JUDGMENT Both the criminal conviction appeals are directed against the judg­ment and order of conviction and sen­tence dated 8.12.2007 passed by the Special Judge Anti Corruption, Jammu, in case titled State vs Romesh Kumar and another, whereby appellant Romesh Kumar came to be convicted for the commission of offence punish­able under section 5(1)(c) red with sec­tion 5(2) of Prevention of Corruption Act (for short, P.C. Act) and 409/120-B of Ranbir Penal Code (for short, RPC), whereas appellant Bansi Lal has been convicted for the commission of offence under section 120-B RPC, on the grounds taken in the memo of appeals (for short, impugned judgment). It is profitable to give brief facts of the case herein. 2. Vigilance Organization Jammu on getting reliable information raided Shamboo Flour Mill, R.S. Pura, Jammu on 17.9.2009 and recovered 96 bags of wheat of Food & Supplies Department to be unloaded at Food & Supplies Store Banihal. 3. The allegations against accused were that appellant-accused Ramesh Kumr, driver of Truck No. 630-JKZ of J&K State Road Transport Corporation (for short, JKSRTC) was entrusted with 96 bags of wheat of Food & Supplies Department along with duty slip and challan, which were to be unloaded at Food & Supply Store, Banihal. He in connivance with appellant-accused Bansi Lal hatched a conspiracy and misappropriated the said wheat by sell­ing the same to Bansi Lal. Accused Romesh Kumar thus unloaded the said wheat at Shamboo Flour Mill R.S. Pura, the owner of which is accused Bansi Lal. On getting information police ar­rested accused Romesh Kumar and on his disclosure statement recovered the said wheat from Shamboo Flour Mill. Accused were charge sheeted vide or­der dated 3.4.2001, they pleaded not guilty and claimed to be tried. 4. Prosecution examined PWs Raj Kumar, Thoru Khan, Mohinder Singh, Naresh Kumar, Bhadur Singh, Kapoor Singh, Subash Chander, Yashpaul, Tilak Raj, Gopal Dass Khajuria, Mushtaq Ahmad Khan, Suresh Kumar, Mela Ram, Sakhi Mohd, Ashok Kumar, Rattan Lal, Jugal Kishore, Bal Krishan, Bhupinder Singh, Amar Nath, Abdul Aziz Khan and Mohd. Bashir Choudhary. Prosecution has not exam­ined PW2 Shabir Ahmad, PW7 Mohd. Tasleem, PW22 Kewal Krishan and PW26 S.A. Watali. 5. In support of his defence, ac­cused Romesh Kumar examined Vijay Kumar and Mohan Lal. Accused Bansi Lal has not examined any witness in his defence. Evidence of the prosecution 6. Bashir Choudhary. Prosecution has not exam­ined PW2 Shabir Ahmad, PW7 Mohd. Tasleem, PW22 Kewal Krishan and PW26 S.A. Watali. 5. In support of his defence, ac­cused Romesh Kumar examined Vijay Kumar and Mohan Lal. Accused Bansi Lal has not examined any witness in his defence. Evidence of the prosecution 6. PW1 Tilak Raj has proved recov­ery and seizure of truck and two challans EXPW-TR and 96 bags of wheat from Shamboo Flour Mill EXPW-MS. He has not given any identification mark on wheat bags and also stated that the investigating officer had not called any independent person as a witness though number of people were moving at that particular point of time on the road. 7. PW3 Thoru Khan has deposed that during interrogation accused Romesh Kumar said that he had kept the wheat bags in the truck, which were thereafter recovered. Seizure memo was prepared which bears his signature and admitted the contents as true and correct. In cross examination deposed that disclosure statement was prepared in his presence but he had no knowledge as to who signed it. 8. PW4 Mohinder Singh has de­posed that accused Romesh Kumar dur­ing interrogation had said that he had sold the wheat bags to accused Bansi Lal and the same were recovered fom Bansi Lal at the instance of Romesh Kumar. Recovery and seizure as well as disclosure statement bears his sig­nature. In cross-examination has de­posed that the seized wheat bags did not bear any specific mark and the bags were of common type. Accused Bansi Lal was not present in the mill, only one mate and 10/12 labourers were present in the mill. 9. PW5 Naresh Kumar has deposed that Shamboo Flour Mill is owned by one Ajay Kumar and Bansi Lal has nothing to do with it. In cross examination has deposed that though seizure memo bears his signatures, but the contents of the same are incorrect. This witness was declared hostile. 10. PW6 Raj Kumar has said noth­ing about the seizure and was declared hostile. 11. PW8 Bhadur Singh has deposed that the vigilance Organization seized two receipt dispatch registers from store keeper Abdul Majid and seizure memo was prepared, which bears his signatures. 12. PW9 Subash Chander has de­posed that the Vigilance people came in his office and got his signatures on a piece of blank paper. 11. PW8 Bhadur Singh has deposed that the vigilance Organization seized two receipt dispatch registers from store keeper Abdul Majid and seizure memo was prepared, which bears his signatures. 12. PW9 Subash Chander has de­posed that the Vigilance people came in his office and got his signatures on a piece of blank paper. He has recog­nized his signatures on the supurdnama of the truck, but has not proved its contents. 13. PW10 Kapoor Singh has deposed that he does not know anything about the seizure and Supurdnama of the truck. He had signed on a blank paper and recognized his signatures on the deed of Supuridnama, EXPWKS. In cross examination has deposed that his statement was not recorded by the vigi­lance people. 14. PW11 Mushtaq Ahmad Khan has deposed that on 22.9.1999 he on the directions of Yard Master brought the loaded vehicle of SRTC bearing No. 630-JKZ from the office of Vigilance Organization, Jammu. The wheat was loaded in the said vehicle, which was unloaded in the New Store. The deed of Supurdnama bears his signature, but he was made to sign it on a blank pa­per. 15. PW12 Yash Paul stated that he does not know anything about the Supurdnama of wheat, he was declared hostile. 16. PW13 Suresh Kumar has de­posed that on 15.9.1999 a slip regarding truck No. 630-JKZ was seized from his office by virtue of which BPL wheat weighing 90 quintals was to be taken to Banihal store and the driver of said vehicle was Romesh Kumar, bears his signatures. In cross examination has deposed that he came to know about the loading of vehicle from dispatch regis­ter/statement. 17. PW 14 Gopal Dass Khajuria has deposed that on 15.9.1999 accused Romesh Kumar came to him to load 96 bags of wheat for which Assistant Di­rector had issued slip. Thereafter the store keeper prepared gate pass and gave it to Romesh Kumar. The slip is on the file and bears his endorsement and initials. In cross examination has deposed that he came to know after one and half months that the accused had not delivered the consignment. 18. PW 15 Mela Ram has deposed that he was issuing slips for the ve­hicles, which were to be loaded. The slip dated 15.9.1999 EXPW-MR, regard­ing 90 quintals of BPL wheat meant for Banihal, is in his handwriting and it bears his signatures. 18. PW 15 Mela Ram has deposed that he was issuing slips for the ve­hicles, which were to be loaded. The slip dated 15.9.1999 EXPW-MR, regard­ing 90 quintals of BPL wheat meant for Banihal, is in his handwriting and it bears his signatures. It was in the name of accused Romesh Kumar driver of vehicle No. 630-JKZ. He recognized the accused, who was present in the Court. In cross examination has de­posed that it is wrong that he was not competent to issue the slip. 19. PW 16 Ashok Kumar has de­posed that on 15.9.1999 after loading of 96 bags of wheat accused driver Romesh Kumar took the truck to the office of Assistant Director, Trade and Store, Jammu from where he had to get the challan. The truck was loaded in his presence. The gate pass is in his handwriting and bears his signature. The slip marked as EXPW-MR is also correct. He read in the newspaper that the said truck was unloaded in Shamboo Flour Mill, R.S. Pura instead of Banihal. The deed of Supurdnama bears his signature and its contents are correct. In cross-examination has deposed that the wheat bags did not have any specific mark(s). 20. PW 17 Rattan Lal has deposed that he prepared challan No. 4445 dated 15.9.1999 and it was for Banihal Store. It is in his hand writing and its con­tents are correct. He handed over the challan to driver Romesh Kumar, who then left the place. What happened thereafter is not known to him. On cross-examination has deposed that the wheat of any specific mark was not loaded in the vehicle. 21. PW 18 Bal Krishan Sharma has deposed that the supurdnama bears his signatures and its contents are correct. 22. PW 19 Amar Nath has deposed that in his presence truck No. 630/JKZ loaded with 96 bags of wheat was kept on the Supurdnama of Assistant Direc­tor. The Supurdnama bears his signa­ture and its contents are correct. 23. PW 20 Bhupinder Singh has deposed that he produced slip dated 15.9.1999 regarding loading of wheat in truck No. 630/JKZ Angpatri wheat, gate pass, office copy of challan No. 4445 and dispatch statement etc. before the In­vestigating officer, which were seized by him. The seizure memo bears his signatures and its contents are correct. 23. PW 20 Bhupinder Singh has deposed that he produced slip dated 15.9.1999 regarding loading of wheat in truck No. 630/JKZ Angpatri wheat, gate pass, office copy of challan No. 4445 and dispatch statement etc. before the In­vestigating officer, which were seized by him. The seizure memo bears his signatures and its contents are correct. In cross examination has deposed that Assistant Director did not give him any direction in writing but he verbally asked him to hand over the concerned record. 24. PW 21 Sakhi Mohd has deposed that the investigating officer seize one slip, one Angpatri and one dispatch statement in his presence. The sei­zure memo bears his signature and its contents are correct. The investigat­ing officer also seized one letter which had come from Toll Post, Nagrota. In cross-examination had deposed that the said seizure memos were prepared on 1.10.1999, 4.10.1999 and 14.10.1999. 25. PW 23 Jugal Kishore has de­posed that truck bearing No. 630/JKZ did not cross the Toll Post from 15.9.1999 to 17.9.1999. Letter No. 156/ KNT dated 13.10.1999 bears his signa­ture and its contents are correct. 26. PW 24 Mohd Bashir Chowdhary has deposed that the investigation of FIR No. 54/99 was entrusted to him. He raided the house of driver Romesh Kumar and found the truck parked out­side his house at Resham Ghar Colony. The accused Romesh Kumar was present in his house. During investi­gation, the accused made a disclosure statement that he had sold wheat to Bansi Lal at R.S. Pura and he had un­loaded the consignment there. There­after, Shamboo Flour Mill of accused Bansi Lal was also raided and 96 bags of wheat were recovered from the said Mill. The recovery memo and seizure memo bear his signatures and its con­tents are correct. He has seen the challan and it is same which was seized by him. He also got certificate from Toll Post, Nagrota regarding move­ment of truck during those days. In cross-examination deposed that he also investigated about the involvement of employees of the Food and Supplies Department in the case but the allega­tions were not found to be correct. The seizure memos were prepared on spot but at that time no civilian was found and as such, police personnel were kept as witnesses. He did not enquire from accused No. 1 as to at what price he sold the wheat to Shamboo Flour Mill. 27. The seizure memos were prepared on spot but at that time no civilian was found and as such, police personnel were kept as witnesses. He did not enquire from accused No. 1 as to at what price he sold the wheat to Shamboo Flour Mill. 27. PW 25 Abdul Aziz Khan has de­posed that FIR No. 54/99 bears his sig­natures and its contents are correct. He entrusted the investigation of the case to Bashir Ahmad Inspector. The entrustment slip bears his signature and its contents are correct. In cross-examination deposed that the Depart­ment did not get the FIR registered but he came to know about missing of 96 bags from reliable sources. He cannot disclose the name of his source. 28. Prosecution has failed to prove that the wheat bags were having any distinct mark or the mark of FCI. One of the officers of Food & Supplies De­partment has deposed that all the wheat bags bear identity mark. There is also not an iota of evidence on the file which can be made basis that Bansi Lal was owner of the mill. Whether he was owner or not is not proved by the pros­ecution. Prosecution has also failed to prove following points: i. Whether Bansi Lal was the sole owner of Shamboo Flour Mill or one of the partners? ii. If he was one of the partners, then who were other partners? iii. Whether he was an active or sleeping partner? iv. Whether the mill was being managed by Manager. If yes, who was the Manager? v. Whether Bansi Lal had knowl­edge about unloading of said wheat bags in the Mill? 29. The only evidence on the file is alleged disclosure statement which is not signed by the accused and is inad­missible evidence in law. It is beaten law of the land that the disclosure state­ment made in terms of Section 27 of the Evidence Act can only be read and is admissible to the extent which leads to recovery, rest of the part is not ad­missible. 30. Admittedly, the so called disclo­sure statement is not signed by the accused, thus is invalid and inadmis­sible. My this view is fortified by the judgment of Apex Court in Jackaran Singh vs State of Punjab, 1995 Cr.L.J SC 3992. 31. There is no other evidence on the file except the disclosure state­ment. 30. Admittedly, the so called disclo­sure statement is not signed by the accused, thus is invalid and inadmis­sible. My this view is fortified by the judgment of Apex Court in Jackaran Singh vs State of Punjab, 1995 Cr.L.J SC 3992. 31. There is no other evidence on the file except the disclosure state­ment. The prosecution has failed to prove that when conspiracy was hatched by accused Romesh Kumar and Bansi Lal. It has also failed to prove that for what value Romesh Kumar had sold the said wheat to Bansi Lal, whether it was sold on minimum price in order to hold that Bansi Lal had wrongful gain. My this view is fortified by the judg­ment of Apex Court in Ram Narain Poply vs Central Bureau of Investiga­tion, AIR 2003 SC 2748 . 32. Thus the prosecution has failed to prove the charge of conspiracy in any way, I wonder how the trial court has convicted Bansi Lal for the commission of offence punishable under section 120-B RPC. 33. Now the question is whether he can be convicted for the commission of offence punishable under section 409 RPC. 34. As discussed hereinabove, prosecution has not proved whether Bansi Lal had the knowledge that ac­cused Romesh Kumar had unloaded seized wheat bags in the Mill, whether he was present at that time, whether he had knowledge of the same, who received the wheat bags at that particular point of time and who was manag­ing the Mill. There is no evidence on the file which can be made basis for holding that he is owner of the Mill. Further mere possession is not suffi­cient to convict Bansi Lal under sec­tion 409 RPC, unless it is proved that he had the knowledge of stolen prop­erty and he purchased the said wheat bags at a low price in order to have wrongful gain. My this view is fortified by the judgments of Apex Court in Union Territory of Goa vs Boaventura D'souza, AIR 1993 SC 1199 and 1989 Cr.L.J. 956. Thus the conviction and sentence of Bansi Lal is illegal. 35. Now coming to accused Romesh Kumar. 36. Following are the essential in­gredients of the offence punishable under section 409 RPC. i. The accused must be a public servant; ii. he must have been entrusted, in such capacity, with property; and iii. he must have committed breach of trust in respect of such property. 35. Now coming to accused Romesh Kumar. 36. Following are the essential in­gredients of the offence punishable under section 409 RPC. i. The accused must be a public servant; ii. he must have been entrusted, in such capacity, with property; and iii. he must have committed breach of trust in respect of such property. 37. There is ample evidence on the file that he was driver of JKSRTC and was allotted Truck No. 630-JKZ on the relevant date. He was entrusted with 96 bags of wheat, duty slip was issued and fuel was also given to him. Pros­ecution has proved entrustment beyond reasonable doubt and it was for accused Romesh Kumar to prove that he had unloaded/deposited the said wheat bags at Food & Supply Store, Banihal, which he has failed to do so. The prosecution has proved beyond reasonable doubt that the said truck had not gone out­side Nagrota Toll Post on the relevant date and it never reached Banihal. Fact of the matter is that the said truck was parked outside the house of Romesh Kumar when he was arrested. Challan and other documents were also seized from the truck. 38. It is apt to reproduce section 106 of the Evidence Act herein. "106. Burden of proving fact es­pecially within knowledge.-When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Keeping in view the mandate of sec­tion 106, it was for the accused to prove that he had not misappropriated the wheat bags but has discharged his entrustment in terms of the directions. The Apex Court in Hira Nand vs State of Himachal Pradesh, 1995 Cri.L.J 3646 has held that failure to deposit the en­trusted goods is misappropriation and onus is on the accused to prove whether he had kept the entrusted goods. Same law is laid down by the Apex Court in Bachchu Singh vs State of Haryana, AIR 1999 SC 2285 and Janewshwar Dass Vs. State of U.P., AIR 1981 SC 1646 . Thus failure to deposit the wheat bags at Food & Supply Store Banihal is a clear case of misappropria­tion and abuse of process of his official position. 39. Same law is laid down by the Apex Court in Bachchu Singh vs State of Haryana, AIR 1999 SC 2285 and Janewshwar Dass Vs. State of U.P., AIR 1981 SC 1646 . Thus failure to deposit the wheat bags at Food & Supply Store Banihal is a clear case of misappropria­tion and abuse of process of his official position. 39. Viewed thus, I am of the con­sidered view that Romesh Kumar has rightly been convicted for the commis­sion of offence punishable under sec­tions 409 RPC and 5(1 )(c) read with 5(2) of P.C. Act, but came to be illegally or wrongly convicted and sentenced for the commission of offence punishable under section 120-B RPC. Accordingly, the conviction and sentence against appellant accused Romesh Kumar for the commission of offence punishable under sections 409 RPC and 5(1)(c) read with 5(2) P.C. Act is upheld and convic­tion under section 120-B RPC is set aside. The sentence and fine imposed is maintained under the said provisions of law. All the sentences shall run con­currently. 40. However, conviction and sen­tence awarded against appellant Bansi Lal is illegal, accordingly the same is set aside. He is acquitted of the charges and is discharged from the bail bonds. 41. Having glance of the above dis­cussion, appeal filed by Romesh Kuamr is disposed of as indicated above. The appeal filed by Bansi Lal is allowed and the impugned judgment so far as it re­lates to him is set aside, as indicated above.