JUDGMENT : Ananya Bandyopadhyay, J. 1. This appeal is preferred against the judgment and order dated 15.09.2001 passed by the Learned Judge, 2nd Special Court-cum-Learned Additional Sessions Judge, 1st Court, Nadia in Special Court Case No. 1/2001, arising out of Kotwali (Krishnanagar) Police Station Case No. 49/95 dated 03.03.1995, convicting the appellant for commission of offence punishable under Section 420 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for four years and to pay a fine of Rs.5,000/-, in default, to suffer imprisonment for another one year in respect of offence punishable under Section 420 of Indian Penal Code. 2. The appellant and one Tusar Kanti Bhattacharya, Chief District Engineer of Nadia Zilla Parishad under went trial in the instant case being Special Court Case No. 1/2001 before the Learned Judge, 2nd Court-cum-Learned 1st Additional Sessions Judge, Court, Nadia on the charge of having committed offences punishable under Sections 420 of Indian Penal Code, 120B/420 of Indian Penal Code and under Section 409 of Indian Penal Code. 3. The prosecution case levelled against the petitioner and co-accused as follows:- One Habibur Rehman (PW-5), Secretary of Nadia Zilla Parishad, lodged a complaint on 03.03.1995 at 22:15 hours at Kotwali (Krishnanagar), Nadia, inter alia, alleging in 1991 one deep tube-well was sunk in the premises of Krishnanagar Dak Bungalow of Nadia Zilla Parishad under the supervision of the then District Engineer of Nadia Zilla Parishad and the work was executed by the appellant as Government contractor. After completion of work, the appellant as contractor was paid Rs.55,976/-against bills prepared in consultation with measurement book prepared by co-accused Tusar Kanti Bhattacharya wherein it was stated that the work was executed by using ‘ITC’ mark medium quality G.I. pipes of various diameter. In March 1994, the tube-well went out of order and the Zilla Parishad issued order of resinking of the said deep tube-well. The then Executive Engineer, Shri Biswanath Biswas (PW-8) was to supervise the execution work of resinking of the tube-well. M/s. Progressive Engineers Co-operative Ltd. was entrusted with the job as contractor. On 04.04.1994 pipes of the tube-well were lifted and it was detected that seven pipes and two jet pipes were of Zindal-L brand instead of Tata brand. The then Executive Engineer, Shri Biswanath Biswas (PW-8) was to supervise the execution work of resinking of the tube-well. M/s. Progressive Engineers Co-operative Ltd. was entrusted with the job as contractor. On 04.04.1994 pipes of the tube-well were lifted and it was detected that seven pipes and two jet pipes were of Zindal-L brand instead of Tata brand. The Executive Engineer Shri Biswanath Biswas submitted a report to that effect and pursuant thereto written complaint lodged as aforesaid resulting in registration of Kotwali (Krishnanagar) Police Station Case No. 49/95 dated 03.03.1995 under Sections 409/406/420/120B of Indian Penal Code. 4. Pursuant to investigation, a charge-sheet under Sections 409/420/406/120B of the Indian Penal Code was submitted against the appellant and the co-accused Tushar Kanti Bhattacharya. 5. Charges in the instant case were framed against the appellant and co-accused Tushar Kanti Bhattacharya under Sections 120B/420/409 of Indian Penal Code. The appellant and co-accused pleaded not guilty and claimed to be tried. 6. In the course of trial, the prosecution examined 8 (eight) witnesses ad accepted a number of documents. 7. The defence of the appellant and co-accused Tushar Kanti Bhattacharya was one of innocence and false implication. It was the specific defence of the appellant and co-accused Tushar Kanti Bhattacharya that Shri Biswanath Biswas out of grudge towards Tushar Kanti Bhattacharya and in order to remove him from the post, falsely implicated him in the instant case since a vigilance enquiry was initiated against him at the behest of Tushar Kanti Bhattacharya. 8. In conclusion of trial of instant case, the Learned Judge by the impugned judgment dated 15.09.2001 was pleased to convict the appellant for commission of offence punishable under Sections 120B/420 of Indian Penal Code and sentenced him to suffer rigorous imprisonment for four years and to pay a fine of Rs.5,000/-, in default, to suffer imprisonment for another year for offence punishable under Section 420 of Indian Penal Code and no separate sentence was imposed for commission of offence punishable under Section 120B of Indian Penal Code. By the self-same judgment and order, the Learned Judge convicted the co-accused Tushar Kanti Bhattacharya for commission of offence punishable under Sections 120B/420 of Indian Penal Code and under Section 409 and sentenced him to suffer rigorous imprisonment for four years and to pay a fine of Rs.5,000/-, in default, to suffer imprisonment for a period of one year more for offence punishable under Section 420 of Indian Penal Code and to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.5,000/-, in default, to suffer imprisonment for one year for the offence punishable under Section 409 of Indian Penal Code. Both the sentences were directed to run concurrently and no separate sentence was imposed under Section 120B of Indian Penal Code. 9. Learned Advocate for the appellant submitted as follows:- i. Measurement Book or Field Notes were not produced before the Court. a) Abhimunya Sarkar (PW-1) did not visualize the lifting of pipes since he left immediately after commencement of work. b) PW-1 (Abhimunya Sarkar) did not report to higher authorities as regards the charge in pipes as noticed by him. ii. PW-2 (Ganapati Basak) had no personal knowledge relating a) to seizure of documents and he merely signed the seizure list. b) PW2 (Ganapati Basak) came to the spot after lifting work was over. iii. PW-8 (Biswanath Biswas) in cross-examination admitted a) that installation of pipes was done as per Schedule. iv. The pipes in question were neither kept in department nor identified. The pipes were not even produced at the time of trial. v. PW-1 (Abhimunya Sarkar) and Pranendra Roy (PW-3) were not examined during course of investigation rather they made their statements/gave evidence for the first time in Court. vi. Vigilance enquiry was started against PW8 (Biswanath Biswas) and the same was corroborated by PW5 (Habibur Rahaman), the defacto complainant and as such PW8 with a hostility/enmity gave the evidence. vii. Prosecution failed to prove that the tube-well was not resunk or repaired prior to 04.04.1994 since the same was a part of the prosecution case. 10. Learned Advocate for the State submitted as follows:- i. The points for consideration of the instant appeal were as follows: a) On the date of installation, Tushar Kanti Bhattacharya (now deceased) was the supervisor of the work being a District Engineer of Nadia Zilla Parishad. 10. Learned Advocate for the State submitted as follows:- i. The points for consideration of the instant appeal were as follows: a) On the date of installation, Tushar Kanti Bhattacharya (now deceased) was the supervisor of the work being a District Engineer of Nadia Zilla Parishad. b) Admittedly the appellant was the contractor of the installation of the said deep tube well vides work tender no. 20 of 1990-91. c) Admittedly the appellant raised bill for payment of the entire work. The said bills were seized during investigation and marked as Exhibit-3 and from the bill, it transpired that the same was raised for ITC made G.I. pipes. d) PW-1 Abhimunya Sarkar posted as Sub Assistant Engineer at the time of repair of the tube well. He deposed that some of the said pipes which were lifted were made of Tata and some of them were Zindal made. e) PW-2 Ganapati Basak was the witness of the seizure of documents and he signed on the seizure list. f) PW-3 Pranendra Nath Roy identified the bills and signature of Tushar Kanti Bhattacharya marked as Exhibit-3. The bill was prepared for Rs.53,421/-. He identified the price schedule which was marked as Exhibit-4. He also identified the tender notice which was marked as Exhibit-5. The acceptance of tender was marked as Exhibit-6. He did not find mention of Zindal brand pipe in tender notice or the acceptance of tender. He deposed that from the Measurement Book (Exhibit-2) or in the bill (Exhibit-3) ITC made G.I. pipes were supplied for the installation of the said tube well. g) PW-4 Prasanta Kumar Bagchi was the accountant. He deposed that on 10.11.1991 the officiating engineer viz., Tushar Kanti Bhattacharya passed the bill for payment and accordingly he prepared the cheque and handed over the same to Swapan Mazumdar on 25.08.92 and the accused received the said cheque by putting his signature. He identified the signature of the accused as well as the accused Swapan Mazumdar on dock. h) PW-5 viz., Hasibur Rahman was the de facto complainant. He directed Sri Biswas to take thorough enquiry and submit a report over the said matter. On the basis of the report, he lodged the complaint. The said report was marked as Exhibit-7. The agreement with the contractor viz., Swapan Mazumdar was marked as Exhibit-5. The written complaint was marked as Exhibit-8. He directed Sri Biswas to take thorough enquiry and submit a report over the said matter. On the basis of the report, he lodged the complaint. The said report was marked as Exhibit-7. The agreement with the contractor viz., Swapan Mazumdar was marked as Exhibit-5. The written complaint was marked as Exhibit-8. i) PW-6 viz., Sisir Kumar received the complaint and filed the formal F.I.R. j) PW-7 viz., Pradyut Banerjee was the Investigating Officer. During the course of investigation, he seized relevant documents viz., Measurement Book, schedule of rates, bills, original confidential report and work order with agreement. He recorded statement of witnesses and submitted charge-sheet. k) PW-8 viz., Biswanath Biswas was posted as Executive Engineer at the relevant point of time. He prepared the confidential report. The evidence of the witnesses as well as the documentary evidences unerringly pointed to the guilt of the appellant and, therefore, the conviction and sentence of the appellant should be upheld when public money was involved and, therefore, adequate sentence should be imposed as undue sympathy to impose inadequate sentence would do more harm to the criminal justice system which undermined the public confidence in the efficacy of law and the society would not long endure under such serious threats. 11. A circumspection of evidence of the prosecution witnesses revealed as follows:- i. PW-1 stated in his examination-in-chief to have been posted as Sub Assistant Engineer at Tehatta-I, B.D.O. Office. During the period from 1985 to1995 he was posted at Nadia Zilla Parishad as Sub Assistant Engineer. In the year 1994, an order was issued directing him to supervise the repair of the tube-well situated in the premises of the Dak Bungalow of the Zilla Parishad Krishnanagar, Nadia, based on a work order was issued in favour of the contractor. Inspection of the said deep tube-well, found the same to be inoperative. Therefore, the pipes of the said deep tube-well were lifted in presence of PW-1, Pranesh Roy (working assistant), Ganesh Ghosh (Assistant Engineer) and Executive Engineer Biswanath Biswas. PW-1 did not remember the exact number of pipes which were lifted, though he stated that 7/8 pipes were lifted therefrom. The diameters of certain pipes were 100 millimeters. He did not recollect the diameters of other pipes at that moment. Certain pipes, which were lifted, were made of TATA and others were of ZINDAL. PW-1 did not remember the exact number of pipes which were lifted, though he stated that 7/8 pipes were lifted therefrom. The diameters of certain pipes were 100 millimeters. He did not recollect the diameters of other pipes at that moment. Certain pipes, which were lifted, were made of TATA and others were of ZINDAL. He did not remember how many Zindal pipes were lifted therefrom. Each of the pipe was around 20 ft. in length. The measurement of the said pipes was noted in the measurement book. He knew Tusar Bhattacharyya. In 1991 Tusar Bhattacharyya was officiating as District Engineer of the Zilla Parishad. PW-1 could not say who was the contractor or who was the Engineer at the time of sinking of the pipes of the said deep tube-well. The handwriting appeared on the pages from 45 to 88 in the Measurement Book no. 937 was not known to him. He identified the Measurement Book maintained in the office of Zilla Parishad which was marked ‘X’ for identification. He could not say who wrote the petty contractor’s bills of the Nadia Zilla Parishad. The measurement of pipes, which was lifted from the deep tube-well situated in the premises of Dak Bungalow Zilla Parishad, Krishnanagar, were noted in the measurement book by him. After completion of noting, he made over the said measurement book to the bill section of Nadia Zilla Parishad. He thereafter stated that he made over the said book to the account section. He did not remember the person whom he made over the said book. He was never interrogated by the police in connection with this case. ii. During cross-examination, PW-1 stated that he deposited the said measurement book to the Accounts Department of Nadia Zilla Parishad, Nadia for the purpose of preparing bills for the contractor. PW-1 worked under the Executive Engineer who was in-charge of the Rural Development Wing. At the relevant point of time, Biswanath Biswas was the Executive Engineer of the Rural Development Wing. PW-1 was directed in writing to supervise the lifting of the pipes of the said deep tube-well. PW-1 thereafter deposed that he could not say whether he was so ordered in writing or verbally. He did not submit any report after completion of his work because his superior officers were present there at that time, i.e., during lifting of the said pipes. PW-1 thereafter deposed that he could not say whether he was so ordered in writing or verbally. He did not submit any report after completion of his work because his superior officers were present there at that time, i.e., during lifting of the said pipes. The entire work of lifting of the said defunct deep tube-well was entrusted to a contractor and the said contractor, with the help of his labourers, lifted the said pipes therefrom. Jayanta Roy, one of the contractors, was performing the said work of lifting the pipes. PW-1 could not say the names of other contractors or the labourers who were working there at that time. He did not remember whether Jayanta Roy was asked to submit any report regarding the particulars of the pipes which were lifted therefrom. He also did not remember whether Jayanta Roy submitted any such report before him. He left the place for Zilla Parishad after starting the said work of lifting of the pipes leaving Pranesh Roy, the work assistant there. Then the witness voluntarily submitted that sometimes thereafter he returned at the spot from Zilla Parishad. He also noted the particulars of the pipes lifted therefrom in the measurement book which was subsequently deposited at the Accounts Department of Nadia Zilla Parishad. He endorsed his signature and date after noting the said particulars of pipes in the measurement book. He could not state whether there was any enquiry by the Vigilance Commissioner in connection with any corruption charge against Biswanath Biswas Executive Engineer. He could not say whether such enquiry in question was initiated as per the report submitted by Tusar Bhattacharyya. He did not remember who actually entrusted him in supervising the said work, Hasikul Rahman was the Secretary of the Nadia Zilla Parishad at the relevant point of time. Either the Executive Engineer of the Secretary of Nadia Zilla Parishad entrusted him to supervise the said matter, which he had narrated before the Court had not been disclosed to anybody else, which he had disclosed that day, had not been informed to his authority in writing. After lifting the said pipes, no mark of identification nor any label was affixed on the said pipes. The said tube-well was kept under the authority of Nadia Zilla Parishad. He had got no personal knowledge whether there was any resinking of the said deep tube-well before 1994. After lifting the said pipes, no mark of identification nor any label was affixed on the said pipes. The said tube-well was kept under the authority of Nadia Zilla Parishad. He had got no personal knowledge whether there was any resinking of the said deep tube-well before 1994. He had no knowledge when the said deep tube-well was installed. He also could not say how many times the said tube-well was resunk and/or repaired. There were many reasons for resinking of tube-well. iii. PW-2 stated in his evidence that he was then posted at Zilla Parishad, Nadia as Assistant Engineer. On 14.03.1995 he was posted at Zilla Parishad, Nadia as Estimator-cum-Draftsman. While he was working at his office, police informed him certain documents were seized under a seizure list and they requested him to sign the seizure list. Accordingly, he signed the seizure list. His signature on the carbon copy of the seizure list was marked as Exhibit-1. He did not remember the particulars of the documents which were seized under the seizure list as the seizure was prepared long ago. He had no personal knowledge regarding installation and/or lifting of the tube-well at Dak Bungalow, Nadia Zilla Parishad. iv. During cross-examination, PW-2 deposed that at the time of seizure, he was not present at the spot. As per his knowledge, the documents were seized from the room of the Secretary. While he was working in his office room, Secretary called him to his room and accordingly, he signed the seizure list. Neither police nor any other person interrogated him in connection with this case. v. PW-3 in his examination-in-chief stated that he was a retired employee of Nadia Zilla Parishad. He retired from his service in October, 2000. Since March, 1964 till his retirement, he worked as Work Assistant in Zilla Parishad, Nadia. He further deposed that for the purpose of installation of tube-well, the department called tenders from the willing persons and thereafter the tenders submitted by the contractors were verified and after acceptance of the tender, the eligible contractor was entrusted to work for installation of tube-well. At the time of installation of tube-well, PW-3 supervised the boring work of the contractor and the uplifted sand was examined by Tusar Babu, who approved the work and asked to install the pipes at the relevant spot, i.e., where the boring work was done. At the time of installation of tube-well, PW-3 supervised the boring work of the contractor and the uplifted sand was examined by Tusar Babu, who approved the work and asked to install the pipes at the relevant spot, i.e., where the boring work was done. Thereafter the contractor sank the pipes at the place where boring work was done in presence of Tusar Babu. Shri Bhattacharya also noted the particulars of the pipes in his measurement book. The bills for the contractors were prepared after consulting the measurement work. He worked under Tusar Bhattacharya and accordingly he knew his handwriting and signature. The measurement book being no. 973 was handed over to PW-3 by Shri Bhattacharya and thereafter Shri Bhattacharya asked PW-3 to prepare the bill in Form No.8 in his presence. After consulting the pages, i.e., from 45 to 88 of the measurement book no. 937, PW-3 prepared bills in Form No.8. The pages from 45 to 88 of the measurement book, were written by Shri Bhattacharya. The page nos. 45 to 88 including the signature of the accused Tusar Babu was marked as Exhibit-2. PW-3 identified the bill (Form No. 8) which was prepared by him. Except red and green ink all other entries were made by him in the bill. The entries in the bills (Form No. 8) made by PW-3 were marked as Exhibit-3. He could not say the person who made the entries in the red and green ink. The bill was prepared for Rs.53,421/-. Tusar Babu signed the bills as the Officer who prepared the said bill and he also signed the same as the Officer who was passing the bill. The signatures of Tusar Babu on Exhibit-3 were marked Exhibit-3/1 and 3/2 respectively. PW-3 also found the signature with date of Tusar Babu on the bill who signed as Officiating District Engineer, Zilla Parishad. The signature of the accused on the bill was marked as Exhibit-3/3. He could not say the name of the person who received the payment of this bill. He did not know the signature of the contractor. About 7/8 years ago the said tube-well went out of order and accordingly pipes of that tube-well were lifted. He was called after completion of lifting work of the pipes of the said tube-well. He could not say the name of the person who received the payment of this bill. He did not know the signature of the contractor. About 7/8 years ago the said tube-well went out of order and accordingly pipes of that tube-well were lifted. He was called after completion of lifting work of the pipes of the said tube-well. Accordingly, he went to the spot and found Biswanath Biswas, Abhimunya Sarkar (SAERD) and one Assistant Engineer (Ganesh Babu) present there. On arrival at the spot, he saw the pipes which were lifted therefrom. Thereafter Biswanath Biswas the Executive Engineer took measurement of the said lifted pipes and he also asked him to check the said pipes. On careful scrutiny, he found “Z” and “L” mark on some of the said lifted pipes. Other alphabets in between “Z” and “L” were illegible. He did not remember how many 100 Ml.mrs pipes were found at the spot at that time. He also did not remember how many pipes with 50 Ml.mrs diameters were found there at that time. The length of each of the said lifted pipes were around 20 ft. General length of the said types of pipes were between 10 to 20 ft. He found the signature of Tusar Babu on the price schedule. Signature of Shri Bhattacharya on the price schedule was marked as Exhibit-4. He also found the signature of Tusar Babu on the tender notice of Nadia Zilla Parishad which was marked as Exhibit-5. After acceptance of the said tender, Tusar Babu also signed the same which was marked as Exhibit-6. He did not find any Zindal brand pipe. The same had not been mentioned either in the measurement book (Exhibit-2) or in the bill (Exhibit-3). From the measurement book and from the bill, he found that ITC mark G.I. pipes having 100 ml.mr, 50 ml.mr and 32 ml.mr diameters respectively were supplied for the said work of installation of the said tube-well. He found the signature with seal of Tusar Babu on petty work agreement which was marked as Exhibit-5/1. PW-3 supervised the entire work of installation of the said tube-well at the Dak Bungalow of Nadia Zilla Parishad and the work was done as per schedule. The said sample of sand was approved by Tusar Sahuat about 3 p.m. The said installation was continued at a stretch. The said work was continued till night. PW-3 supervised the entire work of installation of the said tube-well at the Dak Bungalow of Nadia Zilla Parishad and the work was done as per schedule. The said sample of sand was approved by Tusar Sahuat about 3 p.m. The said installation was continued at a stretch. The said work was continued till night. Besides him, Swapan and Tushar Babu were present at the spot. After sinking of the pipes, the tube-well was fitted and water came out from the said tube-well. After checking water, PW-3 as well as Tushar Babu left the place. The said lowering of pipes were done as per satisfaction, i.e. satisfaction of all who were present at the spot. Either S.A.E of the Engineer, who was in-charge of the work, usually prepared filed note in respect of the entire work. On the following day, the measurement of the pipes, which were installed there, were noted. Thereafter bill was prepared on the basis of the field note and the measurement taken on the following date. He could not state specifically whether within 7/8 years from the installation of the said tube-well, the same was defunct or not. No pipe of the said tube-well was lifted in his presence. On arrival at the spot, he found the pipes which were in rust condition. On arrival of the spot, Biswanath Babu told him that perhaps “Z” and “L” were engraved on the said pipes. He never disclosed the above matter to anybody else including the police. vi. During cross-examination, PW-3 stated that during his tenure many tube-wells were installed in different places. He supervised all works regarding installation of the said tube-well. It was not possible for him to give the elaborate description regarding installation of other tube-wells. It was also not possible for him to give the details of resinking of the tube-wells which were supervised by him. Till then, he was not getting any pension. He was suspended from his service and the said suspension order had been withdrawn. He could not say whether the said suspension was withdrawn to enable him to give evidence in this case. No label was prepared in respect of those pipes where he found “Z” and “L” mark. He could not say whether rest of the said “Z” and “L” mark pipes were separated from other pipes. He could not say whether the said suspension was withdrawn to enable him to give evidence in this case. No label was prepared in respect of those pipes where he found “Z” and “L” mark. He could not say whether rest of the said “Z” and “L” mark pipes were separated from other pipes. He did not sign any paper where the words “Z” and “L” were mentioned. After lifting if any pipe was found damage and/or reschedule, the same was made over to the department against receipt. He did not find any such pipes in court on which he found “Z” and “L” alphabet. He was aged about 61 years. He was losing his memory to some extent. Generally ‘Completion Certificate’ was issued after completion of work. Thereafter bill was prepared. The person, who supervised the work, also signed the said ‘Completion Certificate’. vii. PW-4 stated in his evidence that he was the Accountant of the Office of the Nadia Zilla Parishad since 1990. Certain papers of the Zilla Parishad were seized by police in his presence under a seizure list in carbon process. He also signed the said seizure list. He also put the date under his signature with date was marked as Exhibit-1/1. On 14.10.91, he prepared the cheque being no.552480 dated 18.08.92. After preparing the said cheque, he put check seal and also put his signature on the petty contractor bill. His signature on cheque with seal was marked Exhibit-3/4 and thereafter cheque was made over to Swapan Mazumdar on 25.08.92. He received the said cheque on making the endorsement on the petty contract bill. He also put his signature on that bill for the said reason. Endorsement with signature and date of Swapan was marked Exhibit-3/5. He had no personal knowledge about the installation and/or resinking of the deep tube-wells situated at Dak Bungalow, Nadia Zilla Parishad. PW-4 had no knowledge about the bill before he received the same. Neither was he examined by police nor anybody else. viii. PW-5 in his examination-in-chief stated that he was then Deputy Director of Land Reforms and Survey at Alipur. On 3.3.95 he was posted at Nadia Zilla Parishad as Secretary. At the relevant point of time in the year 1995, one tube well, which was situated at the Dak Bungalow of Nadia Zilla Parishad, went out of order. viii. PW-5 in his examination-in-chief stated that he was then Deputy Director of Land Reforms and Survey at Alipur. On 3.3.95 he was posted at Nadia Zilla Parishad as Secretary. At the relevant point of time in the year 1995, one tube well, which was situated at the Dak Bungalow of Nadia Zilla Parishad, went out of order. Accordingly, the pipes of the said tube well were lifted. After lifting the said pipes, it was detected that the pipes of the said tube well were not according to the specification and the said matter was reported to him by the Executive Engineer – Sri Biswanath Biswas. Accordingly, he directed Shir Biswanath Biswas to take through enquiry over the said matter. After such enquiry, Shri Biswas submitted his report. From the said report, h e came to know that as per the specification “TATA” brand pipes were required to sink for the said tube well but “ZINDAL” brand pipes were sunk in place of “TATA” brand. At the time of installation of the said tube well, Shir Tushar Bhattacharya was entrusted to look after the said installation work of that tube well. He did not remember the name of the contractor who was entrusted to install the said tube well. That was the report which he received from the Executive Engineer – Shri Biswas. He knew his handwriting and signature. The report also bore the signature of Shri Biswas. Report of Shri Biswas was marked Ext.7. After receiving the said report of Shri Biswas, he sent the said report to the Executive officer for taking necessary action according to law. He also made an endorsement to that effect. The endorsement with signature on the report was marked Ext. 7/1. Subsequently, he lodged a written complaint with the P.S.. The written complaint also bore his signature which was marked Ext.8. During investigation police seized certain documents namely, one measurement book, centre circle schedule of rates, petty cash bill, original confidential report over tube well and work order with agreement of work, from his office under a seizure list in his presence. The said seizure list was prepared in carbon process. The carbon copy of seizure list also bore his signature. Signature of the witnesses on the carbon copy of the seizure list was marked Ext. 1/2. The said seizure list was prepared in carbon process. The carbon copy of seizure list also bore his signature. Signature of the witnesses on the carbon copy of the seizure list was marked Ext. 1/2. He also found the schedule of rates for the year 1989-90 which was seized by the police from his office under that seizure list. Schedule of rates was marked Ext.9. The rate of schedule prepared in respect of sinking of pipes of the said tube well. He found the signature of Tushar Bhattacharya on the rate of schedule prepared for sinking of pipes of the said tube well at Dak Bungalow, Nadia Zilla Parishad. The schedule was prepared at his office. He found the signature of Shri Tushar Bhattacharya on the schedule which was marked Ext.10. He also found the endorsement and signature of Shri Tushar Bhattacharya on the agreement of the contractor. The witnesses identified Ext.5/1 (Signature of Shri Bhattacharya). The endorsement on the agreement was marked Ext.5/2. He knew the handwriting and signature of the then ADM, Nadia Zilla Parishad – Shri Dilip Das. He found his endorsement with signature on the document. Endorsement with signature of Shri Dilip Das on Ext.7 was marked Ext.7/2. ix. During cross-examination PW-5 stated that it was not possible for him to say the year when the said tube well was installed. He had no personal knowledge about the lifting of pipes of the said defunct tube well in the year 1995. There was a post of Caretaker for the said Dak Bungalow, Nadia Zilla Parishad. At the relevant time he worked in discharging his official duties as public servant. He did not find any specification mark of identification on Ext.9. So, it is not possible for him to say as to whether or not the specification book was seized from his office. Ext.10 was not made in his presence. After receiving the enquiry report from Shri Biswas, he did not waste any time and, he lodged a written complaint with the P.S. He did not issue any written order to Shri Biswas for conducting the enquiry in connection with the lifted pipes of the said tube well. He heard that there was a vigilance enquiry in connection with the works/performance of Shri Biswas. He heard that there was a vigilance enquiry in connection with the works/performance of Shri Biswas. The schedule of rates was also supplied to the work Assistant for h is convenience because Work Assistant was required to supervise the said works. He himself did not make any enquiry about the quality of pipes of the said tube well, before or after lodging of the written complaint. There were many tube wells under Nadia Zilla Parishad. It was not possible for him to state that how many times the pipes of the said tube wells were sunk. He did not verify the said lifted pipes personally. The said pipes were also not brought before him for verification. x. During further cross-examination PW-5 stated that in the year 1991 he was S.D.O. at Khatra. He was not posted at Nadia Zilla Parishad when the said tube well was installed. He had got no personal knowledge whether that at the time of installation of the said tube well, Tushar Babu supervised the entire work. He stated the above facts on perusal of the relevant records. After getting the enquiry report of Shri Biswas, he made an order to put up the matter before the Executive Officer for fixing responsibility of the person who was involved in the said matter. The Executive Engineer in his report mentioned the name of some witnesses. He did not find any note of the said witnesses in the said report to show that they verified the said lifted pipes. In his written complaint he had not mentioned that he examined the said witnesses names of whom were mentioned in the enquiry report of Shri Biswas. At the time of seizure of the documents, he did not countersign the said documents which were seized by the police from his office. One year after his joining as Secretary, Santimoy Biswas joined as District Engineer, Nadia Zilla Parishad. He could not state whether Santimoy Biswas was subsequently suspended from h is service. After suspension of Tushar Bhattacharya, Santimoy joined as District Engineer on the basis of the order of the Hon’ble Court. xi. PW-6 in his deposition stated that he was S.I. of Police then posted at Mira Plassy under P.S. Kaliganj. On 3.3.96 he was posted at Kotwali P.S. as S.I. of Police. After suspension of Tushar Bhattacharya, Santimoy joined as District Engineer on the basis of the order of the Hon’ble Court. xi. PW-6 in his deposition stated that he was S.I. of Police then posted at Mira Plassy under P.S. Kaliganj. On 3.3.96 he was posted at Kotwali P.S. as S.I. of Police. On that date at 22-15 hours he was duty officer of the said P.S. At that time, he received a written complaint of Hasibur Rahaman, Secretary of Nadia Zilla Parishad. On the basis of the said written complaint, he started Kotwali P.S. Case No. 49/95 dated 4.5.95. On the basis of the written complaint, he filled in the formal FIR. The formal FIR was filled and signed by him which was marked Ext.11. He also made an endorsement on the written complaint. That was the said endorsement on the written complaint. Endorsement of the witness with signature and date was marked Ext.8/1. xii. During cross-examination PW-6 stated that he knew the Dak Bungalow of Nadia Zilla Parishad. The same was about 15 minutes walking distance from the Kotwali P.S., Krishnanagar. xiii. PW-7 stated in his deposition that he was the Inspector of Police then posted at Enforcement Branch, Bhabani Bhawan, Calcutta, West Bengal. On 3.3.95 he was posted at D.E.B. – Nadia as S.I. of Police. On that date Kotwali P.S. Case No. 49/95 dated 3.3.95 was endorsed to him for investigation by D.E.O. – 1 Nadia. Accordingly, he took up the investigation of the case. First, he perused the FIR and thereafter, he conducted raid for the purpose of arresting the accused persons of the case. During raid he arrested Tushar Kanti Bhattacharya and Swapan Majumdar. On 4.3.95 he forwarded them before the learned Court. Thereafter, on 5.3.95 he visited the place of occurrence i.e. the deep tube well situated in the premises of Dak Bungalow of Zilla Parishad – Nadia. He also prepared the rough sketch map with index of the place of occurrence. The rough sketch map with index was prepared and signed by him which were marked Exts. 12 collectively. Subhasis Kundu – the Caretaker of the said Dak Bungalow identified the P.O. On 14.3.95 he visited the office of Hasibul Rahaman – Secretary of Nadia Zilla Parishad and seized some documents namely, measurement book no.937 containing page nos. 1 to 200, issued to Shri Tushar Kanti Bhattacharya by officiating District Engineer on 2.3.95. 12 collectively. Subhasis Kundu – the Caretaker of the said Dak Bungalow identified the P.O. On 14.3.95 he visited the office of Hasibul Rahaman – Secretary of Nadia Zilla Parishad and seized some documents namely, measurement book no.937 containing page nos. 1 to 200, issued to Shri Tushar Kanti Bhattacharya by officiating District Engineer on 2.3.95. 1. Central Circle schedule of Rates for 1989-90 of PWD including the Adoption Order No. 39 dated 31.3.90. 2. Petty Contract Bill No. 19 of Nadia Zilla Parishad having signatures of Contractors and officiating District Engineer on 25.8.92 for Rs. 53,421/-from page nos. 1 to 10 marked in red ink. 3. Original confidential report over deep tube well sunk at Nadia Zilla Parishad, Dak Bungalow campus at Krishnanagar by contractor Swapan Majumdar against Tr. No. 20 of 1990-91 containing page Nos. 1 to 4 marked in the red ink. Report was submitted by Sri Biswanath Biswas – Executive Engineer, Nadia Zilla Parishad and 4. Work order (work schedule) with agreement of works of Nadia Zilla Parishad. The said documents were seized by him under a seizure list in presence of witnesses. The said seizure list was prepared in carbon process. The carbon copy of the said seizure list which bore his signature and the signature of the witnesses was marked Ext.1/3. On 12.04.95 he examined Biswanath Biswas and recorded his statement under Section 161 of the Code of Criminal Procedure. After completion of investigation, he submitted charge-sheet on 31.10.97 being Charge-sheet No. 304 dated 31.10.97 against both the F.I.R. name accused persons under Sections 409/406/420/120B of the Indian Penal Code. He had got no independent recollection behind the C.D. He did not make any investigation during the period from 13.04.95 to 30.10.97. No reason had been mentioned in the C.D. for not taking any action in the matter of investigation of this case during the said period. Except Biswanath Biswas, he did not examine any other witness of this case and as such there was no scope to record the statement of any other witness except Biswanath Biswas. He perused the confidential reports submitted by Biswanath Biswas. From the said confidential report of Biswanath Biswas, he came to know that Pranendra Nath Roy (work assistant), Avimunya Sarkar (Sub Assistant Engineer) and Gangesh Kumar Ghosh (Assistant Engineer) were present at the time of lifting the said deep tube-well. He perused the confidential reports submitted by Biswanath Biswas. From the said confidential report of Biswanath Biswas, he came to know that Pranendra Nath Roy (work assistant), Avimunya Sarkar (Sub Assistant Engineer) and Gangesh Kumar Ghosh (Assistant Engineer) were present at the time of lifting the said deep tube-well. They were not examined during investigation of this case. He did not seize any of the said lifting pipes of the said deep tube-well during investigation. He did not make any attempt to seize the said lifted pipes during his investigation. He also did not try to ascertain during his investigation as to whether or not the measurement of the said lifted pipes were noted in anywhere after lifting the said pipes of the said tube-well. He seized the said documents as the same were essential to prove the case and that which were required to be proved at the time of trial before the court. xiv. During cross-examination, PW-7 could not say whether the caretaker of Zilla Parishad had got any quarter in the premises of Zilla Parishad Dak Bungalow. During investigation, he ascertained that one caretaker was posted for looking after the bungalow for 24 hours. He did not try to ascertain where the said caretaker resided. The caretaker, who identified the deep tube-well before him, had not been cited as C.S. witness. No employee of Zilla Parishad including the Executive Engineer-Biswanath Biswas, made over the said lifted pipes to him during investigation of this case. He also did not see the said lifted pipes. He did not try to ascertain as to whether the pipes of the said tube-well were lifted or resunk at any point of time before 03.03.95. xv. PW-8 stated in his evidence that he was the Chief Engineer of P.W.D. (Health Works), Writers’ Buildings, Calcutta. He was posted as Executive Engineer of Zilla Parishad during the period from 1979 to 1986. PW-8 then said that he was Executive Engineer of Zilla Parishad during the period from 1989 to 1996. In the year 1994 or 1995 he was asked by the Nadia Zilla Parishad to supervise the works of resinking of deep tube-well situated at Dak Bungalow, Nadia Zilla Parishad though the said words did not fall within his normal jurisdiction. So far as he remembered, at that time the District Engineer of Nadia Zilla Parishad was on leave or sick. So far as he remembered, at that time the District Engineer of Nadia Zilla Parishad was on leave or sick. As the said deep tube-well was not functioning, PW-8 was asked to supervise for resinking of the pipes of the said tube-well. Abhimunya Sarkar (E.A.E.), Pranan Roy (work assistant) and the caretaker of Dak Bungalow of Nadia Zilla Parishad were present at the time of lifting of the pipes of the said deep tube-well. After lifting of the pipes, he was called at the spot and on arrival there he first got mud on the pipes cleaned by the staff and thereafter he found “Zindal” mark on the said lifted pipes. There were two kinds of pipes which were lifted from the said deep tube-well, one – 100 mm. diameter and another 50 mm. diameter. He did not recollect the total length of the said lifted pipes. Subsequently, Zilla Parishad Authority asked him to enquire about the matter as there was rumour that “Zindal” brand pipes were sunk in place of “Tata” brand pipes. After making thorough enquiry, he submitted a report before the Nadia Zilla Parishad. He identified his signature on the report prepared by him marked Exhibit-7/3. (PW-8 also identified Exhibit-7). He found from his enquiry report that the following papers/documents were consulted during such enquiry:- 1. Tender 20 of 1990-91 where specification amounted were mentioned, 2. Measurement Book No. 937, 3. Estimate No. 51 of 1990-91 and also bill for Rs.55,976/-regarding payment. He identified the measurement book which he consulted at the time of said enquiry. The witness identified Exhibit-2. From the said measurement work, it appeared that at the time of sinking “Tata” brand pipes were used. The contractor was entrusted for the said job of sinking the said deep tube-well. The name of that contractor was Swapan Mazumdar. From his report, it appeared that during consultation of measurement book – 937, he found that the officiating District Engineer noted in the said book that all the G.I. pipes of various diameters were supplied for the said work. All the pipes, which were sunk, could not be lifted. Three pieces of 100 ml. diameter measuring 20-2” and 20-6” respectively of “Zindal” brand pipes were lifted. Four pieces pipes of 50 ml. diameter of “Zindal” brand measuring 20.6”, 20.5”, 20.3” and 20.4” respectively were also lifted from the said deep tube-well. All the pipes, which were sunk, could not be lifted. Three pieces of 100 ml. diameter measuring 20-2” and 20-6” respectively of “Zindal” brand pipes were lifted. Four pieces pipes of 50 ml. diameter of “Zindal” brand measuring 20.6”, 20.5”, 20.3” and 20.4” respectively were also lifted from the said deep tube-well. In all Rs.55,976/-including the cost of pipes was paid for installation of the said deep tube-well. He found from the measurement book as well as from the bill that 18 meters of 100 mm. and 26.83 meters of 50 mm. pipes were sunk at the time of installation of the said deep tube-well. Excess payment of Rs.7261.65/-was made as “Zindal” pipes were used in place of “Tata” brand pipes for installation of the said deep tube-well of the Dak Bungalow. The said calculation was made in respect of the pipes which were lifted at that time. He calculated the said difference on the basis of the schedule of rates. PW-8 identified the said schedule of rates. The witness identified Exhibit-9. xvi. During cross-examination PW-9 deposed that no vigilance enquiry was conducted against him during his posting at Zilla Parishad, Nadia. He received summons to depose before the Court on 31.08.2001. On 31.08.2001 he was preoccupied in a meeting with the Minister-in-Charge at Rotanda, Writers’ Buildings. Before that, he did not receive any summons to depose before the Court but he got intimation from the P.S. He received the said information from the P.S. to meet the Learned Public Prosecutor, Nadia on 30.08.2001 at night. Before 30.08.2001 he did not receive any summons or intimation from the P.S. to depose before the Court. He could not say on which date when the pipes of the said deep tube-well were lifted. Without perusing the file, it was not possible for him to say the name of the authority of the Zilla Parishad who entrusted him to look after the lifting and resinking of the pipes of the said deep tube-well. He also did not recollect exactly when the lifting of the said pipes was started. Similarly, he could also not say when the entire works of lifting of the pipes were completed. The exact time of lifting of the pipes and the completion of works in the matter of such lifting had not been mentioned in his report. He also did not recollect exactly when the lifting of the said pipes was started. Similarly, he could also not say when the entire works of lifting of the pipes were completed. The exact time of lifting of the pipes and the completion of works in the matter of such lifting had not been mentioned in his report. He did not recollect whether he was present at the time of lifting of such pipes. He also did not recollect who called him at the spot after completion of lifting. Similarly, he did not remember when he was called by the said person to go to the spot. At the time of lifting, field note in respect of lifted pipes, was prepared by work assistant. He did not remember whether or not he perused the said field note. He thought that field note was prepared on the basis of actual state of affairs. He agreed that the field note was a very important document in order to ascertain what work was actually done at the time of lifting the pipes. He did not remember whether he passed any order regarding destruction of the said field note. Before such entrustment by the Zilla Parishad, Nadia, he had no knowledge that which brands of pipes were used for sinking installing the said deep tube-well. At the time of lifting, there was a rumour that in place of “Tata” brand pipes, “Zindal” brand pipes were used for installation of the said deep tube-well and accordingly he submitted the said report before the authority. He did not remember whether on the basis of the said rumour, he discussed with Savadipati the Secretary of the Zilla Parishad, Nadia. After clearing the mud, PW-8 saw that the said pipes were “Zindal” brand pipes. He took measurement of the same, but he did not remember whether he noted the measurement of the said pipes. Thereafter so far he could remember, he reported the matter to Karmadhakhya, Purta Bivagh. There was no specific order upon him to report about the measurement and quality of the pipes which were found after lifting. He did not make any arrangement for keeping the said lifted “Zindal” brand pipes separately. At that time, he understood that somebody else committed crime by sinking “Zindal” brand pipes in place of “Tata” brand pipes. There was no specific order upon him to report about the measurement and quality of the pipes which were found after lifting. He did not make any arrangement for keeping the said lifted “Zindal” brand pipes separately. At that time, he understood that somebody else committed crime by sinking “Zindal” brand pipes in place of “Tata” brand pipes. He did not remember the date when he submitted the said report before Karmadakhya, Purta Bivagh. The said report was also the part of the record of the Zilla Parishad. On receiving his said report, Karmadakhya, Purta Bivagh, directed him in writing to submit a report in details mentioning the money involved in the said installation of deep tube-well. Subsequent to that date, he also visited the spot several times. The resinking of pipes of the said tube-well was not made in his presence. The said “Zindal” pipes, which were lifted, were again resank for the said deep tube-well. It was not possible for him to produce any paper to show that the said “Zindal” pipes were again resank for the said deep tube-well. The lifting of the pipes of the said deep tube-well was done by the Progressive Engineers Co-operative Ltd. The tender of the said work, i.e. lifting and resinking was accepted by a committee on the basis of table bid. The tender in respect of lifting and resinking of the said tube-well was given to Progressive Engineers Co-operative Ltd. on the basis of a table bid by the tender committed of Nadia Zilla Parishad. He could not say the specific date when the resinking of the said tube-well was done. He also could not say how many days after the said lifting, the said resinking work was done. He could not say the specific date and time when he first visited the spot, i.e., after the said lifting. He did not record the statement of any such persons in whose presence the said pipes were lifted. In his report, he did not mention that during enquiry he examined or recorded the statement of any person of the said Progressive Engineers Co-operative Ltd. In his report, he did not mention whether or not he examined the caretaker or recorded his statement during his said enquiry. In his report, he did not mention that during enquiry he examined or recorded the statement of any person of the said Progressive Engineers Co-operative Ltd. In his report, he did not mention whether or not he examined the caretaker or recorded his statement during his said enquiry. He did not remember whether or not the Progressive Engineers Co-operative Ltd. submitted any bill before him, or for the said works the said Progressive Engineers Co-operative Ltd. prepared the statement book and on the basis of the measurement book, they prepared the bill. 12. In Kailash Kumar Sanwatia v. State of Bihar, (2003) 7 SCC 399 , the Hon’ble Supreme Court held as follows:- “7. Section 409 IPC deals with criminal breach of trust by a public servant, or by a banker, merchant or agent. In order to bring in application of the said provision, entrustment has to be proved. In order to sustain conviction under Section 409, two ingredients are to be proved. They are: (1) the accused, a public servant, or banker or agent was entrusted with property of which he is duty-bound to account for; and (2) the accused has committed criminal breach of trust. 8. What amounts to criminal breach of trust is provided in Section 405 IPC. Section 409 is in essence criminal breach of trust by a category of persons. The ingredients of the offence of criminal breach of trust are: (1) Entrusting any person with property, or with any dominion over property. (2) The person entrusted (a) dishonestly misappropriating or converting to his own use that property; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so as to do in violation— (i) of any direction of law prescribing the mode in which such trust is to be discharged; or (ii) of any legal contract made touching the discharge of trust.” 13. In N. Raghavender v. State of A.P., (2021) 18 SCC 70 the Hon’ble Supreme Court held as follows:- “Ingredients necessary to prove a charge under Section 409IPC 45. Section 409IPC pertains to criminal breach of trust by a public servant or a banker, in respect of the property entrusted to him. In N. Raghavender v. State of A.P., (2021) 18 SCC 70 the Hon’ble Supreme Court held as follows:- “Ingredients necessary to prove a charge under Section 409IPC 45. Section 409IPC pertains to criminal breach of trust by a public servant or a banker, in respect of the property entrusted to him. The onus is on the prosecution to prove that the accused, a public servant or a banker was entrusted with the property which he is duly bound to account for and that he has committed criminal breach of trust. (See Sadhupati Nageswara Rao v. State of A.P., (2012) 8 SCC 547 : (2012) 3 SCC (Cri) 979 : (2012) 2 SCC (L&S) 638) 46. The entrustment of public property and dishonest misappropriation or use thereof in the manner illustrated under Section 405 are a sine qua non for making an offence punishable under Section 409IPC. The expression “criminal breach of trust” is defined under Section 405IPC which provides, inter alia, that whoever being in any manner entrusted with property or with any dominion over a property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property contrary to law, or in violation of any law prescribing the mode in which such trust is to be discharged, or contravenes any legal contract, express or implied, etc. shall be held to have committed criminal breach of trust. Hence, to attract Section 405IPC, the following ingredients must be satisfied: 46.1. Entrusting any person with property or with any dominion over property. 46.2. That person has dishonestly misappropriated or converted that property to his own use. 46.3. Or that person is dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation of any direction of law or a legal contract. 47. It ought to be noted that the crucial word used in Section 405IPC is “dishonestly” and therefore, it pre-supposes the existence of mens rea. In other words, mere retention of property entrusted to a person without any misappropriation cannot fall within the ambit of criminal breach of trust. Unless there is some actual use by the accused in violation of law or contract, coupled with dishonest intention, there is no criminal breach of trust. The second significant expression is “misappropriates” which means improperly setting apart for ones use and to the exclusion of the owner. 48. Unless there is some actual use by the accused in violation of law or contract, coupled with dishonest intention, there is no criminal breach of trust. The second significant expression is “misappropriates” which means improperly setting apart for ones use and to the exclusion of the owner. 48. No sooner are the two fundamental ingredients of “criminal breach of trust” within the meaning of Section 405IPC proved, and if such criminal breach is caused by a public servant or a banker, merchant or agent, the said offence of criminal breach of trust is punishable under Section 409IPC, for which it is essential to prove that: (i) The accused must be a public servant or a banker, merchant or agent; (ii) He/She must have been entrusted, in such capacity, with property; and (iii) He/She must have committed breach of trust in respect of such property. 49. Accordingly, unless it is proved that the accused, a public servant or a banker, etc. was “entrusted” with the property which he is duty-bound to account for and that such a person has committed criminal breach of trust, Section 409IPC may not be attracted. “Entrustment of property” is a wide and generic expression. While the initial onus lies on the prosecution to show that the property in question was “entrusted” to the accused, it is not necessary to prove further, the actual mode of entrustment of the property or misappropriation thereof. Where the “entrustment” is admitted by the accused or has been established by the prosecution, the burden then shifts on the accused to prove that the obligation vis-à-vis the entrusted property was carried out in a legally and contractually acceptable manner. Ingredients necessary to prove a charge under Section 420IPC 50. Section 420IPC, provides that whoever cheats and thereby dishonestly induces a person deceived to deliver any property to any person, or to make, alter or destroy, the whole or any part of valuable security, or anything, which is signed or sealed, and which is capable of being converted into a valuable security, shall be liable to be punished for a term which may extend to seven years and shall also be liable to fine. 51. 51. It is paramount that in order to attract the provisions of Section 420IPC, the prosecution has to not only prove that the accused has cheated someone but also that by doing so, he has dishonestly induced the person who is cheated to deliver property. There are, thus, three components of this offence i.e. (i) deception of any person, (ii) fraudulently or dishonestly inducing that person to deliver any property to any person, and (iii) mens rea of the accused at the time of making the inducement. It goes without saying that for the offence of cheating, fraudulent and dishonest intention must exist from the inception when the promise or representation was made. 52. It is equally well-settled that the phrase “dishonestly” emphasises a deliberate intention to cause wrongful gain or wrongful loss, and when this is coupled with cheating and delivery of property, the offence becomes punishable under Section 420IPC. Contrarily, the mere breach of contract cannot give rise to criminal prosecution under Section 420 unless fraudulent or dishonest intention is shown right at the beginning of the transaction. It is equally important that for the purpose of holding a person guilty under Section 420, the evidence adduced must establish beyond reasonable doubt, mens rea on his part. Unless the complaint showed that the accused had dishonest or fraudulent intention “at the time the complainant parted with the monies”, it would not amount to an offence under Section 420IPC and it may only amount to breach of contract.” 14. PW-1 stated that the measurement of the said pipes was noted in the measurement book. He knew Tusar Bhattacharyya. In 1991 Tusar Bhattacharyya was officiating as District Engineer of the Zilla Parishad. PW-1 could not say who was the contractor or who was the Engineer at the time of sinking of the pipes of the said deep tube-well. He was never interrogated by the police in connection with that case. 15. During cross-examination, PW-1 stated that he was directed in writing to supervise the lifting of the pipes of the said deep tube-well. PW-1 thereafter deposed that he could not say whether he was so ordered in writing or verbally. He did not submit any report after completion of his work because his superior officers were present there at that time, i.e., during lifting of the said pipes. PW-1 thereafter deposed that he could not say whether he was so ordered in writing or verbally. He did not submit any report after completion of his work because his superior officers were present there at that time, i.e., during lifting of the said pipes. The entire work of lifting of the said defunct deep tube-well was entrusted to a contractor and the said contractor, with the help of his labourers, lifted the said pipes therefrom. Jayanta Roy, one of the contractors, was performing the said work of lifting the pipes. PW-1 could not say the names of other contractors or the labourers who were working there at that time. He did not remember whether Jayanta Roy was asked to submit any report regarding the particulars of the pipes which were lifted therefrom. He also did not remember whether Jayanta Roy submitted any such report before him. He left the place for Zilla Parishad after starting the said work of lifting of the pipes leaving Pranesh Roy, the work assistant there. Then the witness voluntarily submitted that sometimes thereafter he returned at the spot from Zilla Parishad. He also noted the particulars of the pipes lifted therefrom in the measurement book which was subsequently deposited at the Accounts Department of Nadia Zilla Parishad. He endorsed his signature and date after noting the said particulars of pipes in the measurement book. He could not state whether there was any enquiry by the Vigilance Commissioner in connection with any corruption charge against Biswanath Biswas Executive Engineer. He could not say whether such enquiry in question was initiated as per the report submitted by Tusar Bhattacharyya. He did not remember who actually entrusted him in supervising the said work, Hasikul Rahman was the Secretary of the Nadia Zilla Parishad at the relevant point of time. Either the Executive Engineer of the Secretary of Nadia Zilla Parishad entrusted him to supervise the said matter, which he had narrated before the Court had not been disclosed to anybody else, which he had disclosed that day, had not been informed to his authority in writing. After lifting the said pipes, no mark of identification nor any label was affixed on the said pipes. He also could not say how many times the said tube-well was resunk and/or repaired. There were many reasons for resinking of tube-well. 16. After lifting the said pipes, no mark of identification nor any label was affixed on the said pipes. He also could not say how many times the said tube-well was resunk and/or repaired. There were many reasons for resinking of tube-well. 16. PW-2 stated in his evidence that he had no personal knowledge regarding installation and/or lifting of the tube-well at Dak Bungalow, Nadia Zilla Parishad. 17. During cross-examination PW-2 deposed that neither police nor any other person interrogated him in connection with this case. 18. PW-3 in his examination-in-chief stated that he was a retired employee of Nadia Zilla Parishad. He was called after completion of lifting work of the pipes of the said tube-well. Accordingly, he went to the spot and found Biswanath Biswas, Abhimunya Sarkar (SAERD) and one Assistant Engineer (Ganesh Babu) present there. On arrival at the spot, he saw the pipes which were lifted therefrom. He did not find any Zindal brand pipe. The same had not been mentioned either in the measurement book (Exhibit-2) or in the bill (Exhibit-3). From the measurement book and from the bill, he found that ITC mark G.I. pipes having 100 ml.mr, 50 ml.mr and 32 ml.mr diameters respectively were supplied for the said work of installation of the said tube-well. He found the signature with seal of Tusar Babu on petty work agreement which was marked as Exhibit-5/1. PW-3 supervised the entire work of installation of the said tube-well at the Dak Bungalow of Nadia Zilla Parishad and the work was done as per schedule. Besides him, Swapan and Tushar Babu were present at the spot. After sinking of the pipes, the tube-well was fitted and water came out from the said tube-well. No pipe of the said tube-well was lifted in his presence. On arrival at the spot, he found the pipes which were in rust condition. On arrival of the spot, Biswanath Babu told him that perhaps “Z” and “L” were engraved on the said pipes. He never disclosed the above matter to anybody else including the police. 19. During cross-examination PW-3 stated that no label was prepared in respect of those pipes where he found “Z” and “L” mark. He could not say whether rest of the said “Z” and “L” mark pipes were separated from other pipes. He did not sign any paper where the words “Z” and “L” were mentioned. 19. During cross-examination PW-3 stated that no label was prepared in respect of those pipes where he found “Z” and “L” mark. He could not say whether rest of the said “Z” and “L” mark pipes were separated from other pipes. He did not sign any paper where the words “Z” and “L” were mentioned. After lifting if any pipe was found damage and/or reschedule, the same was made over to the department against receipt. He did not find any such pipes in court on which he found “Z” and “L” alphabet. 20. PW-4 stated in his evidence that he was the Accountant of the Office of the Nadia Zilla Parishad since 1990. Certain papers of the Zilla Parishad were seized by police in his presence under a seizure list in carbon process. He also signed the said seizure list. He also put the date under his signature with date was marked as Exhibit-1/1. On 14.10.91, he prepared the cheque being no.552480 dated 18.08.92. After preparing the said cheque, he put check seal and also put his signature on the petty contractor bill. His signature on cheque with seal was marked Exhibit-3/4 and thereafter cheque was made over to Swapan Mazumdar on 25.08.92. Endorsement with signature and date of Swapan was marked Exhibit-3/5. He had no personal knowledge about the installation and/or resinking of the deep tube-wells situated at Dak Bungalow, Nadia Zilla Parishad. PW-4 had no knowledge about the bill before he received the same. Neither was he examined by police nor anybody else. 21. PW-5 in his examination-in-chief stated that after lifting the said pipes, it was detected that the pipes of the said tube well were not according to the specification and the said matter was reported to him by the Executive Engineer – Sri Biswanath Biswas. Accordingly, he directed Shir Biswanath Biswas to take through enquiry over the said matter. After such enquiry, Shri Biswas submitted his report. From the said report, he came to know that as per the specification “TATA” brand pipes were required to sink for the said tube well but “ZINDAL” brand pipes were sunk in place of “TATA” brand. He knew his handwriting and signature. The report also bore the signature of Shri Biswas. Report of Shri Biswas was marked Ext.7. He did not find any specification mark of identification on Ext.9. He knew his handwriting and signature. The report also bore the signature of Shri Biswas. Report of Shri Biswas was marked Ext.7. He did not find any specification mark of identification on Ext.9. So, it is not possible for him to say as to whether or not the specification book was seized from his office. He did not issue any written order to Shri Biswas for conducting the enquiry in connection with the lifted pipes of the said tube well. He heard that there was a vigilance enquiry in connection with the works/performance of Shri Biswas. The schedule of rates was also supplied to the work Assistant for his convenience because Work Assistant was required to supervise the said works. He himself did not make any enquiry about the quality of pipes of the said tube well, before or after lodging of the written complaint. There were many tube wells under Nadia Zilla Parishad. 22. During cross-examination PW-5 stated that he did not find any note of the said witnesses in the said report to show that they verified the said lifted pipes. In his written complaint he had not mentioned that he examined the said witnesses names of whom were mentioned in the enquiry report of Shri Biswas. At the time of seizure of the documents, he did not countersign the said documents which were seized by the police from his office. One year after his joining as Secretary, Santimoy Biswas joined as District Engineer, Nadia Zilla Parishad. He could not state whether Santimoy Biswas was subsequently suspended from his service. After suspension of Tushar Bhattacharya, Santimoy joined as District Engineer on the basis of the order of the Hon’ble Court. 23. Neither the measurement book of PW-1 nor the field notes were produced in the instant case which would have shown that Zindal-made pipes were lifted at the time of resinking of the tube-well on 04.04.1994. The evidence of PW-1 showed that he immediately after the commencement of the work at the site he left for Zilla Parishad and later came back from the Zilla Parishad. This evidence disproved the contention that he was present when the pipes were lifted from the ground by the new contractor. 24. PW-1 failed to produce any document and/or paper that he was entrusted with the job of supervising the resinking of tube-well. 25. This evidence disproved the contention that he was present when the pipes were lifted from the ground by the new contractor. 24. PW-1 failed to produce any document and/or paper that he was entrusted with the job of supervising the resinking of tube-well. 25. PW-1 was a subordinate officer of Biswanath Biswas (PW-8) attached to Rural Development Wing of Nadia Zilla Parishad and was in all likelihood tutored by PW-1 to depose falsely against the appellant and the co-accused. The change in the pipes as notices by PW-1 was not reported by him to higher authorities. 26. PW-2 had no personal knowledge relating to seizure of documents and merely singed the seizure list as per the dictates of the superior. 27. PW-3 was present at the time of lifting of pipes from the ground. It was his specific evidence that he came to the spot after lifting work was over. 28. PW-1 in his course of cross-examination admitted that the installation of pipes was done as per schedule and the same went to the very root of the prosecution case. 29. PW-8 was not an eye witness to the lifting of the pipes from the ground and claimed to have seen the pipes after the lifting work was done. The report of PW-8 who was an inimical witness of co-accused Tushar Kanti Bhattacharya although the same suffered from gross contradiction and/or inconsistency. 30. There was no eye witness in the instant case who saw the lifting of the pipes from the ground at the time of resinking of tube-well. No contemporaneous document in the form of measurement book and/or other documents were placed before the Trial Judge for the purpose of establishing that the pipes which were lifted in the instant case were Zindal pipes and the same went rise an adverse inference against the prosecution case. 31. A vital witness namely Bangesh Ghosh, who was alleged to have been present at the time of lifting of the pipes, had not been examined in the instant case giving rise an adverse presumption against the authenticity and evidence of the prosecution. 32. The pipes, in question, were neither identified nor kept in the department. The said pipes were not even produced at the time of the trial of the instant case. 32. The pipes, in question, were neither identified nor kept in the department. The said pipes were not even produced at the time of the trial of the instant case. A serious doubt as to the genuineness of the prosecution case which stood only on the oral evidence of its occurrence. Witness Nos. 1, 3 and 8 claimed that Zindal pipes were lifted from the ground, with variations and in consistencies in their statements. 33. None of the witnesses particularly 1 and 3 were interrogated by police and they adduced evidence for the first time in Court. 34. The vigilance enquiry against PW-8 Biswanath Biswas had been started and/or corroborated by PW-5 who was the de-facto complainant of the instant case, which presupposed the element of enmity and/or hostility of PW-8 towards Tushar Kanti Bhattacharya. 35. The work order in the instant case was not accepted and the deviation therefrom in the manner of execution was not proved beyond reasonable doubt by the prosecution witnesses on the contrary it was the specific evidence of PW-3 that the work was executed as per schedule. There was no specific evidence that the tube-well, in question, was not repaired on resunk prior to 1994. 36. The instant case is a glaring example of false implication out of sheer animosity, grudge and enmity. In order to constitute an offence under Section 409 of the Indian Penal Code, a person must be entrusted with a property or a demonian over any property which the person so entrusted with dishonestly misappropriates or converts to his own use or dispossess it of subjecting willfully any other person to suffer as a consequence of violation of any direction of law prescribing the mode in which such trust was to be discharged or any legal contract as a consequence of such discharge of trust. 37. To constitute an offence under Section 420 of the Indian Penal Code, the primary constituent is inducement of a person dishonestly deceived him to deliver any property to any person or to make alter or destroy the entire or any part of the valuable security or anything which is signed or sealed capable of being converted into a valuable security. To constitute an offence under Section 420 of the Indian Penal Code, the primary constituent is inducement of a person dishonestly deceived him to deliver any property to any person or to make alter or destroy the entire or any part of the valuable security or anything which is signed or sealed capable of being converted into a valuable security. The inducement, fraudulent or dishonest deception on the part of the person committing the offence should display or portray such mens rea or guilty motive from the very inception of inducement which will ultimately result in the violation of a contract, representation or non-fulfilment of the promise from the initiation of any kind of proposal to deliver any property either wholly or in part or its alteration, destruction whatsoever or being converted into a valuable security. The person responsible for committing an offence of cheating, criminal breach of trust including a public servant or otherwise should possess the inherent mala fide intention prior to the execution of criminal intent and proceed with the same to induce the victim to subserve the guilty motive for his wrongful gain. 38. The appellant, a contractor, participated in the tender process and was selected by the concerned authority after recognizing the credentials and the compliance of the terms and conditions of such tender. The then District Engineer Tushar Bhattacharya – a co-accused (since deceased) lawfully entrusted the person (appellant) to supply the aforesaid ‘Tata’ pipes for installing a tube-well. The relevant documents to such transaction had been on record for 7 to 8 years from the time the entire process of installation was initiated till its accomplishment without any objection. 39. PW-3 in his deposition stated to have been present at the spot along with others when the pipes, in question, were inserted for setting up the tube-well. None of the persons present at the time pointed out that the pipes exhibited the mark ‘Zindal’ and not ‘Tata’. The pipes at the point of insertion were new to conspicuously display the name of the company of its production in compliance with the specifications as per the tender documents, the measurement book as well as the field report. None of the persons present at the spot questioned or objected to the company’s name which manufactured the said pipes. The pipes at the point of insertion were new to conspicuously display the name of the company of its production in compliance with the specifications as per the tender documents, the measurement book as well as the field report. None of the persons present at the spot questioned or objected to the company’s name which manufactured the said pipes. PW-3, after a considerable period on the date when the pipes were lifted above the ground to be replaced, mentioned the same to be covered with rust. 40. PW-3 further stated that he could read the alphabet ‘Z’ and the alphabet ‘L’ without the existence of the in-between alphabets. Such an observation is a deliberate and a blatant lie. The pipes covered with rust could not have reflected alphabets ‘Z’ and ‘L’ in exclusion of the others. Moreover, PW-3 stated to have been present at the spot at the relevant time when the pipes were installed 7 to 8 years before the complaint concerning the present case was filed and was in a position to identify the mark on the pipes clearly, distinctly and properly visible to the eyes without any rust. He did not see witness the pipes to bear the mark ‘Zindal’ instead of ‘Tata’ at the relevant point of installation of the pipes. PW-3 was under an order of suspension and was exonerated prior to the date of adducing of the evidence which even more rendered his evidence to be untrustworthy by virtue of self-interest and extraneous consideration. 41. The evidence of the Investigating Officer PW-7 which has been set above in its entirety revealed the perfunctory manner in which the investigation was conducted based on which the present appellants could not have been convicted. The inconsistencies and infirmities in the evidence of the prosecution witnesses establishes conspiracy, connivance, propitiation on the part of the officers of Nadia Zilla Parishad to interdict the appellants for revenge. The main target had been Tushar Bhattacharya (since deceased) and the present appellant, the contractor, had been a scapegoat to set up the labyrinth of a false criminal case since Biswanath Biswas i.e. PW-8 was at loggerheads with him. 42. The appellant did not utilize the pipes for their personal use or alter or destroy its make. The amounts of the bills paid to the contractor was not disputed or challenged. 42. The appellant did not utilize the pipes for their personal use or alter or destroy its make. The amounts of the bills paid to the contractor was not disputed or challenged. It was not prosecution’s case that the appellant-contractor as well as Tushar Bhattacharya (since deceased) gleaned any kind of financial gain which was wrongful or they had acted contrary to the promise. 43. The scrutiny of the exhibits would reveal that the present appellant had no jurisdiction or authority on creation of the official documents within the exclusive domain of the government office. 44. The prosecution has miserably failed to prove its case and the investigation was awfully perfunctory to the detriment of two innocent persons; one having died and the other suffering through considerable period of time. 45. Under the facts and circumstances of the case in absence of proof of commission of the offence by the appellant beyond reasonable doubt, the prosecution has failed to prove its case and accordingly the appeal is allowed. 46. In view of the above discussions, the judgment and order dated 15.09.2001 passed by the Learned Judge, 2nd Special Court-cum-Learned Additional Sessions Judge, 1st Court, Nadia in Special Court Case No. 1/2001, arising out of Kotwali (Krishnanagar) Police Station Case No. 49/95 dated 03.03.1995, convicting the appellant for commission of offence punishable under Section 420 of the Indian Penal Code is set aside. 47. Accordingly, CRA 418 of 2001 stands disposed of. Connected application, if there be any, also stands disposed of. 48. There is no order as to costs. 49. Lower court records along with a copy of this judgment be sent down at once to the Learned Trial Court for necessary action. 50. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.