JUDGMENT 1. - This appeal is directed against the judgment dated 10.2.1984 passed by Special Judge for A.C.D. cases, Jaipur, whereby the accused appellant is found guilty for the offence punishable under Sections 409, 467 & 420 Indian Penal Code, and under section 5 (i) (C) (2) of Prevention of Corruption Act, and sentenced him under Section 409 Indian Penal Code to suffer rigorous imprisonment for a period of two and half years and to pay a fine of Rs. 5000/-,(Rupees five thousand), in default of the payment of fine he was directed to undergo rigorous imprisonment for a period of six months. The appellant was sentenced under Section 467 Indian Penal Code to suffer rigorous imprisonment for a period of two years and to pay a fine of Rs. 5000/-, in default of the payment of fine he was directed to undergo rigorous imprisonment for a period of six months. The appellant was further sentenced under Section 420 Indian Penal Code to suffer rigorous imprisonment for a period of one year and to pay a fine of Rs. 3000/-, (Rupees three thousand), in default of the payment of fine he was further directed to undergo rigorous imprisonment for a period of five months. The appellant was further sentenced under Section 5 (i)(c) read with Section (2) Prevention of Corruption Act to suffer rigorous imprisonment for a period of one year and to pay a fine of Rs. 1000/- (Rupees one thousand), in default of the payment of fine he was further directed to undergo rigorous imprisonment for a period of three months. All the sentences were ordered to run concurrently. 2. Briefly stated the facts of the case are that on 9.2.1977 Mewa Ram (PW-2) lodged a written report Ex. P/2 to the I.G.P. (ACD), Jaipur, alleging therein that he had shown Baisakhi Moong in his field and he was to get Rs. 252.75 as subsidy from the Government. He requested several times to the Agriculture Officer for the same and he was given assurance but after inquiry he found that the amount was shown in the cash book to have been given on 25.12.1976 against his name and in the muster roll his thumb impression on stamp was got affixed and it he had been verified by the Agriculture Officer. After making complaint he was pressurised that he show sign in the back date and should take the amount. He did not want that,such type of corruption be developed and should share in it. In that report it was prayed that immediate action be taken otherwise the employee of the Agriculture Department would change the muster roll because after his complaint all the officers of the Department had come to know about it and they were bent upon to destroy the evidence. On this report, a case was registered under Sections 409/ 420/467 Indian Penal Code and under Section 5 (i) (c) read with Section (2) Prevention of Corruption Act, and investigation started. The A.C.D. Jaipur, after completing the investigation, submitted a challan in the Court of Special Judge, who after holding trial convicted and sentenced the accused appellant as indicated above, hence this appeal. 3. Heard learned Counsel for the parties and perused the entire record. 4. During investigation it was found that the accused appellant received Rs. 3454.24 for distribution among the cultivators of Panchayat Samiti, Dudu and Jhotwara as subsidy and out of that fictitious payment of Rs. 2485.37 to various cultivators was shown to have been made by 25.12.1976 and the balance of Rs. 968.87 returned back to the Cashier. On the contrary, as stated earlier, the case was registered on the basis of the report lodged by Mewa Ram (PW-2) in which it was stated that no subsidy was paid to him and other cultivators. 5. The allegation against the accused is that fictitious payment of subsidy has been shown to 19 cultivators. Out of these, 13 cultivators have been examined in the Court, and remaining four cultivators could not be examined as they have expired. They are, Shri Mahaveer Singh, Shri Bharoon Singh, Shri Mool Chand and Shri Sheo Nath. The remaining two, namely, Shri Hari Ram and Shri Hanuman S/o Shri Hari Narain have not been produced by the prosecution. The prosecution, however, produced Shri Hanuman S/o Shri Ganga Ram (PW-15) who is the brother of Shri Hari Ram S/o Ganga Ram, who stated that the amount was received by the wife of Shri Hari Ram. Shambhu Singh S/o Late Shri Mahaveer Singh has also been examined, who deposed that the payment was made by Prem Lal Mathur to Asind Khan Hali who had given the amount to Mahaveer Singh in his presence. Shambhu Singh S/o Late Shri Mahaveer Singh has also been examined, who deposed that the payment was made by Prem Lal Mathur to Asind Khan Hali who had given the amount to Mahaveer Singh in his presence. This statement has been corroborated by Kuldeep Singh (PW-14) also. Grand-son of Late Shri Bharon Singh who has been examined as a defence witness who stated that Shri Prem Lal Mathur gave the amount to Shri Heera Lal who gave the money to Bharon Singh in his presence. Mool Chand, who also expired but for him Shri Ram Gopal (PW-16) Sarpanch of the village, Shri Matadeen (PW-25) Gram Sewak of the village and Shri Gulla (PW-10) Cultivator, deposed that the payment was given to Shri Mool Chand himself and he had signed on the acquittance roll. Similarly, Ram Gopal proved the payment of the amount to Late Shri Sheo Nath by saying that the amount was paid in his presence to Sheo Nath who put his thumb impression before him. 6. All the cultivators who have been examined by the prosecution have admitted that they have received the amount either personally or through their representatives on the dates shown for the payment. Besides the cultivators, there is no evidence of the prosecution to the effect that they did not receive the payment. 7. A look at the record shows that the prosecution failed to investigate or to seek the expert opinion about the payment of Hanuman and Hari Ram; when Shri Hanuman Singh (PW-15) stated that the payment was received by the wife of Hari Ram in the month of November, 1976. No expert opinion has been sought on the payment of Shri Nenu Ram (PW-13) and Shri Ram Gopal (PW-16) and Shri Mool Chand. When the direct evidence about Shri Nenu Ram is that amount was received by milk man in his presence who signed on his request in the month of November, 1976. PW-16, Ram Gopal, admitted the payment and so also the thumb impression on the receipt in the month of November, 1976. PW-10, PW-16 and PW-25 admitted the receipt of the payment by themselves and also admitted the signatures obtained in the month of November, 1976. PW-16, Ram Gopal, admitted the payment and so also the thumb impression on the receipt in the month of November, 1976. PW-10, PW-16 and PW-25 admitted the receipt of the payment by themselves and also admitted the signatures obtained in the month of November, 1976. For the thumb impressions of Ram Sahai (PW-3), Ladu Narain (PW-7), Shri Gulla (PW-10) and Shri Narain (PW-12), the thumb impressions were sent for expert opinion but the same were found unfit for comparison. Moreover, for the payment of Ram Sahai (PW-3) it has come on record that the payment has been received by a worker Nathu on 25.12.1976. For the payment of Shri Ladu Narain (PW-7) it has come in evidence that the amount was received by Late Shri Munna in the month of Novembers 1976. Shri Gulla (PW-10) and Shri Narain (PW-12), themselves, admitted the payment of amount. Ram Gopal (PW-16) and Matadeen (PW-25) stated that they, themselves, received the amount and put their thumb impression. The hand writing expert who has been examined, stated that he is not in a position to express any opinion about handwriting. 8. From a perusal of record it also appears that the prosecution has not produced any witness or document to prove that it was only the accused who had to make payment nor they have produced any duty charge in this regard. The accused was District Agriculture Officer and there was a subordinate staff under him. Neither the departmental witnesses nor the cultivators have stated that the accused had gone to the villages for distributing the amount. While contrarily the prosecution witnesses, themselves admitted that the accused has entrusted the amount to one Shri Prem Lal Mathur, Agriculture Assistant, and he had distributed it. Kuldeep Singh (PW-14), Ram Gopal (PW-16), Ranveer Singh (DW-1) and Shambhoo Singh (DW-2) are the cultivators who have categorically stated that Shri Prem Lal Mathur along with Gram Sewak had come in the village and distributed the subsidy amount among the cultivators. The acquittance roll was prepared and all the entries were made by the cashier. The accused simply verified them. In view of these circumstances the conviction of accused cannot be sustained simultaneously under Sections 409 and 420 Indian Penal Code because the ingredients of both the Sections are quite different to each other and cannot go simultaneously. The acquittance roll was prepared and all the entries were made by the cashier. The accused simply verified them. In view of these circumstances the conviction of accused cannot be sustained simultaneously under Sections 409 and 420 Indian Penal Code because the ingredients of both the Sections are quite different to each other and cannot go simultaneously. In cheating a person, cheats another into delivering property to him with the dishonest intention in it and this intention starts with very inception of the transaction but in case of criminal breach of trust, the person who comes into pessession of the movable property receives it legally but retains it or converts it to his own use against the terms of entrustment. For these observations reliance can be placed on the case of K.C. Thomas v. Avirah Varghese (1974 Cr.L.J .207). 9. In view of these circumstances, in the present case, the money was given by the cashier to the accused for distributing it to the cultivators after preparing acquittance roll and the acquittance roll pertains to the real cultivators and there was no dishonest intention of the accused from the very beginning i.e. at the time when the money was delivered to him. Therefore, the offence of cheating is not made out at all. 10. Now comes the offence of the entrustment. In the present case, the prosecution witnesses, themselves have admitted that the accused had entrusted the amount to his subordinate Shri Prem Lal Mathur for distributing the same amongst the cultivators and this act of the accused was neither illegal nor against any order or rules. The accused appellant has not only probabilised this version but has proved from the evidence of the prosecution itself and also from the defence witnesses. Thus, the explanation given by the accused has been proved beyond reasonable doubt. The Apex Court in R.K. Dey v. State of Orissa (1977 SC 170) observed that once the accused gives a reasonable and probable explanation, it is for the prosecution to prove affirmatively that the explanation is false. It is an admitted fact that the accused has offered his explanation at the investigation stage and this explanation was strengthened by all the cultivators who submitted their affidavits to the Investigating Officer and this fact has been admitted by the prosecution witnesses. 11. It is an admitted fact that the accused has offered his explanation at the investigation stage and this explanation was strengthened by all the cultivators who submitted their affidavits to the Investigating Officer and this fact has been admitted by the prosecution witnesses. 11. From the evidence and circumstances brought on record from the side of the accused, he has been able to prove that the explanation given by him that whatever amount was given to him had been delivered to subordinate Shri Prem Lal Mathur for distributing amongst the cultivators, was both probable and reasonable judged by the standards of preponderance of the possibility. It was for the prosecution to prove affirmatively in what manner the amount was misappropriated after it had been transferred from the custody of the accused to the custody of Shri Prem Lal Mathur. As the accused appellant has given a reasonable explanation, the Lower Court was in error in drawing an adverse inference against him to the effect that he had misappropriated the money. During the course of arguments, learned Counsel for the appellant placed reliance on the following reported cases; Panachand v. State of Rajasthan (877 WLN UC 541), Raghu Ram v. State of Rajasthan, (876 WLN UC 407), Sardar Singh v. State of Haryana (AIR 1977 SC 1976), Harish Chandra v. State of Rajasthan ( 1979 WLN 105 ) , Narendra Pratap Narain Singh & Another v. State of Uttar Pradesh ( AIR 1991 SC 1394 ), Dulal Chand Baurah & Ors. v. Union of India, (1991 1 Crimes 621) & Jagjit Singh v. State of Punjab (1988 1 Crimes 185) which have been perused by me. 12. In view of the foregoing discussion, the offence of misappropriation or criminal breach of trust is also not made out against the accused appellant and if this offence is not made out then the accused appellant cannot be convicted for the offence under Section 5(i)(c) read with Section (2) of Prevention of Corruption Act. Both the offences are overlapping to each other. As a matter of fact, for all practical purposes, they are one and the same. So, once the offence of Section 409 Indian Penal Code is not proved then the offence under Section 5(i) (c) read with Section (2) of Prevention of Corruption Act is also not made out. Both the offences are overlapping to each other. As a matter of fact, for all practical purposes, they are one and the same. So, once the offence of Section 409 Indian Penal Code is not proved then the offence under Section 5(i) (c) read with Section (2) of Prevention of Corruption Act is also not made out. However, under Section 5 (i)(c) read with Section (2) the prosecution is required to prove that the accused appellant dishonestly misappropriated or otherwise converted the amount for his own use. In the present case, there is no iota of evidence that the accused appellant utilised the amount for his own purpose or allowed any other person to do so. Therefore, no misconduct has been committed. So, if this ingredient is lacking, the accused appellant cannot be convicted for the offence under Section 5 (i)(c) read with Section (2) of Prevention of Corruption Act. 13. So far as the offence under Section 467 Indian Penal Code is concerned, no valuable security or any other document which forms part of Section 467 Indian Penal Code has been forged by the accused appellant. Since, all the cultivators have categorically stated that the department has paid them the subsidy amount in time then the offence under Section 467 Indian Penal Code is also not made out by any stretch of imagination. Since the cultivators have admitted that the thumb impressions/signatures on the acquittance roll have been made on their behalf after receiving the amount on their direction. Thus, the signatures/thumb impressions which have been made by the representatives of the cultivators on their direction against their names cannot be said to be a false or forged receipt. At the most it can be an error of procedure and for that too the accused appellant cannot be fastened with a criminal liability because all the signatures/thumb impressions were obtained by Shri Prem Lal Mathur. It may be stated that Shri Prem Lal Mathur was expired by time he could be examined in the Court as a defence witness. Since the money was received by the accused appellant and he was to account to the cash department and that is why he verified the acquittance roll but this act of the accused appellant cannot be attached with mala fides or dishonesty in the absence of any evidence. Since the money was received by the accused appellant and he was to account to the cash department and that is why he verified the acquittance roll but this act of the accused appellant cannot be attached with mala fides or dishonesty in the absence of any evidence. The act of the accused appellant in verifying the acquittance roll was a bonafide one because the accused appellant was fully confident that Shri Prem Lal Mathur would not act dishonestly and under this impression the accused appellant verified the acquittance roll in good faith. In Jagat Narain v. State (1967 Cr.L.J. 302) and Arjan Singh & Ors. v. Hazara Singh ( AIR 1979 SC 1236 ) it has been held that any act done in good faith believing his subordinates the accused cannot be held guilty for that act. One more infirmity which has been found by me in this case is that the sanction for the prosecution can be held to be illegal because the case was given without proper application of mind and it appears that the learned Sanctioning Authority before giving the sanction did not consider the record cautiously and with full scrutiny. So, the sanction for prosecution cannot be held to be legal and this alone is sufficient to acquite the accused appellant. 14. Consequently, this appeal is, therefore, allowed. The conviction is set aside and the appellant is acquitted from all the charges levelled against him. The appellant is on bail and need not surrender. His bail bonds stand discharged.Appeal allowed. *******