JUDGMENT Mr. Fateh Deep Singh, J.:- Four accused namely Sukhdev Raj, Assistant Grade-I (for short ‘AG(I)’); Manjit Singh, Assistant Manager – Depot (for short ‘AM(D)’) and Om Parkash, Assistant Grade-I (for short ‘AG(I)’) all officials of the Food Corporation of India (FCI), the latter having died during the trial, were jointly tried along with Jaipal Midha and Namdev both private Millers from M/s Friends Rice and General Mills and M/s Arora Rice and General Mills respectively in this criminal case got registered by way of RC No.16 of 10.05.2003 and all of them who happens to be the present appellants stood convicted vide common judgment dated 14.05.2009 by the Court of learned Special Judge, CBI, Punjab, Patiala under Sections 120B/420/477A IPC and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act and were sentenced as under: Name of Accused Offence Sentence 1. Sukhdev Raj 2. Manjit Singh 3. Jaipaul Midha 4. Namdev Section 120-B IPC To undergo RI for 2 years and to pay a fine of Rs.10,000 each; in default to undergo further RI for 3 months. 1. Sukhdev Raj 2. Manjit Singh 3. Jaipaul Midha 4. Namdev Section 420 IPC To undergo RI for 3 years and to pay a fine of Rs.20,000 each; in default to undergo further RI for 6 months. Sukhdev Raj Section 477-A IPC To undergo RI for 2 years. 1. Manjit Singh 2. Sukhdev Raj Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act To undergo RI for 3 years and to pay a fine of Rs.10,000 each; in default to undergo further RI for 3 months. 2. Since all the three appeals are directed against these impugned findings of the trial Court and thus for the sake of brevity and convenience are being disposed off by this common judgment. 3. Before appreciating the rival contentions what is necessitated is recapitulation of the factual niceties of the case for better appreciation. 4. It was on the basis of anonymous complaint allegedly dated 27.01.2001 addressed to the District Manger, FCI, Kapurthala claimed to have been made (revealed subsequently) by one Ravel Singh and which neither the complaint nor the complainant had seen light of the day, as they have never been brought before the Court. It was alleged therein regarding certain irregularities in handling of the paddy/rice stocks at FCI, Hired Godown (for short ‘HG’), Dhilwan. It was alleged therein regarding certain irregularities in handling of the paddy/rice stocks at FCI, Hired Godown (for short ‘HG’), Dhilwan. As per this source information, Sukhdev Raj AG(I), V.K. Gupta (also referred to as Y.K. Gupta), Assistant Manager – Quality Control (for short ‘AM(QC)’); Manjit Singh AM(D); Om Parkash AG(I) and Surinder Kumar, Technical Assistant Grade-I (for short ‘TA(I)’) of FCI have all hired a godown at Dhilwan, District Kapurthala in connivance with private rice millers M/s Friends Rice and General Mills and M/s Arora Rice and General Mills, who had fraudulently mixed substandard rice stocks of private millers with FCI rice stocks and have then despatched a consignment of about 2400 Metric Tonnes of rice common sela through special train No.119 from Beas to Cooch Behar (West Bengal) on 26.01.2001 and thus, have caused wrongful loss of Rs.43.08 lacs to the FCI and thereby have made corresponding wrongful gain to the accused persons. 5. On the basis of this, a physical verification of the stocks of FCI, HG-Dhilwan was conducted on the orders of DM on 30/31.01.2001 (after despatch had been made) and during which it was revealed that three stacks containing 10479 bags of rice common sela each bag weighing 50 kg were found in excess though the same were shown to have been despatched on 26.01.2001. By another quirk of fate, the despatched grains were received at Cooch Behar on 07.02.2001 where 43 samples of the bags were taken by the quality control officials of the FCI Kolkata and it is alleged that out of them 39 samples were found unfit for human consumption and damaged beyond 5% and upto 10%. Subsequently, on the orders segregation and peripheral inspection of the rice stocks at HG-Dhilwan was done on 03/05.03.2001 and it was found that there was wide variation of quality from bag to bag wherein good portions of the bags were having high quantity of damaged rice which raised doubts and at the same time, 15 contract numbers of various bags which have not even been accepted by HG-Dhilwan were also found available and it was alleged that these damaged rice bags were supplied by the accused private rice millers and thus, the matter was handed over to the Central Bureau of Investigation (CBI) which investigated the scam and filed chargesheet against the appellants including deceased Om Parkash. 6. 6. The accused were chargesheeted for offences under Sections 120B/420/477A IPC and Section 13(1)(d) punishable under Section 13(2) of the Prevention of Corruption Act, 1988. The prosecution, at the trial examined 22 witnesses whereas the defence examined 10 witnesses leading to the judgment of conviction. 7. From the arguments advanced by the two sides it emancipates prima facie of an allegation whether the paddy so sent to Cooch Behar was of a poor quality below the prescribed standards or was found deficient in weigh/quantity. Apparently, an adjudication needs to be essentially made if the Quality Control officials were responsible or the Quantity Control officials. Thus, to appreciate this tangle it necessitates appreciation of the evidence, as it is obligatory for the first appellate Court that it must arrive at a conclusion on the basis of the evidence available on the record especially when there are arguments evidently establishing wrong interpretation of the evidence and total non-consideration of the defence evidence by the learned trial Court. 8. It has been accepted in unison on behalf of the appellants as well as the respondent/State as to the procedural aspect in procurement, storage and despatch of such food grains. It is admitted stance that the State agency selects and shortlists the millers of the FCI for custom milling of paddy and after milling the milled rice is sent for storage to the godowns shortlisted and approved by the FCI. At the very threshold entrance of the godown, officials of the FCI who are technical persons dealing with quality control, checks quality of the grains and issue certificate vouching for their quality and on the basis of passes issued to that effect the bags containing the grains enter the godowns where officials manning the quantity control weigh and ensure that the same were as per the prescribed weighment and it is thereafter the bags are put on to the racks for their safe and proper storage. It is the mandatory procedure that after every 15 days, the quality control officials check the quality of the stored grains in the godowns. It is the mandatory procedure that after every 15 days, the quality control officials check the quality of the stored grains in the godowns. At the time of despatch, upon due despatch orders issued by the concerned District Manager, which are issued to the AM(D) who after obtaining the quality report from the quality control, instructs the despatch of these articles and transport contractor of the FCI transports these bags and in the present case from the Hired Godown at Dhilwan, the contractor of the FCI had loaded and transported the rice bags on trucks for which out-passes are issued by the official manning the gate of the godown and which was taken in the present case to the Rail Head, Beas, where the quality control persons are present and also further check the quality by drawing samples from the bags which are attached with the main stocks whereas the quantity control officials check the quantity of the bags and thereafter the bags are loaded in the trains and the wagons are sealed by the Depot officials and on reaching the place of destination, Cooch Behar in the present case, FCI officials of the destination place open the seals with their counter-checking. The technical staff of quality control checks the quality from samples whereas weighing of the stocks is done by the quantity control officials, which is also testified in the present case by PW8 Ashwani Kumar AG(II). 9. It is not disputed that the permissible transit loss allowed is 1%. It is only after the quality and quantity control officials vouch for their satisfaction, FCI hands over the stocks either to the Central pool or the State pool whichever may be the case. It is also not disputed that initially the complaint is projected against both these sections of the FCI, quantity control officials as well as quality control officials. It is not in any manner put to question that appellant Sukhdev Raj was Depot In-charge whereas Om Parkash was Assistant to him and both of them looked after the entries pertaining to the incoming and outgoing despatches. It is not in any manner put to question that appellant Sukhdev Raj was Depot In-charge whereas Om Parkash was Assistant to him and both of them looked after the entries pertaining to the incoming and outgoing despatches. It is also not in any manner agitated that at the time of these occurrences, appellant Manjit Singh was posted as AM(D) at Kapurthala and had been given additional charge of Depot at Dhilwan which too has been admitted by PW1 Mohan Lal AG(II) in his crossexamination who states that AG-I(D) and AG-II(D) were in-charge of the stocks at hired godown Dhilwan whereas duty of Manjit Singh accused was only of supervisory nature, which is also admitted by PW3 S.N. Ray. It is not in any manner argued by the opposing sides that at the relevant time, DM had informed Manjit Singh appellant on 19.01.2001 that for transportation of the grains, train has been arranged for 26.01.2001 and as per the assignment of duties which is well established on the records on the work of loading and despatch Sukhdev Raj appellant was deputed for his duties in the godown at Dhilwan overseeing loading on the trucks whereas Om Parkash was put to duty at the Rail Head, Beas looking after the unloading from the trucks and loading of the bags into the wagons of the train and sealing of the wagons was also to be undertaken by Om Parkash. 10. It is admitted by even the prosecution side that Y.K. Gupta, AM(QC) was responsible for overseeing the quality of the food grains and happens to be present at the godown on the day of despatch whereas his assistant Surinder Kumar, TA(I) was present at Railway Head for overseeing the quality aspect of the grain bags so being despatched. As has been brought to the notice of this Court that in the godown there were four sheds out of which three sheds had been hired by the FCI people and fourth shed though alleged to be with private miller/appellant but at the very onset of his submissions, Mr.Sumeet Goel, Advocate representing CBI admits that there is no documentary proof to that effect brought on the record of this Court. Undisputedly, the Vigilance Committee formed by the DM had submitted its report on 05.02.2001 to the effect that the entries of inwards/outwards despatch in the records were blank, there were 10700 extra sacks of rice in the FCI godown and that stencils of these sacks so found in the godown were manipulated. It was on the basis of this report, Experts Committee was constituted which submitted its report on 13.02.2001 with copy to the DM, FCI (WB) and DM, FCI, (Dhilwan) whereby it was submitted that the grains were found fit for consumption, worth eating and two members of the Committee opined it to be unfit whereas one member opined it to be fit. 11. The first and the foremost argument is whether any offence of cheating as defined under Section 415 IPC punishable under Section 420 IPC is made out or not? 12. The very essential ingredients are fraudulent or dishonest deceivement thus making undue wrongful gain or undue wrongful loss. In the present case, it is no-body’s case throughout inception of the investigations and conclusion of the trial that there has been underweighing or that the loss of the grains in terms of weight was more than what was permissible. 13. The contentions of learned counsel representing the appellants that in the present case as per the own documents of the prosecution there is only a transit loss of 0.365% when it is permissible to the extent of 1% and by that admittedly the loss in terms of money value of the food grains that accrues to the FCI is to the extent of only Rs.4,105.60. 14. Since appellants Manjit Singh and Sukhdev Raj have no role to play in the quality control and which was within the domain of the technical persons looking after the quality control headed by Y.K. Gupta and Surinder Kumar. 14. Since appellants Manjit Singh and Sukhdev Raj have no role to play in the quality control and which was within the domain of the technical persons looking after the quality control headed by Y.K. Gupta and Surinder Kumar. Looking from the angle of the prosecution, assuming that there has been mixing of the grains of higher quality with that of poor quality, then as per the procedure detailed and discussed above, the onus lay upon the quality control officials to have ensured that right from the stocking at storage till despatch what they have verified was of the required quality and apparently what comes to the mind of this Court that there has been partisan approach of the officials within the Department during the investigations, else the quality control officials could not have escaped the dragnet. The important documents proved by the officials of the Department itself by way of Ex.DW2/1; Ex.DW2/2; Ex.DW3/1 and Ex.DW4/3 shows that the rice that has reached Cooch Behar was of good quality as FCI Section there had certified its worth for consumption and which is the report of the quality control cell. 15. Even looking from another angle, the prosecution has examined Y.K. Gupta as PW9, who admits his presence on the day of despatch at the Dhilwan Depot and rather in his examination in-chief he categorically accepts that due to over-work he could not go for such quality checking regarding stock of Dhilwan Depot on 24.01.2001 and 25.01.2001 and rather has sought to shrug off the responsibility by saying that his Technical Assistant Surinder Kumar had come to him with the priority list and he had merely signed it, are matters which have a debilitating effect on the prosecution story. 16. 16. A close look at the statement of this witness made on oath before the Court which is necessitated to appreciate the impugned judgment in the right perspective and nowhere he has levelled allegations against the accused and states that the flying squad has carried out physical verification of the stock at Dhilwan and found stock to be in excess lying dumped in the hired godown and though claims that mostly the stock was of M/s Friends Rice Mills and M/s Arora Rice Mills but in his cross-examination admits that every miller who does the work of rice shelling is allotted a distinct contract number for each consignment processed by him, by the State Government and to the very query of the Court there is not even an iota of evidence to show that the private millers, accused in this case, who were allotted a particular contract number of this consignment the same was found on the bags in question and rather the very question of excess stocks stands negated when he admits that he is not sure whether he correlated with the inward/outward register of the Watchman or not and in his cross-examination had admitted the quality control manual of the FCI as Ex.PW9/D1 whereby the staff of the consignee destination can lodge claim for losses if the consignment of the stock so received is not of the stipulated quality and rather admits the letter addressed by DM, FCI, Cooch Behar by way of Ex.PW9/D2, Ex.PW9/D3 and Ex.PW9/D4 and that no such claim was lodged; is in itself sufficient to hold that FCI officials at Cooch Behar did not find fault with the despatched articles and rather this aspect of excess stocks at the hired godown at Dhilwan is further nullified by the very examination in-chief of PW10 SPO Ashok Kumar who accepts that on 24.01.2001 he did not make any entry in the inwards or outwards register as no gate-pass was provided to him and on 25.01.2001 he did not notice any inwards or outwards movement of rice consignment and admits that on the day of despatch he had made entries in the register on the basis of gate passes and further admits his entries on Ex.PW10/1 pertaining to 26.01.2001. The most material aspect which undermines his evidence contained in the writing of what he had stated before the Court to the higher officials regarding alleged entries made in the back date or in the gate register and to the same affect is the statement of PW11 Gurmit Singh, Ex.SPO who admits that entries in his handwriting have been made under his signatures in the loading of the trucks. 17. The most crucial evidence comes from the deposition of PW1 Mohan Lal, AG(II) (Depot) who states in his examination in-chief that the miller had rightly lifted the rejected rice from these stacks for which gate passes were issued by this witness and Om Parkash AG(I) and further that 7000 bags of rice common sela of M/s Friends Rice Mills and M/s Arora Rice Mills were accepted by Surinder Kumar AG(I), Dhilwan and stacked in the stack, and which has been proved by rice analysis register entries in the handwriting of Surinder Kumar TA(I) by way of Ex.PW1/9. 18. It has come in the evidence of prosecution as has been pointed out on behalf of the appellant side that there was no storing provision for keeping aside the rejected milled rice at the time of quality check during inwards entry and that the rejected rice was being separately stacked. As per cross-examination of PW1 Mohan Lal, is in itself a sufficient explanation as to how the stocks were found in excess. Moreover, to the very specific query of the Court, the counsel for the respondent was totally at loss of words how and by what means it has been established that the good quality milled rice belonging to the FCI was embezzled and replaced with poor quality rice and what has come in his evidence is that on 22.03.2001 he had assisted the Head- Quarter Team in conducting peripheral stack-wise inspection of the rice common sela at all the four depots of FCI and nothing documentarily has been established in terms of the instructions as per the scheme floated by the FCI popularly known as “Empower the Bag” Scheme, which has also been appreciated by this Court in “K. Siva Parsad Vs. CBI” (CRM No.22629 of 2013, decided on 04.04.2014). CBI” (CRM No.22629 of 2013, decided on 04.04.2014). The crucial evidence that comes forth is his admission in the cross examination that entry with regard to the entry of stock/its exit is necessarily to be made in the register being maintained by the watchman and that none of the officials made any such entry in this register and thus, utter failure of the prosecution to show that there has been disconcordant stocks in the record of the FCI and the watchman, are matters which certainly cannot escape judicial scrutiny. Furthermore, he admits that it is only on the basis of visit of the proprietors of M/s Friends Rice Mills and M/s Arora Rice Mills, he has assumed that the fourth shed was hired by them and he has never verified any document from which it could be inferred that the fourth shed was owned by them and even owner of the shed DW7-Kulwinder Singh has testified in favour of the millers to this effect and admits that he has never seen with his eyes any such incident while posted at Dhilwan Centre, leading to despatch of stocks by private millers for loading of the FCI Special and that all rice millers and their representatives even do visit FCI Godowns in connection with the rice delivery. 19. Above all is clear-cut admission that the samples drawn at Cooch Behar were in the absence of the accused party, are matters which certainly are contrary to the principles of natural justice. As has been laid down in “Bajwa Gram Udyog Samiti (Rice Mills) and others Vs Food Corporation of India and others”, 2012(2) R.C.R.(Civil) 180 whereby this Court has held that an offer ought to have been made for joint inspection in such an eventuality and an opportunity ought to be given to the accused of examination whether stocks have been properly stored and that no deterioration was possible. More so, when there has been provision of analysis and reanalysis throughout the period of inwards entry and storage period and that even at the time of despatch till articles are loaded on the train wagons there is a provision for quality check, are matters which leaves no scope to doubt that either it is the subsequent belated afterthought version put forth by the prosecution or that there has been serious lapse by the quality control officials who were supposed to look into this aspect of the matter. 20. The unilateral inspection and expert report which forms the very basis of the prosecution story ultimately culminating into the conviction, are contrary to the rules of natural justice. It is a right to fair hearing which is a guaranteed right and before taking action on the basis of a report it was necessitated before using such a report against the accused, the same ought to have been brought to their notice to seek and call for their stand as has been laid down in “Kanwar Natwar Singh Vs. Director of Enforcement & another”, 2010(4) R.C.R. (Criminal) 813 by the Hon’ble Apex Court wherein it was held that the law is fairly well settled, if prejudicial allegations are to be made against a person, he must be given particulars of that before hearing so that he can prepare his defence and since in the present case the appellants, who are the officials of the FCI, were concerned with only quantity control and had no say in the quality control and thus, by denying them their legitimate right to defend themselves and to put forth their stand, are matters which undermines their right to fair hearing and thus, to the mind of this Court is injurious to the public interests. 21. Moreover, Ex.PW3/28 as has been argued on behalf of the appellant side which comprises of statements of the officials involved in making the vigilance report has been kept away from the Court and so from the defence and, thus, to the mind of this Court, was with a view to attain a sinister motive whereby entire quality control staff has been left off the hook. Learned counsel for the appellants has drawn attention of the Court to the cross-examination of PW2-M.L. Arora, whereby he in no uncertain terms submits that at the time of stacking of the milled rice the Depot staff prepares the weight check memo (WCM) and issues the analysis note (A-note) along with acknowledgment of receipt of the consignment which is later-on attached with the bill prepared by the millers for enabling them to claim payment from the concerned department. Since, in the present case even if as has been argued on behalf of the CBI though not established documentarily on the record that the private millers were suppliers of this very milled rice, nothing tangible has been brought to the notice of this Court, especially in the absence of any proof that stencils belonging to the private millers, who are appellants before this Court, or contract number was issued to them which was found on the bags and when there is the own stand of the prosecution that there is tampering with the stencils and nothing could be highlighted to this Court of the proof of these stencils owned by these private millers or the bags which were taken into custody of the despatched goods belonging to them and nothing has been proved before the trial Court by exhibiting them, a void has been created in the prosecution story thus, creating clearly doubtful antecedents to all these allegations. 22. Since, after the quality and the quantity control acknowledges goods received from the private millers, appellants before this Court, the FCI is under an obligation to pay back their dues as they no more have any hold once they have sold off the milled paddy to the FCI by adopting process and which stocks stand accepted rather, to the mind of this Court, there is a concealed attempt by the officials to escape from making payment to the appellants/private millers who have supplied their paddy long back ago and who in the absence of any such proven allegations of their involvement. Such an act is in itself a misconduct and the private millers are entitled to recover their dues from the FCI. Such an act is in itself a misconduct and the private millers are entitled to recover their dues from the FCI. Even, it could not be proved on the record by the prosecution that the so alleged excess milled rice common sela bags belong to which of the particular private millers and in the absence of the same on mere presumptions and assumptions, the appellant/private millers cannot be fastened with any such liability of their connivance or collusion and rather what is more astonishing is admission by this witness that all the excess stock found by the District Committee was unaccepted by the FCI, shows invariably as has been earlier discussed, in fact due to the lack of space it was rejected rice which was lying stacked and which has been illegally and illegitimately considered by the officials at the time of alleged inspection. 23. Looking from another angle that after their outwards discharge till the goods reach their destination, there could be an opportunity of pilferage by miscreants and PW2 in his statement has categorically stated that escort is provided to the trucks despatched from the depot till it reaches loading place for ensuring that there is no pilferage of the stocks enroute and that role of the escort is to ensure that there is neither any pilferage of the stocks nor with the quality of the stocks till it reaches rail head for loading into the wagons, shows that the conduct of some of the FCI officials in-between could have led to it had it been so as is alleged by the prosecution. 24. It has been rightly contended on behalf of the appellants that mere marking ‘ARM’ and ‘FRM’ on the bags does not denotes that they were belonging to M/s Arora Rice Mills and M/s Friends Rice Mills, as it is the name of the supplier firm as well as its contract number with proper stencils that connects in the light of ‘Empower the Bag’ Scheme. 25. 25. Even PW-2 M.L. Arora in his cross-examination has accepted the fact holding it as correct that the stocks are required to be despatched by the depot staff strictly in accordance with the details contained in the priority list and in case the depot staff do not follow the priority list at the time of despatch and the despatches are arranged overlooking the priority list then such a discrepancy is required to be pointed out by the quality control staff to the District Manager, and since, there is no such murmur or objection by the quality control, leaves no scope to doubt as to the quality of the stocks that has been despatched and since he further admits that the final entries are made in the stock register shed-wise and master ledger registers, the final entries regarding receipt and despatch of stocks are tallied with the main gate registers pertaining to inwards and outwards and which admittedly as has already been discussed the watchman register were never taken into account, are matters which further aggravates the plight of the prosecution story. 26. PW3 Avtar Singh elaborates that during their inspection there was wide variation in respect of quality from bag to bag, rather casts aspersions on the functioning of the quality control Section and rather illustrates further that a good number of bags were having high percentage of damaged discoloured grains and some bags were having encrustation and appear to be of old crop. This witness further illustrates that during their analysis of the bags at Cooch Behar on joint analysis on 06.03.2001 by virtue of Ex.PW3/8, the samples were found to be damaged beyond specific limit of 4%, throws light on the poor quality that has been despatched and has in no uncertain terms stated that all the 25 samples were found to be damaged beyond the PFA limit, i.e. 5%. 27. The testimony of PW4 S.N. Ray to the effect that stenciling on the bags was of different colours, i.e. black, red, brick red, pink red etc., leaves no scope to doubt that there has been remiss at the time of ensuring quality control and fulfillment of the requirements of the quality control manual. 27. The testimony of PW4 S.N. Ray to the effect that stenciling on the bags was of different colours, i.e. black, red, brick red, pink red etc., leaves no scope to doubt that there has been remiss at the time of ensuring quality control and fulfillment of the requirements of the quality control manual. Even PW7 Uttpal Chatterji, Manager Quality Control has admitted that the suggestion that the quality staff of FCI is concerned with the quality of the food grains whereas godown staff is concerned with the quantity of the food grains and if there is loss of the weight of the food grains only then, the responsibility of the godown staff can be fixed, and that the quality control staff is required for maintaining the quality 28. Furthermore, the most crucial admission has come from the testimony of PW3 Avtar Singh Manager (Quality Control), who in no uncertain terms has detailed the result of the segregation operation conducted by him along with the others whereby he admits that in 2036 bags they did not find any contract number and only 736 bags were having stencil marking of M/s Friends Rice Mills, out of which on 179 bags the original contract number had been rubbed and only 539 bags were found freshly stenciled with contract numbers and their colours were not resembling with original stencil marks, certainly are matters which have their implications over the conduct of the officials of the FCI or the persons who were deputed to look after the watch and ward of the godown. Even PW3 admits that complete names of the millers had not been scribed on the bags and only abbreviations were available and that the stenciling is prescribed by the FCI which contains specific registration number and thus, private millers cannot be burdened with such a responsibility and the quality control officials are supposed to ensure proper marking with numbers of each of the bags so taken into godown for stocking and ultimate despatch. He further admits that as per the circular dated 01.10.1991 pertaining to quality control manual of FCI the stocks, on receipt at the destination, were required to be inspected wagon-wise by the quality control staff of the destination and in case of finding that the stocks are not in conformity to the specifications then quality complaint is to be sent telegraphically to the consignor and all other concerned. Learned counsel for the respondent CBI could not bring anything to the notice of the Court if any such action in terms of this manual was initiated at the place of destination and what appears to the Court is only a unilateral act and conduct of the FCI staff at Dhilwan, District Kapurthala and which too is conceded to by PW3 Avtar Singh in his cross-examination to the effect that all the bags of the consignment which are not accepted are dumped and that the quality control staff is responsible for the quality of the food grains whereas the quantity control staff looks after the quantity of the articles and that before acceptance of the supplies in the godown the articles are dumped wherever there is availability of the space and that as per instructions all the bags of rice against a particular contract number should be entered by the concerned quality control staff and ensure that the quality of gunnies and proper stenciling is also required to be asserted by the quality control staff. This witness further elaborates in no uncertain terms that the absence of stencils of the contract numbers on the bags is entire responsibility of the quality control officials. 29. It is also admitted by PW9 that the stocks of private millers that are brought for supply are dumped at the godown for primary inspection and after necessary quality and quantity check finding it to be fit are allowed to be kept in the godowns by the godown staff of FCI. 10-20 consignments of 250 bags each could be dumped at hired godown of the FCI at Dhilwan and since there are no verandahs having such capacity is available at Dhilwan centre such stocks meant for primary inspection have to be placed inside godown and his specific answer that in case of inclement weather to protect these stocks from damage could be kept inside the stores is in itself a sufficient fact proving the likelihood of these grains lying there and in the absence of any records cannot be termed to be excessive and thus allegations also appears to be too preposterous. PW9 has been confronted with official document Ex. PW9 has been confronted with official document Ex. PW9/D1 for the procedure for lodging the quality complaint by the destination place and admits that the staff at the destination can lodge complaint if the consignment so received is not of the stipulated quality and in this case Mr. Sumeet Goel, learned counsel for the respondent squarely accepts that there is no such complaint lodged at Cooch Behar to this effect regarding quality or quantity aspect. 30. From the arguments of defence it further highlights that PW 7 Uttpal Chatterji, Manager Quality Control who at the relevant time was posted in the office of Senior Regional Manager, FCI, Calcutta on the instructions of his seniors was present for the purpose of unloading rice at Cooch Behar and had drawn random samples affixing slips thereon and had only signed the sample slips and had identified his signatures thereon and was also involved in the analysis of these samples and has proved the analysis results PW1/229 to PW1/230 dated 22.3.2001 and the one conducted on 21.3.2001 as PW3/24 who squarely accepts in his statement that he did not report regarding poor quality and the rice received at the destination place which he was supposed to do in view of the circular of the FCI and admits that he has never associated any of the accused during the analysis nor brought this fact to their knowledge or called for their stand on it. The most crucial admission by him that during transportation there is likelihood of bursting of the bags and bleeding of the paddy therefrom thus affecting the quality of the food grains. PW7 had admitted that the quantity of the food grains or loss in the weight of the same is the responsibility of the godown staff whereas the Quality Control staff is responsible for maintaining the quality. The most crucial admission of PW7 is that one of the members of this analysis team P.S.Sarkar had a different opinion than the remaining team who were analysing samples and which as per the own admission of this witness the results of District Lab Cooch Behar, the samples have been found within the specification on analysis further erodes the very credibility of the prosecution story as has been pointed out by appellants’ counsel Mr. Sachdeva that the entire story is based on partisan vindictiveness adding that PW8 also supports the stand of the accused-private millers that Ex. PW1/231 there is no complete names of the supplier millers and that putting up stencils on the bags by the millers is an essential procedure and admits that in these samples there are only abbreviations and not complete names are matters which creates doubt over the very origin of the samples. 31. The appellants counsel to demolish the allegations, has highlighted the testimony of PW8 Ashwani Kumar, Assistant Grade-II, FCI, Kapurthala who was witness to this loading of the train at Beas and was one of the officials who was witnessing the drawing of the samples from the paddy being transported to Cooch Behar and has proved slips Ex. PW1/219 to PW1/228 and the analysis results Ex. PW1/229 and PW1/230 and as has been pointed on behalf of the appellants he squarely accepts that godown cadre is primarily concerned with quantity whereas quality control cadre is concerned with the quality of food grains and that he belongs to godown cadre and therefore, can only opine as to the quantity and nowhere as has been argued he has shown any deficiency in the quantity of the food grains so loaded in this case and therefore, it needs to be appreciated in the light of these submission and even the learned counsel representing the respondent could not controvert the submissions of the counsel for the appellants that this witness has no cause and vision to vouch the quality aspect of the food grains in question and he admits that A.G.III posted at Weigh Bridge for the rail head verified the gate passes issued by FCI godown for establishing the genuineness of such gate passes and thereafter the stocks are ordered to be loaded on the goods train and admits that the entire gate passes pertaining to this case so shown to this witness were pertaining to the stocks of the FCI and not any private individual further erodes the credibility regarding involvement of the private millers. It is emphatically submitted that PW8 even in his cross examination has sought to undermine the case of the prosecution by admitting that none from the side of the accused was present at Cooch Behar during the analysis and the most material admission by him is the fact that none of the higher officials of the FCI ever lodged any complaint regarding the quantity or standard of these stocks and rather he has tried to exonerate the accused Manjit Singh, Assistant Manager Depot by admitting that on 2/3 occasions during his presence at rail head during loading accused Manjit Singh had come for surprise check of the weighment of the stock that he did not observe any irregularity in the weighment certainly completely demolishes the case of the prosecution. The appellant’s side argued that PW13 admits that the rice stock provided by the accused-private millers in question which were received at the godown were inspected by him and on inspection were found within the specifications and rather has sought to shift the burden on his superior Y.K. Gupta, Assistant Manager, Quality Control (PW9) to bring about the fact as submitted by PW9 that subsequent on 30.1.2001 the accused along with his superior had forced him to sign the slips which he refused to do so. Even the own witness of FCI DW8, District Manager, Quality Control, FCI had detailed the procedure of the FCI and division of the Quality Control and Quality Control and their duties. 32. It has been vehemently argued on behalf of the appellants that the main official responsible for this imbroglio is none other than Y.K.Gupta, Manager, Quality Control at the relevant time posted as Assistant Manager, Quality Control, FCI, Kapurthala in whose charge the godowns at Dhilwan fall and admits that he was aware that on 26.1.2001, the special train was loaded at Beas with stocks from Dhilawan centre of FCI and that Assistant Manager, Quality Control was required to check these consignments and rather has tried to absolve himself by stating that due to over work he could not go for quality checking regarding the stocks on 24.1.2001 and 25.1.2001. It has been rightly contended by the counsel for the appellants that he admits his signatures on the documents regarding quality report and has tried to shift the burden on his technical assistant Surinder Kumar by stating that on 25.1.2001 he has come to him and obtained his signatures on the priority list are matters which invariably enables the Court to lead to the irrevocable inference that regarding quality aspect this official too is responsible and for obvious reasons has been left off the hook. Further-more his credibility stands eroded from his own admission that on 26.1.2001 till 30.1.2001, he was at home in spite of being in the knowledge that the special goods train was being loaded with the rice from the godown which fall under his jurisdiction. Though this witness as has been brought to the notice of this Court on behalf of the respondent has contended that the stocks were found to be in excess lying dumped in the godown and has sought to shift the burden on the accused-private millers. Further this witness PW9 Y.K.Gupta in no uncertainty admitted that every miller who does the work of the rice milling is allotted a distinct contract number for each consignment processed by him by the State Government. To the very query of this Court, counsel for the respondent-CBI could not pin point if any of these consignments could be associated with the accused-private millers and further accepts that specimen of the stencils used by the private millers was not on the record of the FCI further complicates the matter for the prosecution and how these alleged stencils could be corelated with the accused-private millers are anybody’s guess and further states that the stencils must contain the particulars name, group year and other particulars of the rice miller which was admittedly missing in the present case are matters which have over-whelming bearing on the case of the prosecution and the fact as has been admitted by him that the abbreviations as in the present case ARM, FRM can be differently interpreted with different names further obliterates the case of the prosecution. PW9 when confronted with the preposition of examined stocks lying at the godowns admits that excess of the stocks kept for certainly can only be determined after comparing the figures of inward and outward entries of the stock over a period and which he never did in the present case certainly is a distressing feature for the prosecution story and further he had never even verified this fact from the register of the Watchman at the outer gate of the godown. 33. Thus, from the contentions of the two sides it also permeates that PW13 Surinder Kumar an official of the FCI posted at the Dhilwan godown of the FCI during the relevant date who also admits in his examination-in-chief regarding quality aspect that he analysed and accepted the rice stock dumped in the godown of the FCI pertaining to the accused private millers and has proved entries Ex. PW1/6 and rather has also proved the fact of having signed himself as well as by his immediate superior Y.K. Gupta, Assistant Manager, Quality Control PW9 on these documents and at the relevant time claims that he was deputed at the rail head Beas to check quality of the rice being loaded thereon and nowhere talks about any excess stocks having been dumped at the depot and though having visited on the day when the loading was undertaken has only stated that though some wooden crates were lying which were used for loading and unloading and admits that it was his duty and he was deputed by his Assistant Manager, Quality Control to supervise the rice stocks quality check and admits that he has checked rice stock delivered by the accused private millers. The appellants’ contentions further highlight that the division of the staff belonging to the quality and quantity control is too admitted by PW13 and who was also associated with the sample at the time of loading of the wagons and has categorically in no uncertain terms submitted that on the basis of the random checking the entire wagons were found to be OK. 34. 34. During the course of arguments, other crucial witness that has been pointed out is PW10 SPO Ashok Kumar Watchman who at the relevant time was posted in the hired godown of the FCI and states that his duty was at the main gate of the godown and thus was supposed to keep check on the inward and outward transitions of the goods at Dhilwan depot. Counsel for the appellants has brought to the notice of this Court that the irregularity of the stocks appears to have been attributed to this witness who admits that on 24.1.2001, he did not make any entry in the inward or outward register and though has tried to shirk of his responsibility by stating that he was not provided with gate passes certainly is not corroborated as he admits that he never made any representation of the same. This, witness admits further that on 25.1.2001 he did not notice inward and outward movement of the rice consignment. He claims to be present at the time of loading of the consignment in question and claims that he made inward and outward entries in his record on that day and most of his testimony qua the private rice millers as has been statement of this witness shows his testimony regarding involvement of M/s Friends Mills is based on hearsay having come through his counter-part Gurmit Singh. This witness admits his entry Ex.PW10/1 and when confronted with these entries pertaining to the date in question he admits that the column meant for the time is blank and there is no mention of any gate passes certainly is serious remiss on the part of this official as well and which has never been investigated and though they sought to make insinuations against accused-private millers and this witness in his cross-examination as has been argued by the appellants’ side admits that he never made any complaint in writing regarding having been made blank entries in his register without gate passes and therefore, the over-all affect of this witness nullifies the allegations against the accused. PW11 Gurmit Singh another Watchman of the FCI at this Depot who was on duty at the depot on 21.1.2001 though he alleges that from the godown of the private millers stocks were taken out on that day but in his crossexamination admits that he never protested regarding this fact or having made such back-date entries in the records signed by him certainly puts this witness too in the bad light. The deposition of PW12 Hem Raj Sharma is only formal in nature. PW13 admits that the rice stock provided by the accused-private millers in question which were received at the godown were inspected by him and on inspection were found within the specifications and rather has sought to shift the burden on his superior Y.K. Gupta, Assistant Manager, Quality Control to bring about the fact that subsequent on 30.1.2001 the accused along with his superiors had forced him to sign the slips which he refused to do so. Official of the FCI PW13 does not even support the case of the prosecution regarding private rice millers and has even denied having any knowledge that they were in possession of one of the godowns in the premises at Dhilwan. PW13 has brought about to support the case of the defence that since there were no platforms outside the sheds at Dhilwan, stocks mean for checking could not be dumped outside the shed and therefore, could be dumped inside the sheds. PW14 Paramjit had not supported the prosecution story as per the submissions of respondent’s counsel as he was working with one of the accused Jai Pal Midha and nothing could be extracted from him inspite of having been declared as hostile and put to cross-examination and similar is the case of PW15 Sanjiv Kumar. PW16 Ram Piara Aheer, Retired A.G.I. (Storage) had proved the factum that Joginder Singh was appointed as Adhoc Handling and Transport Contractor during the relevant period and not of much help for the case of either of the side and to the similar effect is the deposition of PW17 Gurmukh Singh another Handling and Transport Contractor except the fact that on 26.1.2001, he has handled the transportation and loading of the food grains at the rail head Beas and to the similar is the deposition of PW18 Ashwani Kumar, Manager Storage regarding appointment of Adhoc Handling and Transport Contractor. PW20 NC Sood, Retired Govt. PW20 NC Sood, Retired Govt. Examiner has only proved the documents bearing signatures of accused Sukhdev, Paramjit and Sanjiv Kumar and has opined qua the same which is not much of help in the present case qua the appellants. PW21 A.S. Arunachalam then working as District Manager, Quality Control in the FCI has tried to establish the procedure to be adopted in quality checking aspect of the food grains and as has been brought to the notice of this Court in his cross-examination he accepts that contract number of a particular consignment is allotted to the miller by Inspector Food and Civil Supplies of the State Government which is done after verifying the requisite quantity against contract number actually process/prepared and admittedly none from that department has been examined to bear out anything against private rice millers qua this number on the rice stock in question. The most crucial aspect that has come in his cross-examination as has been pointed out in the arguments of the appellants side that this witness admits that during the inspection after the complaint was made that segregated bags only abbreviations FRM was shown and that there is no complete numbers of the rice mills are matters which certainly have a bearing qua private rice millers who are appellant before this Court. PW22 is one of the crucial witness regarding segregation of the stocks at Dhilwan centre of the FCI and he too admits that names of the supplier mills were not mentioned in the rice bags forming these stacks and there are only abbreviations. As brought to the notice of the Court, PW19, the Investigating Officer K.S.Rana, Inspector CBI in his cross-examination rather admits the partisan and improper investigations and that he never visited that centres are matters which undermines the sanctity of the investigation and further admits that he never verified any lease deed in favour of the private rice millers or its possession certainly cannot be established since Investigating Officer never visited places in question. The most crucial admission is that he accepts that he did not come across any document which could have shown that the private rice millers-accused are running the affairs of their respective firms and admits that as per the information provided by the FCI official at destination place there is no complaint regarding quality of the stocks and admits that it was the report of certain officials of the FCI who after checking of the rice stocks had declared the same as damaged are matters which impinge upon the manner of these investigations and thus his entire testimony bears out that there were deficient quality of the grains supplied and not qua the quantity are matters which certainly highlighted the pathetic state of affairs of the prosecution. On the other hand, the defence evidence comprised of DW1 Gurdial Ram, Junior Auditor, Office of District Controller, Food Civil Supplies and Consumer Affairs Office who has proved short listing of the firms during Kharif 2000-2001. DW2 K.N.Mallick, Deputy General Manager, FCI has proved his letter while working as Deputy Manager (Quality Control) during the relevant period as DW2/1 after inspection of the rice stocks at Cooch Behar Depot and accepts that there is no mention of having drawn samples in his letter Ex. DW2/1 and rather he has undermines the case of the prosecution which could not be controverted on behalf of the prosecution and the similar is the effect of the testimony of DW3 Arun Kumar Chaudhary who has sought to bring about the quality aspect of the rice in question. The other crucial witness examined by the defence is DW4 Suraj Parkash, then Regional Manager, FCI, Calcutta who has categorically stated that he was responsible for the inspection of the stocks of the grains supplied at Cooch Behar by the FCI at Dhilwan and submits that he had only received telephonic message that there was some problem with the quality and which prompted him to draw samples to check the quality and thus puts off the track of the case of the prosecution. Thereafter DW5 Swapan Roy, Chief Sampler, Food and Supply Department, West Bengal who on the asking of the senior official had examined the stocks of the rice supplied at Cooch Behar by the FCI and has testified that the purpose of analysis was only if rice stock was fit for public distribution meant for human consumption or not and has categorically in no uncertain terms admits that he has found the same fit for the purpose further erodes the very credibility of the prosecution as has been pointed out in the arguments of the appellants side. DW7 the owner of the godown has denied the possession of the private millers as alleged by the prosecution. 35. From the evidence detailed and discussed above, it irrefutably percolates that right from taking out of the food-grains in question from the godowns, their transportation to the rail head, loading on the railway wagons, there has been due supervision of the quality control and quantity control and the wagons were duly sealed before their onward journey and there is nothing substantive brought to the notice of this Court even by the prosecution side that there has been tampering of the seals found at the place of destination and rather on the basis of un-rebutted official documents Ex. DW2/1, DW2/2, DW3/1 and DW4/2 it stands established that the grains so sent were found to be fit for consumption since even to the specific query of the Court, nothing tangible is brought on the record and highlighted to the Court by the respondent-prosecution that there has been less weight found in the consigned goods and as is the allegations since inception of the investigation there has been embezzlement of Rs.43 lacs worth of foodgrains in terms of the dispatched articles and which is no where established by any of the witnesses. To the mind of the Court all these allegations harbor around mere suspicion devoid of any truth. Even the so-called anonymous complaint only refers to allegations that there has been mixing of good quality and poor quality of rice and nothing regarding its weighment. The prosecution allegations has led to framing of charges under section 120-B, 420, 477-A of the IPC as well as under section 13(1)(d) of the Prevention of Corruption Act. Even the so-called anonymous complaint only refers to allegations that there has been mixing of good quality and poor quality of rice and nothing regarding its weighment. The prosecution allegations has led to framing of charges under section 120-B, 420, 477-A of the IPC as well as under section 13(1)(d) of the Prevention of Corruption Act. To appreciate the definition of cheating as per the definition assigned by way of section 415 IPC and punishable under section 420 IPC are that there has been cheating, dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or is capable of being converted into a valuable security and mens rea of the accused at the time of making the inducement. Reliance placed on Bishan Das vs State of Punjab and another, [2014(5) Law Herald (SC) 3640 : 2014(5) Law Herald (P&H) 4357 (SC)] : 2014(4) R.C.R. (Criminal) 34. The offence under section 477-A IPC to facilitate fraud by fabrication of the record entails that there has been fabrication of the records to facilitate mis-appropriation of the food-grains when neither there has been shortage proved much less that the food-grains were of poorer quality than the prescribed ones and below standards which were earlier procured for this supply does not brings the case that the accused having indulged in fraudulent mis-appropriation. The mere allegations that certain records were found blank does not mean or can be construed to be a criminal intent. The Hon’ble Apex Court in S. Harnam Singh vs The State (Delhi Admn.), 1976(2) SCC 819 , as cited by appellants’ counsel, had considered this aspect and has pounded over the word ‘Willfully’ as used in section 477-A of the IPC and has held it to be something intentionally or deliberately done. Since the entries as per the record has been left blank does not clothe such conduct with an intent to defraud but at the most in the absence of any deceit, an entry can be termed at the most an act of negligence by the officials who were supposed to maintain these records and primary the allegations revolve around the entries of Gateman and therefore, since none of the appellants before this Court had any role for maintaining that particular record so, the allegations against the accused do not subsists on that score. 36. 36. A million dollar question arises before this Court, if the accused-officials of the FCI who were incharge have abused their position and in terms of the definition assigned to mis-conduct. A public servant is said to commit the offence of criminal mis-conduct if he by corrupt or illegal means or by otherwise abusing his position as public servant obtains for himself or for any other persons any valuable thing or pecuniary advantage. Not even an iota of evidence is forth coming from the side of the prosecution upon whom onus lies heavily to establish its case as to the abuse of the powers by the accused officials of the FCI and thus in view of the settled position of law, mere allegations do not take place of evidence and therefore, the learned trial court apparently has mis-construed the evidence and the allegations and there is no reason to doubt as to the very honesty or sincerity of the accused from the gamut of allegations and evidence proved on the record. 37. The other allegations harbor around the element of criminal conspiracy as defined in section 120-B of the IPC. The definition of criminal conspiracy as detailed in section 120-A of the IPC and in short the ingredients of offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing if an illegal act or for doing by illegal means an act which by itself may not be illegal. Thus, in other words, the essence of criminal conspiracy is an agreement to do an illegal act and that the same can be proved either by direct evidence but which is rarely forth coming and other mostly revolves around circumstantial evidence considering the entire evidence of the prosecution nothing tangible could come to the knowledge of the Court as to the complicity of the accused unless and until the prosecution satisfactorily establishes that the accused committed in pursuance of an agreement made between them such a conclusion cannot be drawn. Reliance placed on Central Bureau of Investigation, Hyderabad vs K. Narayana Rao, 2012(4) R.C.R. (Criminal) 601 and similarly it has been held so in K.R.Purushothaman vs State of Kerala, 2005(4) R.C.R. (Criminal) 848. 38. The residual charges remain under section 13(1)(d) of the Prevention of Corruption Act. Reliance placed on Central Bureau of Investigation, Hyderabad vs K. Narayana Rao, 2012(4) R.C.R. (Criminal) 601 and similarly it has been held so in K.R.Purushothaman vs State of Kerala, 2005(4) R.C.R. (Criminal) 848. 38. The residual charges remain under section 13(1)(d) of the Prevention of Corruption Act. The Hon’ble Apex Court has considered at length the very pre-requisites of attracting such an offence and unless and until there are materials available to prima facie conclude that the accused who were officials have misused and abused their official position or used any corrupt or illegal means for obtaining any pecuniary advantage or any valuable thing, no offence is deemed to have materialized. Reliance placed on K.R.Purushothaman’s case (supra); Surinder Kaur vs State of Haryana, 2014 (Suppl.) CCC 558 (S.C.) and C.K.Jaffer Sharief vs State (through CBI). 39. Thus from the over-all view, it bears out in no un-certain terms that the learned trial court lost sight of the fact that since inception of the allegations during the investigations and that too at the trial, the prosecution has meandered over uncertainties as to what allegations they are trying to pursue and thus have totally missed the purpose of this prosecution and even the trial court has lost sight of this fact as to what allegations have been leveled against the accused at what means oral or documentary evidence the same is being established irrespective of the fact that a public institution is being tapped. The very golden principle of criminal jurisprudence and also as has been laid down in 1976 CLR 116 (SC) ‘Bhagirath v. State of M.P.’ and catena of other cases which cannot be obliterated and the onus always rests upon the prosecution to establish its case to the hilt beyond shadow of reasonable doubt and which in the present case, the prosecution has miserably failed to do so resulting in not only gross mis-interpretation of the evidence and not considering the defence evidence which too has come from official sources when it is settled preposition of law reference of which can be taken note of 2002(1) RCR (Cri) 443 (SC) ‘State of Haryana v. Ram Singh’ where even the defence witnesses are to be treated at par with the prosecution witnesses and did not consider the very significance of these witnesses are matters which have resulted in total mis-carriage of justice. Thus the trial Court has arrived at illegal and unjust conclusion which impinges the judicial conscience necessitating intervention by this Court by way of accepting of all the appeals detailed above and thereby setting aside the impugned judgment of conviction dated 14.5.2009. 40. Thus, all the appeals bearing CRA-S No.1406-SB of 2009; CRA-S No.1435-SB of 2009 and CRA-S No.1510-SB of 2009 are hereby allowed. Records be sent back.