JUDGMENT :- The Appellants were accused in Special Case No. 10 of 1989. 2. Accused Nos.1 to 3 were charged for criminal conspiracy punishable under Section 120-B and Section 420, Indian Penal Code. Accused No.1 was separately charged for causing pecuniary advantage to the Accused No.2 of a sum of Rs.24,000-00 and committed offence under Section 5(1)(d) of Prevention of Corruption Act. 3. The factual matrix of the charge is that when Accused No.1 Suresh Darvekar was working as a Branch Manager of Bank of India, a Public Servant, he sanctioned and disbursed a loan of Rs.24,000-00 to Umesh Chintaman Shinde, Accused No.2, and before disbursing, gave a false Inspection Report containing therein a statement that Umesh Chintaman Shinde Accused No.2 had purchased a 16 mm Film Projector as per the bill produced by him, while Accused No.3 is said to have given a false quotation and supplied false receipts to the accused No.2 - Umesh, in order to facilitate obtaining of loan by Umesh from Bank of India through Accused No.1. 4. In order to prove the charge, the prosecution has examined as many as 26 witnesses. The Judgment of conviction is based on the conclusion reached by the Trial Court that Accused Nos.1, 2 and 3 have connived to deceive the Bank and with dishonest intention, did various acts wherein Accused No.1 procured by persuading witness - Gram Sevak a Population Certificate of the village, for enabling him to record a false and fictitious Viability Report. 5. All that is impugned against Accused No.1 is that he had sanctioned the loan without conducting pre-sanction inspection and also did not conduct post-sanction inspection. 6. Learned Sessions Court held that from the evidence that had come on record, the charge under Indian Penal Code and Prevention of Corruption Act is proved against Accused No.1, and that all accused are guilty of criminal conspiracy and cheating. This judgment is under appeal in this Court. 7. The loan proposal was forwarded by District Industries Centre, which is the Government Agency sponsoring the proposals and Accused No.2 had moved his application under the Self-Employment Scheme. 8. It is, admittedly, a case of sanction of loan, and the amount paid to the Accused No.2 by way of loan was, thus, recoverable. It is not a case of the prosecution that the amount has been parted with without necessary security documents, receipts towards money etc. 8. It is, admittedly, a case of sanction of loan, and the amount paid to the Accused No.2 by way of loan was, thus, recoverable. It is not a case of the prosecution that the amount has been parted with without necessary security documents, receipts towards money etc. 9. In fact, what probably the prosecution wants to say is that the viability judgment was not correctly reached by the accusedno.1. Further, he relied upon a false purchase bill either being a party to a false deal and caused disbursement of the said loan amount. 10. The appeal is based on various submissions and grounds, inter alia, contending that the matter, in question, is not a case of criminal nature. The Accused No.1 was under an obligation to accept the recommendations of Task Force and sanction and disburse the loan. 11. According to Accused No.2, what he had received was loan and he had liability to repay the same. He had procured the projector, shown the film, which fact is admitted by some of the witnesses, which, in turn, brings on record, sufficient proof of fact that the defence raised by him is probable. 12. Advocate for the Accused Nos.1 and 2 pointed out that the Inspection Report (Exh.73), which is considered to be false, was not at all put to the accused. Moreover, it is a disputed document. It is not proved by the prosecution to be one authored by the Accused No.1, however, has been relied upon. According to the Accused, the evidence, that had come before the Courts, was totally besides the charge of criminal conspiracy and said charge is not proved. 13. It is further submitted by Accused No.3 that what was put to him as a charge, what is brought as evidence and what was put to him under Section 313, Criminal Procedure Code, are totally different. 14. Prosecution tried to prove that Accused No.3 does not do the business of sale of projectors, he gave fake bill and false receipts, did not sell the projector at all and paid the amount received by him from the Bank to the accused No.2, and the prosecution has utterly failed in proving non-existence of fact, i.e., that the accused no.3 does not do the said business. 15. 15. Learned Advocates place reliance on following Judgments in relation to the plea that what is not put to the accused under Section 313, Criminal Procedure Code, cannot be relied against them : (1) Rubyana alias Smita Sanjib Bali Vs. State of Maharashtra, (1996 Cri.L..J. 148) : [1996(1) ALL MR 1]; (2) Ghulam Din Buch and others Vs. State of J. & K., (1996 SCC (Cri) 986), and (3) Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984 SCC (Cri.) 487). The learned Advocate then placed reliance on following Judgments to hold that ingredients of Section 120-, Indian Penal Code, have not been proved : (1) Duvvur Dasrathrammareddy Vs. State of Andhra Pradesh, (1971 SCC (Cri.) 472); (2) Sharad Birdhichand Sarda Vs. State of Maharashtra, ( AIR 1984 SC 1622 ) and (3) R. K. Narayanan Vs. State of Kerala, (1995)1 SCC 142 ). The propositions are obvious. These judgments can be relied upon without discussion. 16. After considering the evidence and the pleadings, this Court has found a view that the conviction cannot sustain in view of the Judgment of Apex Court, where the accused were not put to evidence in order to secure their explanation or defence under Section 313, Criminal Procedure Code, the same cannot be used against them. This being the factual position, the conviction cannot sustain. 17. In this background, it is considered not necessary to go to the detailed factual analysis, more particularly when it is a clear case where the Bank's money has been parted with as a loan, and not by way of an unrefundable amount, which would result in permanent loss to the Bank. If the loan was given to a borrower, whose activity is unviable and unviability is attributable to a particular Bank Officer, it becomes a matter of misconduct in the employment, and not a criminal liability, since he cannot be said to have acted, nor caused a gain to other person and loss to the Bank with dishonesty. 18. The plea of the Accused No.2 that he has purchased the projector is duly proved from the oral evidence of PW 28 who has stated in cross-examination that projector was purchased by the accused no.2 and he has even seen the movies thereof. This witness was not declared hostile. 19. 18. The plea of the Accused No.2 that he has purchased the projector is duly proved from the oral evidence of PW 28 who has stated in cross-examination that projector was purchased by the accused no.2 and he has even seen the movies thereof. This witness was not declared hostile. 19. The prosecution story that Accused No.3 does not do the business of selling projectors is also denied by PW 11, who is a prosecution witness. Prosecution also failed to declare witness No.7 as hostile, who declined to support the prosecution case on the point that the accused no.3 was not doing the business of selling projectors. 20. In the result, the conviction and sentence is liable to be reversed and set aside. 21. The Appeals are, therefore, allowed. The Judgment and Order of conviction and sentence is set aside.