Judgment and Order(Oral) : Heard Mr. Sekhar Dutta, learned counsel appearing for the petitioner as well as Mr. R.C. Debnath, learned Addl. PP appearing for the State. 2. The convict has filed this Criminal Revision petition questioning the legality of the judgment and order dated 07.01.2014 delivered in Criminal Appeal No. 32(3) of 2013 by the Sessions Judge, South Tripura, Udaipur. 3. By the said judgment dated 07.01.2014, the judgment and order of conviction and sentence dated 12.07.2013, delivered in G.R. No. 06 of 2007 has been partly interfered with by acquitting the petitioner from the charge under Sections 468 and 471 of the IPC, as according to the appellate court there is no evidence against the petitioner of committing forgery or utilizing the forged document for gain. However, by the impugned judgment, the finding of conviction as returned under Section 409 of the IPC has been affirmed by the appellate court. “In the instant case, evidence on record convincingly established that the convict-appellant Ganga Mohan Jamatia had the domain over the cash amount as a public servant, a Panchayat Secretary and he committed the breach of trust in respect of that property. He withdrawn amount against some SGRY Scheme works which were non existent and did not spend the amount against the fake work orders and thus defalcated the amount by retaining the same. Thus he committed breach of trust in respect of cash amount and out of Rs. 1,87,403/defalcated amount, refunded Rs. 1,03,997/to the BDO, Killa RD Block but did not return Rs. 91,839/. From the report of BDO, Killa Block and Panchayat Extension Officer all these things clearly comes out and established. It is clearly established that the convict-appellant Ganga Mohan Jamatia committed offence punishable under Section 409 of IPC. The findings of the learned Chief Judicial Magistrate, South Tripura, Udaipur is based on appreciation of evidence. So, the conviction under Section 409 of IPC is upheld. But the conviction and sentence under Sections 468/471 of IPC is not based on proper appreciation of evidence. So, the order of conviction and sentence passed by the learned Chief Judicial Magistrate under Sections 468/471 of IPC is hereby set aside.” [Emphasis added] Being aggrieved by that finding, the petitioner has challenged the same by filing this petition. 4. Mr. But the conviction and sentence under Sections 468/471 of IPC is not based on proper appreciation of evidence. So, the order of conviction and sentence passed by the learned Chief Judicial Magistrate under Sections 468/471 of IPC is hereby set aside.” [Emphasis added] Being aggrieved by that finding, the petitioner has challenged the same by filing this petition. 4. Mr. Sekhar Dutta, learned counsel has submitted that there is no evidentiary material by which the charge under Section 409 of the IPC can be held to have been established by the petitioner. The witnesses as produced by the prosecution has stated on hearsay or without any basis at all. The general allegations as levelled against the petitioner is noted firstly in the written ejahar. It would be apparent that the allegations can be divided broadly on two segments : 1. The petitioner has indulged in ‘malpractice’ for an amount of Rs. 1,87,403/while implementing the scheme of SGRY at the village level. 2. The petitioner had withdrawn the money unauthorizedly citing reference of 7 Nos. of works, but out of which 4 Nos. were without any order from the competent authority and in case of rest 3 Nos., the amount was withdrawn in excess of what was actually sanctioned by the authority. According to the written ejahar, the petitioner had admitted the charge partly in view of the office memorandum dated 06.10.2005. The petitioner had deposited Rs. 1,03,997/as asked for in the ejahar, another allegation has been raised against the petitioner. The petitioner had collected Rs. 4000/each from three beneficiaries for providing the pump set but he did not provide such pump set and defalcated the money. 5. The informant, Shri Prahallad Noatia who was serving as the Panchayat Extension Officer under Killa R.D. Block did not mention, the work order numbers where, according to him, there was sanction by the authority but the petitioner exceeded that the sanction while withdrawing the amount. Even he did not mention the names of the four other works which the petitioner had implemented without any sanction. In his deposition in the trial he has simply reiterated that “against 7 nos. of work order of which 4 (four) nos. work did not have any sanction from the Government and competent authority and other 3 nos. Even he did not mention the names of the four other works which the petitioner had implemented without any sanction. In his deposition in the trial he has simply reiterated that “against 7 nos. of work order of which 4 (four) nos. work did not have any sanction from the Government and competent authority and other 3 nos. of work though had sanction from competent authority but the drawn excess amount that of the actual price of the work orders.” Earth filling of road from Dijapada para to Kancham colony had no sanction from the competent authority. The then BDO, Killa Block Sri Dilip Kr. Chakma accordingly had directed Sri Gouranga Mohan Jamatia to deposit Rs. 1,95,836/with interest @ 9% to the Block. He has further submitted that the petitioner had deposited a sum of Rs. 1,03,997/but he could not return Rs. 91,839/. Thereafter, he submitted the complaint to the police station. PW11, Prahallad Noatia, the informant, has further deposed in the trial as under : “On 25.07.2007, police seized a letter issued to the Director, Panchayat, regarding malpractice, inspection report of Panchayat extention officer, letter of BDO, Killa Block issued to the accused, confession letter of Ganga Mohon Jamatia, etc., about 16 nos. of documents under a propr seizure list which hears my signature. This is my signature on the seizure list at 25.07.07, let it be marked as Ext. No. 1/1(series). All the seized documents aer available before this Court. Witness identified the same and as marked Ext. No. 5/1, 5/2, 5/3(series), 5/4, 5/5, 5/6, 5/7, 5/8, 5/9, 5/10,(series), 5/11, 5/12, 5/13, 5/14, (series)m 5/15, 5/16, and this is my signature on ext. No. 5/1. Let it be marked as Ext. No. 5/1(A) and this is my signature on Ext. No. 5/2 let it be marked as Ext. No. 5/2. Ext. No. 5/2 was prepared by me in my own hand writing. Witness identified the same. On 31.07.2007 police seized a cash book of Bagma Gram Panchayat, Killa R.D. Block page No. 1 to 119 in which page 14 to 21 were blank. This is my signature on the seizure list. Let it be marked as Ext. 2/1. Seized cash book is available before this Court. Witness identified Ext. M.O. 1 before this Court. On 31.07.2007 police seized a cash book of Bagma Gram Panchayat, Killa R.D. Block page No. 1 to 119 in which page 14 to 21 were blank. This is my signature on the seizure list. Let it be marked as Ext. 2/1. Seized cash book is available before this Court. Witness identified Ext. M.O. 1 before this Court. On 12.09.2007 police further seized an advance register pages containing 01 to 52 out of which page No. 0405 and 3839 were found blank and the remaining pages after page No. ….52 was also found blank. This is the register. Witness identified the same as already marked as Ext. M.O. 3.” In the crossexamination, PW11 has categorically stated he did not disclose the name of the person who discovered the incidence of misappropriation. He has also candidly admitted that he did not state in the complaint when the offence was disclosed to him, but on 21.07.2007 he filed the ejahar, even though the alleged offence took place in the year 2005. He has admitted that he has not explained why such long time has been taken in filing the written ehajar to the police station. He denied the suggestions made by the defence. 6. Mr. Sekhar Datta, learned counsel appearing for the petitioner has further submitted that the prosecution case finally hinges on the testimonies of PWs1, 3, 5, 7, 9, 13, 16 and 17, apart from the testimony of PW11. The other witnesses did say nothing of material importance. 7. PW1, Keshab Majumder, failed to state in the trial which documents were seized by the police. But he had identified his signature on the seizure list. He had also identified the project register (Exbt. M.O.2) and the advance register (Exbt. M.O.3) and his signature on the seizure of those material objects. In the cross-examination, he has clearly admitted that “I cannot say whether any financial transaction was involved against the suspension order of Ganga Mohan Jamatia and I cannot say the reason for which his suspension was withdrawn.” 8. PW3, Saithuifru Mog is a hearsay witness. 9. PW4, Bijendra Jamatia is the witness of seizure of the sanction order issued in favour of Barit Kr. Kolai and Md. Jamir Ali in his presence. He has also stated that entries in the project register [pages 234-237] were made by Ganga Mohan Jamatia. PW3, Saithuifru Mog is a hearsay witness. 9. PW4, Bijendra Jamatia is the witness of seizure of the sanction order issued in favour of Barit Kr. Kolai and Md. Jamir Ali in his presence. He has also stated that entries in the project register [pages 234-237] were made by Ganga Mohan Jamatia. But those pages were not shown to the said witness to further dilate the entries made in those pages. 10. PW5, Gandan Naran Kaipan has clearly stated he does not have any knowledge of this transaction. 11. PW6, Mrinal Chakraborty is a hearsay witness. 12. PW7, Bir Ch. Jamatia is also a seizure witness of some sanction orders issued in favour of Banti Kr. Kolai and Md. Jamir Ali. 13. PW8, Sangzuala Reang, Sub Inspector of Police has in the trial stated that he raided the house of the petitioner but he could not apprehend him as the petitioner was absconding at that point of time. 14. PW9, Nayan Ch. Malsum and PW10, Panchikanta Malsum have stated in the same language and tenor that on the decision of the panchayat they gave Rs.4000/for installation of the pump set in their locality but later on they got the information that a pump set had already been issued to the beneficiary and accordingly, no pump set will further be issued to them. They took up the issue to the BDO, but there was no action from his part. They, in the crossexamination, have denied to have received any money from those persons. 15. PW12, Sulakhan Jamatia is a hearsay witness. 16. PW13, Ananta Bhakta Jamatia and PW14, Kashi Datta Jamatia were declined by the prosecution and they were not examined. 17. PW15, Krishnadhan Sarkar, an inspector of police, investigated the case after having been entrusted with the charge of investigation. He seized, according to him, “16 numbers of documents from Killa R.D. Block in presence of the witnesses which bear his signature.” He identified his signature on those documents. He has also stated that he seized a cash book of Bagma Gaon Panchayat, the Project register and the advance register. On his transfer he handed over the case docket to the Officer-incharge, Killa P.S. 18. PW16, Bimalendu Saha has stated that he had received the case docket from Manik Barua and he continued with the investigation for sometime. 19. He has also stated that he seized a cash book of Bagma Gaon Panchayat, the Project register and the advance register. On his transfer he handed over the case docket to the Officer-incharge, Killa P.S. 18. PW16, Bimalendu Saha has stated that he had received the case docket from Manik Barua and he continued with the investigation for sometime. 19. PW17, Jahar Lal Debbarma, completed the investigation and filed the chargesheet against the petitioner. In the crossexamination he has categorically stated that without the sanction of BDO no work order can be issued. He has further stated that since the petitioner returned a sum of Rs. 1,03,997/it is apparent from the face of the records that he defalcated that sum and later on he refunded that sum, which is part of the alleged defalcated sum of Rs. 1,87,403/which amount the petitioner had withdrawn from the bank by way of 8(eight) number of cheques. 20. Having referred to those testimonies, Mr. Sekhar Datta, learned counsel has categorically stated that the persons from whom a sum of Rs. 12,000/was collected and alleged to have not been returned they were not examined in the trial. Even if, the said money was collected in connection with any project what happened to that amount of money could have better been told in the trial by those beneficiaries, but they were completely away from the trial. That apart, the investigating officer PW17, has categorically stated that by way of eight cheques a sum of Rs. 1,87,403/was withdrawn by the petitioner but those cheques were not produced in the trial. While summing up his submissions, Mr. Dutta, learned counsel has submitted that the authority which sanctions the work, authorizes someone to implement the work and provides the authority to draw the money from the bank is the BDO. Even though he has been examined in the trial, but he did not shed any light on the alleged defalcation as allegedly committed by the petitioner. He has simply stated in the trial that “I have heard during his period as panchayat secretary, some money was misappropriated by him.” The Panchayat Extension Officer who filed the ejahar after two years of the occurrence even did not disclose to the trial how he could discover the so called misappropriation of money as alleged by him in the written ejahar. He did nowhere state that he audited the account personally or at his instruction, someone had audited those records as stated, and the outcome of those audit pointers of the defalcation which was located on scrutiny of records. 21. Mr. R.C. Debnath, learned Additional Public Prosecutor appearing for the state, in his usual fairness has submitted that the impugned judgment cannot be defended as the finding is not substantiated by the evidence. The basic requirement to prove the charge under Section 409 of the IPC could not be established by the prosecution. Those are : 1. The Property in question was entrusted to the accused. 2. The accused having that dominion over that property has committed criminal breach of trust in respect of that property. If these two ingredients are established ‘by the prosecution’ the burden would immediately shift to the accused to prove how the property so entrusted was dealt with. Since the prosecution has miserably failed to establish these two ingredients as above, the impugned finding of conviction cannot be sustained. 22. Having scrutinized the records, this court is constrained to note that the way the evidence has been appreciated both by the trial court and the appellate court and the charge under Section 409 of the IPC has been held to be established merely shows that either the trial court or the appellate court did not concentrate on the requirement to prove the charge under Section 409 of the IPC. It appears to this court that only on the basis of the testimony of PW11, the finding of conviction has been returned. PW11 cannot be relied for returning a finding of conviction simply for the reason that nowhere he has stated that he had caused audit or he himself audited the accounts to come to the conclusion that the petitioner had indulged in such commission as alleged in his written ejahar. The fundamental plank remained unsubstantiated. His statement has not been made relating the documents or the project register or the cash book. However, this court is not in agreement with the submission of Mr. Sekhar Dutta, learned counsel appearing for the petitioner that the delay in such cases can be fatal for the prosecution. The prosecution should have lay the background relating to the discovery they had made, supported by the detailed audit of the accounts. For belated revelation, the ejahar, could not be filed early. Sekhar Dutta, learned counsel appearing for the petitioner that the delay in such cases can be fatal for the prosecution. The prosecution should have lay the background relating to the discovery they had made, supported by the detailed audit of the accounts. For belated revelation, the ejahar, could not be filed early. Even some lackadaisical attitude from the government officer would not absolve the accused person from the criminal liability of criminal breach of trust and misappropriation. This is an offence against public trust and such offence cannot so lightly be treated. But in the case in hand, it is the failure of the prosecution in establishing the charge, even if there was some substance in the allegation. 23. Having held so, the benefit must go to the accused and accordingly, the accused is acquitted from the charge under Section 409 of the IPC on benefit of doubt. As corollary, the impugned judgment of conviction and the order of sentence are set aside. In the result, this Criminal Revision petition stands allowed. The surities are discharged from their obligation. Send down the LCRs forthwith.