JUDGMENT P.Patnaik, J. - The above mentioned three separate appeals have been preferred by the respective appellants challenging the common judgment dated 24.04.2018 passed by the learned Special Judge (Vigilance), Sundargarh in CTR Case No.20 of 2007 convicting and sentencing each of the above named appellants and to undergo R.I. for two years and to pay a fine of Rs.10,000/- (rupees ten thousand) in default of payment of fine to undergo a further period of rigorous imprisonment for three months under each of the offences under Section 120-B, 468/120-B, 471/120-B and 420/120-B of the Indian Penal Code (in short the 'I.P.C.') Further the appellants in CRLA Nos.363 of 2018 and 390 of 2018 being the public servant were also sentenced to undergo R.I. for two years and to pay a fine of Rs.10,000/- in default on payment of fine amount to undergo further period of R.I. for three months on each of the offences under Section 477-A, I.P.C. and under Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988. All the above substantive sentences awarded to each of the convicts were directed to run concurrently with the benefit of set off. 2. The gravamen of the prosecution case, in a nut shell, is that on the basis of allegation of defalcation of Government money by recording inflated measurement in the execution of the road work "S/R to Lathikata-Timjore Road from RD 1/300 Mtrs. to 1/865 Mtrs. for the year 2001-2002, an enquiry was undertaken by the Vigilance Wing. During enquiry, it came to light that the said work was awarded to Contractor, Manoj Mohapatra vide Agreement no.308F/2 for value of Rs.1,99,857/- . Pursuant to the agreement, the items of the work were to be executed for metaling, earth work, surface dressing and seal coating. The work commenced on 09.01.2002 and completed before 31.03.2002. During enquiry, it came to light that the said work was awarded to Contractor, Manoj Mohapatra vide Agreement no.308F/2 for value of Rs.1,99,857/- . Pursuant to the agreement, the items of the work were to be executed for metaling, earth work, surface dressing and seal coating. The work commenced on 09.01.2002 and completed before 31.03.2002. After completion of the work, appellant, Niranjan Jena, Junior Engineer took the measurement and the appellant, Tapan Kumar Garnaik, Assistant Executive Engineer conducted the check measurement and basing on their measurement and check measurement, final bill was prepared and appellant-Manoj Mohapatra, the Contractor was paid Rs.1,74,565/- after deducting Rs.25,068/- towards royalty, R.D., I.T. and O.S.T. The Technical Wing inspected the work on 11.01.2004 and 12.01.2004 in presence of appellant Niranjan Jena and Tapan Kumar Garnaik and found that works were executed for 200 meters from RD 1300 meters to RD 1500 meters and there was no work from 1500 meters to 1865 meters and the inspection team calculated the value of work executed to be Rs.77,829/- and there was excess payment of Rs.96,736/- after deducting Rs.25,685/-. After inspection, a memorandum was prepared. On the basis of enquiry, the DSP (Vigilance), Rourkela lodged a written report before the Superintendent of Police (Vigilance), Sambalpur, and Sambalpur Vigilance P.S. Case No.05 of 2005 was registered and on the direction of the Superintendent of Police (Vigilance), Sambalpur, he continued with the investigation. During the course of the investigation, the DSP Vigilance seized the relevant measurement book, Tender file, Agreement, Tender Paper, final bill, running account bill, files relating to disputed work and other documents. During investigation, it revealed that the accused persons have entered into a criminal conspiracy to cheat the Government and by corrupt illegal means obtained pecuniary advantage of Rs.96,736/- by creating false bills. Sanction order was obtained against the appellant Niranjan Jena and Tapan Kumar Garnaik. On completion of investigation, charge sheet was submitted against all the accused persons, namely, Niranjan Jena, Tapan Kumar Garnaik and Manoj Mohapatra. 3. The learned Trial Court on the basis of allegation and enquiry decided the case on the following points:- (i) Whether all the accused persons were a party to a criminal conspiracy by agreeing to do or caused to be done any illegal act to cheat the Govt. and to cause loss of Rs.96,736/- to the Govt. Exchequer by creating false vouchers and falsifying accounts? and to cause loss of Rs.96,736/- to the Govt. Exchequer by creating false vouchers and falsifying accounts? (ii) Whether all the accused persons in pursuance to their conspiracy have cheated the Govt. inducing to deliver an amount of Rs.96,737/-? (iii) Whether all the accused persons in pursuance to their conspiracy created false vouchers/bills intending to be used for the purpose of cheating the Govt.? (iv) Whether all the accused persons in pursuance to their conspiracy fraudulently used the false bills as genuine which they knew at the time of use to be a forged bill? (v) Whether the accused persons, namely, Niranjan Jena and Tapan Kumar Garnaik during their incumbency as Junior Engineer and Assistant Executive Engineer and being public servants, obtained pecuniary advantage? (vi) Whether accused Niranjan Jena and Tapan Kumar Garnaik being Govt. servants willfully and with intent to defraud, falsified the accounts and vouchers? 4. During trial, the prosecution in order to bring home the charge examined altogether eight witnesses. On the other hand, the defence has examined two witnesses. 5. P.W.1 was the Head clerk of the R.W. Division, Sundargarh. He proved the designation and employment of the appellant, Niranjan Jena, as Junior Engineer and Tapan Kumar Garnaik as Assistant Executive Engineer during the respective period. P.W.2 who was working as Junior Clerk in R.W. Division, Sundargarh produced the running account bills being no.330 dated 30.03.2002 before the Deputy Superintendent of Police (Vigilance) Rourkela and the seizure list, which was marked as Ext.1 was prepared in his presence. Ext.1/1 is his endorsement with signature. P.W.2 further deposed that the bill submitted by him was prepared by the Junior Engineer, Niranjan Jena and after preparation of the Junior Engineer was to submit the same to Assistant Executive Engineer, R.W. Sub-division, Kuanrmunda and the Assistant Executive Engineer in his turn was to submit the same before the Executive Engineer R.W. Division, Sundargarh. P.W.2 in his cross-examination deposed that he did not deal with the bill marked as Ext.2 and he had no knowledge as to how the bill was prepared and how it was passed for payment. P.W.2 had no personal knowledge regarding the contents of Ext.2. His statement regarding the bill is based on the procedure adopted in the department regarding the bill. P.W.3 was the Divisional Accounts Officer, R.W. Division, Sundargarh, who deposed about execution of the work by the appellants. P.W.2 had no personal knowledge regarding the contents of Ext.2. His statement regarding the bill is based on the procedure adopted in the department regarding the bill. P.W.3 was the Divisional Accounts Officer, R.W. Division, Sundargarh, who deposed about execution of the work by the appellants. He further deposed regarding the position of employment of appellants, Niranjan Jena and Tapan Kumar Garnaik so also the Contractor Manoj Mohapatra, to whom he knew. He proved the Measurement Book, Ext.3, which was maintained by appellant Niranjan Jena, Junior Engineer regarding measurement of the aforesaid road work. He also proved the signature of the Junior Engineer and Assistant Executive Engineer (both the appellants) in the respective pages of the measurement book, which was noted by the Junior Engineer and check measured by the Assistant Executive Engineer. He also proved Ext.20 in receipt vide voucher no.73 dated 08.06.2002 regarding release of payment of the withheld amount of Rs.80, 884/- to the appellant contractor Manoj Mohapatra. P.W.4 was the Junior Assistant in the Office of the Rourkela Development Authority. He was a seizure witness to the seizure list marked as Ext.4. P.W.5 was the Junior Engineer in Rourkela Municipality, who was on the direction of the Executive Officer of Rourkela Municipality pursuant to the requisition of the Vigilance authority had accompanied the team on 11.01.2004 to the spot of work as allegedly executed by the said contractor, Manoj Mohapatra. He vividly described the details in his deposition, besides proved his signature in the memorandum (Ext.5) and Bar Chart (Ext.6). P.W.6 was the Assistant Engineer of M.I. Sub-division, Rourkela, who also accompanied the inspection team on 11.01.2004 to the spot of the work as executed by the Contractor, Manoj Mohapatra. He also corroborated the evidence of P.W.5. P.W.7 was the informant-cum-First Investigating Officer, who described in detail about the enquiry, spot visit, lodging of F.I.R. and investigation of the matter as per the direction of the Superintendent of Police (Vigilance), Samblapur. He had neither any personal interest in the present case nor any enmity against the appellants. He has proved so many material documents which have been marked as Exhibits on behalf of the prosecution. P.W.8 was the subsequent I.O., who after taking over the charge from P.W.7 on 09.08.2006 obtained sanction order from the competent authority and submitted charge-sheet. 6. On the other hand, defence has examined two witnesses. He has proved so many material documents which have been marked as Exhibits on behalf of the prosecution. P.W.8 was the subsequent I.O., who after taking over the charge from P.W.7 on 09.08.2006 obtained sanction order from the competent authority and submitted charge-sheet. 6. On the other hand, defence has examined two witnesses. D.W.1 was the Junior Engineer, R.W. Division, Sundargarh from the year 2003 to 2006. He deposed that during his tenure he had executed the S/R work from RD 1/5 Kms. to 2/15 kms. was repaired. Before it was repaired the entire road was of BT. D.W.2 was the Superintending Engineer in Works Department deposed about the defect liability clause in the Agreement. The defence has exhibited the document, Ext.-A. 7. After closure of the prosecution case, the appellants were put questions under Section 313, Cr.P.C. about the incriminating materials to which they denied. 8. Learned Special Judge(Vigilance), Sundargarh having placed implicit reliance on the evidences of P.Ws.5, 6 and 7 and being corroborated by P.W.3 and on the material documents, Exts.3, 5, 6, 7, 8, 10 and 20 has passed the impugned judgment dated 24.04.2018, which is under challenge. 9. Mr.Ashok Mohanty, learned senior counsel for the appellant in CRLA No.363 of 2018 has strenuously urged that the complainant (P.W.7) himself is the Investigator and proceeded with the investigation of the complaint. As such the investigation cannot be construed to be fair and impartial and has certainly prejudiced the accused. Learned senior counsel further submitted that the law mandates that for the purpose of fair and impartial investigation, it must be carried out by the person who is absolutely impartial and unbiased. In this respect, the learned senior counsel referred to the decision reported in (Megha Singh-vrs.-State of Haryana, 1995 AIR(SC) 2339 ) and ( Sijiv.G.-vrs.-State of Orissa.,2017 68 OrissaLR 156) Learned senior counsel further submitted that sanction order is not valid as P.W.7 in his cross-examination has failed to state which documents have been placed before the sanctioning authority to accord sanction. In this respect, learned senior counsel has referred to the decision reported in (Baikunthanath Mohanty-vrs.-State of Orissa, 1985 CRLJ 563 ). In this respect, learned senior counsel has referred to the decision reported in (Baikunthanath Mohanty-vrs.-State of Orissa, 1985 CRLJ 563 ). It has been further argued that there is absolutely no reason as to why the inspection was made on 12.01.2004 and memorandum (Ext.5) was prepared while the F.I.R. was filed more than a year after and there is no whisper in the prosecution evidence about any enquiry before or thereafter. Therefore, it creates doubt on the veracity of the prosecution case, particularly when such a long delay has not been explained. As per law, a preliminary enquiry should be made time bound and in any case, it should not exceed 7 days. The cause of such delay must be reflected in the General Diary Entry which is singularly absent in the prosecution case. In order to substantiate his submission, learned senior counsel has referred to the decision reported in ( Lalita Kumari-vrs.-Government of U.P.,2014 57 OrissaLR 1 (SC) ) It has been further argued by the learned senior Counsel that after completion of the work, the appellant as Assistant Executive Engineer has taken measurement. For this the Measurement Book is pressed into service. Ext.3 is self contradictory, manipulated and can never be relied for the purpose of conviction. It purports to show a signature dated 08.02.2002 of the appellant in the MB to show that the appellant had check measured the work after its completion and therefore, the prosecution has implicated the appellant. It is the admitted position of the prosecution case that the appellant was Assistant Executive Engineer from 19.05.2001 to 08.02.2002. Therefore, the entire allegations against the appellants have to be during this period and not beyond 08.02.2002, and there is absolutely no allegation against the appellant as Executive Engineer, more particularly when the prosecution has made out a positive case that the Executive Engineer who passed the bill for payment was not the appellant, but was one Basudev Bala as per the evidence of P.W.3. So, the appellant's implication can only be confined to his incumbency as Assistant Executive Engineer and that too during 09.01.2002 and 08.02.2002. For this reason, the prosecution is dragging Ext.3 to show that the appellant has signed on 08.02.2002. But as already stated this Ext.3 is a manipulated document on the face of it. So, the appellant's implication can only be confined to his incumbency as Assistant Executive Engineer and that too during 09.01.2002 and 08.02.2002. For this reason, the prosecution is dragging Ext.3 to show that the appellant has signed on 08.02.2002. But as already stated this Ext.3 is a manipulated document on the face of it. Besides the fact that entries have been scored through and over written without any endorsement/signature, it can be clearly seen that the disclosure made therein is self contradictory inasmuch as the very documents show that the date of completion is 31.03.2002, which is also the prosecution case. So it belies logic as to how a check measurement was made before completion even by any authority, particularly when the prosecution has not made out a case that the appellant had allegedly made any part measurement before completion of work. On the contrary, it is the positive case of the prosecution that the appellant took measurement after completion of work as Assistant Executive Engineer which is contrary to records as per the own prosecution case. Learned counsel has highlighted on the sustainability of the prosecution case by advancing argument that the evidence of P.W.5 who deposed that the calculation had been made on the bill extract as no Measurement Book was made available. So, when Ext.2 (bill) and Ext.3 (Measurement Book) are self contradictory, how a calculation arrived there from the basis of conviction. Besides P.W.5 has deposed that his allegation that no work has been done is based on suspicion though he states that the road could have been damaged after the Defect Liability (DL) period due to rain within a period of two years. He clearly admits that the bill does not contain the details of measurement which can only be ascertained from the Measurement Book which was admittedly not produced. Further it has been argued that the so-called spot visit was after two years of the DL period and the work done had suffered the vagaries of nature rudely in the meantime. Since the prosecution has not come up with any dereliction, conviction cannot be based on mere suspicion. P.W.6 admits that they have not measured the complained road distance from 1500 Mtrs. to 1865 Mtrs. His evidence is relevant to demolish the prosecution case which positively claims that the offending portion was not laid at all. But this witness says that from 1300 Mtrs. P.W.6 admits that they have not measured the complained road distance from 1500 Mtrs. to 1865 Mtrs. His evidence is relevant to demolish the prosecution case which positively claims that the offending portion was not laid at all. But this witness says that from 1300 Mtrs. to 1500 Mtrs. the road was in good condition, but from 1500 Mtrs. to 1865 Mtrs., the road was not intact condition. Therefore, the existence of the road cannot be disbelieved. The alleged deteriorating condition can be attributable to the long passage after the Defect Liability (DL) in short) period and passing of two rainy seasons, traffic and drainage condition. Longevity of the road depends on the soil because of the road which has not been done in the case. More so, P.W.5 clearly admits not to have mentioned the road condition, but has admitted that there was no drainage on the side of the road. Learned senior counsel assailed the evidence of P.W.7, the I.O. by submitting that P.W.7, the I.O. cannot be believed on the face of it. The preamble of his allegation starts by accusing the appellant in making payment on the measurement done as Assistant Executive Engineer. The records, however, clearly show that the payment was made after the Executive Engineer passed the bill on 28.03.2002 on which date admittedly the appellant was not the Assistant Executive Engineer. The bill can only be paid after completion of work, and that too after the Executive Engineer was satisfied that the work has actually been done as per the agreement. From the records, it is clear that the bill was passed on 28.03.2002 and work was completed on the same day, but the prosecution has given two dates of completion by saying that it was 31.03.2002. This witness also deposed that inspection was done on 11.01.2004, but the memorandum was prepared in his office on 12.01.2004. To cover up the laches P.W.7 deposed that the rough calculation was prepared on 11.01.2004 from which Ext.5 was prepared, but the so-called rough calculation sheet did not see the light of the day. Apart from that P.W.7's evidence is quite contradictory to the evidence of P.W.6. On one hand, P.W.6 deposed that there is no work from 1500 Mtrs.to 1865 Mtrs.. On the other hand P.W.6 deposed that the said portion was not intact, but does not say that it does not exist. Apart from that P.W.7's evidence is quite contradictory to the evidence of P.W.6. On one hand, P.W.6 deposed that there is no work from 1500 Mtrs.to 1865 Mtrs.. On the other hand P.W.6 deposed that the said portion was not intact, but does not say that it does not exist. Further he admits not to have taken any photograph of the disputed portion. He also admitted that the appellant stated before him that the damage was due to heavy rain and flood in September, 2003 which statement has not been controverted. He also admits that he is the informant as well as the I.O. which is contrary to the decision of the Hon'ble Apex Court referred to supra. Learned senior counsel further submitted that Ext.5 reveals that the so-called calculation done on 12.01.2004 in the Vigilance Office amounted to an excess payment of Rs.98,119/-, but the sanction order shows the amount to be Rs.96,736/-. Therefore, the prosecution is not sure about the particular derelicted amount only for the reason that there was absolutely no calculation which the prosecution has admittedly arrived at an imaginary amount without measurement which was clearly borne out of records. Further it has been argued that the prosecution has admitted in evidence that they have not followed the I.R.C. guidelines to ascertain the quantity of the work. Besides the defence witnesses who are experts in the line and their evidence has not been controverted on such technical expertise, have clearly stated that in the absence of MB, the measurement cannot be calculated, particularly when the P.Ws have admitted not to have measured the length, depth and breadth of the work and in view of the long delay. In that respect, the decision reported in ( Birabar Sethi alias Birendra Sethi-vrs.-State of Orissa, 2012 2 ILR(Cut) 1031) has been referred to. Learned senior counsel for the appellant further submitted that the prosecution has failed to establish that the appellant has abused his official position with dishonest intention causing pecuniary benefit to himself and there is no evidence to connect him with the criminal conspiracy. There is also not a single evidence to the effect that he has misappropriated any Government money particularly when all the witnesses have categorically stated that the agreement money including the alleged excess money have been paid to the Contractor through Voucher (Ext.20). 10. There is also not a single evidence to the effect that he has misappropriated any Government money particularly when all the witnesses have categorically stated that the agreement money including the alleged excess money have been paid to the Contractor through Voucher (Ext.20). 10. Mr.Gopal Krishna Mohanty and Mr.Gouri Mohan Rath, learned counsel for the appellants in CRLA Nos.389 of 2018 and 390 of 2018 have more or less adopted the argument advanced by the learned senior counsel for the appellant in CRLA No.363 of 2018. 11. As against the submission of the learned counsel for the appellant, Mr.Sanjay Kumar Das, learned counsel for the Vigilance Department have vociferously submitted that the prosecution has been able to prove its case beyond all reasonable doubt because of the following circumstances. a) Learned counsel for the State Vigilance submitted with vehemence that according to P.Ws.5,6 and 7 on 11/12.01.2004 they inspected the work site and pursuant to their physical inspection, they arrived at a conclusion that in fact the special repair work to the S/R Road from Lathikata-Timjore from 1300 meters to 1500 meters (i.e. 200 meters) was done, but there was no work from 1500 meters to 1865 meters. The value of executed work was assessed at Rs.77,829/- only. b) Learned counsel for the State Vigilance further submitted that in order to corroborate the evidence of P.Ws.5,6 and 7, the memorandum vide Ext.5 was prepared in which all the prosecution witnesses and the appellants in CRLA Nos.363 and 390 of 2018 who were physically present on the day of physical inspection of the disputed work, signed on the said Ext.5. Further a Bar Chart of the nature of work done vide Ext.6 was also prepared, in which it has been clearly mentioned that no work had been taken up from RD 1500 meters to 1865 meters. c) Learned counsel for the State Vigilance further submitted that the vital document i.e., Agreement with the appellant in CRLA No.389 of 2018, Manoj Mohapatra was seized, proved and marked as Ext.8 bearing No.308/F/2 of 2001-2002 which was entrusted to the convicted Contractor for a total amount of Rs.1,99,857/-. So also the estimate of work document was seized, proved and marked as Ext.10. So also the estimate of work document was seized, proved and marked as Ext.10. The main document which proved the case of the prosecution was the Measurement Book shortly known as M.B. marked as Ext.3 in which the details of execution of the disputed work have been reflected. d) Learned counsel for the State Vigilance further submitted that according to the evidence of P.Ws.5,6 & 7 and also corroborated by P.W.3, the then Divisional Accounts Officer, R.W. Division, Sundargarh, prosecution has been able to well prove that the appellants have entered into conspiracy and without any execution of 365 meters of disputed work, there was excess payment of Rs.96,736/- made to the executants ( appellant in CRLA No.389 of 2018) for which the appellants in CRLA no.363 of 2018 and 390 of 2018 being the public servants dishonesty cheated the Government by misutilising their official position and obtained pecuniary advantage of Rs.96,736/- by corrupt and illegal means for which both of them were found guilty of the alleged offences by the learned trial court. e) Learned counsel for the State Vigilance further submitted that the learned trial court has elaborately discussed and assessed the evidence on record minutely and have also relied on material documents like Exts.3,5,6,7, 8,10 and 20 which helped the Court to arrive at the conclusion regarding the commission of the crime. f) Learned counsel for the State Vigilance further submitted that the learned trial court has appreciated the oral as well as documentary evidence and has convicted and sentenced the appellants under different sections of the Indian Penal Code as well as under the Prevention of Corruption Act, 2988 for which the appeals filed by all the appellants are liable to be dismissed by confirming the judgment dated 24.04.2018 passed by the learned trial Court in CTR Case no.20 of 2007. Apart from the aforesaid submissions, Learned counsel for the State Vigilance in order to support his submissions has relied upon the decision reported in ( State of West Bengal-vrs.-Kailash Chandra Pandey, 2005 AIR(SC) 119) wherein the Hon'ble Apex Court has been pleased to held that "It is needless to reiterate that the appellate Court should be slow in re-appreciating the evidence. This Court time and again has emphasized that the Trial Court which has the occasion to see the demeanour of the witnesses and it is in a better position to appreciate it, the Appellate Court should not lightly brush aside the appreciation done by the Trial Court except for cogent reasons." Learned counsel for the State Vigilance has relied upon the decision reported in ( State represented by Inspector of Police, vigilance Anti-corruption, Tiruchirapalli, T.N.-vrs.-V.Jayapaul,2004 AIR(SC) 5680 STPL ) wherein the Hon'ble Apex Court has been pleased to held at para-10 that "We find no principle or binding authority to hold that the moment the competent Police Officer, on the basis of information received makes out an F.I.R. incorporating his name as the informant, he forfeits his right to investigate. If at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the Investigating Officer. The question of bias would depend on the facts and circumstances of each case and it is not proper to lay down a board and unqualified proposition, in the manner, in which it has been done by the High Court that whenever a Police Officer proceeds to investigate after registering the F.I.R. on his own, the investigation would necessarily be unfair and biased." Learned counsel for the State Vigilance has relied upon the decision reported in ( Vinod Kumar -vrs.- State of Punjab, 2015 AIR(SC) 1206 ) wherein the Hon'ble Apex Court has been pleased to held at paras-27 & 28 that "27. xxxx xxx One of the contentions that was canvassed was that P.W.8, who lodged the F.I.R. had himself conducted the investigation and hence, the entire investigation was vitiated. The court referred to the decision in Jayapaul ( AIR 2004 SC 2684 ) (supra) and opined that - "In the instant case P.W.9 conducted the search and recovered the contraband articles and registered the case and articles seized from the appellants was narcotic drug and the counsel for the appellants could not point out any circumstances by which the investigation caused prejudice or was biased against the appellants. P.W.8 in his official capacity gave the information, registered the case and as part of his official duty later investigated the case and filed a Charge Sheet. He was not in any way personally interested in the case. P.W.8 in his official capacity gave the information, registered the case and as part of his official duty later investigated the case and filed a Charge Sheet. He was not in any way personally interested in the case. We are unable to find any sort of bias in the process of investigation. 28) In the instant case, P.W.8 who was a member of raiding party had sent the report to the Police Station and thereafter carried the formal investigation. In fact, nothing has been put to him to elicit that he was any way personally interested to get the appellant convicted. xxx xxx xxx" Learned counsel for the State Vigilance has relied upon the decision reported in ( Jaikrishnadas M.Desai & another-vrs.-State of Bombay, 1960 AIR(SC) 889) wherein the Hon'ble Apex Court has been pleased to held at para-6 that "6. 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. 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 on 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." Learned counsel for the State Vigilance has relied upon the decision reported in ( Rajiv Kumar-vrs.-State of U.P. & another, 2017 AIR(SC) 3772) wherein the Hon'ble Apex Court has been pleased to held at para-44 that "44 The essential ingredients of the offences of criminal conspiracy are : (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means. It is therefore, plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. It is therefore, plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. It is extremely difficult to adduce direct evidence to prove conspiracy. Existence of conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. In some cases, indulgence in the illegal act or legal act by illegal means may be inferred from the knowledge itself." 12. In order to appreciate the rival contention, this Court feels expedient to scan the evidence as to whether any work has been done in respect of the portion of work from 1500 meters to 1865 meters of "S/R to Lathikata-Timjore Road. In order to determine the aforesaid aspect it would be apposite to go through the evidence of P.W.3, who is the then Divisional Accounts Officer, R.W.Division, Sundargarh. In his cross-examination he has admitted that the execution of work was commenced on 09.01.2002 and completed on 28.03.2002. during progress of the work, the Executive Engineer has inspected the work from time to time. He has also scrutinized the bill on the basis of Measurement Book and Agreement. That ultimately the Executive Engineer has passed the bill for payment after being satisfied about execution of the work. It is also relevant to note that as such the Executive Engineer has expressed his satisfaction about the road work of the portion in question to the effect that the same has been honestly and physically done and accordingly the bills for payment of the same work has been passed by the Executive Engineer. But the said Executive Engineer has neither been made an accused nor has been made a charge sheeted witness in the case at hand. P.W.3 has further stated that the payment can only be made after the bill is passed by the Executive Engineer. The Executive Engineer is the drawing and disbursement officer of the division. Before passing of the bills the Executive Engineer must be satisfied that the work is actually executed in accordance with the detailed measurement. Further according to P.W.3, the defect period of liabilities of the Contractor was for six months and it was a special repair work. During the defect period of 6 ( six) months, they had not received any complaint from any corner. Further according to P.W.3, the defect period of liabilities of the Contractor was for six months and it was a special repair work. During the defect period of 6 ( six) months, they had not received any complaint from any corner. On perusal of the evidence of P.W.2, who was at the relevant time working as Junior Clerk in the Office of R.W. Division, Sundargarh has deposed that as per practice, after preparation of the bills by the junior Engineer, it is to be submitted to the Assistant Executive Engineer who is to submit the same before the Executive Engineer for payment. On perusal of the evidence of P.W.5, it is evident that P.W.5 was a member of the joint inspection team, who on being requested by the Vigilance police has inspected the work in question. P.W.5 has stated in his cross-examination that he has shown excess payment of Rs.98,119/- to the Contractor but he has admitted that the excess amount was not calculated item wise as no Measurement Book was available before them at the time of inspection. P.W.5 has also admitted that there is defect liability period in every agreement of work. He has also admitted that there may be damage to the road after repair due to rain. In the instant case, he repairing work in question was completed on 31.03.2002 whereas the work was allegedly physically verified on 12.02.2004 and during the period the gap of two years the work has faced two rainy seasons and the fact of the rain damaging the road during the said two years after repair cannot be ruled out. P.W.5 has further admitted during his cross-examination that during their physical verification they have found the part of the road i.e., from 1300 meters to 1500 meters, the road condition was good and they have not found the same condition of the road from 1500 meters to 1865 meters of the road as per the bill and for said reason the condition of the road from 1300 meters to 1500 meters and 1500 meters to 1865 meters was not same, they suspected that no work has been done on that portion. As such there was no other reason or logic on the part of the inspecting team to come to a conclusion that there was no work on the road from 1500 meters to 1865 meters. As such there was no other reason or logic on the part of the inspecting team to come to a conclusion that there was no work on the road from 1500 meters to 1865 meters. But for the reason that the condition of the road from 1300 meters to 1500 meters was better than that of the condition of the road from 1500 meters to 1865 meters, they have come to a conclusion that no work was done in the portion from 1500 meters to 1865 meters of the said road. Simultaneously, P.W.5 has stated that the longevity of the road condition depends on the soil base of the road, but P.W.5 has not bothered to examine regarding the condition of the soil base in respect of the portion from 1300 meters to 1500 meters and 1500 meters to 1865 meters as to whether there is any difference between the soil base of those portion to conclude regarding the longevity of the particular portion of the road. P.W.5 has further stated in the cross-examination that for check measurement of the road the Measurement Book and agreement are essential and unless and until the Measurement Book is referred the details of the length, width and thickness of the work executed cannot be ascertained. He has also admitted that they have neither measured the thickness of the road work, repaired nor dug pit holes to ascertain thickness of the road. P.W.5 has further admitted that there was no drainage by the side of the road which necessarily means that in the event of a heavy rain the road in question is bound to be water logged for days together. Therefore, the correctness and authenticity of the typed Memorandum, Ext.5 and the Bar Chart vide Ext.6 is questionable and doubtful and should not have been relied upon by the learned Special Judge (Vigilance) and for the same reason the Special Judge (Vigilance) ought not have relied upon the evidence of P.W.5 to come to a concrete conclusion that there was no work on the portion of the road from 1500 meters to 1865 meters of S/R to Lathikata-Timjor road. Moreover as per admission of P.W.5, it is seen that he was one of the stock witnesses of the Vigilance department and the learned Special Judge ought not have put much reliance on his evidence. Moreover as per admission of P.W.5, it is seen that he was one of the stock witnesses of the Vigilance department and the learned Special Judge ought not have put much reliance on his evidence. So far as the evidence of P.W.6 is concerned, the other member of the inspection team is also shaky and does not inspire much confidence regarding the admissibility of his evidence. P.W,6 who was working as Assistant Engineer in the Office of the M.I. Sub-division, Rourkela deposed that during inspection they found the road from 1300 meters to 1500 meters was in good condition and the rest of the road from 1500 meters to 1865 meters road was not intact. As per the own admission of p.w.6 they have only measured the road from 1300 meters to 1865 meters which means without measuring or inspecting the road from 1500 meters to 1865 meters, they have come to a conclusion that an excess amount of Rs.98,116/- was paid to the Contractor. He has also admitted during cross-examination that for exact valuation of the construction work the length, breadth, width are required to be taken and the Measurement Book contain the details of the measurement of the work done. P.W.6 during his cross-examination has admitted that they have not referred the Measurement Book of the disputed work as it was not provided to them and they have only taken the measurement of the road from 1300 meters to 1500 meters. He has also admitted that there was defect liability in the work in question. He has also admitted that there may be wear and tear of the road depending on the traffic condition, drainage condition and soil condition. He has also admitted that they have calculated the excess amount without any measurement of the thickness and width of the road from 1500 meters to 1865 meters and the report has been prepared on 12.01.2004 in the Vigilance Office at Rourkela. P.W.6 has also stated that his evidence has been utilized by the Vigilance Police in 6 to 7 other cases proving that he is also another stock witness of Vigilance department. P.W.6 has also stated that his evidence has been utilized by the Vigilance Police in 6 to 7 other cases proving that he is also another stock witness of Vigilance department. So far as the evidence of P.W.7 is concerned, it is evident that P.W.7 has stated in his cross-examination that during his interrogation co-accused Tapan Kumar Garnaik has raised that due to heavy rain there was flood in the month of September in the locality and it has damaged the repair work. It is also apposite to refer to the evidence of D.W.2, who has deposed in his evidence that there is a defect liability clause in the agreement which bars the release of EMD and security money in case of any defect noticed in the work within stipulated liability period and the executants is to remove the defect to get back the E.M.D. In case defect is not noticed during defect liability period it is to be presumed that the work is executed as per the agreement. It is not possible to assess the detailed special repair work after lapse of two years of execution of work. To correctly assess the special repair work, the Measurement Book is to be referred and it cannot be calculated only from the extract of the bills. He admitted that without referring the Measurement Book it is not possible to calculate the exact amount of work executed and to assess the quantum of work one has to measure the length, depth and width of work executed and to compare it with the measurement referred in the Measurement Book. The evidence of D.W.2 which has remained unassailed has not been properly dealt with by the learned Special Judge, Vigilance, Sundargarh. The learned Special judge, Vigilance has also lost sight of the fact that the work was also supervised by the Executive Engineer and the payment of the bill was made by the Executive Engineer himself. In view of the aforesaid evidence and admission of the prosecution witnesses, it cannot be said with certitude that there was no work in respect of portion from 1500 meters to 1865 meters of the road of S/R to Lathikata-Timjor road. In view of the aforesaid evidence and admission of the prosecution witnesses, it cannot be said with certitude that there was no work in respect of portion from 1500 meters to 1865 meters of the road of S/R to Lathikata-Timjor road. When the execution of work was properly done under the supervision of the Executive Engineer himself has not been made as an accused in the present case and the payment of bills made by the Executive Engineer it cannot be presumed that the excess amount was paid for the disputed work. The question of conspiracy or preparation of false vouchers by the present appellant are based on surmises and conjectures. Therefore, the appellants in CRLA No.s363 of 2018 and 390 of 2018 ought not to have been convicted under section 13 of the Prevention of Corruption Act. It is relevant to refer to the decision reported in (Birabar Sethi @ Birendra Sethi-vrs.-State of Orissa, 2012 53 OCR 319) this Court has been pleased to hold at paragraph-9 as follows:- "9. Judicial notice can very well be taken of the fact that the concrete road used by the villagers constructed over four years back, cannot have the same measurement and quality as it had on the date, when it constructed. Further, it being admitted by the then Assistant Engineer Sri Banerjee that the measurement done by the Petitioner was check-measured by him and was found to be correct and the Assistant Engineer, Shri Banerjee having not been arrayed as an accused, who was the higher authority over the Petitioner and checked the measurement done by the Petitioner and found the same to be correct, it is seen that no prima facie case for the offences of which cognizance has been taken, is made out and this Court further finds that for the above reasons, if the criminal case is allowed to continue, there can be no doubt that the same will end in acquittal of the Petitioner." In the decision reported in ( Lambodar Pujari-vrs.-State of Orissa,2017 68 OCR 836), this Court has been pleased to hold at paragraph-9 as follows:- "9. The learned trial Court has failed to appreciate that though the trench works in respect of three village sites forests were executed in the year 1986-87 but the trenches were measure after passing of four consecutive rainy seasons and therefore, the possibility of most part of the trenches being filled up due to soil erosion during those rainy seasons cannot be ruled out and it would be too difficult to ascertain the exact nature of work done by measurement at that stage. Merely because P.W.3 has stated that even after lapse of three and half years, the works done in respect of the trench can be ascertained is not sufficient to believe prosecution case that the trenches have been properly measured. In case of Barabar Sethi-Vrs.-State of Orissa, 2012 53 OCR 319, it is held that judicial notice can very well be taken of the fact that the concrete road used by the villagers constructed over four years back, cannot have the same measurement and quality as it had on the date, when it constructed." To sum up, in a case like the present one, there are material contradiction in the evidence of the prosecution witnesses and the prosecution witnesses have contradicted to each other on material aspect. Therefore, the appellants are entitled to the benefit of doubt. To strengthen the view of this Court it is profitable to quote the relevant paragraph in the case of State of Punjab-vrs.Jagir Singh, Baljit Singh and Karam Singh, 1974 3 SCC 277 . "A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is 11 the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures." In the light of the yardstick for scrutinizing and evaluating the evidence as indicated in Jagir Singh's case (supra), when this Court examined the witnesses led by the prosecution for sustaining the charge under Sections 120-B, 468/120-B, 471/120-B and 420/120-B, I.P.C. and Section 13(2) read Section 13(1)(d) of the P.C. Act against the appellants, this Court is of the considered view that the appellants are entitled for the benefit of doubt. Accordingly, it is held that the prosecution has failed to prove the charge under Sections 120-B, 468/120-B, 471/120-B and 420/120-B, I.P.C. against all the appellants and Section 13(2) read Section 13(1)(d) of the P.C. Act against the appellants in CRLA No.363 of 2018 and CRLA No.390 of 2018. In the result, the judgment of conviction and order of sentence dated 24.04.2018 passed by the learned Special Judge, (Vigilance), Sundargarh in CTR Case No.20 of 2007 are hereby quashed and set aside. The appellants, namely, Tapan Kumar Garayak, Niranjan Jena and Manoj Mohapatra be acquitted therefrom. The CRLAs stand allowed. Send back the L.C.Rs. forthwith.