JUDGMENT : Kaushal Jayendra Thaker, J. 1. The present appellants have preferred these appeals under Sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 27-6-2003 passed by the learned Addl. Sessions Judge, Court No. 3, Ahmedabad in Special Case No. 32 of 1990, whereby, the learned Judge has convicted the appellants under Sec. 13 (d)of the Prevention of Corruption Act and sentenced to undergo one year R.I. and to pay a fine of Rs. 250/- each, in default, to undergo further R.I. for ten days. The appellants are also convicted under Sec. 409 of I.P.C. and sentenced to undergo R.I. for a period of one year and to pay a fine of Rs. 250/- each, in default, to undergo further R.I. for ten days, which is impugned in these appeals. The brief facts of the prosecution case is as under: "1.1. It is the case of the prosecution that accused Nos. 1, 2 and 3 were serving as public servants in different capacity with telephone exchange at Ahmedabad, and accused Nos. 4, 5 and 6 were private persons engaged in their different business. It is alleged that accused No. 1 was serving in the capacity of Sub-Inspector and accused No. 3 was serving as regular employee with the telephone department. It is further alleged that the work of laying down the cable was going on under the observation of the officers of the telephone exchange and accused Nos. 1, 2 and 3 were entrusted with the said work. It has come to the notice of the department that 54 meters of the cable was not laid down in the earth however, it was shown to have been laid down, as such it is the allegation that 54 meters cable has been sold out in the market. It is alleged that in the presence of accused No. 3 pieces have been made of 54 meters cable and the outer layer of the said cable wire has been removed. It is also alleged that thereafter accused Nos. 1 and 2 had went to the shop of accused No. 5 and from there accused Nos. 1 and 2 had been taken to the site of accused No. 4 by his servant Manu Bheruji Kalhar. Thereafter, accused Nos. It is also alleged that thereafter accused Nos. 1 and 2 had went to the shop of accused No. 5 and from there accused Nos. 1 and 2 had been taken to the site of accused No. 4 by his servant Manu Bheruji Kalhar. Thereafter, accused Nos. 1 and 2 had sold the said cable to accused No. 4 at his shop and had obtained an amount of Rs. 1,380/-. Thus, accused No. 4 had joined hands with accused Nos. 1, 2 and 3 and with the help of accused Nos. 5 and 6 who have also purchased the said cable as such a conspiracy has been hatched by all of the accused. The matter was brought to the notice of C.B.I. The complaint was lodged and investigation had started." 2. The accused came to be charge-sheeted, as stated above, for the alleged offence punishable under Sec. 409 read with Sec. 120B of I.P.C. and under Sec. 13(1)(d) read with Sec. 13(2) of the Prevention of Corruption Act, which was numbered as Special Case No. 22 of 1990. 3. The accused was charged vide at Exh. 20. The appellants - accused pleaded not guilty and claimed to be tried. 4. In order to bring home the charge levelled against the appellants-accused, the prosecution has examined the following witnesses: 1. Poonambhai Kantilal Solanki Exh. 49 2. Punjabhai Karshanbhai Korda Exh 50 3. Jaswantbhai Kantibhai Parmar Exh. 51 4. Mahendrabhai Devji bhai Bariya Exh. 53 5. Prakash Muljibhai Solanki Exh. 62 6. Kantibhai Ramdas Patel Exh 67 7. Jayantilal Chhotalal Modi Exh. 71 8. Mahendrabhai Khemabhai Parmar Exh. 82 9. Bachubhai Sendhabhai Exh. 87 10. Jitendra Parsad Guruparsad Kanth Exh. 89 11. Kishorilal Punia Mahaver Exh. 92 12. Jitsingh Pyarelal Chhabra Exh. 111 13. Jayendra Shantilal Dave Exh. 114 14. Mukesh Kashmirilal Sharma Exh. 124 5. To bring home the charge levelled against the accused, the prosecution has also produced the following documentary evidence before the trial Court: 1. F.I.R. Exh. 125 2. Panchnamas Exhs. 72 & 119 3. Receipt Exh. 74 4. Seizure memos Exhs. 75, 76 and 77 5. Panchnamas Exhs. 73 and 90 6. Muster roll of work order No. 19 Exh. 93 7. Gate Pass No. 34579 Exh. 91 8. Cable laying register Exh. 98 9. Cable Issued receipt Exh. 96 10. Receipt Exh. 97 11. Seizure memos Exhs. 115, 116 and 126 6. Receipt Exh. 74 4. Seizure memos Exhs. 75, 76 and 77 5. Panchnamas Exhs. 73 and 90 6. Muster roll of work order No. 19 Exh. 93 7. Gate Pass No. 34579 Exh. 91 8. Cable laying register Exh. 98 9. Cable Issued receipt Exh. 96 10. Receipt Exh. 97 11. Seizure memos Exhs. 115, 116 and 126 6. Thereafter, after examining the witnesses, further statement of the appellant-accused under Sec. 313 of Cr.P.C. was recorded in which the appellants-accused have denied the case of the prosecution. 7. After considering the oral as well as documentary evidence and after hearing the parties, learned Judge, vide impugned judgment and order dated 27-6-2003 held the appellants - accused guilty to the charge levelled against him under Sec. 13(1)(d) of the Prevention of Corruption Act and under Sec. 409 of I.P.C. and convicted and sentenced the appellants accused, as stated above. 8. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Judge, the present appellants have preferred these appeals. 9. Heard Mr. Pratik Barot learned Advocate appointed by the High Court Legal Aid Committee for the appellant in Criminal Appeal No. 891 of 2003 and Mr. H.A. Dave learned Advocate the appellant in Criminal Appeal No. 974 of 2003 and Mr. R.C. Kodekar learned Special P.P. for the respondent in both the appeals. 10. Mr. Dave learned Advocate appearing for the appellant-accused in Criminal Appeal No. 974 of 2003 has vehemently submitted that the evidence on record goes to show that the offence under Sec. 13(1)(d) of Prevention of Corruption Act and under Sec. 409 of I.P.C. is not made out, and therefore, the impugned judgment and order of conviction and sentence may be quashed and set aside and the appeal be allowed. Mr. Dave learned Advocate for the appellant has submitted that the trial Court has erred in believing the prosecution case and evidence on record. He has further submitted that the judgment and order of conviction is based on improper appreciation of the evidence of prosecution and based on improbabilities and therefore the same deserves to be quashed and set aside. Mr. Pratik Barot learned Advocate appearing for the appellant in Criminal Appeal No. 891 of 2003 has adopted the arguments of Mr. Harshadrai A. Dave learned Advocate appearing for the appellant in Criminal Appeal No. 974 of 2003. 11. Mr. Pratik Barot learned Advocate appearing for the appellant in Criminal Appeal No. 891 of 2003 has adopted the arguments of Mr. Harshadrai A. Dave learned Advocate appearing for the appellant in Criminal Appeal No. 974 of 2003. 11. Per contra, learned Special P.P. Mr. R.C. Kodekar has taken this Court through the entire evidence on record and submitted that the impugned judgment and order passed by the learned trial Judge is just and proper. Mr. Kodekar learned Special P.P. further submitted that in view of the evidence on record, it cannot be said that the learned trial Judge has committed any error in convicting and sentencing the accused, and therefore, the present appeal deserves to be dismissed. 12. I have gone through the oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witness-complainant and also perused the charge framed against the appellants of both the appeals. I have also considered the submissions of the learned Advocates appearing for the parties. The main culprit has passed away and qua him, the appeal has already been abated. The statement of the accused under Sec. 313 of Cr.P.C. goes to show that accused No. 1 - Ramsevak Baburam Tripathi was a simple lineman and he did not have the powers to have the wire. On going through the entire record, there are five aspects arise which weigh with the conscience of this Court; that it is nobody's case that any illegal act was committed in unison by any of the accused. The accused Ramsevak Baburam Tripathi, at the time of incident, which has occurred in the year 1989, he was serving as lineman. The fact that the present accused were serving as Government servant which has been believed by the learned trial Judge cannot be found fault with. The findings are not found fault with. There is no entrustment. Accused No. 3 - gangman has been roped as if he is a gangster and indulged into such activities which can be said be an offence under Sec. 13(1)(d) of the Prevention of Corruption Act. Mr. The findings are not found fault with. There is no entrustment. Accused No. 3 - gangman has been roped as if he is a gangster and indulged into such activities which can be said be an offence under Sec. 13(1)(d) of the Prevention of Corruption Act. Mr. Dave learned Advocate submitted that accused No. 1 Ramsevak Baburam Tripathi cannot be said to have indulged into such activities which can be said to be an offence under Sec. 120B of I.P.C. Therefore, the charge under Sec. 13(1)(d) of the Prevention of Corruption Act and under Sec. 120B of I.P.C. cannot be said to have been brought home against Accused Nos. 1 and 3 and/or it cannot be said that there was any criminal conspiracy to commit corruption and misappropriation, as alleged by the prosecution. Mr. Pratik Barot adopts the arguments of Mr. Harshadrai A. Dave learned Advocate that there was no entrustment to their clients and once the entrustment goes, the basis of conviction will go. 13. Mr. R.C. Kodekar learned Special P.P. has submitted that there was a criminal conspiracy with accused No. 3, who has died. All the three accused were entrusted with the wires. They have sold the wires and procured the money which can be said to be illegal gratification under Sec. 13(1)(d) of the Prevention of Corruption Act and for the said amount they are not legally entitled. He has further submitted that finding of facts by the learned trial Judge cannot be found fault with. He has submitted that Exh. 91 gate-pass was in the name of accused No. 3 and Exh. 93 is the muster role. The learned trial Judge has rightly convicted the accused as the gate-pass is in the name of accused No. 3 and muster role shows attendance of all the accused. All these documents, according to Mr. Kodekar learned Special P.P., will in unison, corroborates the say of the prosecution that all the accused committed criminal conspiracy. According to Mr. Kodekar, accused Nos. 4 and 5 were let off as they were not Government servants. Mr. Kodekar has vehemently submitted that the labourers have very specifically deposed on oath and given the vivid picture how the wires were turned into copper and sold. P.W. 11 Kishorilal Punia Mahaver Exh. According to Mr. Kodekar, accused Nos. 4 and 5 were let off as they were not Government servants. Mr. Kodekar has vehemently submitted that the labourers have very specifically deposed on oath and given the vivid picture how the wires were turned into copper and sold. P.W. 11 Kishorilal Punia Mahaver Exh. 92, who was officer, has deposed against the accused and his evidence is rightly believed by the learned trial, and therefore, the appeals deserve to be dismissed. 14. As far as accused No. 3 is concerned, the judgment had attained finality as his heirs have not challenged the judgment after his death. He was the officer who had wielded command. Accused No. 3 is also no more but his wife is joined as appellant. Looking to the totality of the circumstances, it cannot be said that there is any criminal conspiracy even borne out from the evidence. The trial Court's finding is bad in eye of law qua accused Nos. 1 and 3 and requires to be set aside. This takes this Court to the aspect of offence under Sec. 13(1)(d) of Prevention of Corruption Act. The learned trial Judge has drawn inference that the property lost its identity because of it being stolen property and the learned trial Judge contradicts his own finding, and therefore, it cannot be said that accused Nos. 1 and 3 have committed any criminal misconduct. They were not in such a position in a public service that they would gather any valuable thing and take advantage of it, and hence, this finding of fact qua accused No. 1 and 3 is perverse. Even from the oral testimony of P.W. 1 Poonambhai Kantilal Solanki Exh. 49 and other witnesses do not show that Sec. 120B is attracted in the facts of this case. In the result, these appeals are allowed, as the accused No. 3 was the main culprit, and the judgment qua him has attained the finality as he has expired and his heirs have not challenged the impugned judgment and order of conviction and sentence. Therefore, the impugned judgment and order of conviction and sentence dated 27-6-2003 passed by the learned Addl. Sessions Judge, Court No. 3, Ahmedabad in Special Case No. 32 of 1990 is quashed and set aside qua accused Nos. 1 and 3. Therefore, the impugned judgment and order of conviction and sentence dated 27-6-2003 passed by the learned Addl. Sessions Judge, Court No. 3, Ahmedabad in Special Case No. 32 of 1990 is quashed and set aside qua accused Nos. 1 and 3. The accused No. 1 - Ramsevak Baburam Tripathi and accused No. 3 - Janrav Bhagvan Thorat, are acquitted of all the charges levelled against them. Fine, if any paid, be refunded. They are on bail, they need not surrender before the Jail Authority. R. & P. to be sent back to the trial Court. Bail and bail-bond stands cancelled.