JUDGMENT : Gautam Kumar Choudhary, J. Heard learned counsel for the appellant and learned counsel for the CBI. 1. The instant Criminal appeal is directed against Judgment of conviction and order of sentence both dated 03.03.2012 passed by learned Spl. Judge-I, CBI/ACB/ AHD, Ranchi, in R.C. Case No.05(A)/1997 (R) whereby the appellant has been convicted under Section 409 IPC and under Sections 13(2) read with Section 13(1)(c) of the Prevention of Corruption Act, 1988 (in short be called as P.C. Act). 2. The gravamen of allegation against the appellant is that being the Junior Engineer, RCD Division, Jamshedpur on 31.07.1991, he was entrusted with bitumen and when he handed-over the charge on 03.09.1993, it was found that there was a short-fall of bitumen and he had misappropriated total 132.046 MT of bitumen and 0.372 MT of 25 mm dia rod worth several crores rupees by abusing his official position. 3. Initially, Seraikella P.S. Case No.52 of 1996 was registered on 03.09.1996 on the written report lodged by the Executive Engineer, RCD. Later on investigation was taken over by the CBI and Case No.RC-5(A)/1997-RAN. was registered on the order dated 20.02.1997 in CWJC No.10417 of 1996. 4. After investigation, charge-sheet was submitted against the accused/appellant and he was put on trial. Altogether 15 witnesses were examined on behalf of the prosecution and Exhibits-1 to 18 were adduced into evidence. 5. Learned Trial Court recorded a finding that 91.671 MT of bitumen was drained out and 0.322 MT of dia rod of 25 mm got mixed/melted in the soil was not tenable. The appellant was held to be guilty of committing breach of trust and under the P.C. Act and the judgment of conviction and sentence was delivered against him. 6. It is argued by the learned counsel for the appellant that as per the charge report of bitumen and cement, which was given by the appellant to his successor, Mahesh Singh on 30.09.1993(Exhibit-3/2). In the said charge report, it has been specifically mentioned that 282.469 MT of bitumen was handed-over whereas 40.393 MT had drained out from the drums on earth. 7. Another charge report of bitumen and cement of Kandra Section has also been marked as Exhibit -3/1 wherein 108.124 MT of packed bitumen was handed-over to successor, Mahesh Singh on 30.09.1993. In the said charge report, it has been specifically mentioned that 282.469 MT of bitumen was handed-over whereas 40.393 MT had drained out from the drums on earth. 7. Another charge report of bitumen and cement of Kandra Section has also been marked as Exhibit -3/1 wherein 108.124 MT of packed bitumen was handed-over to successor, Mahesh Singh on 30.09.1993. In this report also, in the remarks column, it has been noted that 19.730 MT had drained out and had mixed with earth. By making reference to the charge reports, the main defence of the appellant is that the packed bitumen was lying unattended in open and the drums had got damaged and as such, bitumen had drained out. 8. This will be evident from the deposition of the successor, Mahesh Singh (PW-3) in Para-3 wherein he has deposed that he had received the charge of 282.469 MT of packed bitumen. It had been mentioned in the charge report by his predecessor, that there was 322.862 MT of bitumen, out of which 40.393 MT of packed bitumen was said by him to have drained out and got mixed with earth. He had verified with the stock with the assistance of Yugal Kishore Kumbhkar and Dharia Oraon. In para-4, he has stated about the charge report regarding Kandra Section that he had taken charge of 23.240 MT and it was written in the charge report that 19.730 MT had drained out and got mixed with the earth. In Para-7, he has deposed that the appellant had a stock of total 414.533 MT of packed bitumen out of which he had handed-over the charge of 282.469 MT resulting in shortfall of 91.671 MT of bitumen. 9. Specific reference is made to Exhibit-11 which is a forwarding letter being Letter No.883 dated 06.08.1998 addressed to the S.P., CBI by the Executive Engineer, RCD Division, Jamshedpur. The inspection report was submitted by Noor Hasan Khan-Assistant Engineer, Sri Kumar Amrendra Narayan Singh-Junior Engineer and Sri Mahesh Singh-the then Junior Engineer. In the said report annexed with the letter and marked as Exhibit-11/1, it has been mentioned that on inspection being conducted on 05.08.1998, 220 empty drums were found there. On being in open, they had got damaged and the bitumen had also drained out at the said place. In the said report annexed with the letter and marked as Exhibit-11/1, it has been mentioned that on inspection being conducted on 05.08.1998, 220 empty drums were found there. On being in open, they had got damaged and the bitumen had also drained out at the said place. Beyond the boundary wall also bitumen had got drained and if it was estimated that 161.8 Kg had drained out from each drum then in an average 36.79 tonnes can be estimated to be drained out from the said place. Similarly in Kandra Section, the Committee reported that there were 119 drums in a damaged condition, as such, on a rough assessment of 10% drainage from those drums, it was estimated that 15.81 Cubic Metre could have been drained in that section. It is argued by the learned counsel that if the drained quantity of bitumen is added then no shortfall will be found as far as bitumen is concerned. 10. With regard to shortfall of 372 Kg of Iron MS rod, it is submitted that it was a single piece rod, and it was a part of another bridge lying there which being kept in open got rusted out and mixed with the earth. It is argued by the learned counsel that mere shortfall in the stock for the reasons explained above, will not make out an offence under Section 409 IPC as well as under the P.C. Act until and unless there is requisite intention on the part of the accused. 11. Reliance is placed on Kailash Kumar Sanwatia v. State of Bihar & Anr., (2003) 7 SCC 399 : 9. The basic requirement to bring home the accusations under Section 405 are the requirements to prove conjointly (1) entrustment, and (2) whether the accused was actuated by the dishonest intention or not; misappropriated it or converted it to his own use to the detriment of the persons who entrusted it. As the question of intention is not a matter of direct proof, certain broad tests are envisaged which would generally afford useful guidance in deciding whether in a particular case the accused had mens rea for the crime. 12. As the question of intention is not a matter of direct proof, certain broad tests are envisaged which would generally afford useful guidance in deciding whether in a particular case the accused had mens rea for the crime. 12. On the point of sentence it is submitted that the appellant had remained in custody for about 8 ½ months, and at present he is about 76 years old and he has faced protracted litigation for about three decades, therefore he deserves clemency on the point of sentence. 13. Learned ASGI for the CBI has defended the impugned judgment of conviction and sentence. P.W.2 (Ranjeet Pd. Singh) who was the then Assistant Engineer posted at Seraikella at the relevant time in the month of July, 1992 has specifically stated at Paras 17 and 19 of his deposition that he had no personal knowledge about the drainage of the bitumen lying there and further stated that he had not given statement during investigation that there was no shortage with regard to packed bitumen. P.W.3 [Mahesh Singh] had taken over the charge from the accused/appellant on 23.04.1993. However, the charge of stock was taken on 25.09.1993 and 30.09.1993. As per the report of the Assistant Engineer, he was entrusted with 414.533 MT packed bitumen, out of which he handed-over the charge of 282.469 MT. P.W.12 (Gupteshwar Singh), the then Junior Engineer had handed-over the charge to the appellant/accused on 31.07.1991. ANALYSIS 14. It is not in dispute that the appellant handed over charge as Junior Engineer at Saraikela and Kandra on 23.04.1993 to his successor Mahesh Singh (PW-3) and that of stock soon thereafter. PW-3 has deposed in para-3 did that he did not hand over charge of Saraikela at the time of handing over charge, but gave it some time on 23.04,93 to 25.09.93. Charge report of Saraikela and Kandra section has been marked as Exhibit 3/2 and Exhibit -3/4 respectively. In the charge-report the appellant had stated that there was 322.862 MT packed bitumen, but only 282.469 MT was found with a shortfall of 91.671 MT at Saraikela section. PW-3 refused to take the charge of 40.393 MT as the appellant claimed it to have mixed with earth. There was also a shortfall of 19.73 MT of packed bitumen at the Kandra, which was also attributed to drainage. 15. PW-3 refused to take the charge of 40.393 MT as the appellant claimed it to have mixed with earth. There was also a shortfall of 19.73 MT of packed bitumen at the Kandra, which was also attributed to drainage. 15. With regard to the shortage of MS iron rod also, the same plea that it had got mixed up in earth has been taken. 16. Learned trial Court has refused to accept, the defence that the bitumen had got drained and mixed in the earth, and missing iron rod also met the same fate, as there was no cogent evidence in support of the said plea. Learned trial Court has noted that even if it is assumed that 40.393 MT bitumen had got mixed with earth, it will not make up the shortage. Exhibit-11, which has been heavily relied by the defence, speaks only about an average assessment of 36.79 MT of bitumen to have been drained in Seraikella Section. It is nowhere close to shortfall of 91.671 MT bitumen. Further, there is no explanation with regard to shortage of MS iron rod. I do not find any infirmity in finding recorded by the learned trial Court on this count regarding shortage. 17. The appellant has offered no explanation to the shortage in his statement given under Section 313 of the Cr.P.C. It has not been stated that the bitumen had drained out. Defence is of innocence and pleads false implication and deliberately taking charge of only 282 MT bitumen. The suggestion given to the witnesses on behalf of the defence, also does not disclose the defence of shortage on account of draining out of the bitumen. Trend of cross-examination do suggest such defence, but not in the statement under Section 313 of the Cr.P.C or in the suggestion given to the witnesses. Suggestions given to some of the witnesses, alludes to false implication due to altercation between MLA Vijay Singh Soy and Assistant Engineer Harinandan Singh. 18. On the basis of the oral and documentary evidence there cannot be any doubt that there had been massive shortage of bitumen during the term of the office of the appellant as Junior Engineer at Saraikela and Kandra division. This shortage was detected when on transfer appellant handed over the charge to his successor. The shortage was also with respect to MS rod. This shortage was detected when on transfer appellant handed over the charge to his successor. The shortage was also with respect to MS rod. Some very bizarre plea of shortage has been proffered on behalf of the defence. Bitumen got drained in Saraikela section and got mixed in the earth. The same happened with the bitumen in Kandra Section. This pattern of mixing with earth was not confined to bitumen, but it also happened with MS iron rod. In order to meet in such cases Section 15 of the Evidence Act comes into play which is as under. Section 15. Facts bearing on question whether act was accidental or intentional.—When there is a question whether an act was accidental or intentional, [or done with a particular knowledge or intention], the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant. The present case reflects a pattern where the public property entrusted with the appellant as per his plea, appears to have a tendency of getting drained and mixed with earth, defying any logic. Such pattern negates the plea of accidental loss. Such a defence is fit to be rejected. 19. Thus, public property that was entrusted to the appellant was dishonestly misappropriated by him acting as a public servant, for which he is guilty for offence under Section 409 of the IPC and under Section 13(2) of the PC Act. The Judgment of conviction is accordingly affirmed. 20. On the point of sentence, considering the nature of offence, this Court is of the view that no interference is called for in the sentence awarded by the learned trial Court. 21. Bail bonds of the appellant stands cancelled and appellant is directed to surrender before the learned Trial Court within a period of two weeks after Holi Holidays so as to serve remaining part of the sentence. Appeal is accordingly dismissed. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.