1. Three accused persons namely, S. K. Misra, Ibaruddin Ahmt , and Md. Ishaque were booked for trial under sections 120 B and 409 I.P.C. and under section 5(2) read with section 5(1) (c) of the Prevention of Corruption Act before learned Special Judge, Gauhati. By the impugned judgment and order the learned trial Judge found accused ibaruddin Ahmed and Md. Ishaque not guilty and acquitted them of the charges. The learned Special Judge found accused S. K. Misra guilty under section 409 I.P.C. and under section 5 (2) read with section 5(1) (c) of the Prevention of Corruption Act and convicted him accordingly and sentenced him to R.I. for six months and a fine of Rs. 1,000/- under each sections. The sentences were to run concurrently. Hence this appeal by accused S. K. Misra. 2. The facts of the case are that the three accused persons who are admittedly employees of the Oil and Natural Gas Commission entered into a criminal conspiracy to criminally misappropriate one barrel of HD-30 and one barrel of HD-40 oil by not delivering the said two barrels at the working sites of the ONGC at Galeky and Lakwa. It is admitted that the accused-Misra of 15.1 75 received one barrel of HD-30 oil to be delivered at Production Testing-Lakwa and on 21.1.75 received the other barrel of oil for delivery at Production Testing, Galeky. It is also not disputed that the said two barrels were carried on the above mentioned dates by Truck No. ASW 2724 driven by accused Md. Ishaque and that the other accused also accompanied the truck. According to prose­cution the said two barrels were not delivered and hence the pros­ecution. Accused-Misra has taken the specific plea that though normally they get indents for materials from different working sites but in case of emergency he was required even on verbal orders from the in-charge of the sites to raise indents himself and arrange delivery of the required materials. According to him on verbal instructions he lifted the two barrels and delivered them at Testing Lakwa site and Testing Galeky site. The learned trial Judge disbel­ieved the story of delivery and hence the appellant was convicted. 3. Relying on the decision of the Apex Court, in Pabitar Singh vs. State of Bihar, AIR 1972 SC 1988 Mr. According to him on verbal instructions he lifted the two barrels and delivered them at Testing Lakwa site and Testing Galeky site. The learned trial Judge disbel­ieved the story of delivery and hence the appellant was convicted. 3. Relying on the decision of the Apex Court, in Pabitar Singh vs. State of Bihar, AIR 1972 SC 1988 Mr. Choudhury, learned counsel for the appellant has urged that as the appellant is an employee of the ONGC if he is convicted he not only loose his liberty but also his service and as such great care and attention should be devoted to all questions of law and fact in coming to the finding. There is no dispute on this point as Court has to be cautious in such a case. 4. In this case as rightly pointed out by the learned counsel for the appellant I get three different versions of the prosecution story. The First Information Report, Ext. 78 was lodged by the Superintendent of Police, C.B.I., Shillong. In the said information the specific case of the prosecution was that the accused /appellant Misra entered into a criminal conspiracy with one outsider Shri B. L. Podder regarding the above two barrels valued at Rs. 4,350, but finally the Investigating Agency gave a go bye to the case against Mr. Fodder and charge sheet was submitted only against three persons named above and it was alleged that the conspiracy was among the above three persons. The learned trial Court disbelieved the story of criminal conspiracy but found the accused/ appellant-Misra guilty only for non-delivery of two barrels valued at Rs. 1991. 35p. at the places mentioned above. Relying on the decisions of the Apex Court in Devilal vs. State of Rajasthan, AIR 1971 SC 1444 , Hari Dev Sharma vs. State (1977) 3 SCC-352 and Deep Chand & Others vs. State of Haryana, (1969) 3 SCC 890 learned counsel has urged that the very fact that three different versions of the prosecution story have been disclosed the conviction is not sustainable. According to learned counsel as the learned trial Court disbelieved the allegation of criminal conspiracy which is the substratum of the case the Court cannot reconstruct a new story out of the evidence on record. According to learned counsel as the learned trial Court disbelieved the allegation of criminal conspiracy which is the substratum of the case the Court cannot reconstruct a new story out of the evidence on record. I find considerable force in the submission of learned coun­sel and in my opinion as the prosecution has failed to prove the crimi­nal conspiracy which is the bedrock of the allegation the prosecution cannot succeed. 5. In Bhagat Ram vs. State of Punjub, AIR 1954 SC 621 It was held that the very fact that the defence was given out at an early stage and it has been largely corroborated there is strong reason to believe that the defence version was true. In the case in hand, I find that on 25.1.75 the statement of accused/appellant Misra was recorded departmentally regarding lifting of the barrel in question on 21.1.75 and he made a categorical statement that the vehicle after delivery of the barrel at Rudrasagar returned and due to some trouble could not proceed to deliver the barrel at Testing-Galeky and at his direction it was off loaded outside the O. T. and thereafter he sent it to Galeky through a pick up van belonging to ONGC (vide Ext. 96). In reply to a notice from the General Manager on 17.2.75 the accused/appellant-Misra wrote to the General Manager, ONGC in the same line. Before the Court also the accused/appellant has taken the same plea. In view of the above circumstances I am inclined to accept the statement of the accused/appellant that he sent the barrel in question to Galeky as stated above. 6. As stated earlier entrustment of two barrels is not disputed. Mr. Hazarika, learned Public Prosecutor for C. B. I. has urged that it is not necessary or possible in every case to prove in what precise manner the accused person has dealt with or misappropri­ated the goods of his master and in this connection Mr. Hazarika has drawn my attention to the decision of the Apex Court in Krishan Kumar vs. Union of India, AIR 1959 SC 1390 . On perusal of this report I find that Apex Court has also held that it is for the prosecution to establish a prima facie case. At first instance accepting the submission of Mr. Hazarika this Court has to find out whether a prima facie case has been established by the prosecution. On perusal of this report I find that Apex Court has also held that it is for the prosecution to establish a prima facie case. At first instance accepting the submission of Mr. Hazarika this Court has to find out whether a prima facie case has been established by the prosecution. Relying on the decision of the Apex Court in J. M. Desai vs. State of Bombay, AIR 1960 SC 889 , Mr. Hazarika has further urged that to establish a charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion. In Sardar Singh vs. State of Haryana, AIR 1977 SC 1766 the question of proving ingredients of section 409 I. P. C. was considered and in allowing the appeal it was held by the Supreme Court that there was no evidence to establish that the accused dishonestly misappropriated the receipt book or converted it to his own use or dishonestly used or disposed of the receipt book. The question of section 5 (2) read with section 5 (1) (c) of the Prevention of Corruption Act was considered by the Supreme Court in Rabindra Kumar Dey vs. State of Orissa, AIR 1977 SC 17tt wherein it was inter alia held that where the entrustment is proved or admitted it would be difficult for the prosecution to prove the actual mode or manner of misappropriation and in such a case the prosecution would have to rely largely on the truth or the falshy of the explanation given by the accused. It was further held that the three cardinal principles of criminal jurisprudence are well settled namely; (1) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defence : version while proving its case; (2) that in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty; and (?) that the onus of the prosecution never shifts. 7. 7. Situated thus, I hold that keeping in view the principles of our criminal jurisprudence the accused person is presumed to be innocent unless he is proved to be guilty and for this purpose the onus lies heavily on the prosecution and this onus never shifts. However, in a charge of criminal misappropriation the prosecution has to make out a prima facie case, but it would be difficult for the prosecution to prove meticulously the actual manner of such misappropriation. 8. P.W, 29 was an Executive Engineer (Production ) and in cross examination he has admitted that he made a statement before the polio that in case of emergency on getting oral request from the indenters the possibility of giving indent by the accused-Misra cannot be ruled out. So the plea taken by the accused/appellant that in case of emergency hi can himself make an indent gets support from the prosecution story P. W. 30 was at that relevant time posted at Testing-Galeky. The plea of the accused is that the barrel of oil was delivered at Testing-Galeky In cross-examination P.W. ?0-P. J. Singh has categorically stated that he maintained the records of indents placed for materials and for receipt thereof and that from the said records it can be found out what materials were indented and received by him during the relevant period. These records have not been produced. In absence of the best evidence, namely, the records, the oral testimony of this witness cannot be believed. On the other hand, his evidence supports the case of the accused. P.W. 30 is trying to make out a case for the prosecution that the oil namely, HD-30 or HD-40 is not required at Lakwa but he stated before the police that he requires about liters of such oil from the drill sites. No witness has been produced by the prosecution from Testing-Lakwa. Non-examination of such witness shakes the very foundation of the prosecution story. 9. P. W. 32, M. Chakravarty was the Investigating Officer. He has admitted that in the case diary he did not record that he did not find any specific case against Mr. Fodder. Me has also admitted that he did not find any evidence of sale of two barrels in question by accused/ appellant or any other person. He has also admitted that he did not seize any document from P.W. 30, P. J. Singh. 10. Fodder. Me has also admitted that he did not find any evidence of sale of two barrels in question by accused/ appellant or any other person. He has also admitted that he did not seize any document from P.W. 30, P. J. Singh. 10. For the reasons stated above, I hold that the prosecution has failed to prove even a prima facie case of non-delivery of two barrels of oil at Lakwa and Galeky and as such the conviction of the accused/ appellant cannot be sustained. In the result, the appeal is allowed by setting aside the conviction and sentence and the accused is discharged from the liability of the bail bond.