JUDGMENT Per K.N. Basha, J. This appeal is preferred by the second accused challenging his conviction and sentence passed by the learned Additional District Judge-cum-Chief Judicial Magistrate, Vellore, in Special Case No.3 of 1992, by the judgment dated 16.4.1998 convicting the second accused under Section 120-B IPC and sentencing him to undergo rigorous imprisonment for a period of three years and to pay a fine amount of Rs.2,000/- in default to undergo 6 months rigorous imprisonment, under Section 409 IPC, sentencing him to undergo rigorous imprisonment for a period of three years and to pay a fine amount of Rs.1000/- in default to undergo 6 months rigorous imprisonment, under Section 167 IPC, sentencing him to undergo rigorous imprisonment for a period of one year, under Section 477-A IPC, sentencing him to undergo two years rigorous imprisonment, under Section 201 IPC, sentencing him to undergo one year rigorous imprisonment and to pay a fine amount of Rs.500/- in default to undergo three months rigorous imprisonment and under Section 13(2) read with Section 13(1)(c) of Prevention of Corruption Act, 1988, sentencing him to undergo two years rigorous imprisonment and to pay a fine amount of Rs.500/- in default to undergo 3 months rigorous imprisonment. 2. There are totally two accused in this case viz., A1 and A2. A1 and A2 were working as Assistant Educational Officer and Junior Assistant respectively. A1 challenging the very same judgment, filed an appeal in Crl A No 328 of 1998 and the same was disposed of as abated as the first accused died pending appeal. 3. The accused faced trial under the following backdrop: (a) The charge against the accused is that A1 and A2 entered into a criminal conspiracy to misappropriate the surrender leave salary and special provident fund leave salary and special provident fund amounts of the teachers working in the school under the jurisdiction of Assistant Educational Officer viz., A1 (hereinafter referred to as AEO) and in pursuance of the said criminal conspiracy, both A1, AEO and A2, the Junior Assistant, have misappropriated a sum of Rs.19,970.05 being the surrender leave salary and special provident fund amount of PWs l to 14, 36 and 37 and that of the husband of PW26, who are all the teachers and Head-Masters working within the jurisdiction of AEO viz., Al’s office. It is also alleged against A1 and A2 that both the accused have created false records and also falsified the accounts. It is further alleged that both of them knowing that they had committed the abovesaid offence and in order to screen themselves from the legal punishment, caused the disappearance of the Acquittance Registers for the relevant period. The offence said to have been taken place during the period February, 1989 to June, 1989. (b) PWs 1 to 14, 36 and 37 are the so called affected teachers and Head-Masters. PW40 is the retired District Educational Officer (hereinafter referred to as DEO), Tirupathur. PWs 29, 30, 32 and 38 are the successors of the first accused. PW35 is the Head-Clerk. PW31 is the Junior Assistant, who succeeded the second accused, PW27 is the Record-Clerk, PWs 18, 19, 20, 21, 24 and 25 were examined to show that they have forwarded the application viz., the complaint of teachers regarding non-receipt of money. PWs 16 and 17 were examined to show that they have received the money but not signed the Acquittance. PWs15 and 22 deposed that they received money, gave the receipt but did not sign in the Acquittance. PW23 gave a complaint on behalf of the teachers federation. The complaint is marked as Ex P38. (c) In this case, none of the teachers have given any report directly to the police. Only PW23, who is the President of the Teachers Federation, has given a report EX P38 to DEO and DEO, in turn, after enquiry, forwarded the complaint to PW41, the Inspector, Vigilance and Anti-Corruption Department. PW41, after receipt of order dated 27.11.1989 from the Director of Vigilance and Anti-Corruption, took up investigation in this case. Thereafter, PW41 seized various documents viz., Acquittance Register, Ex P41, MTC Register, Ex P65, MTC70 Register, EX P91, UDP Register, Ex P53, Surrender Leave Salary applications Exs Pl, P6, P8, P9, P11, P13, P15, P17, P19, P22, P25, P27, P29, P31 to P34, P62, P86 and P87. (d) PW41 also perused all the abovesaid records. Thereafter, PW41 seized various documents viz., Acquittance Register, Ex P41, MTC Register, Ex P65, MTC70 Register, EX P91, UDP Register, Ex P53, Surrender Leave Salary applications Exs Pl, P6, P8, P9, P11, P13, P15, P17, P19, P22, P25, P27, P29, P31 to P34, P62, P86 and P87. (d) PW41 also perused all the abovesaid records. During his independent enquiry he came to know that the special provident fund amount of Rs.6,411/- of PWl and Surrender Leave Salary amount of Rs.3,131/- of PWs 8,3,12 and 37 were not received by the said witnesses and on the other hand, both Al and A2 have made entries in the respective registers as if the money was disbursed to those witnesses by making falsification of accounts and thereby misappropriated the said amount. (e) PW41 also sent a report to the Director of Vigilance and Anti-Corruption in respect of the above said finding of misappro-priation and falsification of accounts said to have been made by Al and A2. Thereafter, the Director of Vigilance and Anti-Corruption obtained sanction from PW39, Joint Director (Personnel) on 18.3.1992. PW39 accorded sanction on 18.3.1992 to proceed against Al and A2 under the sanction order Ex P90. Before according sanction, PW39 stated that he has perused the first information report and other relevant documents. He has also stated that he has perused the statements recorded by the police under Section 161 CrPC from the witnesses. PW39 further stated that after consideration of the materials and after applying his mind, he has accorded sanction Ex P90. PW 41, on receipt of the sanction order, ExP90, has registered the case in Crime No.5 of 1990 under Section 13(1)(c) and (d) read with Section 13(2) of Prevention of Corruption Act, 1988 and under Section 409 IPC on 28.3.1990. Ex P101 is the first information report. (f) Thereafter, PW41 took up further investigation in this case. He received all the records from the office of AEO, Jolarpet, and DEO, Thirupathur and from the Office of the Accountant General, Chennai. PW41 received the connected bills in bill Nos.544/88-89, 545/88-89, 546/88-89, 557/88-89. He has examined the witnesses PWs1 to 52 and recorded their statements. (f) Thereafter, PW41 took up further investigation in this case. He received all the records from the office of AEO, Jolarpet, and DEO, Thirupathur and from the Office of the Accountant General, Chennai. PW41 received the connected bills in bill Nos.544/88-89, 545/88-89, 546/88-89, 557/88-89. He has examined the witnesses PWs1 to 52 and recorded their statements. During the course of investigation, PW41 came to the conclusion that the provident fund amount and the Surrender Leave Salary amount in respect of 17 teachers and Head-Masters totalling to a sum of Rs.19,970.05 was not disbursed to the concerned teachers and it was shown to have been disbursed to the teachers as per the UDP register by making false entries and thereby A1 and A2 have misappropriated the said amount. It is also stated by PW41 during the course of his investigation that the Acquittance Registers were also not maintained and not found in the office of the DEO, Thirupathur as well as AEO, Jolarpet. Thereafter, PW 41searched the houses of Al and A2 on 16.8.1991. No incriminating materials were said to have been recovered from the said search. Ex Pl02 is the search list in respect of Al and Ex Pl03 is the search list in respect of A2. PW41 also enquired Al and A2 in respect of Acquittance Registers to claim that both A1 and A2 have not produced the same. Thereafter, he has examined and recorded the statements of Al and A2. (g) After completion of investigation, he has submitted the final report on 14.8.1991 to the Director of Vigilance and Anti-Corruption. Thereafter, he filed the charge sheet against the accused 1 and 2 on 25.6.1992 for the offence punishable under Sections 120-B read with Sections 167, 409, 477-A and 201 IPC read with Section 13(2) read with Section 13(1)(c) and (d) of Prevention of Corruption Act. 4. The prosecution in order to bring home the charges levelled against the accused examined PWs l to 41 and filed Exs P1 to P103. 5. When the accused were questioned under Section 313 CrPC in respect of the incriminating materials appearing against them both the accused have denied their complicity and they have come forward with the version that they have been falsely implicated in this case. 5. When the accused were questioned under Section 313 CrPC in respect of the incriminating materials appearing against them both the accused have denied their complicity and they have come forward with the version that they have been falsely implicated in this case. The first accused stated that he was assigned several administrative work as he was AEO for Thiruppathur and Jolarpet and about 152 schools were under his jurisdiction. It is also stated by him that he has to inspect 200 Noon-Meal Centres and to accompany DEO for inspections and to verify the Registers and other records. He has also stated that he has to go to DEO’s office as AEO’s office is to go to DEO’s office as AEO’s office is situated at the Head Quarters and he has to look after the other works viz., Small Savings, Khadi sale and other Government Welfare Scheme works. Therefore Al stated that in view of the over work he used to only sign the files prepared and placed before him and during his absence only the Head Clerk,PW35 was supervising and attending other works. The Head-Clerk was also receiving Supervisory Allowance.He has nothing to do with the disbursement of the amount to the teachers and Head Masters. A2, the appellant herein, apart from his 313 CrPC statement, also stated that he has nothing to do with the disbursement of Surrender Leave Salary and Special Provident Fund amounts to the teachers and only the Drawing Officer used to disburse the amounts. It is also further stated by A2 that his work is only to make the bills ready and to go to the Treasury and collect the amounts and to handover the same to the offcials. He was not in-charge of, the disbursement of the amounts. A2 also marked the document, Ex D l, the proceedings of AEO dated 19.5.1989, and as per that proceedings A2 was transferred on 5.5.1989 and relieved himself as Junior Assistant from the Office of AEO, Thiruppathur and Jolarpet. 6. Mr.V.Karthic, learned counsel appearing for the appellant put forward the following contentions: (1) The prosecution has miserably failed to establish the guilt of the accused by adducing clear, cogent and convincing evidence. (2) The prosecution also failed to establish the important ingredient of entrustment in order to make out an offence of misappropriation. 6. Mr.V.Karthic, learned counsel appearing for the appellant put forward the following contentions: (1) The prosecution has miserably failed to establish the guilt of the accused by adducing clear, cogent and convincing evidence. (2) The prosecution also failed to establish the important ingredient of entrustment in order to make out an offence of misappropriation. The evidence of PW40, DEO, coupled with the evidence of PW30, AEO and PW31, the successor of A2, clearly shows that A2 is not entrusted with the responsibility of disbursing the Surrender Leave Salary and other benefits to the teachers. (3) The materials available on record clearly shows that only PW35, Head Clerk, is responsible during the absence of AEO for the disbursement of the Surrender Leave Salary and other benefits to the teachers. (4) The evidence of PW31, the successor of A2 also clearly shows that A2 kept all the documents and records in the office itself in a bureau under lock and key and he has not removed the same from the office. Further, PW31 though came forward with the version that A2 has not handed over the Acquittance Register to him, he has not stated so to the police during his examination. (5) The evidence of PWs 1 to 14, 36 and 37, the teachers and Head-Masters, who have claimed that the Surrender Leave Salary was not paid to them, is not consistent and their evidence suffers from infirmities as some of them stated that they have received the amount but not signed the Register and some of them stated that they have signed the receipts also. (6) The prosecution not only failed to prove the entrustment but also failed to prove that A2 has converted the amount meant for disbursement to the teachers towards Surrender Leave Salary and other benefits to his own use. 7.Per contra M.K.Subramanian, learned Government Advocate (Criminal side) contended that the prosecution has proved its case by adducing clear and acceptable evidence. It is further contended by the learned Government Advocate that there are materials available on records to show that A1 was the sanctioning authority and A2 was in-charge of the disbursement of the loan to the teachers. The learned Government Advocate also placed reliance on the evidence of PW35 to the effect that the Surrender Leave Salary and Special Provident Fund were processed by A2 and the bills to be passed by A1. The learned Government Advocate also placed reliance on the evidence of PW35 to the effect that the Surrender Leave Salary and Special Provident Fund were processed by A2 and the bills to be passed by A1. It is also submitted by the learned Government Advocate that there are enough materials available on record viz., the evidence of PWs 31 and 32 to show that A1 and A2 were responsible for the misappropriation of the Surrender Leave Salary amounts and the Special provident Fund amounts of the teachers and Head-Masters PW s1 to 14, 36 and 37. 8. I have given my careful consideration to the rival contentions put forward by either side. 9. The entire perusal of the records shows that the sum and substance of the allegation is that the Surrender Leave Salary and Special Provident Fund amounts totalling to the tune of Rs.19,970.05 was not paid to PW s1 to 14, 36 and 37, teachers and Head-Masters and A1 and A2 conspired and misappropriated the said amount by creating false records and falsified the accounts. In order to prove such charges, the burden is on the prosecution to prove at the first instance, the first and foremost ingredient viz., entrustment of the responsibility of disbursing the Surrender Leave Salary and Special Provident Fund amounts to A1 and A2. In view of the death of A1 during the pendency of the appeal, this Court is left with the consideration to find out whether the prosecution has discharged the abovesaid burden of proving the ingredient viz., entrustment of the responsibility of disbursing the Surrender Leave Salary and Special Provident Fund amounts to PW s1 to 14, 36 and 37 on A2. As rightly pointed out by the learned counsel for the appellant that PW40, DEO, categorically stated in his evidence that the teachers Surrender Leave Salary should be received only by AEO (A1). It is categorically, stated by PW40 even in his chief- examination that only AEO is to draw and disburse the amounts in respect of the Special Provident Fund, Festival Advance, Surrender Leave and GPF amounts. It is also further stated by PW40 that the Head-Clerk, PW35 has to verify the disbursement of the above said amounts to the teachers and thereafter he has to place the same for the perusal of AEO and AEO in turn has to verify the correctness of the same. It is also further stated by PW40 that the Head-Clerk, PW35 has to verify the disbursement of the above said amounts to the teachers and thereafter he has to place the same for the perusal of AEO and AEO in turn has to verify the correctness of the same. It is also categorically admitted by PW40, DEO, that the UDP Register, Ex P53 and Cash Book were in the custody of AEO and only AEO alone was responsible for making entries in the UDP Register and to receive the amounts from the authorised persons for the purpose of disbursement. It is also categorically admitted by PW40 that the Head- Clerk, PW35, has not given any report in respect of the alleged transaction in this case in respect of the fact that PW35, Head-Clerk, was responsible for supervising the entire work of the disbursement of the amounts to the teachers. It is further relevant to note that PW30, AEO, also categorically stated in his cross-examination that only PW35, Head-Clerk, is in charge and responsible for preparing the bills in respect of the payment to be made to the teachers. It is also further admitted by PW30 that in the absence of AEO, the Head-Clerk is the only sole in-charge person in respect of the disbursement of the amounts to the teachers and it is the duty of the Head-Clerk to verify every day in respect of how much amount is disbursed to the teachers and also in respect of how much amount is not disbursed to the teachers. PW31, also stated to the same effect teachers. PW31, also stated to the same effect that only authorised persons of AEO can disburse the amounts and in the absence of AEO, Head-Clerk, PW35, used to disburse the amount. It is also further stated by PW31 that during the absence of AEO, PW35, Head Clerk, was entrusted with the overall supervisory power. It is also further categorically admitted by PW3l that cash was with the Head-Clerk, PW35. As far as A2s work is concerned, PW31 categorically stated that A2 has kept all the records safely in the office in the bureau under lock and key and A2 has not taken away the same from the office. The only grievance of PW31 is that A2 has not handed over the Acquittance Register. As far as A2s work is concerned, PW31 categorically stated that A2 has kept all the records safely in the office in the bureau under lock and key and A2 has not taken away the same from the office. The only grievance of PW31 is that A2 has not handed over the Acquittance Register. Even this statement was not given by PW31 during the course of his examination by the police. Though it is stated by PW31 that A2 has not properly handed over the records, he has not given any report to any higher officials. 10. It is also relevant to note that even the evidence of PWs 1to14, 36 and 37 are also not clear, cogent and consistent in respect of the allegation that A2, the appellant herein, has disbursed the Surrender Leave Salary and Special Provident Fund amounts to the teachers. PWl, teacher, has stated that even in his report, he has not stated about the officers to whom he has seen and verified but he has simply stated that he has not received the amount. PW2, Head Master, has categorically stated in his cross-examination that he used to meet PW35, Head- Clerk, and he also categorically admitted that he has not informed anyone about the non-receipt of money by him. PW3, another Head-Master, categorically admitted in his cross­ examination that if any mistake is committed by any other staff, he used to report only to AEO. PWs3 to 5 have categorically admitted in their examination that they have not stated to the police during their examination that A2 disbursed the amount in respect of Surrender Leave Salary and Special Provident Fund to the teachers. PW6 also categorically admitted in his cross-examination that he has not stated to the police during his examination that he has discussed with A2 in respect of the Surrender Leave Payment and it is also admitted by PW 6 that he has not stated to the police during his examination that A2 disburse the amounts. PW7, teacher, also implicated A2. PW9, another teacher, has come forward with the version that there is a separate clerk for the disbursement of the amounts. It is categorically admitted and stated by PW9 that PW 35, Head-Clerk, used to disburse the amounts and obtained signature. She has also admitted in her cross-examination that she has not stated anything about A2 during his examination by the police. It is categorically admitted and stated by PW9 that PW 35, Head-Clerk, used to disburse the amounts and obtained signature. She has also admitted in her cross-examination that she has not stated anything about A2 during his examination by the police. PWl0, another teacher also categorically admitted in his cross-examination that he has not stated to the police that he has met A2 in AEO’s Office and he has not stated to the police that A2 disbursed the amount. PWsll to 13, also categorically admitted that they have not stated to the police during their examination that A2 disbursed the amount to the teachers. PW14, Head-Master, admitted in his cross-examination that he has not given any report against A2 to AEO or to the higher officials. PW36 has not implicated A2 in her chief-examination and on the other hand she has stated that she has given a petition to PW35, Head-Clerk, in respect of the non-payment of surrender leave Salary amount to her and PW35 informed her that he would look into the matter. PW37 has stated in his evidence that he has met A2 and enquired about his Surrender Leave Salary and A2 informed him that so far no sanction was made. It is also stated by PW37 that thereafter he has also met PW35, Head-Clerk, and ultimately gave a report to DEO. It is clearly admitted by PW37 that he has not mentioned in his report that he has met A2 in the office. It is also admitted in his cross-examination that he cannot state the date and month on which he has met A2. Therefore, PW37’s evidence also is not helpful to the prosecution to implicate A2 in this case. 11. One more disturbing feature to be borne in mind in this case is that admittedly all the teachers received the amounts by signing the receipts as well as not signing the receipts. PW2 stated that he has received the Surrender Leave Salary amounts several times and also signed the same for the receipt of such amounts. PW3 also categorically admitted in his cross-examination that every year he has received the Surrender Leave Salary amount. PW6 also categorically stated that sometimes some teachers used to ask the authorities concerned to handover the money to some other teachers. Some of the witnesses also stated that though they have received the amounts they have not signed Acquittance Register. PW3 also categorically admitted in his cross-examination that every year he has received the Surrender Leave Salary amount. PW6 also categorically stated that sometimes some teachers used to ask the authorities concerned to handover the money to some other teachers. Some of the witnesses also stated that though they have received the amounts they have not signed Acquittance Register. PW16, stated even in her chief- examination that she has received the amount but not signed the in the Acquittance Register. PW17 also stated to the same effect. PW22 also stated that he has not signed the Acquittance Registeter even after the receipt of the amount. PW41, the Investigating Officer, also categorically stated that during his examination it was disclosed that some teachers received the amount and were also given receipt for the same and some of them even without receipt received the amount. Therefore it is crystal clear that among the evidence of PWs 1 to 14, 36 and 37, most of them have not implicated A2 and some of them though stated for the first time before the Court that they have not met and A2 disbursed the amounts to the teachers. But they have categorically admitted in the cross-examination that they have not stated to the police during their examination that A2 disbursed the amounts to the teachers. Therefore, it is most unsafe to place reliance on the evidenceof PW l to 14, 36 and 37 for implicating A2 in order to fasten the liabillity for entrustment and disbursement of the Surrender Leave Salary and the Special Provident Fund to the teachers and Head- Masters. 12. The Hon’ble Supreme Court of India has held in Kailash Kumar Sanwatia v. State of Bihar (2003)7 SCC 399 that: "7...In order to sustain conviction under Section 409, two ingredients are to be proved. They are: (1)The accused, a public servant, or banker or agent was entrusted with property of which he is duty-bound to account for; and (2) The accused has committed criminal breach of trust. 8. What amounts to criminal breach of trust is provided in Section 405 IPC. Section 409 is in essence criminal breach of trust by a category of persons. The ingredients of the offence of criminal breach of trust are: (i) Entrusting any person with property, or with any dominion over property. 8. What amounts to criminal breach of trust is provided in Section 405 IPC. Section 409 is in essence criminal breach of trust by a category of persons. The ingredients of the offence of criminal breach of trust are: (i) Entrusting any person with property, or with any dominion over property. (2) The person entrusted: (a) dishonestly misappropriating or converting to his own use that property; or (b) dishonestly using or disposing of that property or willfully suffering any other person so as to do in violation- (i) of any direction of law prescribing the mode in which such trust is to be discharged; or (ii) of any legal contract made touching the discharge of trust. 9. The basic requirement to bring home the accusations under Section 405 are the requirements to prove conjointly: (1) entrustment, and (2) whether the accused was actuated by the dishonest intention or not; misappropriated it or converted it to his own use to the detriment of the persons who entrusted it. As the question of intention is not a matter of direct proof, certain broad tests are envisaged which would generally afford useful guidance in deciding whether in a particular case the accused had mens rea for the crime.” The Apex Court has held in the very same decision that “even if it is proved that money was entrusted to the accused which fact is borne out by the admitted case about missing of money from the cash counter of the bank, one factor which needs to be decided is whether the accused has dishonestly misappropriated or converted to his own use the property entrusted or dishonestly used or disposed of that property”. 13. As already pointed out, the prosecution has not only miserably failed to establish the first and foremost ingredient to attract the offence of misappropriation viz., entrustment but also failed to establish that the appellant A2 converted the amount meant for disbursement towards Surrender Leave Salary and other benefits to his own use. It is relevant to state that there is not an iota of evidence adduced by the prosecution to the effect that A2 has converted the amont meant for disbursement towards Surrender Leave Salary and other benefits to his own use. It is relevant to state that there is not an iota of evidence adduced by the prosecution to the effect that A2 has converted the amont meant for disbursement towards Surrender Leave Salary and other benefits to his own use. In the above said decision, stated supra, it is made clear by the Apex Court that even if it is proved that money was entrusted to the accused and the same was missing from the cash counter, the prosecution is bound to establish that the accused has dishonestly misappropriated or converted to his own use the property entrusted or dishonestly used or disposed of that property. 14. Therefore, for the foregoing reasons, I am of the considered view that the prosecution has not only failed to establish the entrustment of the amounts meant for disbursement to the teachers towards Surrender Leave Salary and other benefits to A2 but also failed to estabish that A2 has converted the amount meant for disbursement towards Surrender Leave Salary and other benefits to his own use and therefore the prosecution has not proved the offence of misappropriation under Section 409 IPC and since the prosecution failed to establish the offence under Section 409 IPC against A2 the charges in respect of other offences under Sections 120B, 167, 447A, and 201 IPC and under Section 13(2) read with Sections 13(1)(c) of the Prevention of Corruption Act, 1988, automatically falls into the ground. Therefore the appeal is allowed and the conviction and sentence imposed on the appellantl /A2 for the offences under Sections 409, 120B, 167, 477A and 201 IPC and under Section 13(2) read with Section 13(1)(c) of the Prevention of Corruption Act, 1988, are set aside.The Bail Bonds executed, if any, shall stand cancelled Fine amount paid, if any, shall be ordered to be refunded to the appellant /A2.