JUDGMENT : B.P. Ray, J. - These two appeals are analogous to each other and since they arise out of one common judgment, they are taken together for hearing and are disposed of by the following common judgment. 2. During the year 1984-85 Appellant Debendra Narayan Giri (Appellant in Criminal Appeal No. 185 of 2000) was the B.D.O., Appellant-Dhaneswar Paikray (in Criminal Appeal No. 184 of 2000) was the Junior Engineer and Appellant-Surendra Kumar Satapathy (in Criminal Appeal No. 185 of 2000) was the Fishery Extension Officer of Naktideul Block in the district of Sambalpur. They were put to trial for commission of criminal misconduct as defined u/s 5(1)(c) of the Prevention of Corruption Act, 1947, criminal breach of trust u/s 409, I.P.C. in respect of Rs. 1,21,297.50 and falsification of account as set out in Section 477A, I.P.C. in furtherance of their common intention. 3. The accusations led to the trial briefly stated are that in the year 1980 the Government of Orissa launched ERRP programme for up-liftment of financial condition of the rural people, which includes tank fishery programme. It was decided to take up 25 numbers of tanks in the entire Naktideul Block under the scheme and to select the beneficiaries for the purpose through village committee. In order to implement this scheme, the B.D.O., Debendra Narayan Giri directed the Junior Engineer, Dhaneswar Paikray to prepare the plan and estimate for renovation of tanks and put the same before him. Accordingly, the Junior Engineer prepared the estimates in respect of 25 tanks of the block and placed before the B.D.O. who approved the same and directed the Fishery Extension Officer for its execution. 4. It is further alleged that the Fishery Extension Officer, who was entrusted with the work moved for release of advance and accordingly a sum of Rs. 90,000/-was made over. The renovation work in all the 25 tanks was completed in June, 1984. The Junior Engineer took the measurement and recorded the same in the Measurement Book No. 114. The B.D.O. check measured all the above measurement and directed the Head Clerk for preparation of final bills. The final bills after adjustment of the advance money were prepared and were placed before the Chairman for his counter signature. The Chairman, however, refused to countersign the final bills and returned the files. The B.D.O. check measured all the above measurement and directed the Head Clerk for preparation of final bills. The final bills after adjustment of the advance money were prepared and were placed before the Chairman for his counter signature. The Chairman, however, refused to countersign the final bills and returned the files. The Fishery Extension Officer, Sri Satapathy put up the files before the B.D.O. requesting for release of the bills early as those were long pending. Despite the refusal by the Chairman, the B.D.O. ordered for payment. 5. After the payment, there was large scale of resentment by the general public as a consequence thereof an enquiry was caused by the Sub-Collector, Rairakhol, who deputed technical persons for spot verification and measurement. The Assistant Engineer and the Junior Engineer, who remeasured the renovated tanks gave their findings that some works in respect of 20 tanks have been done and the estimated cost of the said work would be Rs. 35,991.60 only against Rs. 1,66,287.00 already paid. Since one monsoon has passed in the meanwhile looking to the field situation an allowance of 25% was given. Taking into consideration the extent of work and the allowances given, the total amount was calculated at Rs. 44,989.50. During the enquiry, it was ascertained that in respect of 5 tanks absolutely no work had been done and false measurements and check measurements have been recorded by the Junior Engineer and the B.D.O. Thus, the accused persons have misappropriated Rs. 1,21,298.50 by committing falsification of accounts in furtherance of their common intention and thereby they have mis-conducted themselves. 6. When all these discrepancies came to light on 9.6.1986 the Inspector of Police, Vigilance, Sambalpur lodged an F.I.R. Accordingly, Sambalpur Vigilance P.S. Case No. 20 of 1986 was registered, investigation was taken up. On completion of the same, charge sheet was submitted against all the accused persons u/s 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act, 1947 and Under Sections. 409/477A/34 I.P.C. 7. The plea of the accused-Appellants is of complete denial. They have further pleaded that the work in question had been duly executed and there was no irregularity whatsoever. 409/477A/34 I.P.C. 7. The plea of the accused-Appellants is of complete denial. They have further pleaded that the work in question had been duly executed and there was no irregularity whatsoever. The so called enquiry caused by the Sub-Collector and the measurement stated to have been taken after lapse of one year during which one rainy season has passed, can not be held to the basis for arriving at the conclusion that no work had been done. 8. Prosecution has examined as many as 23 witnesses to bring home the charges. The accused persons have also examined 4 witnesses in their defense. 9. The gravamen of the charges are as to whether the accused persons in their capacity as public servants in furtherance of their common intention have mis-conducted themselves and dishonestly and fraudulently misappropriated Rs. 1,21,298.50 and with intent to defraud the Government by falsifying the measurement books, bills etc. 10. The learned trial court recorded its finding on the basis of the evidence of P.W.19., Assistant Engineer, who conducted enquiry submitted the measurement under Ext. 34 and the report under Ext. 35. 11. It is contended by the Appellants that the conclusion arrived at by the learned Special Judge, Vigilance is thoroughly misconceived and baseless. The finding that the accused persons have misappropriated the amount meant for renovation of tank is not supported by any legal evidence. On the other hand, there are copious materials both oral and documentary which unerringly prove the execution of work, therefore, their convictions need to be set aside. 12. Before adverting the evidence of P.W.19 the sworn testimonies of the other witnesses need to be scrutinized carefully. P. Ws.3,6,13,15 and 16 are the Sarpanchs of different Gram Panchayats of Naktideul Block where the tank renovation work was undertaken. All the witnesses have categorically deposed that renovation work was done. Similarly P.W.7, the Ward Member, P.W.8, a Priest and P.W.17, a School Teacher unequivocally stated in their evidence that the tanks of their village were renovated. Besides the above witnesses, some local residents/cultivators namely, P. Ws.6,9,10,11,12 and 18 have also been examined by the prosecution. Their evidence disclose that during the year 1984-85 tank renovation was carried out under the ERRP Scheme and the Muster Rolls were being maintained. Besides the above witnesses, some local residents/cultivators namely, P. Ws.6,9,10,11,12 and 18 have also been examined by the prosecution. Their evidence disclose that during the year 1984-85 tank renovation was carried out under the ERRP Scheme and the Muster Rolls were being maintained. On combined reading of the evidence of all those witnesses, it can be safely deduced that the renovation of tanks in the block was undertaken by the authorities and the same was also executed. In this regard, the evidence of P.W. 23 the investigating officer clinches the issue. In his evidence he has deposed that during the course of investigation, he examined some of the laborers with reference to the Muster Roll to find out if they had worked and received their remuneration. In view of this evidence, there is hardly any scope to harbor any kind of doubt regarding execution of the work. 13. Much emphasis and weight have been attached to non-seizure of Muster Roll by the investigating officer. Almost all the witnesses examined by the prosecution have deposed that the Muster Rolls were being maintained and the laborers were being paid their remuneration/wages. The investigating officer has also fully corroborated the said fact that he examined the laborers with reference to the Muster Roll. The case records were seized from the Head Clerk. He could not be examined as he was dead. No other person has been examined to prove that the case record did not contain the Muster Roll. Merely because, the investigating officer did not mention in the seizure list the same would not be sufficient to hold that there was no Muster Roll particularly when he himself has examined the witnesses with reference to the same. The evidence of other investigating officer, P.W.21, also lends corroboration to the existence of Muster Roll. In cross examination while answering a question he has deposed that he had not examined the laborers whose names find place in the Muster Roll. The combined reading of the above evidence lead to irresistible conclusion that Muster Roll was being maintained by the Block authorities and the laborers engaged for tank renovation work were being paid their wages through it. 14. The next question comes for consideration is as to whether the work of renovation of tank has been executed or not. Admittedly, the tanks were renovated during May 1984-85. 14. The next question comes for consideration is as to whether the work of renovation of tank has been executed or not. Admittedly, the tanks were renovated during May 1984-85. Accordingly, the same were measured and check measured by the Junior Engineer and B.D.O. The works in question were re-measured by the Asst. Engineer P.W. 19, pursuant to an enquiry ordered by the Sub-Collector. P.W. 19 re-measured the tank on 25.05.1985 and 28.5.1985 i.e. almost a year after. During the said period one rainy season has already passed through. In course of renovation of tanks the mud and silt were removed from the tanks and are put on the embankment. During rain the mud and silt have flown down to the tanks and got deposited inside the tanks. Exactly the same has been found by P.W. 19. He, in his evidence, has deposed that at the time of taking measurement the pits were filled up partly with the mud and sand. The works were executed in the month of May, 1984. The rainy season has set in soon after the renovation. In such circumstances, it was not possible to opine conclusively that work was not done. P.W. 19 in his cross-examination has further stated that the earth removed from the tanks was put on the embankment and he has not measured the mud removed from the tanks and put on embankment. Had he measured the same, it would have given some indication regarding the extent of excavation done in the tanks. 15. Admittedly, the accused persons are not present when remeasurement was taken by P.W. 19. The enquiry and measurement have been conducted behind their back. Therefore, suspicion is raised regarding the authenticity and correctness of the report. The original measurement books have not been proved by the prosecution. P.W. 19 candidly has admitted that he has not compared the entries of the earlier measurement with his measurement. In absence of this comparison between the two measurements, quantification and valuation of the differential work is sheer guess work, which cannot form the basis for recording an order of conviction. 16. Considering the evidence available on record and viewing from different perspective, it can safely be concluded that the prosecution has not brought the charges of misappropriation u/s 13(1)(c) of the P.C. Act and Section 409, I.P.C. home, therefore, the same fails. 16. Considering the evidence available on record and viewing from different perspective, it can safely be concluded that the prosecution has not brought the charges of misappropriation u/s 13(1)(c) of the P.C. Act and Section 409, I.P.C. home, therefore, the same fails. As regards the charge u/s 477A, IPC, there is no evidence to constitute the said offence. Since the works have been done and payments have been made in execution of the same, the accusation of falsification of accounts must also fail. 17. In the result, both the appeals are allowed. Final Result : Allowed