 31-3-1971 still he had not given order to the accused appellant for submitting the account nor any action was taken against him for that. Had Shri Roshan Lal been entrusted with the money, the responsibility of submitting account also lay with him? It was most natural that Shri Simlot would have taken stern action against the appellant Roshan Lal more so when the Accounts Branch was time and again persuading him for submission of the accounts. 8. Possibly by Shri Simlot, Welfare Commissioner might have derived undue advantage of the simplicity of his subordinate appellant Roshan Lal. From the very beginning he had planned the things and was travelling and supervising the things. He had got some money issued in the name of Roshan Lal but took it from him and for all the expenditures money was given by him. He and Roshan Lal stayed separate, while his (Simlot's) other subordinate Govind and Gafoor stayed with the labourers separately but at all places the vouchers were being prepared in the name of Roshan Lal. From the statements of Gafoor (PW 32) and Shankar Lal (PW 41), because if Roshan Lal already having Rs. 6500/- with him, and had not handed it back to Shri Simlot there was no occasion for Shri Simlot to send Rs. 700/- through Gafoor. 9. When the accounts department did not finalise the account of Rajasthan Tour and Shri Ghosh was time and again reminding him it appears that Shri Simlot got forged vouchers prepared by Keshav Lal (PW 39) and Jagdish (PW 40). It needs not argument that had Shri Simlot himself not been the in charge and responsible for the payments made in connection with the Rajasthan Tour, no same person like Shri Simlot would have taken the trouble and risk of getting the forged vouchers prepared. 10. As per financial rule Nos. It needs not argument that had Shri Simlot himself not been the in charge and responsible for the payments made in connection with the Rajasthan Tour, no same person like Shri Simlot would have taken the trouble and risk of getting the forged vouchers prepared. 10. As per financial rule Nos. 218, 219 and 374, a person in whose name the account of advance is sanctioned, is held to be responsible for accounting the same and this responsibility cannot be shared by the other officers. 11. After tour party had come back from the tour, the Welfare Commissioner Shri Simlot had himself paid Rs. 2,803.56 vide Ex. P 214 to the Rajasthan Roadways whereas only an amount of Rs. 1,626.25p. was given to him from the cash of the Mica Mines Welfare Fund. Thus, it is clear that the amount of Rs. 1177. 31p. was paid by Shri Simlot. Apart from this, an amount of Rs. 700/- was admittedly given by him to Gafoor, (PW 32), though the learned trial Court has disbelieved Shri Simlot and Shri Gafoor for the fact that the amount of Rs. 700/- was entrusted to the accused appellant Roshan Lal. 12. The amount of Rs. 3,000/- drawn by him from the sanctioned amount remained outstanding in his name despite the account submitted by the accused appellant Roshan Lal because they were to be accounted for by him personally. 13. Not only that sanction was in the name of Shri J.N. Simlot and he was with the tour party at most of the points, but the money was being spent by Roshan Lal and other persons as per his directions is clear from the evidence of PW 35. As such, the accused appellant cannot be held responsible for the misappropriation of any amount because whatever the accused appellant was doing was under the instructions and directions of his high superior officer and even the preparation of the vouchers was done under the orders of Shri Simlot. 126. For the above observations reliance can be placed in the following cases : (1) Tafzul Hussain v. State (1986 (2) WLL p. 598) (2) Bhagat Ram v. State of Punjab ( AIR 1954 SC 621 ) (3) Sadashiv Jena v. State (Cr. L.J. 1983 Page 521) (4) Tilak Ram v. U.P. (Cr. L.J. 1969 P. 682) 127. 126. For the above observations reliance can be placed in the following cases : (1) Tafzul Hussain v. State (1986 (2) WLL p. 598) (2) Bhagat Ram v. State of Punjab ( AIR 1954 SC 621 ) (3) Sadashiv Jena v. State (Cr. L.J. 1983 Page 521) (4) Tilak Ram v. U.P. (Cr. L.J. 1969 P. 682) 127. From the above observations and after the perusal of the judgment of the trial Court, I am of the view that the learned trial Court has not at all considered or appreciated the defence witnesses although such witnesses were admittedly the labourers who accompanied the tour and further to it some of them were even cited as prosecution witnesses but the same were examined in defence as after their left over by the prosecution. Such an approach of the trial Court nullifies the entire judgment under appeal. The learned Court could have after appreciating the evidence of the defence witnesses rejected them as unreliable for reasons to be recorded but in this particular case the learned trial Court has not even made an effort to appreciate the evidence of these defence witnesses who could not be said to be chance witnesses or unreliable. 128. In view of the foregoing discussions, I am of the opinion that the prosecution has utterly failed to prove the case beyond reasonable doubt against the appellant benefit of which goes to the appellant. 129. This appeal is, therefore, allowed and set aside the judgment dated 28-2-1981 passed by the Special Judge and acquit the appellant from all charges levelled against him. The appellant is on bail. His bail bonds are cancelled. He need not surrender.Appeal allowed. *******