JUDGMENT M.A. Siddiqui, J. 1. The appeal has been preferred by the Appellant feeling aggrieved by his conviction under Section 420 of IPC whereby he has been sentenced to undergo R.I. for one year and fine of Rs. 1,000/- in default of payment of fine to undergo six month's simple imprisonment, and under Section 5(1)(c)(d) read with Section 5(2) of Prevention of Corruption Act, 1947 (hereinafter referred to as "the Act") sentencing him to undergo R.I. for one year and fine of Rs. 1,000/- in default of payment of fine to undergo six month's simple imprisonment, as per judgment rendered by 2nd Addl. Sessions Judge, Mandla, dated 5.4.95 in Special Case No. 2/88. 2. It is an admitted fact that Appellant was posted as Block Development Officer (BDO) and Chief Executive Officer at Shahpura, District-Mandla and was a public servant from 25.03.1981 to 29.07.1981. It is undisputed fact that co-accused Rajendra Tiwari @ Rajju Thekedar has been acquitted by the learned trial Court by the impugned judgment. 3. In brief, the prosecution case before the trial Court was that at the time of posting of Appellant he was having two different capacities, one was Block Development Officer (BDO) and the other was Chief Executive Officer (CEO). The work of CEO was concerning to run the Panchayats of the block, and function of the BDO was to develop the whole block of Shahpura. The allegation against the Appellant was that he issued and withdrawn an amount of Rs. 1,97,010/- in the name of CEO and being CEO, he himself took this amount and without investing it in the development, he misappropriated the same. Another allegation against the Appellant was that with the help of co-accused Rajendra Tiwari without purchasing the lime powder (hereinafter referred to as "Choona") he fabricated the bills at a higher rate, the actual rate was Rs. 175/- per ton but it was shown to have been purchased at the rate of Rs. 420/- per ton, that too from an un-known person Raghunath Prasad Chourasia who was found to be not living and was a fake person. Receipts Ex. D/1, D/2, D/3 and D/4, and transportation receipts Ex.P/19 and P/20 were produced for recoupment and thereby Appellant cheated and misappropriated the public fund which was entrusted to him. 4. After Appellant was transferred, it was revealed that Appellant has committed cheating and mis-appropriation as a public servant. Receipts Ex. D/1, D/2, D/3 and D/4, and transportation receipts Ex.P/19 and P/20 were produced for recoupment and thereby Appellant cheated and misappropriated the public fund which was entrusted to him. 4. After Appellant was transferred, it was revealed that Appellant has committed cheating and mis-appropriation as a public servant. After his transfer, K.K. Gupta (PW.15) took the charge in whose tenure the receipts were submitted directly to the Accountant and the fact was brought to the knowledge of K.K. Gupta. After transfer of Shri K.K. Gupta (PW.15), Shri J.S. Mehta (PW.9) took the charge and worked as BDO from 1982 to 1986 and when the facts came to the knowledge, FIR was registered through Crime No. 64/83 on 6.12.83 by State Economic Offences Investigation Bureau under Section 5(1)(c)(d) and 5(2) of the Act. 5. After usual investigation, charge sheet was filed on 18.2.88 before Special Judge, Mandla and Special Case No. 2/88 was registered against the Appellant and co-accused. On 29.03.93, learned trial Judge framed charge under Section 420 and 120-B of IPC and Section 5(2) read with Section 5(1)(c)(d) of the Act. To substantiate its case prosecution examined Lahardas (PW.1) Head Constable, Narottam Lal Yadav (PW.2) Assistant Accountant, K.N. Tiwari (PW.3) the then Accountant, B.L. Sahu (PW.4) Bank Manager, U.S. Upadhyay (PW.5), witness of seizure of documents and register, Vinod Gupta (PW.6) seller of lime, Sarjoo Prasad (PW.7) and Saiyad Zamin (PW.8) contractors of lime, J.S. Mehta (PW.9) the then BDO from 1982 to 1986, B.K. Minz (PW.10) witness of sanction, Ravindra Kumar Roongta (PW.11) representative of Roongta Industrial Corporation, Shivprasad Soni (PW.12) transporter, Y.K. Tiwari (PW.13) Inspector (CID) and writer of FIR, S.K. Khare (PW.14) Mining Officer who issued the leases for mining of lime stone, K.K. Gupta (PW.15) the then BDO who worked from August 1981 to July,1982 and Girish Kumar Shukla (PW.16) Deputy Supdt. of Police, Investigating Officer. 6. The defence of the Appellant was the false involvement. 7. On the evidence of prosecution witnesses, trial Court, though acquitted co-accused Rajentra Tiwari from charge under Section 420 and 120-B of IPC, but on the facts that existence of seller Raghunath Prasad Chourasia is doubtful and the receipts Ex.D/1 to D/4 and Ex.P/19 and P/20 are suspicious, punished the present Appellant as aforesaid, hence this appeal has been preferred. 8. On the evidence of prosecution witnesses, trial Court, though acquitted co-accused Rajentra Tiwari from charge under Section 420 and 120-B of IPC, but on the facts that existence of seller Raghunath Prasad Chourasia is doubtful and the receipts Ex.D/1 to D/4 and Ex.P/19 and P/20 are suspicious, punished the present Appellant as aforesaid, hence this appeal has been preferred. 8. This appeal has been filed on the ground that the trial Court has not appreciated thoroughly the evidence of prosecution witnesses and has not given weightage to the fact that no legal sanction was taken for prosecution and finding of guilt is against the facts and circumstances of the case. 9. We have heard learned Counsel for both the sides. 10. As per impugned judgment vide para No. 16, it is clear that Appellant has been acquitted of the charge of embezzlement of an amount of Rs. 1,97,010/- but has been punished for cheating and mis-appropriation relating to purchase of Choona about 20 tons worth Rs. 8,400/- (Rs. Eight Thousand Four Hundred Only) and its transportation worth Rs. 1,800/- (Rs. One Thousand Eight Hundred Only). So, we have to see only that whether this finding relating to purchase of Choona is against the facts and circumstances of the case. 11. Learned Counsel for Appellant placed reliance on a decision of Apex Court in State of Karnataka v. Ameer Jan 2008 Cri.L.J. 347 and vehemently argued that no proper sanction has been granted. Per contra, the contention of learned Counsel for State is that as per version of B.K. Minj (PW.10) sanction was granted vide Ex.P/17 though there is dispute that it is not the original copy and it's a carbon copy, but it bears the signatures of this witness on each paper, even otherwise as per provision of Section 19(3)(a) of The Prevention of Corruption Act, 1988, this irregularity has no importance at all as the competent authority B.K. Minj (PW.10) who has accorded sanction has come forward to prove the sanction, so it cannot be said that proper sanction was not granted. 12. As far as purchase of Choona is concerned, learned trial Court has found that receipts vide Ex.D/1,D/2,D/3 and D/4 of purchase of Choona from Raghuvir Prasad Chourasia and its transportation receipts Ex.P/19 and P/20 are fake, so we have to see these documents and concerning facts and legal implications only. 13. 12. As far as purchase of Choona is concerned, learned trial Court has found that receipts vide Ex.D/1,D/2,D/3 and D/4 of purchase of Choona from Raghuvir Prasad Chourasia and its transportation receipts Ex.P/19 and P/20 are fake, so we have to see these documents and concerning facts and legal implications only. 13. Learned Counsel for Appellant submitted that though receipts Ex.D/1 to D/4 are on simple paper and they do not contain the date, but it is only an irregularity. He further submitted that prosecution has failed to bring home the guilt as it has not been proved that these documents were submitted by the Appellant himself, even no confrontation is made in the examination of accused under Section 313 by the Court. The evidence is that there is casual statement of K.K. Gupta (PW.15) successor of Appellant who stated that Appellant did not follow the rules of purchase and the vouchers were given to the Accountant. There is no version of both the Accountants Narottam Lal Yadav (PW.2) and K.N. Tiwari (PW.3) that these documents were handed over to them by the Appellant, rather they stated that no irregularity was found by them, and if some irregularity would have been located by them, then they would certainly have agitated the irregularity. So, even if, for the sake of argument, it is assumed that these documents were handed over by the Appellant to the Department, then too there is no specific evidence that through these vouchers no lime was purchased as there is specific statement of Shiv Prasad Soni (PW.12) who has categorically stated that these receipts were written by Raghunath Prasad Chourasia and payment was made to him of the lime before him. As far as existence of Raghunath Prasad Chourasia is concerned, trial Court came to the conclusion that as per evidence of prosecution witnesses Raghunath Prasad Chourasia was a person and he was dealing with the lime. Statement of Shiv Prasad Soni (PW.12) is very much clear and as per his statement receipts Ex.D/1 to D/4 are not fake, by omission of date, etc. , it may be an irregularity. As far as transportation receipts Ex.P/19 and P/20 are concerned, the version of Shiv Prasad Soni (PW.12) are very much clear. In examination-in-chief he stated that he passed the transportation vide Ex.P/19 and P/20 and took transportation charges Rs. 900/- each from Appellant. 14. , it may be an irregularity. As far as transportation receipts Ex.P/19 and P/20 are concerned, the version of Shiv Prasad Soni (PW.12) are very much clear. In examination-in-chief he stated that he passed the transportation vide Ex.P/19 and P/20 and took transportation charges Rs. 900/- each from Appellant. 14. Learned Counsel for Respondent submitted that lime was purchased at a very exorbitant rate, but as per other receipts vide Ex.P/9 to P/13, lime was purchased at the rate of Rs. 28.50 per quintal, so per ton will be of Rs. 285/- and there are clear admission of the prosecution witnesses that the rate of lime varies due to quality near about Rs. 100/- so rate of Rs. 420/- per ton cannot be said to be exorbitant. 15. Learned Counsel further submitted that vide Ex.P/3, the registers were seized, but no documents have been exhibited categorically to show that how much money was taken by the Appellant and how much was due against him, and how he has not made the accounts. On the other hand, as per statement of Accountants Narottam Lal Yadav (PW.2) and K.N. Tiwari (PW.3) no irregularity was there and no fake entry was made in cash book and in accounts. 16. Learned Counsel for Appellant also submitted that learned trial Court has convicted the Appellant on the suspicious evidence, and it was for the prosecution to prove that prejudice was made and public money was embezzled and misappropriated. It was the duty of the prosecution to prove that there was no need of purchase and no supply was made to the Panchayat. Even, it was not cared to produce any witness of the Panchayat who could say that no lime was received. So, the initial burden of proof was not discharged by the prosecution and trial Court has wrongly held that burden of proof shifted upon the Appellant to prove that how much purchase was made and for what purpose it was made. As per authority in V.D. Jhingan vs. State of Uttar Pradesh AIR 1966 1762 it is the legal duty of the prosecution to prove the initial guilt, and primary onus to prove the burden is always remains on the prosecution, and the burden only shifts when by cogent and credible evidence the existence of facts are proved. 17. As per authority in V.D. Jhingan vs. State of Uttar Pradesh AIR 1966 1762 it is the legal duty of the prosecution to prove the initial guilt, and primary onus to prove the burden is always remains on the prosecution, and the burden only shifts when by cogent and credible evidence the existence of facts are proved. 17. In Vijay Kumar Paliwal vs. State of M.P. I.L.R. (2011) M.P. 1, Short Note 38, a Division Bench of this Court held that there is always a danger that conjecture or suspicion may take place of legal proof, circumstances should be fully established and all the facts so established should be consistent only with the hypothesis of guilt of accused, circumstance should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. 18. As per above discussion, in our opinion, the prosecution evidence does not inspire confidence. It is the cardinal principle of criminal jurisprudence that a suspicion howsoever strong may be, cannot take place of proof and when slightest suspicion is there, benefit should be given to the accused. It is the duty of the prosecution to prove the case beyond reasonable doubt and in case of slightest doubt, the benefit should be given to the defence. 19. Resultantly, the appeal is allowed. The conviction and sentence of Appellant under Section of IPC and Section 5(1)(c)(d) read with Section 5(2) of the Act and the fine imposed, as aforesaid, are set aside. If Appellant has already deposited the fine amount, it be returned to him after due verification. Appellant is on bail, his bail bonds and personal bonds are discharged.