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2004 DIGILAW 363 (JK)

Krishan Ji Braroo v. State Of J. &K.

2004-12-23

HAKIM IMTIYAZ HUSSAIN

body2004
1. This criminal appeal is directed against the judgment and sentence passed by Special Judge Anti-Corruption Kashmir (for short the Court) on 15.12.1997 in file No. 8 of 1981 titled State v. Krishanji Braroo & Ors. 2. Vigilance Organization Kashmir (VOK) in (FIR 1/81) filed a challan before the court on 9.5.1981 against Abdul Majid Kakroo Accounts Officer, Mehraj-ud-din Sr. Accountant, Krishanji Braroo cashier Sheep Husbandary Department, Gh. Qadir Treasury Officer, Gayas-ud-din Superintendent and Ashok Kumar auditor Sadder Treasury, Srinagar for offences under sections 5(2) of Prevention of Corruption Act 2006, 409,420,467,109,477-A and 120-B RPC. 3. The prosecution case before the court was that the above mentioned accused persons by misuse of their official position and by employing the corrupt means entered into a criminal conspiracy and fraudulently and dishonestly withdrew from Sadder Treasury, Srinagar an amount of Rs. 8000/- in the year 1976 and misappropriated it. It was alleged that in furtherance of the conspiracy these accused persons committed the following omissions and commissions: -- A/ A bill for Rs. 9253/- was prepared by Krishanji Braroo, initialed by Mehraj-ud-din Sr. Accountant and signed by Ab. Majid Kakroo Accounts Officer Sheep Husbandary Department. The bill was drawn from Sadder Treasury, Srinagar by Krishanji Braroo cashier on 5.7.1976 after erasing and inserting entries in the bill and the drawal register; B/ Out of the amount of Rs. 9253/- so drawn by the said persons from the treasury only an amount of Rs. 1253/- was accounted for in the relevant account book. C/ The balance amount of Rs. 8000/- was misappropriated by the aforesaid accused persons in furtherance of the criminal conspiracy. 4. The court at the preliminary stage discharged accused Abdul Majid Kakroo Accounts Officer and Mehraj-ud-din Sr. Accounts Officer by means of order dated 26.12.1984 on the ground that there was no material on record even to prima-facie raise suspicion of involvement of these two accused persons either in the criminal conspiracy or in the misappropriation of amount by misuse of official position. 5. The remaining accused persons namely Krishanji Braroo, Gh. Qadir, Gays-ud-din and Ashok Kumar were charge sheeted under sections 5(2) of P.C. Act,2006,409,420,467,476,477-A,109 & 120-B RPC. The charge was read over and explained to the accused but they pleaded not guilty. 6. The prosecution examined 9 out of 10 listed witnesses namely B.N.Raina, Mohd. Shafi Sheikh, Chaman Lal Mattas, Sheikh Munir Akhter, M.L.Koul, A.N.Dhar, R.L.Dhar, Ab. Qadir, Gays-ud-din and Ashok Kumar were charge sheeted under sections 5(2) of P.C. Act,2006,409,420,467,476,477-A,109 & 120-B RPC. The charge was read over and explained to the accused but they pleaded not guilty. 6. The prosecution examined 9 out of 10 listed witnesses namely B.N.Raina, Mohd. Shafi Sheikh, Chaman Lal Mattas, Sheikh Munir Akhter, M.L.Koul, A.N.Dhar, R.L.Dhar, Ab. Hamid and P.N.Gunjoo and also placed on file the original bill against which the amount was allegedly drawn from the treasury and also other documents like seizure memos and report of the chemical examiner. 7. The statements of the accused under section 342 Cr.P.C were recorded on 11.7.1995. The accused denied to have committed any offence and examined one witness namely Farooq Ahmed Hakim in defence. 8. After considering the evidence on record and hearing the parties the Court found that there was no evidence on record against the accused 2 to 4, they were accordingly acquitted from the charge. The Court observed as under: -- "So far as the accused No. 2,3 and 4 are concerned they belong to treasury and are involved in the case by dint of Section 120-B RPC. For involvement of a person for having entered into a criminal conspiracy, it has to be proved that there has been agreement, meeting of minds of the accused to do an illegal act. The agreement is gist of the offence, it is settled position of law that the conspiracy is often hatched up is secrecy and cannot be proved by direct evidence. It has to be inferred from the acts statements and the conduct of the parties to the conspiracy. In order to constitute a general conspiracy there must be common design and a common intention arised as to whether there are circumstances, grounds or whether it can be inferred that the treasury employees had connived or not. The inference as can be drawn in the circumstances of the case suggest undoubtedly that treasury officials are not party to the crime for the reasons to follow." 9. Regarding accused Krishanji Braroo the Court found that the offences punishable under sections 420,409,467,477-A RPC and 5(2) of P.C Act stand proved against him. The Court accordingly convicted him under these offences and sentenced to two years rigorous imprisonment and fine to the extent of Rs. 1000/- in default rigorous imprisonment for one month, in each of the offences. Regarding accused Krishanji Braroo the Court found that the offences punishable under sections 420,409,467,477-A RPC and 5(2) of P.C Act stand proved against him. The Court accordingly convicted him under these offences and sentenced to two years rigorous imprisonment and fine to the extent of Rs. 1000/- in default rigorous imprisonment for one month, in each of the offences. The Court found that since the accused was facing onslaught since 1978 a lenient view in awarding the sentence required to be taken. The Court observed as under:- "In the final analysis of the case, in the circumstances and the position of law as well as the evidence, I have reached to a firm and to a confident conclusion that the offences punishable U/s 420-409-467-477-A RPC and 5(2) P.C. Act has been committed by the accused K. Braroo, So, he is convicted as such for having committed said offences. Whereas rest of the accused are acquitted. 10. Now coming on to the quantum of sentence. While awarding the sentences the circumstance and the position of the case cannot lost site of. From 1978 accused has been facing the onslaught, so now nearly two decades have lapsed. This long pendance which is contributed by the circumstances as are detailed in the file and is clearly depicted by the interim orders recorded on the file. In short was beyond the control. In view of this I propose to take a lenient view while awarding sentence. As such accused for the commission of offence punishable U/s 420 RPC is sentenced to two years rigorous imprisonment and fine to the extent of Rs.1000/- in default further on one months rigorous imprisonment. For commission of offence punishable U/s 467 he is sentenced to rigorous imprisonment of two years and fine of Rs.1000/- in default to further rigorous imprisonment for one month. For the commission of offence punishable U/s 5(2) P.C. Act, he is sentenced to two years rigorous imprisonment and fine to the extent of Rs. 1000/- in default further rigorous imprisonment for one month. For Commission of offences punishable U/s 409 he is sentenced to 2 years rigorous imprisonment and fine to the tune of Rs. 1000, in default to further rigorous imprisonment of one month. Substantive sentences of imprisonment shall run concurrently alongwith sentence passed on FIR 11/78. 1000/- in default further rigorous imprisonment for one month. For Commission of offences punishable U/s 409 he is sentenced to 2 years rigorous imprisonment and fine to the tune of Rs. 1000, in default to further rigorous imprisonment of one month. Substantive sentences of imprisonment shall run concurrently alongwith sentence passed on FIR 11/78. The seized records shall be returned back to the concerned against the proper receipt through CPO (VOK) only after the period of appeal is over." 11. Aggrieved by the said judgment awarding conviction and imposing sentence, accused Krishanji Braroo has filed the present appeal on various grounds. It is alleged that the trial court has not appreciated the statement of witnesses in its right perspective and that the Court has relied mostly on the statements given by them in their examination in chief. It is also alleged that sanction for prosecution was not in accordance with law as such the trial of the case is without jurisdiction. It has further been pleaded that along with accused four more persons were arrayed accused in the case, but all other accused persons have been acquitted so the appellant-accused cannot be convicted for the offences which is alleged to have been committed in conspiracy with other accused persons. The appellant has further stated in the memorandum of appeal that the ingredients of the offences U/s 420, 409, 467, 477-A of R.P.C and 5(2) of P.C. Act are not made out from the prosecution evidence hence the conviction based on this evidence is not proper at all. The appellant has also felt aggrieved of the fact that his defence has not been considered in its right perspective by the Ld. trial Court and the same has been rejected without assigning any cogent reasons. According to the appellant there are two stories and the one projected by him is more plausible as such the benefit of doubt should have been given to him by extending his theory as correct. 12. Heard. Considered. The charge against the accused framed on 26.12.1984 reads as under:- "That you in the capacity of Cashier, Sheep Husbandry Department, Srinagar in the year 1976 by employing corrupt and illegal means and also by misusing official position entered into criminal conspiracy with Ghulam Qadir Treasury Officer. Gias-ud-din Supdt. 12. Heard. Considered. The charge against the accused framed on 26.12.1984 reads as under:- "That you in the capacity of Cashier, Sheep Husbandry Department, Srinagar in the year 1976 by employing corrupt and illegal means and also by misusing official position entered into criminal conspiracy with Ghulam Qadir Treasury Officer. Gias-ud-din Supdt. And Ashok Kumar Auditor of Saddar Treasury, Srinagar with intend to cheat and defraud the State Exchequer and in pursuance of the said conspiracy you effected erasures and interpolations in the bill initially prepared for Rs. 1253/- and converted it into an amount of Rs. 9253/- and drew and amount of Rs. 9253/- on 5.7.1976 out of which an amount of Rs. 8000/- was misappropriated by you in collusion with the aforesaid accused." 13. The prosecution case is that in the year 1976 the accused was working as cashier in the Sheep Husbandry Department Srinagar. During the investigation of case FIR No. 11/78 it was found that the accused had prepared a bill for an amount of Rs. 1,253/- for 300 ltrs. of petrol. After preparation of the bill the accused erased and interpolated it, prepared it for 2350 ltrs. of petrol and instead of drawing Rs. 1,253/- withdrew Rs. 9253/- from the Sadder Treasury. The bill was payable to Government Transport Undertaking Srinagar against the cost of petrol for use in Govt. Jeep No. JKP 5163. The accused remitted only Rs. 1,253/- to the concerned department and fraudulently retained Rs. 8000/- and misappropriated the same. 14. That the accused was working as cashier in the department in the year 1976 and that he prepared the bill and presented it on 5.7.1976 before Sadder Treasury to draw an amount of Rs. 9253/- as costs of petrol is established by the prosecution evidence. This fact is also admitted by the accused in his statement U/s 342 Cr.P.C recorded on 11.7.1995. The accused has admitted that he withdrew the amount from the treasury as a cost of Rs. 2350 ltrs. of petrol on the said date. He has however taken the stand that after the amount was withdrawn from the treasury he handed over the money to the concerned authorities and that he has acted under the instructions of the DDO and other superior officers. He has denied to have misappropriated any amount and has pleaded that the disbursement certificate has been duly recorded on the contingent register. 15. He has denied to have misappropriated any amount and has pleaded that the disbursement certificate has been duly recorded on the contingent register. 15. The Court has on consideration of the evidence of the prosecution come to the conclusion that the bill was prepared for its presentation before the treasury for drawl of money as costs of Rs. 350/- ltrs. of petrol but the bill after its preparation was interpolated and the figure 350 was converted into 2350. Similarly the Court has found that the bill was originally for Rs. 1,253/- but by interpolation it was made for 9253/- and thus an amount of Rs. 9253/- has been withdrawn from the treasury out of which an amount of Rs. 8000/- has been misappropriated. The trial Court has further found that it is the cashier Krishanji Braroo who has committed the crime. In this behalf the trial court observed as under:- "It is also a fact proved by witness namely Ab. Hamid who was the manager SRTC who on un-equivocal terms stated that SHDS used to take the fuel (petrol) from the, but however, no sub-voucher can be issued on credit basis. The sub-voucher could be issued only when payment was made not before that. So, very simple SHDS required the petrol. So, he could not obtain the vouchers before drawing the amount from the treasury. It is also established that it has been the practice of the deptt; of SHDS that they have been obtaining fuel thereafter making the payments. So, clearly indicates that they have been drawing the amounts from the treasury in advance. The investigating officer too has not bothered to look into this aspect as to whether the SHDS had drawn any amount in advance for meeting the fuel expenditures for the obvious reason of implicating the treasury employees. Investigation means investigation which unearths the reality. One fails to understand as to why this aspect of the case has not been looked into during investigation. Investigation means investigation which unearths the reality. One fails to understand as to why this aspect of the case has not been looked into during investigation. In the circumstances of the case, it is settled that the SHDS had no option but to draw the advance amounts for meeting the petrol expenditure and in clear terms the quantity of the petrol expenditure and in clear terms the quantity of the petrol has been reflected in body of the bill, though later on same has been interpolated but the objection and purpose of the rule 7.18 (I) has been satisfied. Under these circumstances and in view of this legal position passing of the bill in absence of the sub-voucher is not a criminal act at all. It is a fact and is proved by the circumstances, evidences and can also be safely inferred that crime has committed. Rs. 8000/- have been misappropriated, but now the question is who had done it. In my considered opinion it is the Cashier Krishanji Braroo who is kingpin, a skillful criminal who has prepared the bill and drawl register in a motivated skilful manner which is exposed by the following circumstances. Bill prepared for Rs. 1253/- for meting the petrol expenses and the quantity of the petrol reflected as 350 litres. It is the entry of 350 litres which has been interpolated and converted into Rs. 2350 by adding "2" at thousand place by the same person who had written the earlier body of the bill. It becomes the original writing absolutely impossible for the third person to observe the same. In the bill amount Rs. 1253/- at thousand place figure `1 a curve has been added and converted into `9 which too is a original writing. In the word side `one has been written skillfully and has been easily converted into `nine again is an original writing, because the person is the same who has written `1 and has then converted into `9. There is an expert evidence to his effect while ignoring the bill, the expert witness stated that the original figure at existing figure 9 at thousand place of the bill reads figure `1 and the digit 9253 that is the original figure at thousand place was1. There is an expert evidence to his effect while ignoring the bill, the expert witness stated that the original figure at existing figure 9 at thousand place of the bill reads figure `1 and the digit 9253 that is the original figure at thousand place was1. Accordingly witness has stated that in the word side, the word `one at the existing word `nine is found i.e. when the original writing is deciphered word `one becomes evident fat existing word `nine. Further more witness has also opined about the writings which is proved to be the hand writing of K.J. Braroo. The supporting documents i.e. drawal register which carries the entries of this amount under ultra violet rays examination has been found that the writings have been chemically erased. So, the original writing could not dec phered. The chemical eraser has been used for removing the original writing and the writing has been proved to be that of the krishenji Braroo. Had the bill been originally prepared for Rs. 9253/- then there was no question of effecting interpolation or additions, because bill has originated form the SHDS. If bill had been for the full amount so many questions would have arisen. This situation exposed the fraudulent and criminal act of accused Braroo. Because after obtaining the signatures on the bill of the DDO and Senior Accountant, he has changed the entries both in drawal register as well as in the bill. So, has completely cheated not only his superior officers, but also the treasury people. It is worthwhile to mention and note that in drawal register after chemically erasing the writing amount against is shown as Rs. 1253. This means when he had produce the drawal in support of the bill in the treasury, he had converted Rs. 1253 into 9253 and thereafter after drawal and its verification has converted in back into its position i.e. Rs. 1253. It can be safely inferred because expert R.L.Dhar in his statement has stated that writing in the drawal register have been chemically erased and the original writing can not be deciphered, because originals entry was Rs. 1253 then converted into 9253 then again it has been converted into Rs. 1253 which amply show as to how both treasury employees as well as the DDO have been cheated. 1253 then converted into 9253 then again it has been converted into Rs. 1253 which amply show as to how both treasury employees as well as the DDO have been cheated. This situation is also supported by the circumstances i.e. entries as are reflects in cash and contingent register. N cashbook on receipt side Rs. 1253 are shown to have been drawn and on disbursement side same amount has been shown to be disbursed which infact was the actual claim. Similarly in contingent register same amount has been shown i.e. Rs. 1253. This has been amply proved . The entry to the effect in cashbook is in cashbook No. 4 at page No. 23 and page No. 31 item No. 22 in contingent register No. 13 page 65". 16. While coming to this conclusion the trial Court has mainly relied upon the original bill which is duly proved and exhibited and also on the statement of PW R.L. Dhar. 17. A naked eye observation of the bill shows that there is interpolation in both the figures i.e. 2350 ltrs. of petrol and Rs. 9253/- i.e. the amount which has been drawn from the treasury against the bill. PW R.L.Dhar, on whose statement the trial Court has relied is the Assistant Director Documents posted in Police Training College, Udhampur. He has stated that he examined the bill EXFWC representing treasury voucher. No. 148 dated 5.7.1976. According to the witness the "figure 2350 in the red enclosed portion mark Q, existing figure `5 when deciphered eninfrared reads `0 in place of `5". The witness has further stated that existing figure Rs. 9253/- was originally Rs. 1,253/- which has been made to be Rs. 9253/-. From this evidence it, therefore, stands established, as rightly held by the trial court that interpolation both in the figures of 300 ltrs. of petrol and Rs. 1253/- has been effected in the bill. 18. In view of this evidence statement of another prosecution witness namely PW Chaman Lal Mattas assumes importance. He was posted as the accounts clerk in the department of Sheep Husbandry on the relevant date. He states that he worked there from 1969 to May 1977. He has stated that the accused Krishanji Braroo as cashier used to prepare bills and maintain Cashbook, Contingent Register, and T.A. Acquittance Roll and Drawl Register. He was posted as the accounts clerk in the department of Sheep Husbandry on the relevant date. He states that he worked there from 1969 to May 1977. He has stated that the accused Krishanji Braroo as cashier used to prepare bills and maintain Cashbook, Contingent Register, and T.A. Acquittance Roll and Drawl Register. Krishanji Braroo in token of bill prepared by him and passed by drawing officer, used to get the cash from treasury after presenting the bills in the treasury. The witness has further stated that the cash received from the treasury in respect of the bill was disbursed by accused Krishanji Braroo and entries to that effect used to be made by the said accused in the drawl register and the cashbook. The contingent register prepared in the Department by the cashier Krishanji Braroo contained the details of the particular items for which the cash was to be withdrawn. The Register would also show details of the sub-vouchers. The witness has further stated that the bill appended with the file was seen by him and the same has been prepared by K.J. Braroo accused and the amount of the bill might have been received by the accused K.J. Braroo. He identifies the initials of K.J. Braroo on the file under the seal and signature of Accounts Officer SHDs. The initials identified by the witness on this file stand exhibited as EXPWCI-C2-C3-C4 and C5. He identified the initials of K.J. Braroo under the seal of Director SHDS. He has also identified the handwriting of Bararoo on the bill. According to the witness the amount of bill of Rs. 9253/- has been received by K.J.Bararoo and the amount represents cost of 2350 litres of petrol at the rate of Rs. 3.58 per ltr. According to the witness the bill is recorded in the cashbook on page 23 at S.No. 8 and the amount shown in the cashbook with respect to the said bill is Rs. 1253/- and that this cashbook has been prepared by K.J. Braroo. He has identified the signatures against the said entry in the cashbook. Amount of Rs. 1253/- has been disbursed by Braroo on 18.9.1976 as per details recorded on page 31 at S.No. 22 of the cashbook. The said entries are in the handwriting of K.J.Braroo. 19. 1253/- and that this cashbook has been prepared by K.J. Braroo. He has identified the signatures against the said entry in the cashbook. Amount of Rs. 1253/- has been disbursed by Braroo on 18.9.1976 as per details recorded on page 31 at S.No. 22 of the cashbook. The said entries are in the handwriting of K.J.Braroo. 19. All these circumstances establish the prosecution case that being the cashier of the department the accused was in charge of the accounts ledgers and that it was he who used to prepare the bills, present the same before the treasury, draw the money from the treasury and disburse it in accordance with the requirements. As said above there is however, no dispute on these facts. What is vehemently denied by the accused is the misappropriation of Rs. 8000/- as according to the accused he handed over the same to the concerned superior officers and has accounted for it in the Account ledger. There is, however, no mention in his statement of the name of the person to whom he handed it over nor has he said where the amount was spent by him or by the person to whom he handed over the amount. The fact that he accounted for this amount in the accounts record is also not proved as he could not show any such relevant record which carries the entries of this amount. On the other hand the Cash Book shows entry relating to Rs. 1253/- only. Thus there is no plausible explanation from the accused as to where he kept the remaining amount of Rs. 8000/-. If he withdrew the whole amount as petrol charges why did he, as per his own assertions remitted only Rs. 1253/- to the concerned department as costs of petrol and why he did not remit the amount of Rs. 8000/- along with the said amount to the said department, has not been explained by him. The trial Court has in this behalf observed as under:- "So far as the preparation of the bill, withdrawal of the amount in total and accounting for to that extent of Rs. 1253 are concerned, same is not disputed. All that is disputed is Rs. 8000/- for which Braroo had to account for, but the explanation tendered by him is neither plausible nor in any way acceptable. 1253 are concerned, same is not disputed. All that is disputed is Rs. 8000/- for which Braroo had to account for, but the explanation tendered by him is neither plausible nor in any way acceptable. Reflection of the amount in A.C. roll which is said to have not been seized, in my opinion is lost-ditch effort to foil the operation of law but the clutches of law are so rigour which when violated becomes more rigour. It is quite astonishing to note that the explanation has been tendered as a pretext for thwarting the process of law. The procedure settled as known as also referred to hereinabove reveals that the amount of Rs. 8000/- could not be reflected in A.C. roll in any way nor same could be explained by the accused excepting for this that he was directed by the superior officers to do it which on the face of it appears to be devoid of truth, because it is the Braroo who had prepared the bill as is born by the records for Rs. 1253 and later converted the same into 9253/-. What not can be expected from him." 20. From the evidence on record both documentary as well as oral and also from the statement of the accused it is, therefore, established that the accused withdrew the amount from the treasury but he accounted for Rs. 1253/- only and rest of the amount was retained by him. It is not explained by the accused as to where he kept Rs. 8000/-, the only inference is that he has misappropriated it. There are certain circumstances which point to the fact that the accused has withdrawn the amount of Rs. 9253/- fraudulently from the treasury. If the version put-forth by the accused and the bill prepared by him is taken as correct the cost of 2350 ltrs. of petrol @ 3.58 per ltr. comes to Rs. 8413/- only. Why the accused prepared the bill for Rs. 9253/- is not properly explained. When this question was put to the accused by the Court in his statement U/s 342 Cr.P.C. he said that it has been done due to over-sight. If it was due to over-sight then why he did not remit the remaining amount back to the treasury. All these facts point out to the guilt of the accused. When this question was put to the accused by the Court in his statement U/s 342 Cr.P.C. he said that it has been done due to over-sight. If it was due to over-sight then why he did not remit the remaining amount back to the treasury. All these facts point out to the guilt of the accused. The bill has admittedly been presented and its amount withdrawn by the accused. By admitting that he prepared the bill and withdrew the amount from the treasury and by taking the stand that he handed over the money to his superior officers, the accused wants the court to believe that he withdrew the amount in the normal course of his duty and that there was no fraud in it but he could not explain the prosecution evidence that the amount was withdrawn after effecting interpolation. The fact that after withdrawing the amount, the accused did not reflect it in the relevant registers also points out to the criminal intention of the accused. 21. Two main objections were raised by the Ld. Defence counsel on the finding of the trial court on these issues. The Ld. Counsel would argue that in the case of misappropriation it is the duty of the prosecution to establish the fact that the accused has misappropriated the money entrusted to him. According to the Ld. Counsel the prosecution has failed in the present case to establish the ingredient of misappropriation by the accused. No doubt the accused withdrew the money from the treasury but that Rs. 8000/- were misappropriated has not been satisfactorily proved by the prosecution. According to the Ld. Counsel the best evidence would have been the annual audit report or the statement to show that the money to the tune of Rs. 8000/- at the close of the year were found deficit from the budget. There is no evidence according to the Ld. Counsel on record to show that any audit was done or that if any audit was conducted any such misappropriation was found nor is there any report of the concerned authority that at the close of the year an amount of Rs. 8000/- was found deficit from the budget. 22. According to the Ld. Counsel on record to show that any audit was done or that if any audit was conducted any such misappropriation was found nor is there any report of the concerned authority that at the close of the year an amount of Rs. 8000/- was found deficit from the budget. 22. According to the Ld. Counsel since there was no evidence on file regarding the misappropriation, the question relating the same should not have been put to the accused U/s 342 Cr.P.C and putting reliance on the reply of the accused to such question was not proper at all. In this behalf he has cited Jiwan Dass v. State of Haryana 1999 SAR (Criminal) 224, where the Apex Court held that in a prosecution for offence of criminal breach of trust if there is absence of legal and independent evidence with regard to entrustment, then it would be proper either to put a question with regard to the entrustment to the accused or if put and an answer is obtained, partially admitting entrustment, the same does not establish the case of entrustment. 23. I find the argument advanced by the Ld. Counsel devoid of any merit and that the authority relied upon was not applicable to the facts and circumstances of the present case as the facts are clearly distinguishable from the one cited by the Ld. Counsel. Rather the authority, if read between the lines goes against the very stand taken by the accused in the present case. 24. Since there is prosecution evidence that the accused was working at the relevant time as cashier in the department and he prepared the bill and presented it before the treasury and withdrew money from the treasury, the court was justified in putting these facts to the accused. The court has rightly put the circumstances to the accused while examining him under U/s 342 Cr.P.C. and the accused has frankly conceded that he withdrew the money from the treasury. 25. The purpose of asking questions during examination under section 342 Cr.P.C is to afford the accused personally an opportunity of explaining any incriminating circumstance so appearing in evidence against him. Under section 342 (3) Cr.P.C the answers given by the accused are to be taken into consideration in the inquiry of trial, particularly in cases resting on circumstantial evidence. 25. The purpose of asking questions during examination under section 342 Cr.P.C is to afford the accused personally an opportunity of explaining any incriminating circumstance so appearing in evidence against him. Under section 342 (3) Cr.P.C the answers given by the accused are to be taken into consideration in the inquiry of trial, particularly in cases resting on circumstantial evidence. There was at one point of time some controversy whether the statement of the accused can be accepted in part and rejected in part. This situation arose where a part of the statement was inculpatory and a part of the statement was exculpatory. In Narian Singh v. State of Punjab (1963) 3 SCR 678 it was held by the Apex Court that it is not open to the Court to dissect the statement and to pick out a part of the statement which may be in criminative, and then to examine whether the explanation furnished by the accused for his conduct is supported by the evidence on the record. If the accused admits to have done an act which would but for the explanation furnished by him be an offence, the admission cannot be used against him divorced from the explanation. The question again figured before the Court in Nishi Kant Jha v. State of Bihar AIR 1969 SC 422, wherein the Court held that the Court may rely on a portion of the statement of the accused and find him guilt in consideration of the other evidence against him led by the prosecution. The ratio of these cases was again examined in Sampat Singh v. State of Rajasthan AIR 1969 SC 956, it was observed that it is permissible for the Court to rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution. In Mohan Singh v. Prem Singh (2002) 10 SCC 236, the Apex Court went to the extent of laying down that even only inculpatory part of the statement of the accused can be relied upon if the exculpatory part is found to be false on the basis of the evidence led by the prosecution. The Court thus held that the statement of the accused, though not a substantive piece of evidence, can be used for appreciating evidence of the prosecution. 26. The Court thus held that the statement of the accused, though not a substantive piece of evidence, can be used for appreciating evidence of the prosecution. 26. In view of this legal position, the irresistible conclusion is that once the accused admitted withdrawing of money from the treasury the burden to show as to how he withdrew the amount on interpolated bills and where he kept the money after withdrawing it lies on him. If he fails to explain it, the inference is that he withdrew it fraudulently and misappropriated it. In the same authority cited by the Ld. Defence counsel it was observed by the Apex Court as under:- "Necessary elements constituted in the offence must be strictly proved by the prosecution. It is true prosecution need not prove the actual mode of misappropriation once entrustment of or dominion over the property is established, then it would be for the accused to explain as to how the property was dealt with." (emphasis supplied) 27. It was next argued by Ld. Counsel that the trial Court has relied upon the statement of the accused before the departmental enquiry committee and has used the same to base the conviction of the accused. It is the case of the prosecution that after the illegalities and irregularities committed by the accused came to lime light a departmental enquiry was conducted in which the accused admitted to have misappropriated the amount. The circumstance has been used by the trial court as evidence against the accused and it has been observed that from the enquiry report also the offence against the accused was established. The court observed as under: - "Apart from the aforesaid position of the case as detailed, one more position cannot be lost site of that concerns the enquiry as has been conducted by the deptt. The statement made by the accused Braroo over which signatures are proved stand marked as EXPWD2, the said statement show that Braroo had accepted to make the repayments. In letter marked as EXPWD/3 it has been addressed by SHDS to Krishanji Braroo, wherein it was mentioned that further embezzled amounts and K.J. Braroo has been asked to make the repayment of the installments. In EXPWD4 which is a typed letter addressed to Dy. In letter marked as EXPWD/3 it has been addressed by SHDS to Krishanji Braroo, wherein it was mentioned that further embezzled amounts and K.J. Braroo has been asked to make the repayment of the installments. In EXPWD4 which is a typed letter addressed to Dy. Director SHDS by Braroo to the effect that the statement made by him earlier was taken when he was in frustration and in abnormal condition, but it is added in the letter that he proposes to draw a fresh schedule of repayments and submits the same for consideration of the enquiry committee. In letter marked as EXPWD/5 which has been addressed to K.J. Braroo by Dy. Director SHDS which was in reply to letter dated 17.10.1979 9EXPWD4) in which it was conveyed to Braroo that "in case you feel that you cannot keep to the original schedule of the repayment, the committee would like to know how you plan to repay it." The report of the Enquiry committee which stand marked as EXPWD/6, same has been furnished by the Enquiry committee comprising of G.N. Wani and Mr. Fotehdar wherein it is mentioned that the cashier (Braroo) did not keep up his schedule of repayments. He in his letter dated 17.10.77 suggested to draw a fresh Schedule after payments, but later vide his letter dated 25.10.1977, he retracted from his earlier statement. Finally committee recommended that the case be dealt with under law. In view of these circumstances it becomes amply clear that it is K.J. Braroo alone and alone who is responsible for the embezzlement. It may be safely inferred that the Braroo had no accomplice or support from any other person. Also emerges that Braroo has been interpolating the entries periodically after the bill were originally passed for original amount by the DDO. He has also made mention of the reasons which had compelled him to do the wrong i.e. his wife and father were ill. Wife was taken to AIMS, his father was also operated at Chandigarh and when caught finally accepted to return the amounts as per schedule. The detail of which is given in the letters above referred i.e. EXPWD2 to EXPWD6." 28. According to the Ld. Wife was taken to AIMS, his father was also operated at Chandigarh and when caught finally accepted to return the amounts as per schedule. The detail of which is given in the letters above referred i.e. EXPWD2 to EXPWD6." 28. According to the Ld. Defence counsel the Court was not justified in relying on this evidence as the contents of the report on which reliance has been made is not proved before the Court but only the signatures of the officers who conducted the enquiry have been proved. I find weight in the submissions of Ld. Defence counsel. The original report is not on file nor have its contents been legally proved. This piece of evidence, if at all it was evidence against the accused, should not have been made basis for the conviction. Otherwise also it was not proper for the court to take into consideration this circumstance as it was not put to the accused U/s 342 Cr. P.C. nor any explanation was sought from him on it. But I find that even after ignoring this part of the evidence and the observation of the Ld. Court on it, there is otherwise sufficient material on record which establishes guilt of the accused. 29. The argument of the Ld. defence counsel that no deficit was found in the budget of the department at the close of the year is also without any substance as in view of the Codal Provisions and also the financial procedure it is not possible for the departments to deduct deficit at the end of the year. Money for expenditure comes from the treasury and not from that particular department where only the record is maintained, so deduction of fraud is possible only through checking of record and not from any deficit. 30. From all these circumstances I find that the offences have been established beyond any shadow of doubt against the accused. The trial Courts findings are based on sufficient evidence and material on file. I could not find any discrepancy, contradiction or shortcoming in the prosecution case which could have persuaded me to take a different view from the one taken by the trail Court. The trial Courts order is well reasoned and based on sufficient material and I find no ground to interfere with it. 31. I could not find any discrepancy, contradiction or shortcoming in the prosecution case which could have persuaded me to take a different view from the one taken by the trail Court. The trial Courts order is well reasoned and based on sufficient material and I find no ground to interfere with it. 31. These facts having been proved by the prosecution, we will now see as to whether the ingredients of the offences under which the accused has been convicted in the case are made out from the facts. 32. The accused has been convicted by the Court for offences 409,420,467,477-A RPC and 5(2) of P.C. Act. So far offences under sections 409 RPC is concerned I find the same is not made out from the facts and circumstances of the case. Section 409 deals with criminal breach of trust by public servant. It provides as under: 409. "Criminal breach of trust by public servant, or by banker, merchant or agent. Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney, or agent, commits criminal breach or trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment or either description for a term which may extend to (ten years,) and shall also be liable to fine." 33. To constitute an offence of criminal breach of trust, there must be an entrustment, there must be misappropriation or conversion to ones won use, or use in violation of a legal direction or of any legal contract and the misappropriation or conversion or disposal must be with a dishonest intention. 34. Entrustment means voluntary handing over of property by lawful means. If handing over is by snatching, theft, deceitful means, fraud, trick or by any other unlawful means, there can be no entrustment. As held by the Apex Court in Ram Narayan Popli v. C.B.I (2003) 3 SCC 641 `there is not originally wrongful taking or moving as in the case of theft but the offence consists in wrongful appropriation of property, consequent upon a possession which is lawful. As held by the Apex Court in Ram Narayan Popli v. C.B.I (2003) 3 SCC 641 `there is not originally wrongful taking or moving as in the case of theft but the offence consists in wrongful appropriation of property, consequent upon a possession which is lawful. If the possession is not lawful and the person who gets the property converts it to his own use, he cannot be held for its misappropriation as in that case there is practically no trust created by the owner of the property. Taking a stand that the accused committed misappropriation would mean that he had a valid entrustment of property. Such a stand will run counter to the prosecution case that accused withdrew the money by interpolating the bills, which stands satisfactorily proved by the prosecution. 35. In such circumstances I find that the ingredients of offence under section 409 RPC being not present in the present case, the accused cannot be convicted under the offence. The trial courts finding to that extent and the conviction and sentence of the accused for the offence, therefore cannot stand. It is hereby set-aside. 36. So far offences under sections 420, 467, 477-A RPC and 5(2) of P.C. Act is concerned, I find that there is sufficient evidence on file to establish these offences. Section 420 deals with cheating and dishonestly inducing delivery of property. It provides as under: 420 "Cheating and dishonestly inducing delivery of property. Whoever cheats and thereby dishonestly induces the person deceives to deliver any property to any person or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." 37. The offence of cheating consists of deception and fraud, i.e; deception of any person and fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property. The offence of cheating consists of deception and fraud, i.e; deception of any person and fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property. Thus the main ingredients of the offence are that the person deceived delivers to some one a valuable security or property, that the person so deceived was induced to do so, that such person acted on such inducement in consequence of his having been deceived by the accused and that the accused acted fraudulently or dishonestly when so inducing the person. The deception should not be by express words, but it may be by conduct or implied in the nature of the transaction itself. 38. Section 467 relates to forgery of such documents as valuable securities and of other documents mentioned. Section 463 defines forgery and Section 464 deals with making a false statement. Section 463 reads as follows: "463. Forgery -- (Whoever makes any false documents or false electronic record or part of a document or electronic record with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed. commits forgery." In Ram Narayan Popli v. C.B.I (2003) 3 SCC 641, it was observed by the Apex Court that: "371. In order to constitute forgery, the first essential is that the accused should have made a false document. The false document must be made with intent to cause damage or injury to the public or to any class of pubic or to any community. 372. The expression `intent to defraud implies conduct coupled with intention to deceive or thereby to cause injury. In other words, defraud involves two conceptions namely, the deceit and injury to the person deceived, that is infringement of some legal right possessed by him but not necessarily deprivation of property. The term `forgery as used in the statue is used in its ordinary and popular acceptation. 373. The definition of the offence of forgery declares the offence to be completed when a false document or false part of a document is made with specified intention. The term `forgery as used in the statue is used in its ordinary and popular acceptation. 373. The definition of the offence of forgery declares the offence to be completed when a false document or false part of a document is made with specified intention. The questions are (i) is the document false (ii) is it made by the accused and (iii) is it made with intent to defraud. If at all the questions are answered in the affirmative, the accused is guilty. 374. In order to constitute an offence of forgery the documents must be made dishonestly or fraudulently. But dishonest or fraudulent are not tautological. Fraudulent does not imply the deprivation or property or an element of injury. In order to be fraudulent, there must be some advantage on the one side with a corresponding loss on the other. Every forgery postulates a false document either in whole or in part, however, small. 375. The intent to commit forgery involves an intent to cause injury. A person makes a false document who dishonestly or fraudulently signs with an intent or cause to believe that the document was signed by a person whom he knows it was not signed. 376. A false description makes a document of forgery when it is found that the accused by giving such false description intended to make out or wanted it to believe that it was not he that was executing the document but another person." Section 477-A relates to falsification of account. It provides: "477-A. Falsification of accounts: -- whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer or servant, wilfully, and with intent to defraud, destroys, alters, mutilates or falsifies any book, paper, writing, valuable security or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or wilfully, and with intent to defraud, makes or abets the making of any false entry, or omits or alters or abets the omission or alteration of any material particular from or in, any such book, paper, writing, valuable security or account, shall be punished with imprisonment of either description for a term which may extent to seven years, or with fine, or with both." The section requires the falsification of accounts with intent to defraud. 39. 39. In the present case, as said above, it stands established that accused with intent to defraud the government, committed forgery and falsified the bill by interpolating the bill and converted the amount of Rs. 1253/- into Rs. 9253/- and fraudulently by deceiving the treasury, induced the treasury officials to deliver money and thereby withdrew the money thus causing wrongful loss to the government, since the accused was a government servant, his act besides an offence under the above mentioned offences also amounts to an offence under section 5(2) of the P.C. Act. 40. It was argued by the Ld. Defence counsel that the accused is facing the trial for the last more than 20 years. He is of the age of 77 years and is suffering from various old age ailments. He has submitted that these facts may be taken into consideration while considering his defence in the case, Ld. Counsel has placed reliance on two authorities of this court; Mohd. Rafiq Zarger v. State Criminal Ist Appeal 19/1980 decided on 17.11.2000 and State of J&K v. Amir Dar & Ors. decided on 21.9.2004. In the former case the occurrence had taken place in the year 1976. The Court found that for 20 years the appeal had not been heard and it will be too harsh to send the accused to prison after more than 25 years of the occurrence. The court in the circumstances of the case reduced the awarded sentence and altered it to already gone. Similarly in the later case the fact that the occurrence had taken place 19 years ago was taken into consideration and the court found that it would not be proper to send the accused back to the jail at this stage. The Court found that ends of justice would be served by awarding him the sentence for the period already undergone. 41. The submissions made by the Ld. Defence counsel carry weight. The case is about 20 years old and the accused has already been convicted by the trial Court and for the last more than 20 years he is under the agony and pain of this case. The prosecution has taken about 16 years to conclude its case before the trial Court. The present appeal is pending for the last 7 years in this court. One can imagine the hardship the accused must have undergone during this period. The prosecution has taken about 16 years to conclude its case before the trial Court. The present appeal is pending for the last 7 years in this court. One can imagine the hardship the accused must have undergone during this period. It is also not disputed by the State that the accused is now in old age. Keeping in view all these circumstances the sentence passed under all the offences is reduced from 2 years to 6 months in each case. The sentence shall run concurrently. The order relating to fine shall stand. With this modification in the sentence the appeal is dismissed. Appellant shall appear before the trial Court on 2.3.2005 to under go the sentence. Order accordingly.