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2018 DIGILAW 500 (ORI)

NIHAR RANJAN PATI v. STATE OF ORISSA

2018-05-03

S.K.SAHOO

body2018
JUDGMENT : S. K. SAHOO, J. 1. The appellant Nihar Ranjan Pati faced trial in the Court of learned Special Judge, Vigilance, Berhampur, Ganjam in G.R. Case No. 49 of 1996(V) / T.R. Case No. 09 of 1998 for offences punishable under section 13(2) read with section 13(1) (c) of the Prevention of Corruption Act, 1988 (hereafter 1988 Act') and sections 409 and 471 of the Indian Penal Code. The learned trial Court vide impugned judgment and order dated 21.05.2004 acquitted the appellant of the charge under section 471 of the Indian Penal Code, however found him guilty under section 13(2) read with section 13(1) (c) of the 1988 Act and section 409 of the Indian Penal Code and sentenced him to undergo R.I. for one year under section 13(2) read with section 13(1) (c) of the 1988 Act. No separate sentence was awarded for the offence under section 409 of the Indian Penal Code. 2. The prosecution case, as per the first information report dated 13.08.1996 lodged by Shri Raj Kishore Choudhury (P.W.12), Inspector of Vigilance, Rayagada before the Superintendent of Police, Vigilance, Berhampur Division, Berhampur is that during course of vigilance enquiry, it was ascertained that the appellant was the Jr. Clerk -cum-Accountant in the office of the Secretary, Regulated Market Committee, Rayagada from 24.07.1987 to 18.02.1995. During his incumbency as such, he misappropriated Rs.27, 689/- (rupees twenty seven thousand six hundred eighty nine) only which in detail are as follows:- On 10.09.1993 P.W.3 Samalla Rama, Market Guard of Seriguda Gate deposited Rs.2041/- (rupees two thousand forty one) only with the appellant which he had collected towards market fees by issuing receipts as per Sl. Nos. 1 to 15 of book no.73 and the appellant received the amount by issuing plain paper receipt in favour of P.W.3. Similarly on 07.10.1993 P.W.3 deposited Rs.2472/- (rupees two thousand four hundred seventy two) only with the appellant which he had collected towards market fees by issuing receipts as per Sl. Nos. 16 to 34 of book no.73 and the appellant received the amount by issuing plain paper receipt in favour of P.W.3. Even though the appellant received such amount from P.W.3 but he did not account for the same in the books of accounts of R.M.C. and misappropriated the same. Nos. 16 to 34 of book no.73 and the appellant received the amount by issuing plain paper receipt in favour of P.W.3. Even though the appellant received such amount from P.W.3 but he did not account for the same in the books of accounts of R.M.C. and misappropriated the same. The appellant also collected sum of Rs.15, 000/- towards godown rent for the period from December 1994 to April 1995 and Rs.8, 176/- towards market fees from the Area Manager, Western Orissa Regional Co-operative Oil Seeds Growers Union, Rayagada on 05.09.1995 by issuing a cash receipt no. 894 of book no.9 under his signature but the said amount of Rs.15, 000/- as well as Rs.8, 176/- was also not accounted for in the accounts of R.M.C. 3. On the basis of the written report presented by P.W.12, Berhampur Vigilance P.S. Case No. 49 of 1996 was registered under section 13(2) read with section 13(1) (c) of the 1988 Act and section 409 of the Indian Penal Code against the appellant. The Superintendent of Police, Vigilance directed P.W.12 to take up investigation of the case. During course of investigation, P.W.12 examined the witnesses, seized the original cash receipt book no.9, containing receipt no. 894 as per seizure list Ext.1, cash books of the year 1992, 1993, 1994 and 1995, stock and issue register of receipt book w.e.f. 01.11.1994 till 31.10.1995, general ledger of the year 1994-95, money receipt book no. 9, carbon copy of the charge report relating to taking over charge of the appellant, another charge report relating to handing over charge by the appellant, house rent/godown rent correspondence file and service book of the appellant as per seizure list Ext.2. The cash book and the service book were released in the zima of one Gouri Prasad Patro (P.W.10) under zimanama Ext.2/2. On 19.09.1996 P.W.12 also seized the money receipt book no.17, issue register of receipt book, general ledger, plain paper hand receipts of Rs.2041/- and Rs.2472/- issued by the appellant as per seizure list Ext.3. P.W.12 also obtained specimen signature of the appellant and sent the same to the Handwriting Bureau, Bhubaneswar through S.P., Vigilance, Berhampur and he received the opinion of the Govt. examiner on the questioned documents. P.W.12 produced the copy of the F.I.R., copy of the seizure list, opinion of the handwriting expert and case diary etc. P.W.12 also obtained specimen signature of the appellant and sent the same to the Handwriting Bureau, Bhubaneswar through S.P., Vigilance, Berhampur and he received the opinion of the Govt. examiner on the questioned documents. P.W.12 produced the copy of the F.I.R., copy of the seizure list, opinion of the handwriting expert and case diary etc. before the Sub-Collector, Rayagada on 05.12.1997 and also discussed with him and on the next day, he received the sanction order to launch prosecution against the appellant from Sub-Collector, Rayagada vide Ext.7. On 6.12.1997 the appellant was arrested and was released on bail. On completion of investigation, P.W.12 submitted charge sheet on 19.12.1997 against the appellant under section 13(2) read with section 13(1) (c) of 1988 Act and sections 409 and 471 of the Indian Penal Code. 4. The defence plea of the appellant so far as misappropriation is concerned is one of denial. However, the appellant admitted to have received Rs. 2041/- and Rs. 2472/- from P.W.3 and he pleaded that amount has been reflected in the cash book at a later stage. The appellant specifically denied to have received Rs. 15, 000/- and Rs. 8176/- from the Area Manager, Western Orissa Regional Co-operative Oil Seeds, Rayagada by issuing cash receipt. 5. In order to prove its case, the prosecution examined twelve witnesses. P.W.1 Narsingha Mallik was the constable attached to Vigilance Squad, Rayagada and he accompanied the Inspector of Vigilance to R.M.S. Office on 20.11.1996 and stated about the seizure of some documents as per the seizure list Ext.1. P.W.2 Krushna Ch. Mishra was the Market Sarkar, R.M.C., Rayagada and he stated about the seizure of cash book, receipt book and other papers by the Vigilance Inspector under seizure list Ext.2 on being produced by Gouri Prasad Patro (P.W.10) , Secy., R.M.C., Rayagada. He further stated about the seizure of issue register, money receipt book and other documents as per the seizure list Ext.3 and release of the documents seized under Ext.2 in the zima of P.W.10 as per zimanama Ext.2/2. P.W.3 Samalla Rama was the Market Guard at R.M.C., Rayagada and he stated about the collection of cash of Rs. 2041/- from different business men towards tax and deposited the said amount with the appellant on 10.09.1993. He further stated that a sum of Rs. 2472/- was also collected towards tax from different business men which was deposited with the appellant. 2041/- from different business men towards tax and deposited the said amount with the appellant on 10.09.1993. He further stated that a sum of Rs. 2472/- was also collected towards tax from different business men which was deposited with the appellant. P.W.4 Ram Bahadur Thapa was the Market Guard at R.M.C., Rayagada and he stated to have collected Rs.2, 980/- and Rs.798/- towards tax from different business men and handed over the same to Market Supervisor Shri Tripathy Babu. P.W.5 Abhaya Singh Tripathy was the Market Sarkar, R.M.C., Rayagada and he stated about the seizure of the cash book, stock issue register, money receipt book and charge report etc. by the Inspector of Vigilance under seizure list Ext.2. He further stated that the records like cash books and service book were released in zima of Secretary. P.W.6 Dinabandhu Pattnaik was the Secretary, R.M.C., Rayagada and he stated that the appellant was entrusted with the work of collection of market fees from Market Sarkar on issue of receipts and to maintain cash book. He proved the receipt book of the R.M.C. vide Ext.5. He further proved two plain paper receipts i.e. Exts.6 and 6/1 issued by the appellant in favour of P.W.3 on 10.09.1993 and 07.10.1993 respectively for an amount of Rs. 2041/- and 2472/-. P.W.7 Bhaskar Sethi was the Sub-Collector, Rayagada -cum- Chairman, R.M.C., Rayagada and he verified the documents produced by the Inspector of Vigilance and has a discussion with him and accorded sanction for launching prosecution against the appellant on 6.12.1997 and he proved the sanction order as Ext.7. P.W.8 Banamali Sahu was the Govt. Examiner of questioned documents and he proved his reports Ext.11 & Ext.12. P.W.9 Purna Ch. Singh was the Area Manager, Western Orissa Regional Co-operative Oil Seeds Growers Union Ltd., Rayagada who produced the cash receipts book before the Inspector of Vigilance which was seized under seizure list Ext.1. A.V. P.W.10 Gouri Prasad Patra was the Secretary, R.M.C., Rayagada and he stated that P.W.3 was the Market Guard and he was engaged in collecting marketing fees and after collecting the same, he used to deposit the same with the appellant. He further stated that the Inspector of Vigilance verified cash books, issue register, general ledger etc. on 19.09.1996 in the R.M.C. Office. He further stated that the appellant issued plain paper hand receipt in favour of P.W.3 for an amount of Rs. He further stated that the Inspector of Vigilance verified cash books, issue register, general ledger etc. on 19.09.1996 in the R.M.C. Office. He further stated that the appellant issued plain paper hand receipt in favour of P.W.3 for an amount of Rs. 2041/- on 10.09.1993 but the said amount was not reflected in the cash book and similarly on 07.10.1993 an amount of Rs.2472/- was deposited by P.W.3 with the appellant who issued plain paper receipt in favour of P.W.3. He further stated about the collection of Rs.15, 000/- towards godown rent for the period from December 1994 to April 1995 and Rs. 8,176/- towards market fees from the Area Manager of the Growers Union on 05.09.1995 and both these amounts were also not reflected in the cash book of R.M.C. Office, Rayagada by the appellant. He further stated about the seizure of the money receipt book, issue register, general ledger, plain paper receipt etc. under seizure list Ext.3 by the Inspector of Vigilance. He further stated about the seizure of cash book on 6.12.1996 by the Inspector of Vigilance, money receipt book, stock issue register, charge report etc. and preparation of seizure list Ext.2 and also release of the cash book and service book of the appellant in his zima as per zimanama Ext.2/2. P.W.11 Srikanta Mahanta was the Field Officer in Western Orissa Oil Seed Union at Rayagada and he stated that he had deposited a sum of Rs.15, 000/- towards godown rent and Rs.8176/- towards market fees in the R.M.C. Office and in that respect, receipt was granted to him as per Ext.8. P.W.12 Raj Kishore Chowdhury was the Inspector of Vigilance, Rayagada and he is the informant as well as the Investigating Officer of the case who on completion of investigation submitted charge sheet. The prosecution exhibited fifteen documents. Exts.1, 2 and 3 are the seizure lists, Ext.4 is the copy of receipt book containing carbon copy, Ext.5 is the receipt, Exts.6 and 6/1 are the hand receipts relating to Rs.2041/- and Rs.2472/-, Ext.7 is the sanction order, Ext.8 is another receipt, Ext.9 is the forwarding report, Ext.10 is the negative of the document, Ext.11 is the report of handwriting expert, Ext.12 is the opinion of P.W.8, Ext.13 is the original cash receipt, Ext.14 is the written report and Ext.15 is the cash book. The defence has proved Ext.A which is an entry dated 6.10.1993 in the cash book relating to deposit of Rs.2041/- and Ext.B which is the entry relating to deposit of Rs.2472/- on dated 19.10.1993. 6. The learned trial Court after analyzing the evidence on record has been pleased to hold that the appellant was the Government Servant who was working as Jr. Clerk -cumAccountant in the office of R.M.C., Rayagada and the prosecution has proved due sanction to launch prosecution by P.W.7 and the case is not bad for want of sanction order. The learned trial Court further held that so far as the deposit of Rs.15, 000/- towards godown rent and Rs.8, 176/- towards market fees in the R.M.C. office is concerned, the prosecution contention that the appellant received the said amount is not acceptable. The learned trial Court further held that P.W.10 has given a confusing and suspicious statement as regards to the writer of the receipt Ext.8 and therefore, the Court did not accept that the appellant issued the receipt Ext.8. The learned trial Court further held that there is no positive evidence to come to a conclusion that the appellant was entrusted with the aforesaid amount of Rs.15, 000/- and Rs.8176/- towards godown rent and market fees and therefore, the prosecution has failed to establish the entrustment of the said amount with the appellant, hence, he cannot be guilty for such allegation. The learned trial Court further held that there is absolutely no evidence that the appellant forged any document and accordingly disbelieved the charge under section 471 of the Indian Penal Code. The learned trial Court while discussing the entrustment of Rs.2041/- and Rs.2472/- with the appellant by P.W.3 Samalla Rama on 10.09.1993 and 07.10.93 respectively has been pleased to hold that the appellant was the custodian of office cash and maintaining the cash book (Ext.15) and after receipt of market fees, he was using printed receipt of R.M.C. and entering the fact of receipt of money in the cash book for proper account. The learned trial Court after going through the evidence of P.W.3 and P.W.6 coupled with money receipts (Exts.6 and 6/1) which have been admitted by the appellant held that the said money was entrusted with the appellant by P.W.3. The learned trial Court after going through the evidence of P.W.3 and P.W.6 coupled with money receipts (Exts.6 and 6/1) which have been admitted by the appellant held that the said money was entrusted with the appellant by P.W.3. The learned trial Court further held that the cash books indicate that the appellant deposited Rs.2041/- on 16.10.1993 and Rs.2472/- on 19.10.1993 and disbelieved the explanation of the appellant that due to non-availability of the receipt book, there was delay in depositing the aforesaid amount of Rs.2041/- and Rs.2472/- and further held that the explanation of the appellant appears to be false to escape from such allegation. The learned trial Court further held that the appellant on being directed by P.W.6 deposited the money that too after finding two money receipts with P.W.3 issued by the appellant which shows that the evidence of P.W.6 that as the money receipt book was available with the audit party, the receipt of the said money was not entered in the cash book is self contradictory and unbelievable. The learned trial Court further held that not a single paper has been produced to come to a conclusion that an audit was going on and the said receipt book was available with the auditor. It was further held that the dishonest intention of the appellant is established who even voluntarily did not deposit the money but deposited the same only at the instance of P.W.6 after the later detected money receipts in possession of P.W.3. It was further held that a false statement has been given by the P.W.6 to the effect that money receipts were available with the auditor. The learned trial Court further held that the defence plea that the money receipt book was not available with the appellant for which he could not issue money receipts on the date of receipt is not acceptable rather it clearly suggests that the appellant misappropriated the entrusted Government money and after detection of plain paper receipts by P.W.6, he had attempted to regularize the account. It was further held that the appellant in order to cause wrongful gain to himself, has committed misappropriation of Government money and therefore, the prosecution has clearly proved the dishonest intention including the entrustment of the amount with the appellant and further held that the appellant being a public servant misappropriated the Government money received from P.W.3 under receipt Ext.6 amounting to Rs. 2041/- and under receipt Ext.6/1 amounting to Rs. 2472/-. 7. Mr. Ajaya Kumar Nanda, learned counsel appearing for the appellant emphatically contended that the surplus cash in hand of the appellant with regard to money receipts Exts.6 and 6/1 was available in the office in the custody of appellant and the appellant was in the job of Jr. Clerk -cum- Accountant who was in the duty of collection of the market fees during the month of September-October, 1993 and he was also busy in rendering his assistance in the audit work and therefore, the delay in entering the amount in the cash book cannot be presumed to be a fraudulent and dishonest act. It is further contended that the evidence of P.W.6 indicates that there was audit during the relevant period of September-October, 1993 and since due to shortage of office staff, the entire work of the office was done by the appellant and the Secretary, in such a scenario, the delayed reflection of the cash received from P.W.3 on two different dates in the cash book is without any criminal animus of the appellant and it may at best amount to breach of duty or negligence and mere negligence to perform duty cannot be equated with existence of criminal animus. It is further contended that the appellant voluntarily entered the cash received from P.W.3 in the cash book on 16.10.1993 and 19.10.1993 which was much prior to the lunching of the prosecution in the year 1996 and therefore, the impugned judgment and order of conviction is not sustainable in the eye of law. Learned counsel placed reliance in case of Ajodhya Prasad Misra -Vrs.- State of Orissa, (1985) 1 OrissaLR 326, Basudev Mohapatra -Vrs.- State of Orissa, 1972 38 CutLT 232 and Gopal Chandra Misra -Vrs.- State of Orissa, 1981 51 CutLT 98. Mr. Learned counsel placed reliance in case of Ajodhya Prasad Misra -Vrs.- State of Orissa, (1985) 1 OrissaLR 326, Basudev Mohapatra -Vrs.- State of Orissa, 1972 38 CutLT 232 and Gopal Chandra Misra -Vrs.- State of Orissa, 1981 51 CutLT 98. Mr. Sanjay Kumar Das, learned Standing Counsel appearing for the Vigilance Department supported the impugned judgment and contended that the learned trial Court has rightly appreciated the evidence on record both oral as well as documentary and came to the finding that the appellant is guilty of the offences under section 13(2) read with section 13(1) (c) of the 1988 Act and section 409 of the Indian Penal Code. He further contended that the defence plea of the appellant has also been rightly disbelieved and there is no illegality or perversity in the finding and therefore, the appeal should be dismissed. He relied upon the decision of the Hon'ble Supreme Court in case of Jaikrishnadas M. Desai -Vrs.- State of Bombay, (1960) AIR(Supreme Court) 889. 8. In order to sustain the charge under section 13(2) read with section 13(1) (c) of the 1988 Act, it has to be proved that the appellant was a public servant and that he has committed criminal misconduct and that he has dishonestly or fraudulently misappropriated or otherwise converted for his own use any property which has been entrusted to him or under his control as a public servant or allowed any other person to do so. In order to prove a charge under section 409 of the Indian Penal Code, the prosecution has to prove the following aspects, (i) that the appellant was a public servant, (ii) that he was in such capacity entrusted with the property in question or dominion over it, (iii) that he committed criminal breach of trust in respect of such property. So far as entrustment part is concerned, the evidence of P.W.3 is very relevant. P.W.3 has stated that he was the Market Guard at R.M.C., Rayagada and as a Market guard, he used to collect one percent tax by staying near the check-gate in respect of goods those were brought into the town and used to grant receipts to the businessmen from whom he used to collect tax. He further stated that under receipt nos.1 to 15 of Ext.4 which is the money receipt book, he collected Rs. He further stated that under receipt nos.1 to 15 of Ext.4 which is the money receipt book, he collected Rs. 2041/- from different businessmen and deposited the said amount with the appellant on 10.09.1993. He further stated that under receipt nos.16 to 34, a sum of Rs.3270/- was collected towards tax, out of which Market Guard Ram Babu Thaffa had collected Rs.798/- and the balance amount of Rs.2472/- which was collected by him was also deposited with the appellant. The appellant has not disputed about the receipt of amount of Rs.2041/- and Rs.2472/- from P.W.3. The prosecution has also proved two hand receipts which were marked as Exts.6 and 6/1 issued by the appellant to P.W.3 in token of receipt of the aforesaid amount of Rs.2041/- and Rs.2472/-. P.W.6 has also stated that the appellant issued two plain paper receipts to P.W.3 and he proved Exts.6 and 6/1. The learned trial Court after analysing the evidence of P.W.3, P.W.6 and the plain paper receipts (Exts.6 and 6/1) has been pleased to hold that the money was entrusted with the appellant by P.W.3. In the accused statement, specific questions relating to the receipt of Rs.2041/- and Rs.2472/- from P.W.3 and issuance of plain paper receipts in favour of P.W.3 have been put to the appellant and the appellant has not disputed the same. Therefore, after going through the evidence of P.W.3, P.W.6 and the hand receipts (Exts.6 and 6/1) and also the fact that the appellant has not disputed the receipt of such amount from P.W.3 on 10.09.1993 and 7.10.1993, I find that the learned trial Court has rightly held that the prosecution has proved the entrustment of Rs.2041/- and Rs.2472/- with the appellant. 9. Now the question is whether the prosecution has proved that the appellant misappropriated the amount which was entrusted to him by P.W.3 on two different dates. It is not disputed that the receipt of amount of Rs.2041/- on 10.09.1993 was entered in the cash book on 16.10.1993. Similarly receipt of amount of Rs.2472/- on 7.10.1993 was entered in the cash book on 19.10.1993. The relevant entries have been marked on behalf of the defence as Ext.A and Ext.B respectively. It is not disputed that the receipt of amount of Rs.2041/- on 10.09.1993 was entered in the cash book on 16.10.1993. Similarly receipt of amount of Rs.2472/- on 7.10.1993 was entered in the cash book on 19.10.1993. The relevant entries have been marked on behalf of the defence as Ext.A and Ext.B respectively. Though the investigating officer (P.W.12) has stated that he verified the cash book dated 16.10.1993 and 19.10.1993 and cash of Rs.2041/- and Rs.2472/- collected on 10.09.1993 and 07.10.1993 respectively have not been entered in the cash book on very day or even on 16.10.1993 and 19.10.1993, after verifying the cash book and particularly the entries as per Ext.A and Ext.B, it appears that the statement of P.W.12 that the amount has not been reflected even on 16.10.1993 and 19.10.1993 is factually not correct. Therefore, the prosecution has adduced cogent evidence that even though the appellant received Rs.2041/- from P.W.3 on 10.09.1993, he has reflected the same in the cash book on 16.10.1993 and receipt of cash of Rs.2472/- on 07.10.1993 from P.W.3 was reflected in the cash book on 19.10.1993. Specific questions should have been put to the appellant in the accused statement on such aspect so that the appellant could have explained as to why in spite of receipt of Rs.2041/- from P.W.3 on 10.09.1993 and Rs.2472/- on 07.10.1993, he made entries in the cash book on 16.10.1993 and 19.10.1993 respectively. The same having not been done, the appellant was deprived of getting opportunity in explaining the incriminating circumstances appearing against him. The examination of an accused under section 313 of Cr.P.C. is not a mere formality. The questions put and the answers given are of great use. The accused must been given opportunity to explain each and every circumstance appearing in evidence against him. It is obligatory part of the accused while being examined under section 313 of Cr.P.C. to furnish explanation with respect to the incriminating circumstances associated with him and the Court must take note of such explanation. Where an incriminating fact has not been put to the accused under section 313 of Cr.P.C., the said circumstance cannot be used against the accused. Therefore, when an incriminating circumstance of delayed entry in the cash book has not been put to the appellant and he has been precluded from giving explanation thereon, it can be said that he has been seriously prejudiced. Therefore, when an incriminating circumstance of delayed entry in the cash book has not been put to the appellant and he has been precluded from giving explanation thereon, it can be said that he has been seriously prejudiced. The evidence of P.W.6 indicates that there was shortage of staff and accused was doing all the works in the office including collection of market fees from the check gate and during September and October 1993, Ext.5, the money receipt book was with the auditor for the purpose of audit. If due to non-availability of the money receipt book with him, the appellant could not issue the receipts to P.W.3 and in lieu of that plain paper receipts were issued, no fault can be found with the appellant. Had no plane paper money receipts been issued even after receiving the amount in question, the matter would have been different. The learned trial Court has held that since not a single paper has been produced to come to the conclusion that audit was going on and the money receipt book was with the auditor, therefore, the evidence of P.W.6 is unacceptable. P.W.6 has stated in the crossexamination about such aspect. The prosecution could have very well declared P.W.6 as hostile but the same having not been done and rebuttal evidence having not been adduced by the prosecution, the learned trial Court was not justified in disbelieving the evidence of P.W.6 that there was no material on record to show that audit was going on and the money receipt book was available with the auditor. P.W.6 has further stated that the he verified the cash position with the accused on 16.10.1993 and 19.10.1993 and at that time it was found that the cash in hand of the appellant was more than the balance shown in the cash book. The evidence has come on record that one iron chest was provided to the appellant for keeping the cash. Therefore, if the accused had kept the cash in the office itself in the iron chest which was detected by P.W.6, it cannot be said that the appellant has misappropriated the amount in any manner. There is no evidence that prior to checking by P.W.6, there was any other checking and during that period the cash was not found in possession of the appellant. There is no evidence that prior to checking by P.W.6, there was any other checking and during that period the cash was not found in possession of the appellant. Therefore, not only the appellant issued the hand receipts in favour of the P.W.3 since the money receipt book Ext.5 was not available with him but also he had kept the cash in the office. Though it is correct that there was delay in making the entry of the aforesaid receipt of the amount from P.W.3 which is about one month and six days in case of Rs.2041/- and twelve days in case of Rs.2472/- but taking into account the work load on the appellant has stated by P.W.6, I am of the humble view that it may be a case of negligence but it cannot be said that in absence of any other clinching evidence, the appellant had criminal animus to commit such offence. Coming to the citations placed by the learned counsel for the appellant, in case of Basudeb Mohapatra , it has been held that negligence to perform duty cast upon a public servant cannot be equated with existence of criminal animus. In case of Gopal Chandra Misra , it is held that when the appellant refunded the money voluntarily, it cannot be said that there was any criminal animus with the appellant. In case of Ajodhya Prasad Misra , it has been held that when there was no evidence of actual shortage of cash, the entries in books of accounts are not sufficient evidence of misappropriation. Coming to the citation placed by the learned Counsel for the Vigilance Department, in case of Jaikrishnadas M. Desai , it is held that the principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if proved, may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion. It is further held that the conviction of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the property entrusted to him, or over which he has dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an inference of misappropriation with dishonest intent may readily be made. In view of the ratio laid down in the aforesaid decisions, when no opportunities have been provided by the learned trial Court by putting specific questions in the accused statement to give an explanation by the appellant, when the surrounding circumstances indicate that the appellant has acted with all bonafide by issuing plain paper money receipts, retaining the cash in the office itself in the iron chest and making the necessary entries in the cash book much prior to the launching of the prosecution, it is difficult to believe that the appellant has misappropriated the amount in question. Law is well settled that the gist of offence of criminal misappropriation is the dishonest intention. Mere retention of property is not enough. Misappropriation of money or property can be temporary and it can be permanent. However, in the case in hand, under the facts and circumstances in which the amount could not be reflected in the money receipt book and it was belatedly reflected in the cash book and material questions relating to incriminating circumstances having not been put in the accused statement but such incriminating circumstances, have been used against the appellant, I am of the humble view that the learned trial Court was not justified in convicting the appellant under section 13(2) read with section 13(1) (c) of the 1988 Act and section 409 of the Indian Penal Code. 10. Accordingly, the criminal appeal is allowed. The impugned judgment and order of conviction passed by the learned Special Judge, Vigilance, Berhampur, Ganjam in G.R. Case No. 49 of 1996(V) / T.R. Case No. 09 of 1998 is hereby set aside. The appellant is acquitted of the charges under section 13(2) read with section 13(1) (c) of the 1988 Act and section 409 of the Indian Penal Code. The appellant is on bail by virtue of the order of this Court. The appellant is acquitted of the charges under section 13(2) read with section 13(1) (c) of the 1988 Act and section 409 of the Indian Penal Code. The appellant is on bail by virtue of the order of this Court. He is discharged from liability of his bail bond. The personal bond and the surety bond stand cancelled.