This appeal' has been preferred by the appellant against the judgment and order passed by the Special Judge, Assam, Guwahati on 13.7.83 in Special Case No. 11 of 1978. 2. The prosecution case in brief is that the accused appellant was posted as Senior Cashier in pay beat No. 10 of Dibrugarh Pay Office of NF Railway. The appellant received a total sum of Rs.1,20,711.91 against 20 bills from Railway for payment of various employees in the month of October and November in 1977. He made payment of Rs. 81,620.36 out of the total amount against 3 bills, by 26.11.77, and remaining balance of Rs.39,091.55 along with Rs.37.60 being the value of 188 revenue stamps of 20 paise each, total leftover amount being Rs.39,129.15 which supposed to be with him. 3. The appellant was imputed with allegation of misappropriation of said remaining amount of Rs.38,151.94 as during physical verification of his cash balanceon23.5.88asumofRs.977.21 found as against Rs.39,129.15 and charge was framed against him under section 409IPC and section 5 (2) read with section 5 (1) (c) of the Prevention of Corruption Act, 1947. 4. In this appeal appellant has challenged the sanction order as not valid sanction order under the law. Further grounds of challenge are that - (a) appellant was not entrusted with the property in question in capacity of being a public servant; (b) that appellant dishonestly or fraudulently misappropriated or otherwise for his own, used the said property. 5. On the point of sanction, I reappreciated the materials on record. PW 2, 54 and 55 and the document Ext. P/59. The prosecution obtained sanction from the Principal Adviser and Chief Accounts Officer (PW 54), NF Railway under section 6 (1) (c) of the Act. Admitted position was that the PW 54 was competent to give sanction order. Evidence of PW 2 and PW 55 are categorical and corroborated each other. It was disclosed that the sanctioning authority examined the case discussed the matter, that all the documents of the case were produced before PW 54 and the same were examined personally, that PW 54 himself dictated the sanction order, that the facts mentioned therein are correct as per the record examined by him. I found the sanction order was a speaking order containing all facts pertaining to the alleged offence. I found the sanction order was a speaking order containing all facts pertaining to the alleged offence. The submission of Mr.Agarwalla, learned counsel for the appellant, that the sanctioning authority did not apply its mind and did not give any ground of his satisfaction before granting the purported sanction, is not sustainable as I, as discussed above, hold that the evidence of the witnesses are clear and categorical. I find no materials to take a different view taken by the trial Court. There is no dispute that sanction is not an idle formality or an crimonious exercise but a solemn and sacrogant act which affords protection to Government servant against the frivolous prosecution. On the materials on record, the concerned authority after careful examination granted sanction to prosecute the appellant. Moreover the submission of the learned counsel for the appellant that as offence under IPC and PC Act are on different footings the sanction under section 6 of PC Act cannot suffice the purpose of a sanction required to be given for prosecuting the accused under • section 409 IPC, is misconceived and devoid of any force or substance. Perusal of Ext.P/59 clearly shows that both the offence under IPC and PC have been covered and separate sanction for separate offences under separate Act are not required when the offence under section 409 IPC have been read with the said sections of the Act. For all practical purposes the offence under section 5 (1) (c) of PC Act and section 409 of IPC are one and the same, under the provision of section 26 of General Clauses Act, it becomes incumbent on the prosecution agency to prosecute the public servant under the General Law or the Special law, joint trial under section 409 IPC and section 5 (1) (c) is legal. If prosecution decides to do so, it will be proper to do so. In the same light separate sanction for prosecution on two heads of the sections of two different states are not the intention of the legislature. In that view of the matter I uphold the finding of the trial Court. 6. The next point regarding entrustment, the materials on record are the evidence of PW 1 Shri DK Chatterjee; PW 2 Shri GP Verma; PW 52 Shri KR Kundu and the documentary evidence are Ext. P/5, 6, 7, 8, 9, 10, 12 to 33. In that view of the matter I uphold the finding of the trial Court. 6. The next point regarding entrustment, the materials on record are the evidence of PW 1 Shri DK Chatterjee; PW 2 Shri GP Verma; PW 52 Shri KR Kundu and the documentary evidence are Ext. P/5, 6, 7, 8, 9, 10, 12 to 33. The three prosecution witnesses in their depositions stated that the cashiers are the custodians of the cash received by them and it is their duty to make the disbursement as per the bills and return the bills, both paid or unpaid, along with the unpaid cash, if any, to the Divisional Cashier or the Assistant Divisional Cashier. That they are also required to submit a statement of assets and liabilities to the above authorities showing their position of payments etc. These witnesses stated that the accused-appellant Dihingia received Rs. 1,20,711.91 concerning 20 bills from PW 1 Assistant Divisional Cashier during the period between 3.10.77 to 17.12.77. All the amounts were duly entered by the accused appellant in his own hand in his cash book (Ext. P/9,P/12,P/13). The receipt of the aforesaid bills and amounts have not been disputed by the accused, but the facts has been clearly admitted by him in his statement under section 313 CrPC. The entrustment of Rs. 1,20,711.91 to the accused was established by those documents. The entrustment of the amount to the accused appellant has been proved beyond reasonable doubt in his capacity as a public servant. Mr.Agarwala, learned counsel for the appellant has made an attempt to show that from the evidence it was clear that either the Divisional Cashier or the Assistant Divisional Cashier is the drawing and disbursing officer and therefore the appellant cannot be said to have been entrusted with the money in question; that appellant was simply a pay clerk, whose duty was to pay the amounts to the persons concerned as directed by the Assistant Divisional Cashier. This argument does hold good as in his statement recorded under section 313 CrPC in question No. he admitted this enstrustment. Evidence of PW 1 is categorical and each of his statement was proved and corroborated with documentary evidence which were exhibited in the trial. This argument does hold good as in his statement recorded under section 313 CrPC in question No. he admitted this enstrustment. Evidence of PW 1 is categorical and each of his statement was proved and corroborated with documentary evidence which were exhibited in the trial. From the stand of defence in the trial, it is evident that, appellant was entrusted with the money, but as he had to take leave due to his indisposition he left the remaining amount in the Iron safe allotted for that purpose in his room, namely beat No. 10 Chamber, and when he joined after recovery money was not found there and the Iron safe was in a broken condition, purpose of which was to prove that money has been taken away by breaking the Iron safe. On the above reason I hold that the amount of Rs. 1,20,711.92 was distrusted to the appellant as a public servant for payment to the concerned persons. 7. The main point for consideration is whether the allegation of misappropriation of remaining Rs.38,151.94 has been established beyond reasonable doubt. 8. The finding of the trial Court was that prosecution had been able to establish the non payment of Rs.24,117.88. But on the other hand trial Court found that prosecution had not led any specific evidence to establish the individual non payment of the bills and as defence did not dispute the non­payment of the bills and therefore non-payment become apparent from the bills themselves. I find sufficient force in the submission of Mr.Agarwala that prosecution cannot bring home the offence merely on the non submission of the point in the trial. Prosecution has to establish its own case beyond reasonable doubt on the basis of the material on record; that trial Court's view that this lacuna on the part of the prosecution can not dislodged the foundation of the prosecution case. The trial Court apparently relied on the evidence of PWs 1,2,3,9, 14,41 and55and on the documentary evidence namely Ext.P/13,11 (4), 13(8), 14,15, 15 (1) (2), 25, 29 (1) (2), 47, 48, 49 (2), 50, 50 (4) (5) (6) (7) (8) (9), 51,51 (8) (9) (10) (11) (12) (13) (14), 52,58. Those materials as seen whether sufficient to prove the shortage and non disbursement of Rs.3 8,151.94 alleged by the persons which were alleged to have not been paid their dues were not examined. Those materials as seen whether sufficient to prove the shortage and non disbursement of Rs.3 8,151.94 alleged by the persons which were alleged to have not been paid their dues were not examined. Other infirmity of the prosecution as alleged in this regard was that, as to who were the persons, who were not paid their dues out of the aforesaid bills, namely Ext. 14 to 3 3. Moreover prosecution's stand seemed to be weaked as it failed to pin point which were the bills out of those 20 bills, in respect of which the shortage of Rs.3 8,151.94 took place. 9. Regarding the misappropriation of Rs.3 8,151.94 the material witness was Shri NK Barua, PW 41. His evidence on record was that appellant on 18.11.77 handed over him two bills Ext.P/15 and P/29 for Rs.13,014.83 and Rs.l 1,1037-respectively and he made payment of those bills on the same day. The practice followed in this respect has been disclosed in accused's answer to his question No. 15 recorded under section 313 CrPC. 10. As emerges from the materials on record, it is to be considered whether allegation of misappropriation against the accused appellant has been based on suspicion only. In a criminal case prosecution has to bring home the prosecution case beyond reasonable doubt and mere suspension and inferences cannot be drawn by Court to the prejudice of the accused. Mr.Agarwala, learned counsel for the appellant has submitted that as the prosecution failed to establish the misappropriation of Rs.38,151.94 by not producing any specific evidence the trial Court only on suspicion convicted and sentenced the accused without evidence. 11. Records shows that after the entrustment of the amount for payment as discussed above, the petitioner paid some amount to the persons and took leave on 21.11.77, leaving an amount of Rs.38,151.94 as non disbursed. It is also evidence on record that the appellant when took sick leave he did not hand over the cash to PW 41, NK Barua. In his statement recorded under section 313 CrPC (answer to question No.44) appellant admitted that his safe and strong room was kept locked by him. It is also evidence on record that the appellant when took sick leave he did not hand over the cash to PW 41, NK Barua. In his statement recorded under section 313 CrPC (answer to question No.44) appellant admitted that his safe and strong room was kept locked by him. The stand of the accused has been taken in the answer to questionNo.77 of the statement under section 313 CrPC wherein his case was that on his joining date on 16.178, Assistant Divisional Cashier asked him to hand over charge to KK Das, PW 10 when he came to Dibrugarh on the same day and prepared papers ready for charge report, he went to open the lock of his strong room and found the lock defective, opened the embedded safe inside the strong room and the same was found defective and keys could not be fitted properly; that when could open after sometime Rs.40,0007- kept by him therein found missing. The correctness of this explanation ofthe accused has to be examined from the materials on record. The accused informed KK Das (PW 10) this fact and immediately rushed to Tinsukia and met PW 1 and reported the matter who advised him to go Maligaon to report. PW 1 also accompanies the accused to Maligaon. On this point whether trial Court's finding can be accepted as he disbelieved this statement holding that the matter was not reported to PW 10 nor this fact was disclosed in Ext. P/48. Trial Court arrived to its finding further taking into consideration of the memorandum of inspection prepared on the basis of the Dibrugarh Pay Office on 26.5.83. The said local inspection report indicated that the trial Court did not find any evidence of tampering with the locks during local inspection on 26.5.83, which was apparently made after a long lapse of time of alleged, occurrence of tampering with the locks. Apparently prosecution did not contest this plea to prove beyond reasonable doubt that the defence explanation was false. Apparently prosecution did not contest this plea to prove beyond reasonable doubt that the defence explanation was false. This statement recorded under section 313 CrPC has been corroborated by the oral evidence of PW 1 and fact of informing the aforesaid facts were not disputed or disapproved by prosecution; rather evidence of PW 41 NK Barua supported the statement (Question No .62) which categorically stated that present (at the time of giving evidence) locks of the strong room of Beat No. 10 and the main door were changed as it was found out of order. Apparently on 26.5.83 when the inspection was made replaced by new lock. On perusal of the memorandum of local inspection dated 26.583 it was seen that - "A gap of (22 cm from top frame to wooden batten of the inner door and 16 cm from top frame to brick wall and) at the top of the outer door remain when door is kept locked. It may be possible for a small boy or a very slim man to enter through that gap with some difficulty." (underline supplied). Further - "The only key of the safe is small in size in comparison to the bigger size of the safe". On this materials on record two views are possible regarding misappropriation of the amount in question and benefit of it shall go in favour of the accused appellant. 12. Regarding plea of sickness the finding of the Court below was that accused took false plea of sickness to avoid handing over of charge to PW 10 KK Das as he had already misappropriated the amount by that time. This finding was vehemently challenged by the learned counsel for the appellant who has submitted that this finding was based not on evidence on record but based on suspicion and presumption only. In this regard evidence of PW 1,2 and PW 10 and Ext.P/43, P/44 are relevant. PW 1 s evidence was that he received the letter for leave Ext.P/43 from PW 2 on 21.12.77 and letter Ext.P/44 from PW 2 at Maligaon. The admitted fact was that on 21.12.77, PW1 was at Tinsukia and the letter was issued at Maligaon and there is no evidence on record that when the PW1 received the letter dated 21.12.77 he directed the accused appellant to hand over charge to PW 10. The admitted fact was that on 21.12.77, PW1 was at Tinsukia and the letter was issued at Maligaon and there is no evidence on record that when the PW1 received the letter dated 21.12.77 he directed the accused appellant to hand over charge to PW 10. Letter Ext.P/44 is dated 23.12.77 and it was handed over to PW 1 at Maligaon. Further admitted fact was that accused was on leave from 23.12.77 to 15.1.78 which shows that no instruction was issued to the accused to hand over charge between 23.12.77 to 15.1.78 as he was on sick leave. Accused admitted that PW 1 asked him to hand over charge on 16.1.78, when he went to report his joining at Tinsukia. Therefore no fault can be imputed to the accused for not handing over charge from 17.12.77 to 22.12.77. This cannot be a strong circumstances to disbelieve the defence story. Further the strong suspicion about truthfulness of the accused lying sick from 21.11.77 and this can not be taken as a circumstances to show that plea of sickness was false. This suspicion was imputed to the accused on the basis of that the accused disbursed payment of bills Ext.P/28 and P/63 on 26.11.77 and 10.12.77 respectively i.e. during his sick leave. But materials on record shows that (Ext.P/28 exhibited by PW 1 established that) this exhibit along with receipt shows that there is an endorsement as "passed to Sadar Munsiff receipt No. 15/14 dated 26.11.77". Apparently the endorsement does not show who has made the endorsement and no signature put below the endorsement. On the other hand receipt No. 14/15 dated 16.11.77 shows that office of the Sadar Munsiff received the payment from Workshop Account Officer. Accused was not the Workshop Account Officer. This shows that the accused did not make the payment on the bill Ext.P/28 on 26.11.77. Hence no question of strong suspicion regarding sickness of the accused can be maintained. The relevant materials on record in this regard are evidence of PWs 7, 8,23 and 52 and Ext.P/58 and P/68. Evidence of PW 7 and 8 are belied by the evidence of PWs 23 and 52 who corroborated the defence stand that on those dates accused was not present in Ledo and made no payment this fact also finds corroboration in the statement of accused under section 313 CrPC. Evidence of PW 7 and 8 are belied by the evidence of PWs 23 and 52 who corroborated the defence stand that on those dates accused was not present in Ledo and made no payment this fact also finds corroboration in the statement of accused under section 313 CrPC. Accordingly mis circumstances cannot be taken into consideration against the accused/appellant. 13. From the defence stand the fact of theft as emerged, cannot be brushed as the Inspection Report dated 26.5.85 and the statement recorded under section 313 CrPC has made can be taken out as acase for reasonable probability in favour of the defence than the prosecution evidence. Preponderance of evidence may not be determined by the number of witnesses but by the greater weight of all evidences which does not necessarily mean the greater number of witnesses. 14. In the above discussion which was emerged from the facts that, the accused-appellant was as a public servant was entrusted with an account of money to make payment but after disbursing some amount, the appellant took sick leave and was absent for some period. Some amount (according to the accused about Rs.40,000/- and according to prosecution Rs.3 8,0007- and odd) left undisbursed which was left by the accused in the safe of strong room of his Beat No. 10. He locked the safe with the money. When he joined his duty after the sick leave he found the lock tampered and'the amount he left was missing from the safe. Inspection Repost dated 26.5.83 gave detailed description of the condition of the strong room which opined about the probability of enter ing small boy or thin person through the defective 'opening'. Matter was immediately reported to PW 1 and PW 10. This evidence have a probability about the missing of money which is of greater weight and convincing than the evidence which have opined by the prosecution. 14A. It is well settled principle of law that when the accused gives reasonable and probable explanation, it is for the prosecution to prove affirmatively, that the explanation is false. As stated above, it is not obligatory on the part of the accused to produce evidence to prove his defence; he can do so on the oral or documentary evidence relied by the prosecution. As stated above, it is not obligatory on the part of the accused to produce evidence to prove his defence; he can do so on the oral or documentary evidence relied by the prosecution. In that case Court required to probe and consider the materials relied upon by the defence instead of raising adverse against the accused. It is the Court who requires to probe the standard of preponderance of possibilities in favour of the accused as prosecution can not make out its case from weakness of the defence case. As it is found presence of petitioner on the dates alleged by prosecution was not sustainable from the evidence of PWs 23 and 52 Ext.P/28 and Ext.P/63. Further, from the evidence adduced by the prosecution whether from the conduct of the appellant strong circumstances that accused was avoiding inspection because he did not have the requisite money can be drawn to prove his intention of misappropriation. In this regard except evidence of PW 14 Inspector Cashier Shri TN Biswas, prosecution attempted to prove that a strong circumstances was found against the accused as .he was avoiding inspection of his cash from 18.11.77 to 20.11.77 by absenting himself, because he did not have requisite cash in his hand. Except oral evidence PW 14 no other evidence on record available which can be said be lead by the prosecution. This witness only came to verify the accounts. But evidence of PW 39 Shri RK Roy and documentary evidence, namely, Ext. 83 shows that the accused was present in the office and made payment of PW 39 Shri RK Roy vide Ext.P/83. In my view from the evidence of PW 4 regarding strong circumstances imputing intention of misappropriation is not sustainable and cannot be held that the explanation given by the accused was false. 15. As discussed above, the accused had been able to prove that explanation, given by him was both probable and reasonable judged by the standard of preponderance of probability. In Rabindra Kumar Dey vs. State of Orissa, (1977) CLTI 43 (SC), the Apex Court held that the Evidence Act does not contemplate that the accused should proved his case with the same strictness and rigour as the prosecution is required to prove a criminal charge. In Rabindra Kumar Dey vs. State of Orissa, (1977) CLTI 43 (SC), the Apex Court held that the Evidence Act does not contemplate that the accused should proved his case with the same strictness and rigour as the prosecution is required to prove a criminal charge. It is sufficient if the accused is able to prove his case by the standard of preponderance of possibilities as envised under section 5 of the Evidence Act, as a result of which he succeeds not because he prove his case to the point but because probability of the version given by him throws doubt on the prosecution case. Therefore prosecution can not be said to have established the case beyond reasonable doubt. That the mode of proof, by standard of benefit of doubt, is not applicable to the accused, where he is called upon to prove his case or prove the exceptions of IPC which he seeks to rely. That it is sufficient for the defence to give a version which competes in probability with the prosecution version, for that would be sufficient, to cast, suspicion on the prosecution case entailing its rejection by the Court. 16. From the above discussion, the finding regarding the misappropriation of Govt. money has to be considered. In AIR 1992 SC 1490 (Somnath vs. State of Rajasthan) the Apex Court held that: "There can be no doubt that before a public servant can be convicted of an offence under section 5 (1) (c) or under section 409, the property which is said to have been misappropriated must be entrusted to him. The word 'in any manner,' in the context are significant. The section does not provide that the entrustment of the property should be by someone or the amount received must be the property of the person on whose behalf it is received. As long as the accused is given possession of property for a specific purpose or to deal with it in a particular manner, the ownership being in some person, other than the accused, he can be said to be entrusted that property to be applied in accordance with the terms of entrustment and for the benefit of the owner. As long as the accused is given possession of property for a specific purpose or to deal with it in a particular manner, the ownership being in some person, other than the accused, he can be said to be entrusted that property to be applied in accordance with the terms of entrustment and for the benefit of the owner. The expression entrusted in section 409 is used in a wide sense and includes all cases in which proeprty is voluntarily handed over for a specific purpose and dishonestly disposed of contrary to the terms on which possession has been handed over. It may be that a person, the property is handed over may be an cogent of the person to whom it is entrusted, in which case, the agent comes into possession of it on behalf of his principal, fraudulently misappropriated the property. He is none the less guilty of crime to collect money on behalf of another is entrusted with it. A person authorise to collect money when the amounts are paid to him, and through the person paying may no longer have the propriety interest none-the less the person on whose behalf it was collected becomes the owner as soon as the amount is handed over to the person, so authorise to collect on his behalf. The full definition of the same under section 5 (1) (c) contains expressly a proposition as to a state of mind. The definition states that the act, i.e. misappropriation, conversion, or allowing any other person to do must have been done dishonestly or fraudulently. Every ingredient of the offence, is stated in the defamation itself. If the mental element is proved, to have been absent in any given case, the crime, as defined above, is not committed, looked at from another aspect, the offence having been fully defined, nothing amounts to that crime, which does not satisfy that definition, It would indeed be anomalous to held that while in the case of misappropriation and conversion, the section requires that it must be done either dishonestly, or fraudulently a person morally innocent of blame could be held vicariously liable for an assistants crime without there being a dishonest or fraudulent mind."(Chatterjee vs. State of Bihar, AIR 1959 Patna 311). "It is not necessary, in every case to prove in what precise manner the accused has dealt with appropriated the goods of his manner. "It is not necessary, in every case to prove in what precise manner the accused has dealt with appropriated the goods of his manner. The question is one of intention and not a matter of direct proof, but giving a false account of what he was done with the goods received by him may be treated as a strong circumstance against the accused. In the case of servant charged with misappropriation of goods of the master, the element of criminal offence of misappropriation will be established if the petitioner proves that the servant received the goods, that he was under the duty to account to his master and had not done so. If the failure to account due to an.- accidental loss, then the facts being within the servant's knowledge, it is for him to explain the loss. If these facts are within his knowledge then he has to prove them. Of course proprietor has to establish a prima-facie case in the first instance. It is not enough to establish facts which give rise to a suspicion, then by reason of section 106 Evidence Act, to throw onus on him to prove his innocence. To establish criminal breach of trust, the proprietor is not obliged to precise mode of misappropriation of the property enstrusted to the accused. The principal ingredients of the offence being dishonest misappropriate entrustment of the property and failure, in breach of an obligation, to account for property entrusted, if proved, may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation. Conviction of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the property entrusted to him, even when a duty is imposed on him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an inference of misappropriation with dissentient may readily be made. (Jaikishna Das Monohardas Deoni vs. State of Bombay, AIR 1960 SC 889 )." 17. Mr. DK Hazarika, learned Special Public Prosecutor has relied his submission pointing the statement of accused recorded under section 313 CrPC supporting the impunged judgment. Mr. (Jaikishna Das Monohardas Deoni vs. State of Bombay, AIR 1960 SC 889 )." 17. Mr. DK Hazarika, learned Special Public Prosecutor has relied his submission pointing the statement of accused recorded under section 313 CrPC supporting the impunged judgment. Mr. Hazarika has argued that the provisions in section 313 CrPC intend to secure to the accused an opportunity to explain the evidence against him, and therefore, to benefit the accused and not to operate as to his detriment. It is further submitted that the principle is that before the damaging points in the prosecution evidence are used against the accused for determining his guilt, his pointed attention should be drawn to them one by one in order to afford him opportunity of giving explanation; that from his statement recorded under section 313 CrPC the allegation of misappropriation has been proved, that explanation regarding theft is afterthought which other materials on record accused the circumstances proved otherwise. That both oral and documentary evidence and the strong circumstances has established the prosecution case beyond reasonable doubt. From my discussion, I constrained to hold that the explanation given under section 313 CrPC are sufficient to raise doubt about the intention of misappropriation, as other related requirements also, such as, use of the money for his own use could not be established. Investigation also could not establish that the misappropriated amount was used in his construction of house or in any other way for his personal gain. The evidence appearing against him regarding misappropriation has been explained by the accused. The amount alleged to be misappropriated found missing and the lock was found tampered. The materials on record also corroborates the situations and position of the strong room where possibility of theft can not be ruled out. In that view of the matter, the submission of Mr.Hazarika that owing to the admission of the guilt as disclosed in the statement under section 313 CrPC the accused can be convicted on his own plea. Allegation of misappropriation has been denied by the accused in his statement with a cogent explanation. A case in this nature has to be seen in the totality and it is not safe to presume something and lead the consideration in that line without giving an eye to the other aspect of the total circumstances. 18. Allegation of misappropriation has been denied by the accused in his statement with a cogent explanation. A case in this nature has to be seen in the totality and it is not safe to presume something and lead the consideration in that line without giving an eye to the other aspect of the total circumstances. 18. Considering the totality of the materials on record, I constrained to hold that prosecution failed to. bring home the charge under section 409 IPC and section 5 (1) (c) read with section 5 (2) PC Act. 19. His omission to non deposit of remaining undisbursed amount to the authority concerned cannot be imputed as intentional omission as an omission not only should be non-action to be intentional, it should be illegal. As casual in advertence of duty may lead to loss of property, for that appropriate alternative action is available against a person to the authority. Money was entrusted to the accused, but his act has neither resulted in wrongful gain to him nor has he acted dishonestly, as from the evidence on record it is established that he cannot be convicted for criminal breach of trust. Negligence on the part of accused cannot be ruled out, as he must have been caution about keeping the remaining amount of money in the safe, when it was shown that the safe in the strong room was not safe for keeping money like that. But negligence on the part of a person in the performance of his duties would not warrant a conclusion of his guilty mind. 20. From the above discussion, even the statement of some witnesses are taken at their face value, they do not satisfy the ingredients of section 409 IPC and section 5 (2) read with section 5 (1) (c). Prosecution could not bring home the offence of misappropriation beyond reasonable doubt. From the evidence on record it can not be concluded that the strong circumstance proves the offence of misappropriation as evidences only levelled allegation in general terms. 21. In view of the reasons discussed above, I acquit the accused on benefit of doubt under section 409 IPC and section 5 (2) read with section 5(1) (c) PC Act. 22. In the result the appeal is allowed.