JUDGMENT :- Being aggrieved by his conviction for the offences punishable under Sections 468 and 477-A of the Penal Code and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and sentence of rigorous imprisonment for one year and fine of rupees one thousand imposed upon him, accused No.1 in Special Case No.5 of 1984 before the learned Special Judge, Gondia, has preferred this appeal. 2. Facts, which led to the appellant's prosecution and conviction, are as under: The appellant was working as Junior Engineer and was incharge of execution of construction of tanks at Kudwa. Dhakni and Mundipar in Gondia Sub-Division. This work was to be executed under the Employment Guarantee Scheme. The appellant had the services of four muster clerks to keep a track of persons employed for the work of construction of these tanks. Between 7-1-1976 and 11-31976, same set of 21 labourer were shown to have been engaged at one and the same time for construction of the irrigation tanks at Kudwa, Dhakni and Mundipar. Payments were shown to have been made by the appellant to bogus labourers engaged. The investigation revealed that in all a sum of Rs.6,764.10 Ps. was misappropriated by the appellant abusing his position as Supervisor. Accused No.2 was a labourer engaged and he was made to put his thumb marks on the muster rolls to evidence receipt of monies by the fictitious persons, who were shown to have been engaged for the works. After a report, an offence was registered and on completion of investigation, charge-sheet was sent up in the Court of Special Judge at Gondia. 3. Upon consideration of material before him, the learned Special Judge charged both the accused of offences punishable under Sections 409, 467 and 468 read with Section 109 of the Penal Code and Sections 5(1)(d) and 5(2) of the Prevention of Corruption Act. Since the accused pleaded not guilty, they were put on trial. In its attempt to bring home the guilt of the accused, the prosecution examined as many as 14 witnesses. Upon consideration of evidence tendered before him, the learned Special Judge acquitted accused No.2 of all offences and also acquitted the present appellant of the offence punishable under Section 467 of the Penal Code. However, he convicted the appellant of the other offences and sentenced him, as aforementioned. Aggrieved thereby the appellant has preferred this appeal. 4. Upon consideration of evidence tendered before him, the learned Special Judge acquitted accused No.2 of all offences and also acquitted the present appellant of the offence punishable under Section 467 of the Penal Code. However, he convicted the appellant of the other offences and sentenced him, as aforementioned. Aggrieved thereby the appellant has preferred this appeal. 4. I have heard the learned counsel for the appellant as also the learned Additional Public Prosecutor for the State. 5. The learned counsel for the appellant was at his best in attempting to demonstrate that his client was innocent by pointing to the factors, which went in his client's favour. He wondered as to how the learned Trial Judge could have recorded - a conviction for offence punishable under Section 468 of the Penal Code after having acquitted the appellant of offence punishable under Section 467 of the Penal Code. He also pointed out that though there was no charge of offence punishable under Section 477-A of the Penal Code, the learned Judge had recorded a conviction of this offence. He submitted that this course was totally impermissible. 6. Since the offence punishable under Section 468 covers that under Section 467, if the accused is acquitted of offence punishable under Section 467, the question of his being held guilty for offence punishable under Section 468 of the Penal Code would not arise. Section 467 of the Penal Code makes it punishable to forge a document, which purports to be an acquaintance or receipt acknowledging the payment of money. Section 468 makes forgery of a document committed with the intention of cheating punishable. Therefore, unless forgery of a document is established, there would be no question of convicting a person for forgery for the purpose of cheating. The learned Trial Judge could have held that forgery for the purpose of cheating was proved, but since the offence punishable under Section 468 includes the one under Section 467 of the Penal Code, a separate conviction or sentence was not required to be recorded for the offence under Section 467 of the Penal Code. Such a course would have been justifiable. However, when the accused was found not guilty for offence punishable Ul1der Section 467, conviction for offence punishable under Section 468 of the Penal Code is indeed hard to sustain. 7. Such a course would have been justifiable. However, when the accused was found not guilty for offence punishable Ul1der Section 467, conviction for offence punishable under Section 468 of the Penal Code is indeed hard to sustain. 7. There was indeed no charge of offence punishable under Section 477-A of the Penal Code, which makes it punishable for an officer or a servant, who willfully, and with intent to defraud, falsified accounts of his employer. The learned Special Judge observed in para 25 of his judgment that though specific charge under Section 477-A of the Penal Code was not framed, it was not an irregularity. He felt that the accused would not be prejudiced and in the result, he held the accused guilty of offence punishable under Section 477-A of the Penal Code. Now since falsifying account is not an ingredient of the offence of committing forgery for which the appellant was duly charged, and since the ingredients of the two offences do not overlap, it was not appropriate for the learned Special Judge to hold that the conviction could be handed down for the offence punishable under Section 477-A of the Penal Code without there being charge. Ordinarily, irregularity in framing the charge does not vitiate the conviction so long as it is shown that such irregularity or omission to frame a charge has not prejudiced the trial, by showing that the accused was put to sufficient notice of the charge, which he has to meet. In this, case, Section 477-A of the Penal Code was altogether different offence. If the learned Trial Judge felt that conviction for such a charge was necessary, he could have framed the charge and given an opportunity to the accused to cross-examine any prosecution witnesses in relation to the new charge so added. Without having done so, conviction under Section 477-A of the Penal Code is equally unsustainable. 8. The learned counsel for the appellant next submitted that there was no allegation that the work for which payment was made, was in any manner incomplete and, therefore, the charge of misappropriation or defalcation must fail. 9. The learned Additional Public Prosecutor for the State rightly countered by saying that his work was to be carried out under the Employment Guarantee Scheme, which implies providing employment to those who have been enrol1ed for being given work under the Employment Guarantee Scheme. 9. The learned Additional Public Prosecutor for the State rightly countered by saying that his work was to be carried out under the Employment Guarantee Scheme, which implies providing employment to those who have been enrol1ed for being given work under the Employment Guarantee Scheme. Since it is the duty of the State under the Scheme to provide guaranteed employment, there was no measure of the amount to be spent on construction of the particular tank. The question was of showing a number of fictitious persons on the roll by the accused for pocketing the wages of such fictitious persons. Therefore, it could not be said that only because the work was completed, there was no misappropriation. 10. The learned counsel for the appellant next submitted that the learned Trial Judge had referred to the fact that the Superintendent Engineer had thought that the matter had many facets and more persons were involved in fraudulent financial cheating to the Government. The learned counsel submitted that there was a larger conspiracy and that the appellant was merely made a scapegoat by the higher-ups, who were let off, as also by the subordinates, who too were allowed to go Scott-free. He submitted that four muster clerks, who in fact had kept muster rolls in which the alleged bogus or fictitious persons were shown to have been employed, were equally, if not more, responsible for the misappropriation. Yet they were examined as witnesses, viz. PW 1 Dada, PW 7 Wasudeo, PW 9 Shankar and PW 13 Prabhat. The learned counsel, therefore, submitted that since the subordinates as well as the superiors were let of the hook and the appellant was singled out, this amounted to victimization and, therefore, the appellant deserved to be acquitted. 11. To support the proposition that conviction of a person selectively booked, would not be sustainable, the learned counsel for the appellant drew my attention to a number of judgments. 12. In State of V.P. Vs. Ram Chandra Singh, reported in 2000 Crl. L.J. 2266, the Allahabad High Court had dismissed an appeal filed by the State against acquittal of a Head Constable for loss of property for Malkhana. Obviously, the decision rested on the facts of that case and no ratio can be deduced that if some miscreants are let off, conviction of persons found guilty would be vitiated. L.J. 2266, the Allahabad High Court had dismissed an appeal filed by the State against acquittal of a Head Constable for loss of property for Malkhana. Obviously, the decision rested on the facts of that case and no ratio can be deduced that if some miscreants are let off, conviction of persons found guilty would be vitiated. It has no be found in the present case whether the appellant was involved in misappropriation or not. If his complicity in misappropriation is proved, which other persons connived and were not prosecuted may not be material. In the case of Ram Chandra Singh, the Allahabad High Court acquitted the accused not because the others were let off, but because the respondent/ accused therein was not shown to be the only person having access to Malkhana. 13. The learned counsel relied on anther decision of Allahabad High Court in State of U.P. Vs. Syed Muzaffar Abbas reported in 1998 Cri.L.J. 3311, where an Assistant Cashier in State Road Transport Corporation was prosecuted for shortage in the cash box. The Court held that one key of the cash box was missing and the report of the Joss was also lodged and, therefore, the possibility of theft by someone else by preparing duplicate keys could not be ruled out. 14. In L. Chandraiah Vs. State of A.P., reported in 2004 Cri.L.J. 365 : [2004 ALL MR (Cri) 224 (S.C.)], the Apex Court held that the accused, employees of post office, were merely shown to have negligently acted in passing vouchers. The Court held that since conspiracy was not proved, it could not be said that they had fraudulently or dishonestly passed the vouchers. Therefore, they were acquitted. The facts in that case were altogether different. Six persons were put to trial for defrauding the post office. Of them three were acquitted and no appeals were preferred by the State. Out of the remaining three, who were convicted, accused No.3 G. Sambamurthy did not prefer any appeal before the High Court. The Trial Court held that accused No.3 G. Sambamurthy had prepared the vouchers and the two appellants passed the same without taking requisite care to verify whether the vouchers were genuine or forged. The Trial Court had recorded a specific finding that there was no evidence of any conspiracy between the three accused. The Trial Court held that accused No.3 G. Sambamurthy had prepared the vouchers and the two appellants passed the same without taking requisite care to verify whether the vouchers were genuine or forged. The Trial Court had recorded a specific finding that there was no evidence of any conspiracy between the three accused. Kamesham and Chandraiah had appealed against their convictions before the High Court, which dismissed the same. In this context, the Supreme Court held that in the absence of proof of conspiracy, the two appellants could not be held guilty for negligently passing the forged vouchers. 15. The learned Additional Public Prosecutor submitted that this case would not help the appellant, since in this decision, there was a person, who had been convicted and who had accepted the responsibility for the forgery by not filing an appeal. Such is not the present case. 16. The learned counsel for the appellant countered by submitting that even in the instant case, forgery, if any, was committed by the four muster clerks and not by the appellant and, therefore, since the appellant is not shown to have acted in concert with the four muster clerks, who were not sent for trial with him, the appellant could not be convicted. The learned counsel for the appellant submitted that the appellant was not the only person who was responsible for making payments to the labourers engaged. Even the Sub-Divisional Engineer was supposed to check the muster rolls and, therefore, singling out of the appellant was unfair. As the discussion that follows would show question here is of responsibility of appellant in pocketing payment in the names of fictitious labourers, and not of who else was involved. 17. The learned Additional Public Prosecutor rightly countered by saying that the Sub-Divisional Engineer was obviously responsible not only for the works executed under the supervision of the appellant, but also the works which were being executed under the supervision of other Junior Engineers working under him. Therefore, if the Sub-Divisional Engineer was to be held responsible for any lapse of any officer working under him, there would be virtually no reason to employ Junior Engineers for getting the works executed. Therefore, the contention about the involvement of the Sub-Divisional Engineer for the payment made by the appellant to fictitious labourers cannot be appreciated. 18. The facts in Inderjit Singh and others Vs. Therefore, the contention about the involvement of the Sub-Divisional Engineer for the payment made by the appellant to fictitious labourers cannot be appreciated. 18. The facts in Inderjit Singh and others Vs. State of Punjab and others, reported in 1995 Supp (3) Supreme Court Cases 289, on which the learned counsel placed reliance, are similar to those in case at hand. The Government of India had started a crash scheme of rural employment for which a sum of rupees ten lacs was allocated to each district. Implementation was started through the Public Works Department. The work of desilting six drains was undertaken. A complaint was made to the Chief Engineer alleging that though the amounts were shown to have been spent on desilting one of those drains viz. Jhabal Drain, actually nothing was done. The allegations were enquired into and embezzlement of huge amount by the officials were noticed. Therefore, reports were given in respect of all the six projects. After completion of investigations, chargesheets were sent. In that case too, the prosecution had relied on a list of labourers whose names were mentioned in the vouchers, but who did not reside within a radius of five miles form the site of work. Just as in the present case, specimen thumb prints of all the accused had been compared with those on the vouchers. However, in contrast with present case, it was found that thumb impressions of officials tallied with those thumb impressions on the vouchers. In that case too, the disbursement of wages was made by the Sub-Divisional Officers, which was witnessed by the Sectional Officers, who certified payment on each vouchers. After considering the evidence tendered, the learned Special Judge convicted and sentenced the accused in all cases. 19. On appeal to the High Court, the High Court also upheld the convictions. The High Court, however, did not accept the theory of conspiracy. It observed that since the thumb impressions were not taken under the orders of the Magistrate, there was no guarantee that the thumb impressions were in fact those of the appellants. The High Court, therefore, held that it had been conclusively proved that the Sub-Divisional Officers and the Sectional officers dealing with the funds were guilty of conspiracy and embezzlement. 20. The High Court, therefore, held that it had been conclusively proved that the Sub-Divisional Officers and the Sectional officers dealing with the funds were guilty of conspiracy and embezzlement. 20. Upon considering the contentions raised before it, the Supreme Court held that on the basis of only the reports of the Superintending Engineer that less work than what was started in the records was done, the case of embezzlement, by deliberately falsifying the records, was not established. The Court held that it was not safe to rely on the assessment of work by Superintending Engineer Shri. Saini and, therefore, proceeded to allow the appeals and set aside the convictions. It may be seen that the question in the present case is not that of work having not been fully executed. Secondly, in Inderjit Singh's case, one of the reasons for conviction that the thumb marks of officials tallied with those on vouchers was rejected because specimen thumb marks were not taken before the Magistrate. The present case rests, not upon tallying of thumb marks on vouchers with those of any official, but because thumb marks of 21 persons shown to have been paid are all identical. Lastly, the present case does not rest solely on the assessment of a Superintending Engineer. 21. Another decision on which the learned counsel for the appellant placed reliance is Dhirajlal Chatrabhuj Ratnagrahi Vs. State of Maharashtra, reported in 1993 Mh.LJ. 644. The case pertained to offence punishable under Section 5(1)( d) of the Prevention of Corruption Act. The learned counsel for the appellant relied on the observations in paras 7 and 11 of the judgment. It was held that demand or acceptance of any money would become a tainted transaction only if the prosecution has established that the consideration was for the purpose of showing a favour or that it was illegal gratification. It had to be established that the accused had abused his position and acted with dishonest intention. The Court had held that a distinction needs to be drawn between an innocuous transaction, such as obtaining a loan, and one where a pecuniary advantage was sought by misuse of a public office. The decision has absolutely no bearing on the present case. 22. Relying on the decision of the Supreme Court in the case of Mahmood Vs. The Court had held that a distinction needs to be drawn between an innocuous transaction, such as obtaining a loan, and one where a pecuniary advantage was sought by misuse of a public office. The decision has absolutely no bearing on the present case. 22. Relying on the decision of the Supreme Court in the case of Mahmood Vs. State of Uttar Pradesh, reported in AIR 1976 SC 69 the learned counsel for the appellant submitted that in a case based on circumstantial evidence, if the evidence was found too shaky, suspicious and fragile to furnish a sound foundation for conviction, the conviction could not be sustained. That case was one of murder where there was no direct evidence. True, the present case too is based on circumstantial evidence, which would have to be analysed to find out if it fulfills the tests laid down by the Supreme Court. 23. The evidence tendered by the prosecution to bring home guilt of the appellant comprises of the evidence of muster clerks PW 1 Dada Kamble, PW 7 Wasudeo, PW 9 Shankar and PW 13 Prabhat. 24. PW 1 Dada Kamble stated that it was his duty to maintain the attendance register of the persons working on the construction of tank at Dhakni. He stated that he used to mark the presence of the labourers, keep a muster roll signed by him every day and at the end of the week, used to hand over the muster roll to the appellant for the purpose of making payments to the labourers. He admitted that the muster rolls at Exhibits 28, 29 and 30 were in his handwriting and bore his signature. He admitted that the entries about the attendance of 21 disputed labourers were in his own handwriting. He admitted that he entered the names of labourers, who were at work, in the muster rolls, but also added that it may be true that the labourers, whose names appear at Sr. Nos.1 to 21 in each of the three muster rolls at Exhibits 28,29 and 30, may not at all have worked at the said tank. He claimed that he had written the names as per the instruction of appellant Pathan. He stated that after the construction work at Dhakni was over, he worked as muster clerk at the construction work at Mundipar and then at Kundwa. He claimed that he had written the names as per the instruction of appellant Pathan. He stated that after the construction work at Dhakni was over, he worked as muster clerk at the construction work at Mundipar and then at Kundwa. The muster rolls of labourers engaged at Kundwa tank are at Exhibits 31, 32, 33 and 34, which are admitted by the witness to be in his handwriting and under his signature. He stated that the labourers shown in these muster rolls actually had not worked at the said tank and claimed that he had written their names as per the direction and dictation of the accused. 25. In course of cross-examination, this witness stated that about 200 to 300 labourers used to remain present at the work at Dhakni. Those who presented themselves used to be provided work. He admitted that appellant Path an did not visit the site every day, but after two or three days and that in the absence of appellant Pathan, he used to write the names of labourers, who reported for work. 26. The learned counsel for the appellant stated that the witness had admitted that the labourers whose names were entered in the muster rolls, were paid, and therefore, this rules out the appellant pocketing money for any labourer. This contention cannot be accepted, because it is not the prosecution case that any labourer was not paid. It is the prosecution case that some of the names in the muster rolls were fictitious and without engaging such labourers, payments shown to have made to such fictitious persons were pocketed by the appellant. 27. In cross-examination, PW 1 Dada Kamble further stated that the gangman used to report the names of absent labourers and accordingly he used to mark the presence. The witness had further stated that some labourers used to come to the site when appellant Path an visited the site and the appellant used to direct him to give work to those labourers also. The witness stated that thereafter he used to enter the names of those labourers in the muster roll and that such labourers were also paid on the payment day. The witness admitted that he had not complained either to the Executive Engineer or any other authority about any malpractice. 28. The witness stated that thereafter he used to enter the names of those labourers in the muster roll and that such labourers were also paid on the payment day. The witness admitted that he had not complained either to the Executive Engineer or any other authority about any malpractice. 28. The learned counsel for the appellant particularly relied on the admission of this witness in para 9 of the cross-examination that he had entered in the muster roll names of only those, who actually worked on the site, and that he did not write the names of the labourers, who did not work on the site. Now this skin saving statement in unlikely to wash out the effect of admission of the witness in earlier part of his deposition about 21 labourers having not at all worked on the site, if such a statement is corroborated by other evidence. Same is the case with the admission of the witness that he was unable to tell whether the muster rolls at Exhibits 28 to 34 are genuine or bogus, because he had already stated that the muster rolls bore his signature and were in his handwriting. 29. PW 7 Wasudeo is another muster clerk, who stated that the labourers present on the work were marked present in the muster roll and that appellant Path an was checking that muster. He stated that every gangman used to bring a list of about 21 labourers. Appellant Pathan used to check the list with reference to the labourers and the witness used to take the entries of the names of those labourers, who were present on the work. He too stated that the payments to the labourers were made by the appellant. He proved muster rolls at Exhibits 45 to 48 written in his hand. Since the witness insisted that he had entered the names of only those labourers, who were actually present on the work, he was declared hostile and was cross-examined by the learned APP. In course of cross-examination, the witness admitted that it was possible that .he names of some of the labourers shown in Exhibits 47 and 48 were written on the basis of the wrong information given by the gangman. When confronted with his statements under Section 161 of the Code of Criminal Procedure, he was unable to state what was true or what was false. When confronted with his statements under Section 161 of the Code of Criminal Procedure, he was unable to state what was true or what was false. In cross-examination on behalf of the accused, the witness stated that the accused used to make the payment to gang man and that the gangman used to distribute weekly payment to each labourer. The learned counsel for the appellant submitted that in the view of the matter, the appellant cannot be held guilty even for making any payment to any fictitious person. 30. PW 9 Shankar is the third muster clerk, who proved muster rolls at Exhibits 93 to 95. He stated that the names at Exhibits 93 to 95 are same, only their residences are shown at different places, namely Junewani in Exhibit 94, Mundipar in Exhibit 95, etc. He admitted that the persons were fictitious and that only a record was prepared at the instance of the appellant, though the persons were actually not on work. In cross-examination, the witness admitted that he had not made any complaint about the muster rolls being bogus. 31. PW 13 Prabhat, the last muster clerk examined by the prosecution, stated that he had prepared the muster for the workers of Dhakni and that the accused told him to fill it up, though he told the accused that he was not working at Dhakni. He states that the accused gave him a list of labourers and asked him to write down the muster, though the witness stated that he had not seen those labourers working at Dhakni tank. He too stated that the accused was making payments to the labourers. Since towards the end of examination-in-chief he stated that he had seen the labourers working and then signed the muster roll of each date, he was allowed to be cross-examined by the prosecutor. But he repeated that he had not filled the muster roll even though the labourers were not working. He denied having stated that he had never seen 21 labourers working. 32. The learned counsel for the appellant submitted that the evidence of these four muster clerks should not have been relied on by the learned Trial Judge, first, because they are themselves hesitant to categorically state about the complicity of the appellant in pocketing Government money by showing 21 fictitious labourers. 32. The learned counsel for the appellant submitted that the evidence of these four muster clerks should not have been relied on by the learned Trial Judge, first, because they are themselves hesitant to categorically state about the complicity of the appellant in pocketing Government money by showing 21 fictitious labourers. Secondly, these persons themselves had written the muster rolls and, therefore, are in the position of accomplices whose evidence ought to be read with caution. According to the learned counsel, the witnesses should be disbelieved because they are naming the appellant as the person who made payments to the labourers or who asked them to insert the names of fictitious labourers, only to save their skin, having first prepared bogus mister rolls. 33. The learned APP countered by submitting that the witnesses were not responsible for making payments to the labourers. The appellant was their superior and, therefore, if the witnesses obeyed the directions of the appellant, it cannot be said that their evidence becomes suspect or that the Court may inter that they are trying to save their skin. I have carefully considered the rival contentions in this behalf. There can be no doubt that the four muster clerks, may not be exactly accomplices, in the sense that they anticipated, helped or abetted in commission of crime. However, without their writing the muster in the manner desired by the appellant, it would have been difficult for the appellant to pocket the wages meant for fictitious labourers. Therefore, their evidence would indeed have to be read with caution and unless corroborated may not be relied on. Their evidence, however, shows that 21 names in the musters kept by them did not belong to persons actually engaged on work. 34. The next set of witnesses on whose evidence the prosecution placed reliance are: PW 2 Dulichand, Ration Shop Keeper, PW 4 Shalikram, Sarpanch of Group Gram Panchayat, Fettepur, Kindgipar and Dongargaon, PW 5 Chaitram. former Police Patil and PW 6 Pyarelal, Village Kotwal. PW 2 Dulichand, Ration Shop Keeper, was read over names of alleged fictitious labourers from muster rolls at Exhibit 28 to 34 and stated that those persons never resided at Fattepur and were not customers of his only ration shop in the Village. former Police Patil and PW 6 Pyarelal, Village Kotwal. PW 2 Dulichand, Ration Shop Keeper, was read over names of alleged fictitious labourers from muster rolls at Exhibit 28 to 34 and stated that those persons never resided at Fattepur and were not customers of his only ration shop in the Village. His admission in cross-examination that his son, and before his son, one Jagu, a servant, looked after the shop does not imply that he would not know the Villagers. PW 4 Shalikram was read over a list of persons from Exhibit 28 and stated that though most of the villagers from Fattepur were personally known to him, none of the persons' named in the list was known to him. He was cross-examined in order to make him say that he knew only persons of his group of Fattepur. He also admitted that the surnames of the persons were not written in Exhibit 28. 35. PW 5 Chaitram is an old resident of Village Juniwani and was also Police Patil of the Village. He stated that the population of Junewani was hardly 300. He was read over the names of 21 persons from the muster roll of Mundipar Tank. He stated that no persons named in the muster roll ever resided at Village Junewani. In cross-examination. he admitted that about 10 persons might have died between 1975 and 1992 in the Village, but he could not recollect their names. He could not tell how many persons were born or died in the year 1976. However, this type of cross-examination is unlikely to discredit the word of the witness that the names of the persons in the muster roll were not familier to him. 36. PW 6 Pyarelal was working as Kotwal of Village Mundipar since 1979. He too stated that no person, whose name appeared in the muster roll of Mundipar Tank, resided at Mundipar. His cross-examination too does not help the defence in discrediting the version. It must be borne in mind that it would be difficult to establish non-existence of fictitious persons. When a person does not exist, evidence of his in-existence would have to be tendered only in the way it is given by PW 2 Dulichand. PW 4 Shalikram. PW 5 Chaitram and PW 6 Pyarelal. It must be borne in mind that it would be difficult to establish non-existence of fictitious persons. When a person does not exist, evidence of his in-existence would have to be tendered only in the way it is given by PW 2 Dulichand. PW 4 Shalikram. PW 5 Chaitram and PW 6 Pyarelal. If, according to the defence, these persons did really exist, it would have been possible for the defence to search for such persons or produce them before the Court or to bring other evidence of their existence to rule out the charge of pocketing money in the name of fictitious persons. Just as the difficulties of the defence in providing non-existence of a fact have to be taken into consideration, it would be necessary to consider whether the prosecution would be in a position to tender the negative evidence. In view of this, the evidence of these three witnesses cannot be assailed and would provide adequate corroboration to the evidence of four muster clerks. 37. PW 10 Sub-Divisional Engineer Sudhakar Guladhe stated that accused No.1 was entrusted with the job of making payments to the labourer. After perusal of muster rolls, temporary advances were made to accused No.1, that is the appellant. PW 10 Sudhakar stated that he used to only verify the muster rolls. He stated that while making payments, he verified the record and on the basis of records submitted by the accused, payments were passed. He was shown Exhibits 49 and 50 which bore his signature. He stated that those payment vouchers showed the names of gangmen, but actual payment was made to the individual labourer. He had no personal knowledge if the payments were made to the labourer or otherwise. He admitted that he had not verified the presence of labourer at the spot. He was cross-examined and in cross-examination, the witness stated that if the overseer is not able to identify the labourer personally, the overseer used to get the labourer identified through Mustering Assistant or somebody else. He admitted that the work was completed as per the plan in that year and also that whenever he visited the work, he did not receive any complaint. 38. He admitted that the work was completed as per the plan in that year and also that whenever he visited the work, he did not receive any complaint. 38. PW 11, Retired Superintending Engineer Amritkar stated that as the Competent Authority in respect of the appellant, upon receiving a proposal from the Police Department, he went through the: papers of investigation and sanctioned the prosecution of the appellant. The witness was not cross-examined. 39. PW 12 Dy. S. P. Rathod had conducted investigation in this case in part. He stated that he had sought voters list and also opinion of Hand-writing Expert. He stated that on the basis of voters list at Exhibit 100, he found that the names in the muster rolls were bogus. The learned counsel for the appellant submitted that the reliance on the voters' list at Exhibit 100 was improper, because the letter at Exhibit 100 itself shows that the list submitted was a supplementary list and not the entire voters' list. Therefore, the learned counsel wondered as to how on the basis of supplementary list, it could be gathered that the persons concerned were not the residents of the concerned Villages. The objection has substantial force and, therefore, the voters' list at Exhibit 100 would have to be excluded from consideration. 40. PW 14, Retired Sub-Divisional Police Officer, Mardikar had conduced most of the investigation. He proved the contradictions in the statements of prosecution witnesses, namely PW 1 Dada Kamble, PW 7 Wasudeo Rahangadale and PW 13 Prabhat Ravat. 41. PW 8 Arun Borikar is a Finger Print Expert in Finger Print Bureau and was at the relevant time posted at Nagpur. He stated about his qualification and expertise. He stated that he had received 17 muster rolls and specimen impression of left and right thumbs of PW s No.1, 7, 9, 13 and the two accused. After comparing the thumb prints, he gave his opinion, which he proved at Exhibit 55. He stated that the disputed prints A and A-1 to A-19 were not of any of the six persons whose prints were submitted to him for examination, but were of one and the same person. He found that prints in the muster rolls of Dhakni Tank at Exhibits B-15, B-14 and B-16 were identical with the finger print of Amarsing Sohanlal, that is the acquitted accused. He found that prints in the muster rolls of Dhakni Tank at Exhibits B-15, B-14 and B-16 were identical with the finger print of Amarsing Sohanlal, that is the acquitted accused. In respect of the muster rolls of Kudwa Tank, he found that the finger prints at Exhibits C-1 to C-21 and C-1(a) and C-2(a) were not identical with the specimen impression of six persons named above, but they were identical inter se, that is they were of the same person. 42. The learned counsel for the appellant submitted that the evidence of Finger Print Expert cannot be conclusive, since it is just an opinion. The learned APP countered by submitting that while opinion in respect of a handwriting may be termed as a mere opinion, which may vary with experience and expertise and the person examining, as far as the finger prints are concerned, if comparisons were made, albeit with the help of expert, even a layman would find out whether the finger prints tallied or not. It is because of the certainty of the identification that finger prints have substantial importance. Therefore, unless it is shown that the opinion of PW 8 Shri. Borikar was incorrect, the opinion must be taken to conclusively prove the similarities in the finger prints about which Shri. Borikar speaks in his report. 43. The objection of the learned counsel for the appellant that the finger prints were not taken under the supervision of a Magistrate and his reliance on the judgment of the Supreme Court in Inderjit Singh's case (supra) is equally misconceived, since this is not a case where the thumb marks of the appellant have tallied with the disputed thumb marks. The observation of PW 8 Shri. Borikar that 21 finger prints in muster rolls at Exhibits A, Band C were inter se tallying with each other shows that the finger prints were of one and same person, implying that one and the same person put those thumb prints while pocketing wages. Now it is this piece of evidence which clinches the issue of complicity of the accused in defrauding the Treasury. 44. The evidence of muster clerks would show that the names of 21 persons were inserted by them in the muster rolls at the instance of the accused and those persons did not actually work on the Tanks. Now it is this piece of evidence which clinches the issue of complicity of the accused in defrauding the Treasury. 44. The evidence of muster clerks would show that the names of 21 persons were inserted by them in the muster rolls at the instance of the accused and those persons did not actually work on the Tanks. The evidence of the villagers, PWs 2, 4, 5 and 6 - Ration Shop Keeper, Police Patil, Sarpanch and Kotwal - who are normally expected to know the persons in the Village, would show that no such persons were in existence. The evidence of Finger Print Expert would show that the finger prints were of one and the same person implying that one and the same person put his thumb mark when the accused claimed to have made payment to each labourer. 45. The defence that the accused used to make the payment only to gangman, who, in turn, distributed the same to the gang of 21 persons, has to be rejected, because it too would imply a breach of trust by not discharging his responsibility. It was the duty of the appellant to make payment and, therefore, he should have discharged that duty in a responsible manner after ensuring that every person, who was paid, put his thumb mark in presence of the appellant. In view of this, it cannot be said that the learned Trial Judge erred in holding that the accused made a show of payment having been made to 21 fictitious persons, did not discharge the trust reposed in him in the manner expected and thus misappropriated the sum which he had drawn from the office for disbursement to labourers. 46. As already observed, having acquitted the appellant of the offence punishable under Section 467 of the Penal Code, the Court could not have convicted appellant for the offence punishable under Section 468 of the Penal Code. Likewise, conviction for offence punishable under Section 477-A of the Penal Code, for which no charge was framed, was also unjustified. 46. As already observed, having acquitted the appellant of the offence punishable under Section 467 of the Penal Code, the Court could not have convicted appellant for the offence punishable under Section 468 of the Penal Code. Likewise, conviction for offence punishable under Section 477-A of the Penal Code, for which no charge was framed, was also unjustified. As regards conviction for offence punishable under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, it may have to be observed that the provisions of Sections 5(1)(d) and 5(2) of the said Act no doubt may cover the case of an employee, who abuses his position as a public servant and obtains a valuable thing for himself. But it must be borne in mind that the object of phrasing Section 5(1)(d) of the Act in broad terms is to ensure that the corrupt do not escape punishment because of restrictive clauses while defining offences. It does not, however, follow that the type of activity which the appellant indulged in was intended to be covered by the provisions of Section 5(1)(d) of the Prevention of Corruption Act. For proving an offence of obtaining illegal gratification, it would be necessary to show that such gratification was obtained from someone else. Committing criminal breach of trust or misappropriation of public money is duly covered by offence punishable under Section 409 of the Penal Code. Therefore, it is not necessary to resort to the broad language used while defining offence punishable under Section 5(1)(d) of the Prevention of Corruption Act. In view of this, it is not necessary to convict the appellant of offence punishable under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act. Hence the following order is passed. 47. The appeal is partly allowed. The conviction of the appellant for the offence punishable under Section 468 and 477A of the Penal Code and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and the resultant sentence of rigorous imprisonment for one year and fine of rupees one thousand, or in default simple imprisonment for six months on each count are set aside. The conviction of the appellant for the offence punishable under Section 409 of the Penal Code and the resultant sentence of rigorous imprisonment for one year and fine of rupees one thousand, or in default to suffer simple imprisonment for six months, is maintained. The appellant shall surrender to his bail. If the appellant does not surrender before the learned Additional Sessions Judge and Special Judge, Gondia, within a period a eight weeks, the learned Judge shall take steps to have the appellant arrested and committed to prison to serve the sentence. Appeal partly allowed.