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2022 DIGILAW 31 (ORI)

Sachidananda Mishra v. State Of Odisha

2022-01-31

S.K.SAHOO

body2022
JUDGMENT S.K. Sahoo, J. - The appellant Sachidananda Mishra faced trial in the Court of learned Special Judge, Vigilance, Sambalpur in T.R. Case No.61 of 1995 for offences punishable under sections 409, 468, 471, 477-A of the Indian Penal Code and section 13(1)(c) read with section 13(2) of the Prevention of Corruption Act, 1988 (hereafter 1988 Act') on the accusation that he being employed as a Junior Horticulture Officer, Bolangir under the Government of Odisha and being a public servant abused his position as such, dishonestly or fraudulently misappropriated or otherwise converted a sum of Rs.19,047/- (rupees nineteen thousand forty seven only) entrusted to him or under his control or dominion to his own use and thereby committed criminal breach of trust and also forged certain vouchers intending that those would be used for the purpose of cheating and fraudulently or dishonestly used those documents as genuine and also altered certain Book Accounts Register with intent to defraud the employer Govt. of Odisha. The learned trial Court vide impugned judgment and order dated 23.12.2006 though acquitted the appellant of the charge under section 477-A of the Indian Penal Code but found him guilty under sections 409, 468, 471 of the Indian Penal Code and section 13(2) read with section 13(1)(c) of 1988 Act and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/-, in default, to undergo R.I. for three months on each count and the substantive sentences of imprisonment were directed to run concurrently. 2. The prosecution case, in short, as per the first information report (Ext.34) dated 05.11.1994 lodged by Sri Umesh Chandra Panda (P.W.19), Inspector of Vigilance, Bolangir before the Superintendent of Police, Vigilance, Sambalpur Division, Sambalpur is that he received reliable information that the appellant who was the Junior Horticulture Officer in the Office of the Horticulturist, Khariar was posted at J.H.O., Bolangir from 29.08.1985 to 01.09.1992. During his incumbency as such, a sum of Rs.2,10,000/- was allotted by the Director of Horticulture, Odisha, Bhubaneswar during the year 1991-92 and placed at the disposal of Horticulturist, Bolangir for purchase of 1,50,000 Dwarf Cavendish banana suckers from the farmers @ Rs.1/- per sucker and distribution of the same to the farmers at the highly subsidized rate of Rs.0.15 per sucker. The allotted amount of Rs.2,10,000/- included Rs.45,000/- towards transportation charges and Rs.15,000/- towards chemical pre-treatment of the banana suckers. The allotted amount of Rs.2,10,000/- included Rs.45,000/- towards transportation charges and Rs.15,000/- towards chemical pre-treatment of the banana suckers. The appellant was entrusted with Rs.47,310/- for purchase of suckers and transportation, out of the allotted amount of Rs.2,10,000/-. He purchased 27,200 banana suckers and paid a sum of Rs.23,200/- to the farmers those who had supplied the suckers but falsely showed purchase of 36,500 banana suckers from the farmers @ Rs.1/- per sucker and thereby misappropriated a sum of Rs.13,300/- by preparing false vouchers. He also showed expenditure of Rs.10,810/- towards transportation charges of the banana suckers thoug utilized Rs.5,062.40 paisa for that purpose and thus misappropriated the rest amount of Rs.5,747.60 paisa. In that process, the appellant misappropriated a total sum of Rs.19,047.60 paisa out of the entrusted amount of Rs.47,310/-. The enquiry revealed that the appellant prepared and manufactured false money receipts in the name of farmers and vehicle owners and used the same as genuine and committed criminal breach of trust in respect of an amount of Rs.19,047.60 paisa obtaining pecuniary advantage for himself and thereby he misconduct himself. Basing on such first information report lodged by P.W.19, Sambalpur Vig. P.S. Case No.42 of 1994 was registered under sections 467, 471, 409 of the Indian Penal Code and section 13(2) read with section 13(1)(c) of 1988 Act. On the direction of the S.P. Vigilance, Sambalpur, P.W.19 took up investigation of the case. During course of investigation, he examined witnesses and seized seven vouchers on production by Nabin Kumar Chhatria (P.W.4), Jr. Accountant in the office of the Horticulturist, Bolangir. On 11.07.1995 P.W.19 handed over the charge of investigation of the case on his transfer to Sri K.B. Pani (P.W.20) who continued with the investigation, examined some more witnesses, seized some documents and on completion of the investigation, he submitted charge sheet against the appellant on 10.12.1995 under sections 467, 468, 471, 420, 409 of the Indian Penal Code and section 13(2) read with section 13(1)(c)(d) of 1988 Act after obtaining the requisite sanction. 3. The defence plea of the appellant as appears from the statement recorded under section 313 of Cr.P.C. is that he personally purchased most of the banana suckers @ Rs.1/- per sucker and also purchased some banana suckers through Shiba Prasad Mishra and Kambhupani Mishra, Gardeners by giving them some money out of the advance taken by him. 3. The defence plea of the appellant as appears from the statement recorded under section 313 of Cr.P.C. is that he personally purchased most of the banana suckers @ Rs.1/- per sucker and also purchased some banana suckers through Shiba Prasad Mishra and Kambhupani Mishra, Gardeners by giving them some money out of the advance taken by him. He brought the banana suckers to the Central Godown of the Horticulturist's office, Bolangir by the trucks of Muni Banchhor (P.W.5) and Prabhat Ranjan Nial (P.W.7). The Store Keeper of the Central Godown after counting the banana suckers received the same. He also paid transportation charges of the banana suckers to P.W.5 and P.W.7 and the fact of his purchase of banana suckers and bringing the same to the office of the Horticulturist, Bolangir was known to the then Horticulturist Gokula Charan Tripathy (P.W.10). After making stock entry of the banana suckers in the stock register, those were given to the gardeners and grafters of the office on obtaining signatures from them to sell the same to the cultivators @ Rs.0.15paisa per sucker and the gardeners and grafters after selling the banana suckers deposited the sale proceeds in the office of the Horticulturist, Bolangir. 4. In order to prove its case, the prosecution examined twenty witnesses. P.W.1 Kishore Meher stated that he did not sell banana suckers to the Horticulture Department nor received any payment by selling it and he had never granted any receipt to the appellant acknowledging receipt of Rs.3,990/- towards price of banana suckers. P.W.2 Dhruba Chandra Mishra was a cultivator who stated that he sold banana suckers to the Horticulture Deptt., Bolangir and received a sum of Rs.3,810/- towards price of 3810 banana suckers @ Rs.1/- each. He was declared hostile by the prosecution. P.W.3 Kali Prasad Das was the Head Clerk in the office of Dist. Election Officer, Bolangir and he stated about the seizure of one Electoral roll of village Gardi and another Electoral roll of village Danamal as per seizure list vide Ext.7 by the Inspector Vigilance. P.W.4 Nabin Kumar Chhatria was the Accountant -cum- Head Clerk in the office of Horticulturist, Bolangir and he stated about receipt of fund of Rs.2,10,000/- from the Government in their office for purchase of banana suckers. P.W.4 Nabin Kumar Chhatria was the Accountant -cum- Head Clerk in the office of Horticulturist, Bolangir and he stated about receipt of fund of Rs.2,10,000/- from the Government in their office for purchase of banana suckers. He further stated about the appellant submitting applications for taking advance for purchase of banana suckers and receiving Rs.16,500/-, Rs.20,000/- and Rs.5,900/- on three occasions as advance as per the orders of Horticulturist Gokulananda Tripathy (P.W.10) by making endorsement in the advance ledger which was seized by the Inspector Vigilance. He also stated about the vouchers submitted by the appellant after utilisation of advance which were also seized the Inspector Vigilance. P.W.5 Muni Banchhar and P.W.6 Madhu Mangal Sahoo did not support the prosecution case. P.W.7 Prabhat Ranjan Nihal was the driver of a Mini Truck and he stated to have granted a receipt to the Horticulture Deptt., Bolangir showing receipt of transportation charges. He was declared hostile by the prosecution. P.W.8 Debaraj Gadtia was a cultivator who stated that there was no person by name Debraj Bhoi residing in village Gerdi at any point of time. P.W.9 Pareswar Barik stated that he had not supplied 4000 nos. dwarf variety of banana suckers to the appellant nor received Rs.4000/- towards the cost thereof. He stated that the signature appearing in Ext.30 is not that of his brother Dambarudhar Barik. P.W.10 Gokula Chandra Tripathy was in-charge Horticulturist at Bolangir who stated about passing orders on the application of the appellant and the appellant receiving advance for the purpose of purchase of banana suckers and submitting procurement vouchers vide Exts.11 to 17 towards the advance taken by him. P.W.11 Budhadev Gadtia was a villager of Gerdi and he stated that there was no person by name Debraj Bhoi living in his village Gerdi at any point of time. P.W.12 Dambarudhar Barik was a cultivator and he stated that he had never supplied any banana suckers to the Horticulture Department of Bolangir nor supplied any banana suckers to the appellant or received any amount from him by putting his signature in any voucher as token of receipt of money. P.W.13 Harisankar Patra was the Asst. Horticulture Officer, Bolangir who is a witness to the seizure of some vouchers by vigilance police as per seizure list Ext.18. P.W.14 Madan Mohan Purohit was the Jr. Clerk, Dist. P.W.13 Harisankar Patra was the Asst. Horticulture Officer, Bolangir who is a witness to the seizure of some vouchers by vigilance police as per seizure list Ext.18. P.W.14 Madan Mohan Purohit was the Jr. Clerk, Dist. Election Office, Bolangir who stated about the seizure of voter list of the year 1995 of village Danamal, Patnagarh Assembly constituency and also voter list of village Gerdi under Loisingha Assembly constituency by vigilance police as per seizure list Ext.7. P.W.15 N.S. Bhanu Patnaik who was the Govt. Examiner of questioned documents examined the vouchers received from Vigilance Inspector, Bolangir and gave his opinion vide Ext.32. P.W.16 Prahallad Sethy was the Head Clerk in Fisheries Office, Bolangir who stated about taking of specimen signatures of Prabhat Ranjan Nial (P.W.7) and Dambarudhar Barik (P.W.12) in his presence by the vigilance police. P.W.17 Sri Jagadananda Panda was the Director of Horticulture, Bhubaneswar who stated that after perusal of all the relevant documents produced by Inspector of Vigilance and holding pre-sanction discussion with him and on being satisfied, he accorded sanction for prosecution of the appellant vide sanction order Ext.33. P.W.18 Sri Alekh Barik did not support the prosecution case and he was declared hostile by the prosecution. P.W.19 Umesh Chandra Panda was the Inspector of Vigilance, Bolangir Squad who took up investigation of the case on the direction of S.P. (Vig.), Sambalpur on 05.11.1994 and investigated the case till 11.07.1995 when he handed over charge of investigation to P.W.20. P.W.20 Kunja Bihari Pani was the Inspector of Vigilance, Bolangir who on 11.07.1995 took charge of investigation of the case from his predecessor Sri Umesh Chandra Panda (P.W.19) and on completion of investigation, submitted charge sheet. The prosecution exhibited thirty six documents. Exts.1 to 6 are the papers containing specimen signatures, Exts.7, 18 and 19 are the seizure lists, Exts.8 and 9 are the applications filed by the appellant, Ext.10 is the Advance ledger entry showing payment of advance to the appellant, Exts.11 to 17 are the vouchers, Exts.20 to 25 are six sheets of papers containing specimen signatures, Exts.26 to 31 are the specimen signatures of Parameswar Barik (P.W.9) in six sheets of paper, Ext.32 is the opinion given by P.W.15, Ext.33 is the sanction order, Ext.34 is the written report (F.I.R.), Ext.35 is the advance ledger and Ext.36 is the statement of reason. The prosecution proved two material objects. The prosecution proved two material objects. M.O.I is the negatives and M.O.II is the enlarged photographs. 5. The defence examined three witnesses in support of the defence plea. D.W.1 Karunakar Meher stated about the appellant was having talk with P.W.1 for supply of banana suckers @ Rs.1/- per sucker and taking delivery of such suckers from D.W.1 after a few days and the latter putting his signature on a voucher. D.W.2 Santosh Kumar Gadtia stated about the appellant contacting Debraj Bhoi of his village to purchase banana suckers @ Rs.1/- per sucker and ultimately Debraj Bhoi selling banana suckers to the appellant after receiving cost towards it. D.W.3 Sobha Chandra Bhoi stated about supply of 4000 banana suckers to the appellant by P.W.9 and receiving money for such supply. 6. The learned trial Court framed the following points for determination:- (i) Whether the accused being a public servant and having been entrusted with a sum of Rs.47,310/-, dishonestly or fraudulently misappropriated or otherwise converted to his own use a sum of Rs.19,047/- out of the said amount and thereby misconduct himself? (ii) Whether the accused being a public servant and in such capacity entrusted with a sum of Rs.47,310/-, for purchase of banana suckers and for transportation of the same, committed criminal breach of trust in respect of Rs.19,047/-? (iii) Whether the accused forged the vouchers intending that those shall be used for the purpose of cheating? (iv) Whether the accused fraudulently or dishonestly used as genuine certain documents (vouchers) which he knew or had reason to believe at the time he used the same to be forged documents? (v) Whether the accused being a servant of the Government willfully and with intent to defraud, made entries in the book of accounts belonging to his employer? 7. The learned trial Court after assessing the oral and documentary evidence on record came to hold that there is no dispute over the fact that the appellant was working as a Junior Horticulture Officer in the office of the Horticulturist, Bolangir during the relevant period and as such he was a public servant and that the evidence of P.W.4 goes unchallenged by the defence which revealed that during the Financial Year 1991-92, Government had placed funds of Rs.2,10,000/- for purchase of banana suckers. It was further held that the appellant had taken the advances mentioned in Ext.10 and submitted the vouchers Exts.11 to 17 in the office of the Horticulturist, Bolangir. The defence plea that P.W.1 had sold 3990 banana suckers to the appellant and in lieu of that he received Rs.3990/- from the appellant and also granted the voucher (Ext.11) putting his signature in English thereon was disbelieved by the learned trial Court. However, the prosecution case that P.W.2 had not sold 3810 numbers of banana suckers for a price of Rs.3810/- to the appellant and that the appellant dishonestly created the voucher Ext.12 to misappropriate the amount mentioned therein, was not accepted by the learned trial Court. Similarly, the prosecution case that the appellant had not purchased 4000 banana suckers from P.Ws.9 and 12 for a price of Rs.4000/- and dishonestly prepared the voucher to misappropriate the amount was not accepted by the learned trial Court. It was further held that the appellant committed misappropriation of Rs.3990/- towards purchase of banana suckers and prepared and submitted the voucher Ext.11 for the said amount with dishonest intention to make wrongful gain for himself, however it was held that the prosecution has failed to prove that the appellant had misappropriated any amount towards transportation charges of banana suckers. It was further held that the prosecution has successfully proved that the appellant committed criminal breach of trust in respect of a sum of Rs.3,990/- towards purchase of banana suckers and as such he committed an offence under section 409 of the Indian Penal Code. It was further held that the evidence on record revealed that the appellant being a public servant misappropriated a sum of Rs.3,990/- out of the amount entrusted to him in his capacity as a public servant and thus, he committed the offence of criminal misconduct as laid down under section 13(1)(c) punishable under section 13(2) of the 1988 Act. It was further held that the appellant committed forgery intending that the voucher (Ext.11) would be used for the purpose of cheating and used the said voucher as genuine knowing the same to be a forged voucher and as such, he committed the offences under sections 468 and 471 of the Indian Penal Code. It was further held that the appellant committed forgery intending that the voucher (Ext.11) would be used for the purpose of cheating and used the said voucher as genuine knowing the same to be a forged voucher and as such, he committed the offences under sections 468 and 471 of the Indian Penal Code. However, the learned trial Court found that there are no evidence on record showing that the appellant was maintaining any book of accounts in the office of Horticulturist, Bolangir at the relevant time or that he destroyed, altered, mutilated or falsified any book, paper, writing, valuable security or account belonging to or in the possession of his employer and thus the ingredients of the offence under section 477-A of the Indian Penal Code against the appellant are not established by the prosecution against the appellant. Holding that the prosecution has failed to establish the charge under section 477- A of the Indian Penal Code against the appellant, the learned trial Court convicted the appellant under section 13(2) read with section 13(1)(c) of the 1988 Act and also under sections 409, 468 and 471 of the Indian Penal Code. 8. Mr. Trilochan Nanda, learned counsel appearing for the appellant contended that P.W.19 being the informant of the case should not have investigated the case which has caused serious prejudice to the appellant and it creates a cloud of doubt on the fairness of the investigation. The charge is not specific as required under section 212 of the Cr.P.C. as to what amount the appellant misappropriated showing purchase of banana suckers from which person and in absence of such specific charge, the appellant has been seriously prejudiced and conviction of the appellant is bad in law. The conviction of the appellant is based on the finding of the learned trial Court that the appellant committed criminal breach of trust and dishonestly misappropriated Govt. fund to the tune of Rs.3,990/- towards purchase of banana suckers from P.W.1, prepared and submitted the voucher under Ext.11 for the said amount with dishonest intention to make wrongful gain for himself. The conviction of the appellant is based on the finding of the learned trial Court that the appellant committed criminal breach of trust and dishonestly misappropriated Govt. fund to the tune of Rs.3,990/- towards purchase of banana suckers from P.W.1, prepared and submitted the voucher under Ext.11 for the said amount with dishonest intention to make wrongful gain for himself. P.W.19, the Investigating Officer has admitted in his deposition that the fact of purchase of the banana suckers by the appellant under the vouchers Exts.11, 12, 13 and 14 have been noted in the stock register of the Horticulturist, Bolangir but for the best reason known to the I.O, he has not seized the stock register. One Shyamsundar Sethi was in-charge of the Central Stock and also the register of the Horticulturist, Bolangir but the I.O. has not examined him in the case nor has he made him an accused. P.W.19 has stated that it was the practice then that after purchase of banana suckers, the staff of the Horticulture Department were sending the same to Central Godown of the Horticulturist, Bolangir after furnishing stock certificates on the vouchers and as per the procedure, the gardeners were to sell banana suckers to the cultivators, obtain their signatures in their stock registers and also mention the receipt of money from them in the stock registers. The I.O. stated that the gardeners had deposited the actual sale price of the suckers in the office of Horticulturist, Bolangir as per the quantity of suckers shown to have been sold by them to the cultivators which was mentioned in the Central Stock Register in the office of Horticulturist, Bolangir. The I.O. (P.W.19) has not seized the stock registers of the gardeners in this case. Mr. Nanda further argued that P.W.10 Gokula Chandra Tripathy who was the in-charge Horticulturist, Bolangir at the relevant point of time has stated in his deposition that after procurement, the stock was entered in the stock register and the said stock was then issued to the field staff of the department for supply to the Farm/Agriculturist and he as the Head of the Office, after being satisfied about the genuineness of the voucher submitted before him with respect to the advance payment or the excess payment, passed the voucher for payment. According to Mr. According to Mr. Nanda, the I.O has not intentionally seized the stock registers inasmuch as had he seized the same, it would have demolished the case of the prosecution in its entirety and as such adverse inference under section 114(g) of the Evidence Act is to be drawn against the prosecution. He drew the attention of this Court to the attested copies of Stock Book Register of banana suckers, 1991-92, Page Nos.3 to 7 obtained from the office of the Deputy Director of Horticulture, Bolangir under R.T.I Act vide letter No.690 dtd.20.03.2018 which has been marked as Ext.B by order dtd.11.11.2021 passed by this Court in I.A. No.1118 of 2021 by way of acceptance of additional evidence under section 391 of the Cr.P.C. He argued that by way of voucher Ext.11, the appellant purchased 3990 banana suckers from P.W.1 on 26.02.1992 and paid a sum of Rs.3,990/- @ of Rs.1/- per banana sucker to him. This fact has been clearly reflected and certified at the back portion of Ext.11 and this particular voucher was passed for payment of Rs.3,990/- by the Horticulturist, Bolangir on 25.03.1992 and the signature of the Horticulturist, Bolangir has been marked as Ext.11/3. It is argued that the prosecution deliberately did not prove the stock register of banana suckers 1991-92 during trial, however, on a perusal of the Ext.B, it is crystal clear that the fact of the purchase and deposit of the banana suckers by the appellant from P.W.1 has been clearly mentioned therein and it is clearly stated therein that on 26.02.1992 banana suckers were purchased from Kishore Meher (P.W.1) and the number of banana suckers is mentioned as 3990. He argued that on a harmonious reading of all the evidence on record goes to show that the appellant had purchased 3990 banana suckers and deposited the same in the godown as reflected in the stock register and thus there was no misappropriation of any government money by the appellant nor any wrongful pecuniary gain for himself. He argued that on a harmonious reading of all the evidence on record goes to show that the appellant had purchased 3990 banana suckers and deposited the same in the godown as reflected in the stock register and thus there was no misappropriation of any government money by the appellant nor any wrongful pecuniary gain for himself. He further argued that D.W.1 Karunakar Meher had given his lands in the year 1991-92 on rent basis to P.W.1 Kishore Meher for cultivation and D.W.1 in his deposition has clearly stated that P.W.1 was doing banana cultivation in his lands in those years and that the appellant came to his village and took delivery of banana suckers from P.W.1 and took a receipt bearing signature of P.W.1 from him.While concluding his argument, Mr. Nanda, learned counsel for the appellant contended that the impugned judgment and order of conviction and sentence passed by the learned trial Court is not sustainable in the eye of law and should be set aside. Reliance was placed on the decisions of K.R. Purushothaman -Vrs.- State of Kerala reported in A.I.R. 2006 Supreme Court 35, Prahallad Sethy -Vrs.- State of Orissa reported in 2014 Criminal Law Journal 4378 and Mohan Lal -Vrs.- The State of Punjab reported in (2018) 72 Orissa Criminal Reports (SC) 196. 9. Mr. Sanjay Kumar Das, learned Standing Counsel appearing for the Vigilance Department, on the other hand, supported the impugned judgment and submitted that merely because P.W.19 being the informant conducted investigation to an extent cannot be a ground to discard the prosecution case, particularly when he is having proper authority and jurisdiction to investigate the case. The charge was framed that the appellant dishonestly or fraudulently misappropriated Govt. fund of Rs.19,047.60 which obviously includes Rs.3,990/- which the learned trial Court found the appellant misappropriated towards purchase of banana suckers from P.W.1 by preparing and submitting voucher Ext.11 for the said amount with dishonest intention to make wrongful gain for himself. It is argued that charge is rolled-up one involving the total amount of misappropriation reflected in various vouchers without specifying amount involved in each voucher and the name of the person relatable to such vouchers and in such a situation, it cannot be said to be fatal by itself unless prejudice is shown to have been caused to the appellant. It is argued that charge is rolled-up one involving the total amount of misappropriation reflected in various vouchers without specifying amount involved in each voucher and the name of the person relatable to such vouchers and in such a situation, it cannot be said to be fatal by itself unless prejudice is shown to have been caused to the appellant. Relying on section 464 of Cr.P.C., it is argued that a finding or sentence of a Court shall not be set aside merely on the ground that a charge was not framed or that charge was defective unless it has occasioned in prejudice. He argued that entry in the stock Book Register regarding purchase of 3990 banana suckers from P.W.1 on 26.02.1992 and payment of sum of Rs.3,990/- @ of Rs.1/- per banana sucker to him cannot be ground to prove the innocence of the appellant particularly when P.W.1 himself has stated that he never took up banana plantation nor sold any banana suckers to Horticulture Department nor received any payment for the same nor executed any receipt with his signature. It is further argued that defence evidence has been rightly rejected by the learned trial Court and the appellant has been rightly found guilty by the learned trial Court and therefore, the appeal should be dismissed. He placed reliance in the cases of State represented by Inspector of Police -Vrs.- V. Jayapaul reported in (2004) 5 Supreme Court Cases 223, Mukesh Singh -Vrs.- State (Narcotic Branch of Delhi) reported in (2020) 79 Orissa Criminal Reports (SC) 924, Jaikrishnadas M. Desai -Vrs.- State of Mumbai reported in A.I.R. 1960 Supreme Court 889, Brahmananda Mohanty -Vrs.- The State reported in A.I.R. 1967 Orissa 135, Bhargaban Pallai -Vrs.- State of Kerala reported in A.I.R. 2004 Supreme Court 2317, Minaketan Das -Vrs.- State of Orissa reported in Vol. 73 (1992) Cuttack Law Times 312 and Harish Chandra Singh -Vrs.- State of Orissa reported in (1994) 7 Orissa Criminal Reports 594. 10. Adverting to the contentions raised by the learned counsel for the respective parties, let me deal with the issues point-wise. 73 (1992) Cuttack Law Times 312 and Harish Chandra Singh -Vrs.- State of Orissa reported in (1994) 7 Orissa Criminal Reports 594. 10. Adverting to the contentions raised by the learned counsel for the respective parties, let me deal with the issues point-wise. (i) Whether prosecution case becomes doubtful as P.W.19 being the informant investigated the case: It is not in dispute that P.W.19 Umesh Chandra Panda, Inspector of Vigilance, Bolangir Squad lodged the first information report before the Superintendent of Police, Vigilance, Sambalpur Division, Sambalpur on 05.11.1994 and accordingly, Sambalpur Vigilance P.S. Case No.42 of 1994 was registered against the appellant. It is also not in dispute that the Superintendent of Police, Vigilance, namely, Surendra Panwar directed the Officer in-charge, Vigilance Police Station, Sambalpur to register the case and further directed P.W.19 to take up investigation of the case. P.W.19 investigated the case from 05.11.1994 to 11.07.1995 whereafter he handed over the charge of investigation to P.W.20 Kunja Bihari Pani on his transfer and the latter on completion of investigation submitted chargesheet. The question that now crops up for consideration is whether the prosecution case becomes doubtful as investigation in part was conducted by P.W.19, the informant in the case. Learned counsel for the appellant placed reliance in the case of Mohan Lal (supra), wherein the Hon'ble Supreme Court has held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof. On the other hand, learned Standing Counsel for the Vigilance Department placed reliance on two decisions to counter the submission of learned counsel for the appellant i.e. V. Jayapaul (supra) and Mukesh Singh (supra). In the case of V. Jayapaul (supra), it has been held as follows: '6.....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 FIR 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. 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 broad 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 FIR on his own, the investigation would necessarily be unfair or biased. In the present case, the police officer received certain discreet information, which, according to his assessment, warranted a probe and therefore made up his mind to investigate. The formality of preparing the FIR in which he records the factum of having received the information about the suspected commission of the offence and then taking up the investigation after registering the crime, does not, by any semblance of reasoning, vitiate the investigation on the ground of bias or the like factor. If the reason which weighed with the High Court could be a ground to quash the prosecution, the powers of investigation conferred on the police officers would be unduly hampered for no good reason. What is expected to be done by the police officers in the normal course of discharge of their official duties will then be vulnerable to attack.' In the case of Mukesh Singh (supra) which is a five- Judge Constitution Bench decision constituted to decide the correctness of the ratio laid down in the case of Mohan Lal (supra), it was held that whether the investigation conducted by the concerned informant was fair investigation or not is always to be decided at the time of trial. The concerned informant/investigator will be cited as a witness and he is always subject to cross-examination. There may be cases in which even the case of the prosecution is not solely based upon the deposition of the informant/informant -cum-investigator but there may be some independent witnesses and/or even the other police witnesses. The testimony of police personnel will be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses, his testimony cannot be relied upon. The testimony of police personnel will be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses, his testimony cannot be relied upon. It has also been held that there is no reason to doubt the credibility of the informant and doubt the entire case of the prosecution solely on the ground that the informant has investigated the case. Solely on the basis of some apprehension or the doubts, the entire prosecution version cannot be discarded and the accused is not to be straightway acquitted unless and until the accused is able to establish and prove the bias and the prejudice. While concluding, it was observed that in a case where the informant himself is the investigator, by that itself cannot be said that the investigation is vitiated on the ground of bias or the like factor. The question of bias or prejudice would depend upon the facts and circumstances of each case. It was held that merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis. It was held that a contrary decision in the case of Mohan Lal (supra) and any other decision taking a contrary view that the informant cannot be the investigator and in such a case the accused is entitled to acquittal are not good law and they are specifically overruled. Ordinarily if a police officer is the informant in a case, in the fairness of things, the investigation should be conducted by some other empowered police officer or at least the investigation should be supervised by some other Senior police officer as the informant police officer is likely to be interested in the result of the case projected by him. However, if the informant police officer in the exigencies of the situation conducts investigation and submits final form, it cannot be per se illegal. Investigation into criminal offences should be fair, unobjectionable and should not percolate the apprehension in the minds of the accused that it is carried out unfairly and with designed motive. However, if the informant police officer in the exigencies of the situation conducts investigation and submits final form, it cannot be per se illegal. Investigation into criminal offences should be fair, unobjectionable and should not percolate the apprehension in the minds of the accused that it is carried out unfairly and with designed motive. An onerous and responsible duty is cast on the investigating officer to conduct the investigation avoiding any kind of fabrication of evidence and his impartiality must dispel any suspicion. His prime duty is to bring out the real truth to instill confidence of the public and rule out the sense of being partitioned or to suppress. Any extraneous force and/or influence in the investigation process may result into tainted and unfair investigation. Thus the investigating agency should not be influenced by any extraneous influence and investigation must be done judiciously, fairly, transparently and expeditiously to secure the rule of law. The defence has to prove in what way such investigation is impartial, unfair, biased or has caused prejudice to the accused. Learned counsel for the appellant though contended that non-seizure of Central stock register from the office of Horticulturist, stock registers of the gardeners and non- examination of in-charge of Central Stock indicates about the unfairness on the part of P.W.19 while investigating the case, but in my humble view since he is not the person who on completion of investigation submitted chargesheet, entire blame cannot be thrown on him. Each and every omission made by the Investigating Officer will not enure to the benefit of the accused if the other materials which are available on record justify arriving at a conclusion to the positive nature of the prosecution case. The learned counsel for the appellant has failed to place any material to suspect the investigation by P.W.19 as biased and impartial and in absence of anything that the informant -cum- investigating officer was personally interested to get the appellant convicted, I am not inclined to accept that since P.W.19, the informant conducted investigation for a substantial period, the prosecution case should be held doubtful. (ii) Whether the appellant has been prejudiced on account of non-framing of specific charge: The learned counsel for the appellant urged that framing of charge that the appellant being a public servant and having been entrusted with a sum of Rs.47,310/-, dishonestly or fraudulently misappropriated or otherwise converted to his own use a sum of Rs.19,047/- out of the said amount and thereby misconduct himself, was not proper and justified. According to him, the charge should have been specific as required under section 212 of the Cr.P.C. as to what amount the appellant misappropriated showing purchase of banana suckers from each person and in absence of such specific charge, the appellant has been seriously prejudiced. The learned Standing counsel for the Vigilance Department, on the other hand, submitted that charge is rolled- up one involving the total amount of misappropriation reflected in various vouchers without specifying amount involved in each voucher and the name of the person relatable to each such voucher and in such a situation, it cannot be said to be fatal by itself unless prejudice is shown to have been caused to the appellant. The object of framing a charge is to give notice of the essential facts which the prosecution proposes to establish to bring home against the accused so that he should not be prejudiced in his defence. The provisions of section 212 of the Code are meant to give a notice to the accused to meet the charge framed against him. Sub-section (2) of section 212 of Cr.P.C. does not provide the normal rule with respect to framing of charges in cases of criminal breach of trust, misappropriation etc. It is only in the nature of an exception to meet a certain contingency. Non-observance of any of the conditions under section 212 of Cr.P.C., unless cause prejudice to the accused or result in miscarriage of justice, cannot be a ground to vitiate the order of conviction. By non-specification of the amount misappropriated in the charge, trial cannot be held to be vitiated unless there is failure of justice. Sub-section (2) does not require any particular formulation of the accusation, but only enacts that it is sufficient to show the aggregate sum without specifying the details. It dispenses with the necessity for amplification, does not prohibit the enumeration of the particular items in the charge. Sub-section (2) does not require any particular formulation of the accusation, but only enacts that it is sufficient to show the aggregate sum without specifying the details. It dispenses with the necessity for amplification, does not prohibit the enumeration of the particular items in the charge. In a charge of criminal misappropriation, it is enough to mention the gross sum of money in respect of which the offence was committed. All the items of misappropriation included in the gross sum need not be specified. They can be grouped into one lump sum and that can be shown as the sum misappropriated. Omission to give particulars in the charge can be cured by section 465 of Cr.P.C. unless the defect occasions a failure of justice. The question of prejudice is ultimately one of inference from all the facts and circumstances of each case. To say that there was prejudice, is not enough; it should further be pointed out as to how or in what manner the accused was prejudiced. Defect, irregularity, omission, or error in framing of charges would not render sentence or order of the Court as invalid. After going through the framing of charge under each heading, I am not inclined to accept the contention raised by the learned counsel for the appellant that on account of non- mentioning of the exact amount the appellant misappropriated showing purchase of banana suckers in each case from each person, the appellant has been seriously prejudiced. (iii) Charge under section 409 of Indian Penal Code: The appellant was charged under section 409 of the Indian Penal Code on the accusation that during the years 1991 and 1992, being a public servant employed as Junior Horticulture Officer, Bolangir under the Government of Odisha and in such capacity entrusted with or dominion over a sum of Rs.19,047/- committed criminal breach of trust in respect of such amount. It is not disputed that the appellant was working as Junior Horticulture Officer, Bolangir during the years 1991-1992 and on his applications which are dated 30.03.1992 and 06.04.1992, P.W.10 Gokul Chandra Tripathy, Horticulturist, Bolangir directed P.W.4 Nabin Kumar Chhatria, Accountant -cum- Head Clerk of the office of Horticulturist, Bolangir to pay Rs.20,000/-and Rs.5,900/- for purchase of banana suckers and towards transportation charges of the same, which was received by the appellant by making endorsement on his own applications as well as in the advance ledger and that apart the appellant had also taken an advance of Rs.16,500/- for purchase of banana suckers from P.W.4 and he had also submitted vouchers marked as Exts.11 to 17 making endorsement thereon that he had paid the amount and also endorsed certificates on the reverse of those vouchers. In that respect, questions have been put to the appellant in the accused statement recorded under section 313 of Cr.P.C. and the appellant has admitted the same. Thus, in my humble view, the finding of the learned trial Court in paragraph 8 of the impugned judgment that the appellant had taken the advances mentioned in Advance Ledger Ext.10 and had submitted the vouchers Exts.11 to 17 in the office of the Horticulturist, Bolangir is quite justified. The learned trial Court accepted the prosecution case that the appellant had not purchased 3990 banana suckers from P.W.1 nor paid Rs.3990/- to him i.e. @ Rs.1/- per sucker and that P.W.1 had not granted voucher (Ext.11) putting his signature in English thereon. The learned trial Court has discussed the evidence of P.W.1 and D.W.1 to arrive at such a conclusion. In fact, the evidence of D.W.1 supporting defence plea of the appellant has been disbelieved. Let me now analyse the evidence of P.W.1 and D.W.1. P.W.1 Kishore Meher has stated in his evidence that he was having no land and he was not a cultivator and he never took up banana plantation and he did not sell banana suckers to the Horticulture Department, Bolangir and did not receive any payment by selling banana suckers. He further stated that he had never executed any receipt with his signature showing receipt of payment. He further stated that he is an illiterate person and had never granted any receipt to the appellant acknowledging receipt of Rs.3990/- towards price of banana suckers. He further stated that he had never executed any receipt with his signature showing receipt of payment. He further stated that he is an illiterate person and had never granted any receipt to the appellant acknowledging receipt of Rs.3990/- towards price of banana suckers. He disowned the signature appearing on the receipt which was shown to him by the Special Public Prosecutor marked as 'X'. Suggestion has been given by the learned defence counsel that he was cultivating the lands of others on 'Bhag' basis and earning his livelihood by cultivating land of others, but P.W.1 has denied it. Specific suggestion has also been given to him by the defence that he had sold banana suckers to the appellant worth of Rs.3,990/- @ Rs.1/- per sucker and granted receipt to the appellant to that effect but he has denied the same. Ext.11 is the particular voucher in which signature of one 'Kisor Meher' on a revenue stamp with date 26.02.92 is appearing. This particular voucher Ext.11 and signature appearing thereon should have been shown to P.W.1 by the Special Public Prosecutor. Nothing on Ext.11 has been marked as 'X' and thus it is clear that Ext.11 has not been shown to P.W.1. At this stage, the evidence of D.W.1 Karunakar Meher is required to be considered, who has stated that he was having a medicine shop where P.W.1 was working as a salesman from 1988-89 till 1994. He further stated that P.W.1 was writing the cash memos in English and giving it to the customers. He further stated that in 1991-92, he had given his land on 'bhag' basis to P.W.1 for cultivation and P.W.1 was doing banana cultivation. He further stated that the appellant came to his medicine shop and enquired from him about supply of banana suckers for which he called P.W.1 and the appellant talked with him (P.W.1) regarding supply of banana suckers to him @ Rs.1/- per sucker. He further stated that P.W.1 suggested to the appellant to come after four to five days with a vehicle to take the banana suckers and accordingly, the appellant came and took delivery of banana suckers from P.W.1 and also took receipt with signature of P.W.1 from him. D.W.1 was cross-examined by the learned Special Public Prosecutor and he stated that he had not seen the educational certificate of P.W.1. However, he stated that P.W.1 was a non-matric. D.W.1 was cross-examined by the learned Special Public Prosecutor and he stated that he had not seen the educational certificate of P.W.1. However, he stated that P.W.1 was a non-matric. He further stated that he could not produce any document bearing the signature of P.W.1. He stated that he could not say the khata no. and plot no. of his lands and could not produce any document showing P.W.1 to be cultivating his lands on 'Kar' basis. Suggestion was given to D.W.1 by the learned Special Public Prosecutor that P.W.1 was an illiterate person and he was also a landless person and he never worked in his shop to which D.W.1 had denied. The learned trial Court has disbelieved the evidence of D.W.1 on the ground that he could not produce any document showing that P.W.1 was cultivating his land on Kar basis and could not produce any document showing that P.W.1 was cultivating banana on his land. It was further held that when D.W.1 was not selling banana suckers, it is hard to believe that the appellant had gone to his shop to contact him for purchase of banana suckers in the month of March 1992. While judging the veracity of witnesses, there cannot be any different yardstick for judging the prosecution witnesses and defence witnesses. The defence witnesses are to be given equal treatment like the prosecution witnesses. Defence witnesses cannot be said to be untruthful, merely because they support the case of the accused. The evidence of a defence witness carries the same weight as that of the prosecution. His credibility should not be doubted merely because his attendance has been procured by the accused. Prosecution witnesses are not necessarily truthful and the defence witnesses are false witnesses. When two versions are before the Court, one by the prosecution and the other by the defence adduced by examining defence witnesses or proving some documents or eliciting something from the prosecution witnesses in support of defence plea, it is for the Court to appreciate both the versions, scrutinize it carefully and minutely and find out as to which of them is more probable and believable. The Court should always keep in mind that accused has only to establish his defence on a preponderance of probability not by proving the same beyond reasonable doubt as the prosecution is required to prove its case. The Court should always keep in mind that accused has only to establish his defence on a preponderance of probability not by proving the same beyond reasonable doubt as the prosecution is required to prove its case. If on assessment of the evidence led by the parties, probability factor echoes in favour of the defence, the Court should give benefit of doubt to the accused. P.W.1 was a co-villager of D.W.1 and according to D.W.1, he had given his land to P.W.1 to cultivate on Kar basis. D.W.1 also stated that P.W.1 was serving in his medicine shop for about six years. Merely because D.W.1 could not produce any document showing P.W.1 was cultivating his land or that P.W.1 had raised banana plantation on his land, the same cannot be ground to discard the evidence of D.W.1. In villages, ordinarily nobody keeps any document for entrusting his land to someone as bhag-chasi. Similarly, there is no improbability feature in the appellant coming to know from some sources that there was banana cultivation in the land of D.W.1 and accordingly approached him, who in turn called P.W.1 who had raised banana plantation to contact the appellant. P.W.4, the Accountant -cum- Head Clerk in the office of Horticulturist, Bolangir has stated that the appellant took advance of Rs.20,000/- on 30.03.1992, Rs.16,500/- on 22.01.1992 and Rs.5,900/- on 06.04.1992. The same was reflected in Advance Ledger (Ext.10) and it was acknowledged by the appellant. After utilisation of the advance, the appellant submitted vouchers vide Exts.11 to 17. The voucher which is relevant for adjudication of this appeal is Ext.11. P.W.4 has stated that in Ext.11, the endorsement 'paid by me' with signature was given by the appellant and that has been marked as Ext.11/1 and Ext.11/2 is the certificate with signature of the appellant given on the reverse of the voucher. P.W.4 further stated that all the vouchers were in his custody which was seized by the Inspector, Vigilance on his production as per seizure list Ext.18. In the cross-examination, he has stated that a sum of Rs.42,900/- was advanced to the appellant under the Scheme, out of which Rs.36,500/- was advanced for purchase of banana suckers and Rs.5,900/- was advanced for transportation of banana suckers. The appellant had given the vouchers showing utilization of the advance taken by him and the Horticulturist, Bolangir verified those vouchers. In the cross-examination, he has stated that a sum of Rs.42,900/- was advanced to the appellant under the Scheme, out of which Rs.36,500/- was advanced for purchase of banana suckers and Rs.5,900/- was advanced for transportation of banana suckers. The appellant had given the vouchers showing utilization of the advance taken by him and the Horticulturist, Bolangir verified those vouchers. He further stated that the drawing officer passed order for payment after he was satisfied about the authenticity of the vouchers. P.W.10, the in-charge Horticulturist at Bolangir stated that in the reverse of the procurement vouchers, the appellant had endorsed that he had received the stock in good condition and made entry thereof in the stock register and he had also put his signature under his endorsement. He further stated that in Ext.11, there is endorsement of the appellant that he had received the goods in good condition and the same was entered in the stock register at page 4 and the appellant had also certified that he had made payment of the cost amounting to Rs.3,990/- under the said voucher. Ext.11/2 is the certificate of the appellant and Ext.11/3 is the endorsement of P.W.10 passing the amount for payment to the appellant. He further stated that after procurement, the stock was entered in the stock register and the said stock was issued to the field staff of the department for supply to the Farm/Agriculturist. He further stated that as Head of the office, after being satisfied about the genuineness of the vouchers submitted before him with respect to the advance payment or excess payment, he had passed the voucher for payment. P.W.19, the Inspector of Vigilance has stated in his cross-examination that the fact of purchase of banana suckers under the voucher Ext.11 had been noted in the stock register of the Horticulturist, Bolangir, but he had not seized the stock register. He further stated that Shyam Sundar Sethi was the in- charge of the Central Stock Register of the Horticulturist, Bolangir, but he had not examined him in the case. He further stated in the cross-examination that as per the procedure, the gardeners were to send the banana suckers to the cultivators and obtain their signature in their stock register and also mention the receipt of money from them in the stock register. He further stated in the cross-examination that as per the procedure, the gardeners were to send the banana suckers to the cultivators and obtain their signature in their stock register and also mention the receipt of money from them in the stock register. The gardeners had deposited the actual sale price of the suckers in the office of the Horticulturist, Bolangir as per the quantity of suckers shown to have been sold by them to the suckers and they had deposited the sale price of the suckers said to have been received by them as per Central Stock Register in the office of the Horticulturist, Bolangir and that he had not seized the stock registers of the gardeners. When the documentary evidence as well as oral evidence indicates that banana suckers purchased under Ext.11 were received in good condition and to that effect entry has been made at page 4 of the stock book (banana suckers), 1991-92 and the said stock book register of banana suckers has been marked as Ext.B as per the order dated 11.11.2021 passed in I.A. No. 1118 of 2021, which was an application filed by the appellant under section 391 of Cr.P.C. to mark the same as additional evidence and when the stock register (Ext.B) clearly indicates about receipt of 3,990 banana suckers on 26.02.1992 purchased from Kishore Meher, Village/ P.O.-Jarsingh, P.S.-Tusra, District-Bolangir vide S.V. No.2, therefore, it is difficult to doubt that Ext.11 is not a genuine one particularly when P.W.10 has stated that as Head of the office, after being satisfied about the genuineness of the voucher submitted before him with respect to the advance payment or the excess payment, he had passed the voucher for payment. No explanation has been given as to why the person who was in charge of the central stock and register of the Horticulturist, namely, Shyam Sundar Sethi was not examined by the I.O. and as to why the stock register was not seized by the I.O. It presupposes that since proving of the stock register and examination of Shyam Sundar Sethi would have strengthened the defence plea, the same was not done deliberately, which reflects that the Investigating Officers were not fair while investigating the case. The documents further revealed that not only 3990 banana suckers were received in the Central Stock but those were also issued to the gardeners for selling the same to the cultivators at a subsidized rate of Rs.0.15 paise per sucker. The gardeners also received the banana suckers from the Central Stock and sold the same to the cultivators and deposited the sale proceeds in the Central Stock and to that effect the stock registers of the gardeners were very much relevant, which were also not seized by the Investigating Officer. The contention of the learned counsel for the appellant that the I.O has not intentionally seized the stock registers inasmuch as had he seized the same, it would have demolished the case of the prosecution in its entirety and as such, adverse inference under section 114(g) of the Evidence Act is to be drawn against the prosecution, has got substantial force. Illustration (g) to section 114 of the Evidence Act deals with the presumption that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it. The rule on which this illustration is based is contained in the well-known maxim i.e. 'omnia praesumuntur contra spoliatorem' i.e. if a man wrongfully withholds evidence, every presumption to his disadvantage consistent with the facts admitted or proved will be adopted. The essence of the rule contained in illustration (g) lies in the fact that if a party to lis is in possession of the best evidence, which one way or other is decisive on the fact in issue, then there is heavy duty cast upon him to assist the Court with the same that notwithstanding what the abstract doctrine of the onus of proof may suggest about and the case he fails to produce it without any reasonable justification, whether called upon to do so or not then in law, it is open to the Court to draw an adverse inference against him for that reason. A presumption under section 114(g) is a question of fact and not a question of law. An adverse inference can be drawn against a party if there is withholding of evidence and not merely on account of the failure of the party to obtain evidence. A presumption under section 114(g) is a question of fact and not a question of law. An adverse inference can be drawn against a party if there is withholding of evidence and not merely on account of the failure of the party to obtain evidence. The function of the prosecution is to bring the truth before the Court and it is the duty of the Public Prosecutor to ensure with all diligence and carefulness required to see that all the details are brought on record and that the prosecution does not fail due to such neglect. The prosecutor must not suppress or keep back from the Court evidence relevant to the determination of the guilt or innocence of the accused. He must present a complete picture and not one-sided picture. He has to be fair to both the sides in the presentation of the case. If relevant documents admitted to have been in existence were not placed before the Court by the party concerned, adverse inference has to be drawn against that party. In the case of Union of India -Vrs.- Ibrahim Uddin and another reported in (2012) 8 Supreme Court Cases 148, it is held that generally it is the duty of the party to lead the best evidence in his possession, which could throw light on the issue in controversy and in case such material evidence is withheld, the Court may draw adverse inference under section 114(g) of the Evidence Act notwithstanding, that the onus of proof did not lie on such party and it was not called upon to produce the said evidence. The Hon'ble Supreme Court placed reliance on the decisions in the cases of Murugesam Pillai -Vrs.- Manickavasaka Pandara, A.I.R 1917 PC 6; Hiralal -Vrs.- Badkulal, A.I.R 1953 SC 225; A. Raghavamma -Vrs.- A. Chenchamma, A.I.R 1964 S.C 136; Union of India -Vrs.- Mahadeolal Prabhu Dayal, A.I.R 1965 S.C 1755; Gopal Krishnaji Ketkar -Vrs.- Mohd. Haji Latif, A.I.R 1968 S.C 1413; M/s. Bharat Heavy Electrical Ltd. -Vrs.- State of U.P., A.I.R 2003 SC 3024; Mussauddin Ahmed -Vrs.- State of Assam, A.I.R 2010 SC 3813 and Khatri Hotels(P) Ltd. -Vrs.- Union of India, (2011) 9 Supreme Court Cases 126. Haji Latif, A.I.R 1968 S.C 1413; M/s. Bharat Heavy Electrical Ltd. -Vrs.- State of U.P., A.I.R 2003 SC 3024; Mussauddin Ahmed -Vrs.- State of Assam, A.I.R 2010 SC 3813 and Khatri Hotels(P) Ltd. -Vrs.- Union of India, (2011) 9 Supreme Court Cases 126. Thus, in my humble view non-seizure of the stock register of the Central Stock, stock registers of gardeners and non-examination of the in-charge of Central Stock was deliberately done by the Investigating Officers for which adverse inference is to be drawn against the prosecution as attempts are being made to suppress the truth from the Court. Now, coming to the charge under section 409 of Indian penal Code, let me discuss the citations placed by Mr. Das, the learned Standing Counsel for the vigilance department. In the case of Jaikrishshnadas M. Desai (supra), it is held that the principal ingredient of the offence under section 409 of the Indian Penal Code 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 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 the case of Bhargaban Pallai (dead) by L.Rs. and another(supra), the Hon'ble Supreme Court has held that in a case under section 409 of the Indian Penal Code, the actual mode of entrustment or misappropriation is not to be proved by the prosecution. Once entrustment is proved, it is for the accused to prove as to how the property entrusted was dealt with. In the case of Minaketan Das (supra), this Court has held that the onus lies on the prosecution to prove entrustment by adducing cogent evidence. It is not, however, necessary to prove that any specific sum of money, received on particular dates from particular persons, has been dishonestly misappropriated. In the case of Minaketan Das (supra), this Court has held that the onus lies on the prosecution to prove entrustment by adducing cogent evidence. It is not, however, necessary to prove that any specific sum of money, received on particular dates from particular persons, has been dishonestly misappropriated. Once it is proved that the money was entrusted to a person, the burden rests on him to show as to what he did with the money and if he, completely denied having received money the presumption is that he misappropriated or converted it to his own use. In a prosecution for criminal breach of trust, direct evidence of dishonest conversion to the accused's own use of the money, entrusted to him, can seldom be found and such dishonest intention and conversion have to be inferred from relevant facts and circumstances. In the case of Brahmananda Mohanty (supra), it is held that:- '16. The settled position in law is that it is not necessary or possible in every case to prove in what precise manner the accused person has dealt with or appropriated the goods, the question is one of intention and not a matter of direct proof but giving a false account of what he has done with the goods received by him may be treated as a strong circumstance against the accused person. In such a case the elements of criminal offence of misappropriation will be established if the prosecution proves that the accused received the goods, that he was under duty to account for the same and had not done so. It is not the law that the prosecution has to eliminate all possible evidences or circumstances which may exonerate him. If the facts are within the knowledge of the accused then he was to prove them. Of course, the prosecution has to establish a prima facie case in the first instance. It is enough to establish facts which give rise to a suspicion; and then by reason of section 106 of the Evidence Act, the onus is thrown on the accused to prove his innocence. Of course, the prosecution has to establish a prima facie case in the first instance. It is enough to establish facts which give rise to a suspicion; and then by reason of section 106 of the Evidence Act, the onus is thrown on the accused to prove his innocence. In the case of Harish Chandra Singh (supra), this Court has held as follows: '10....That is because, law is well settled that it is neither necessary nor possible in every case of criminal breach of trust to proved the precise mode of criminal breach of trust to prove the precise mode of misappropriation or conversion to one's own use of the entrusted property, by the accused, the same being ordinarily not capable of proof by direct evidence. It does not mean thereby that the prosecution is absolved from the burden of proving misappropriation. This burden can be discharged by proof of circumstances which lead to the irresistible conclusion of misappropriation. Then again mere proof of misappropriation is not enough. The further burden that lies on the prosecution is to prove that the accused was actuated by dishonest intention while misappropriating the entrusted property. In other words, misappropriation with intention of causing wrongful gain or wrongful loss cannot be assumed and must be proved either by positive evidence or may be presumed from proved circumstances. Wrongful gain includes wrongful retention and wrongful loss includes being kept out of the property and being deprived of the same. It is, however, not necessary to prove either actual wrongful gain or actual wrongful loss. Mere failure on the part of the accused the account for the property entrusted is not enough since it is only a piece of evidence pointing dishonest intention and must be considered along with other facts and circumstances appearing in a case. It is, however, not necessary to prove either actual wrongful gain or actual wrongful loss. Mere failure on the part of the accused the account for the property entrusted is not enough since it is only a piece of evidence pointing dishonest intention and must be considered along with other facts and circumstances appearing in a case. Where however an accused is unable to account or renders a false explanation for failure to account, an inference of misappropriation with dishonest intention may readily be inferred.' In this case, the prosecution has successfully proved the entrustment of the advance money with the appellant for purchasing banana suckers which is also not disputed by the appellant, but since in view of the documentary evidence Ext.11, Ext.B and the evidence of P.W.4, P.W.10 and P.W.19 so also the evidence of D.W.1, it is apparent that not only 3990 banana suckers were purchased by the appellant but the same were also deposited in the Central Stock and thereafter, those were given to the gardeners who in turn sold the same to the cultivators, obtained the sale price and deposited the same in the Central Stock, in my humble view the appellant had offered proper explanation as to what he did after receiving advance of Rs.3,990/- towards purchase of banana suckers from P.W.4 and there is no wrongful gain on the part of the appellant and therefore, the appellant has not committed criminal breach of trust and as such the charge under section 409 of the Indian Penal Code fails. (iv) Charges under section 468 and 471 of the Indian Penal Code : Section 468 of the Indian Penal Code deals with forgery for the purpose of cheating. The prosecution must prove that the document is a forged one and that the accused forged the document and that he did it for the purpose that the forged document would be used for the purpose of cheating. In the case of Prahallad Sethy (supra), this Court has held that in order to secure conviction for offence punishable under section 468 of Indian Penal Code, one must be found to have done forgery within the meaning of section 463 of Indian Penal Code which again implies that there has to be the making of a false document in terms of section 464 of Indian Penal Code. It is further held that a conjoint reading of section 463 and 464 of the Indian Penal Code goes to show that two essential elements of forgery contemplated under section 463 of Indian Penal Code are (i) the making of a false documents or part of it and (ii) such making is with such intention as is specified in the section. These aspects are required to be established. Since I have already held that prosecution has failed to prove that Ext.11 is a forged document, the ingredients of the offence under section 468 of the Indian Penal Code are not attracted and therefore, the charge for such offence fails. Section 471 of the Indian Penal Code deals with using a forged document as a genuine one. 'Forged document' has been defined in section 470 of the Indian Penal Code which states that a false document as described in section 464 made wholly or in part by forgery is a forged document. Fraudulent or dishonest use of a document as genuine and knowledge or reasonable belief on the part of the person using the document that it is a forged one are the essential ingredients of the offence under section 471 of the Indian Penal Code. Since I have already given the findings that Ext.11 is not a forged document, therefore, the charge under section 471 of the Indian Penal Code also fails. (v) Charge under section 13(2) read with section 13(1)(c) of the 1988 Act : In the case of K.R. Purushothaman (supra), the Hon'ble Supreme Court has held that to constitute an offence under clause (c) of section 13(1) of the Act, it is necessary for the prosecution to prove that the accused has dishonestly or fraudulently misappropriated any property entrusted to him or under his control as a public servant or allows any other person to do so or converts that property for his own use. The entrustment of the property or the control of the property is a necessary ingredient of section 13(1)(c). The entrustment of the property or the control of the property is a necessary ingredient of section 13(1)(c). Since Ext.11 is a genuine document and after receipt of the advance from P.W.4, the appellant not only purchased banana suckers spending Rs.3,990/- but also deposited the banana suckers in the Central Stock with Shyam Sundar Sethi, the in-charge of Central Stock and relevant entry has been made in the stock register (Ext.B) of the Central Stock and banana suckers were given to the gardeners from the Central Stock who sold it to the cultivators in a subsidized rate and deposited the sale amount in the Central Stock, therefore, there is no material regarding dishonest or fraudulent misappropriation of Rs.3,990/- by the appellant and as such, the charge under section 13(2) read with section 13(1)(c) also fails. Conclusion: 11. In view of the foregoing discussions, I am of the humble view that the impugned judgment and order of conviction of the appellant passed by the trial Court is not sustainable in the eye of law and the same is hereby set aside. The appellant is acquitted of the charges under sections 409, 468, 471 of the Indian Penal Code and section 13(2) read with section 13(1)(c) of 1988 Act. Accordingly, the Criminal Appeal is allowed. 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. Lower Court records with a copy of this judgment be sent down to the learned trial Court forthwith for information.