JUDGMENT : (P.G. AJITHKUMAR, J.) C.C.No. 10 of 2003 was tried and disposed of by the Special Judge (SPE/CBI)-I, Ernakulam as per the judgment dated 16.05.2008. The offences alleged were punishable under Section 120B read with Section 420 of the Indian Penal Code, 1860 ( IPC ) and Section 13 (1)(d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 (PC Act). Both the accused were found guilty and convicted of those offences. The 1 st accused filed Crl.Appeal No.1091 of 2008 and the 2 nd accused filed Crl.Appeal No.1023 of 2008. 2. The 1 st accused was the Headmaster of Government Higher Secondary School, Minicoy during the period from 1990 to 1996. The 2 nd accused created two concerns, namely, M/s.Mareena Enterprises, Minicoy and M/s.Sazy Corporation, Minicoy claiming to be suppliers of various articles and undertaking various works. The allegation of the prosecution is that they had hatched a conspiracy to misappropriate money by cheating the Administration of the Union Territory of Lakshadweep and in pursuance of that conspiracy, various amounts were withdrawn from the treasury by the 1 st accused on the strength of the proceedings drawn by him unauthorisedly. Although the amount withdrawn from the treasury were paid to the 2 nd accused, the articles were not supplied and the works were not done. By issuing the proceedings unauthorisedly and drawing the amount from the treasury without effecting the purchase and undertaking the work corresponding to the proceedings, the accused had misappropriated various amounts. Thus, the accused allegedly had committed the aforementioned offences. 3. Nine instances of purchases/ construction were involved in this case. The details of such purchases/construction and corresponding amounts allegedly misappropriated are given below: Sl.No. Description of the good purchased/ service Amount availed involved 1 Purchase of stage lighting equipments Rs.9,900/- 2 Purchase of audio visual equipments and public addressing system Rs.52,350/- 3 Purchase of furniture Rs.28,000/- 4 Purchase of vacuum cleaner, fabre foam, cushions, table top glass and plastic sign boards Rs.11,900/- 5 Purchase of materials for science fair Rs.1,976/- 6 Purchase of photocopier machine, photocopier paper and molded chairs Rs.1,86,000/- 7 Purchase of photography and screen-printing materials Rs.55,675/- 8 Construction of platform Rs.13,810/- 9 Purchase of steel furniture Rs.52,500/- 4. The trial court, after framing charge and on the appellants’ denying the charge, held trial. PWs.1 to 23 were examined and Exts.P1 to P103(a) were marked. The trial court, after framing charge and on the appellants’ denying the charge, held trial. PWs.1 to 23 were examined and Exts.P1 to P103(a) were marked. After closing the prosecution evidence, the appellants were questioned under Section 313(1)(b) of the Code. Both of them denied having committed the offences. The 1 st accused took the stand that in order to arrange infrastructure necessitated on account of the affiliation of the School to the Central Board of Secondary Education, immediate purchases and works were to be done. That, as directed by the superiors, he had to take steps for the purchases and works for which there was implied sanction from the Administrator of Lakshadweep. The intended purchases were effected and works were done and the amounts drawn from the treasury were properly utilised. He thus contended that he did not commit any offence. The 2 nd accused took the stand that the articles were supplied and works were undertaken corresponding to the bills and there was absolutely no misappropriation or element of cheating in the transactions. On the side of the accused, Exts.D1 to D17 were marked. The Special Court, after considering the evidence on record, found both the accused guilty. The findings leading to their conviction are assailed in these appeals on factual and legal grounds. 5. Heard the learned counsel for the respective Appellants and the learned Standing Counsel for the CBI. 6. Nine instances of purchase/work are the subject matter of these appeals. The allegations are two-fold. The 1 st accused in the capacity of the Headmaster, Govt. Higher Secondary School, Minicoy was not competent to meet the expenses of the said purchases/work. The second is that the amounts drawn from the treasury were misappropriated. The 2 nd accused, who acted as a supplier/contractor of the said purchases/work, but he was only a proxy of the 1 st accused. 7. The fact that the 2 nd accused was the contractor for the purchases/work, the 1 st accused, on the strength of various proceedings issued by he himself, had withdrawn the respective amounts from the Sub Treasury, Minicoy and that the amounts were paid to the 2 nd accused are not disputed. The said facts are proved by the prosecution by adducing sufficient evidence as well. 8. The said facts are proved by the prosecution by adducing sufficient evidence as well. 8. Exts.P4, P8, P12, P17, P24, P28, P31, P35 and P38 are the proceedings issued by the 1 st accused in respect of the purchases and work. The claim of the 1 st accused is that he had implied consent from the authorities to draw up the said proceedings, and he was empowered owing to the urgency for carrying out the work and effecting purchases in the wake of obtaining affiliation to the school from the CBSE. In order for easy understanding and reference the details of the purchases/work and details of relevant documents are tabulated below: Sl.No. Description of the good purchased/ service availed Amount involved Proceedings (Exhibit) Receipt (Exhibit) 1 Purchase of stage lighting equipments Rs.9,900/- P24 P45 2 Purchase of audio visual equipments and public addressing system Rs.52,350/- P28 P49 3 Purchase of furniture Rs.28,000/- P4 P6 4 Purchase of vacuum cleaner, fabre foam, cushions, table top glass and plastic sign boards Rs.11,900/- P8 P60 5 Purchase of materials for science fair Rs.1,976/- P31 Not produced 6 Purchase of photocopier machine, photocopier paper and molded chairs Rs.1,86,000/- P12 Not produced 7 Purchase of photography and screen- printing materials Rs.55,675/- P17 P73 (series) 8 Construction of platform Rs.13,810/- P35 P77 9 Purchase of steel furniture Rs.52,500/- P38 P80 9. The Director of Education (PW14), the successor Headmaster of the Govt. Higher Secondary School, Minicoy (PW17) and the Senior Administrator (Education) (PW15) deposed before the court about the financial powers of the 1 st accused. Their consistent version is that as the Headmaster of the Govt. Higher Secondary School, Minicoy, the 1 st accused could have incurred expenses upto Rs.1,000/- only for a single instance of non-recurring expenditure. The case of the 1 st accused is that he had implied consent from the higher authorities to spend more amount to meet the urgent needs. But, no evidence in support of that claim is adduced by the 1 st accused. From the said evidence and circumstances, there can have no doubt that the 1 st accused exceeded his authority while issuing Exts.P4, P8, P12, P17, P24, P28, P31, P35 and P38 proceedings. Therefore, while issuing the said proceedings, the 1 st accused violated the departmental norms and regulations. 10. The prosecution alleges that the 2 nd accused was not a contractor or a supplier. Therefore, while issuing the said proceedings, the 1 st accused violated the departmental norms and regulations. 10. The prosecution alleges that the 2 nd accused was not a contractor or a supplier. In order to prove that fact, the prosecution has examined PW1, who is the brother of the 2 nd accused. He deposed before the court, resiling from the statement he had given to the investigating officer. He stated that the 2 nd accused was conducting Mareena Enterprises which he had been conducting earlier. Although he was cross- examined with permission from the court, no evidence in support of prosecution has come out from him. Therefore, absolutely no evidence has come from this witness to substantiate the allegation that the 2 nd accused did not have such a business. No other evidence is available in that regard as well. 11. Exts.P6, P45, P49, P60, P73 series, P77 and P80 are the receipts issued by the 2 nd accused in respect of the payment concerning the works/supply of goods in question. Receipts concerning two purchases are not seen produced. The prosecution has no case that payment of all the amounts involved in this case were not effected. Therefore, the position is that entire amounts withdrawn by the 1 st accused corresponding to Exts.P4, P8, P12, P17, P24, P28, P31, P35 and P38 proceedings were paid to the 2 nd accused. The question then is whether he undertook the work and supplied the articles in terms of the said proceedings and the corresponding invoices. 12. The Special Court considered the evidence on record in detail with reference to the aforementioned question. The learned Special Judge took the stand that construction of the platform which is one among the questioned items was to be carried out by the PWD and therefore the 1 st accused could not get it done through the 2 nd accused. The fact that such a work was carried out is not very much in dispute. But the accused were implicated to the offence of criminal misconduct and cheating for the reason that the work was done through an unauthorised person, the 2 nd accused and the amount of Rs.13,810/- was withdrawn by the 1 st accused for making payment for the work by exceeding his power. 13. But the accused were implicated to the offence of criminal misconduct and cheating for the reason that the work was done through an unauthorised person, the 2 nd accused and the amount of Rs.13,810/- was withdrawn by the 1 st accused for making payment for the work by exceeding his power. 13. When the dishonest intention to misappropriate is the fact in issue, the question is whether the money was spent, and the corresponding work was done. Whether or not the work was done by a duly empowered person, as though is a relevant question concerning dereliction of duty and abuse of the official position, that by itself would not amount to a criminal offence. Only if it is proved that the money so withdrawn was misappropriated or by undertaking such a work the accused had gained some pecuniary advantage, there can be a prosecution for the offence under Section 13(1)(d) of the PC Act or under Section 420 of the IPC . 14. Coming to the other instances of the purchases in question, improper accounting of the articles purchased was the fact based on to convict the accused. The learned Special Judge considered the evidence of PW16, the Accountant in the Govt. Higher Secondary School during the relevant period and the entries in the stock registers in order to arrive at a conclusion that the accounting of the articles purchased was not proper and therefore there was conspiracy, misappropriation and cheating. I fail to understand how an improper accounting or incorrect entry of the articles in the stock register would enable an inference of misappropriation of the money used to purchase the articles. If, as a matter of fact, the articles were purchased and such articles are added to the stock, it cannot be found that there occurred criminal misappropriation. 15. The learned counsel for the respective appellants would submit that PW23, the investigating officer did not venture to inspect the entire premises of the school so as to ascertain whether the articles purchased in terms of the aforementioned proceedings and invoices were available in the school. His version before the court is that he had inspected a few rooms. It is to be noted that the all the stock registers available in the school were not verified, seized or produced before the court. It was following an application by the accused, the stock registers were summoned. His version before the court is that he had inspected a few rooms. It is to be noted that the all the stock registers available in the school were not verified, seized or produced before the court. It was following an application by the accused, the stock registers were summoned. Various pages of the stock registers were produced by the prosecution and admitted in evidence. Certified copies of a few pages of the stock registers which were produced as Exts.P27 and P28 in a connected case, C.C.No.13 of 2013 were admitted in evidence as Exts.D1 and D17 at the instance of the accused. From the said stock registers, it can certainly be said that most of the articles purchased at the instance of the 1 st accused were entered in the stock register. 16. PW16 stated that the procedure for entering the newly purchased articles in the respective stock registers was not followed. Although entries were being made by the teachers concerned, in these cases of purchase, often, the 1 st accused himself made or verified the entries. PW16 further deposed that he could not vouchsafe the correctness of the entries in the stock registers. It is true that in the light of the said evidence, there created some sort of suspicion about the proper entries in the stock registers concerning the purchased articles. Findings of the learned Special Judge also is the same. The learned Special Judge further observed “the question arises for consideration whether the accused has purchased the goods is immaterial since he has purchased it without any authority and misusing his position as a public officer.” Holding so, the Special Court found both the accused guilty. 17. The Apex Court in Abdulla Mohammed Pagarkar v. State (Union Territory of Goa, Daman and Diu) [(1980) 3 SCC 110] held that the onus of proving existence of every ingredients of the charge always rests on the prosecution and never shifts. It is incumbent upon the prosecution to prove the charge, beyond a reasonable doubt. In the case of an offence punishable under Section 13(1)(d) read with 13(2) of the Act, no presumption under Section 20 of the PC Act can be drawn as well. See Union of India through Inspector, CBI v. Purnandu Biswas [(2005) 12 SCC 576] . It is incumbent upon the prosecution to prove the charge, beyond a reasonable doubt. In the case of an offence punishable under Section 13(1)(d) read with 13(2) of the Act, no presumption under Section 20 of the PC Act can be drawn as well. See Union of India through Inspector, CBI v. Purnandu Biswas [(2005) 12 SCC 576] . The learned Special Judge however proceeded as if the proof regarding irregularity in drawing up the proceedings for encashing the invoice amount and the impropriety in maintaining the stock register would enable to presume commission of the offence. In short, on the basis of some inferences alone, the conviction was entered into. It is trite that a presumption or inference however strong it be cannot take the place of evidence. 18. From the discussion made hereinbefore, it is obvious that utilising the amounts withdrawn by the 1 st accused based on Exts.P4, P8, P12, P17, P24, P28, P31, P35 and P38 proceedings, the intended articles were purchased. In that process there occurred procedural irregularity and violation of departmental norms. There occurred impropriety in entering the purchased articles in the stock registers also. Beyond that, there has not been any evidence to prove that the accused committed misappropriation of funds. 19. A similar situation was considered by the Apex Court in C.Chenga Reddy v. State of A.P. [ (1996) 10 SCC 193 ] In that case the contract was awarded in violation of the regulations. It was considered whether in the absence of circumstances sufficient to prove the guilt of criminal misconduct could there be a conviction. The following observations are relevant: “22. On a careful consideration of the material on the record, we are of the opinion that though the prosecution has established that the appellants have committed not only codal violations but also irregularities by ignoring various circulars and departmental orders issued from time to time in the matter of allotment of work of jungle clearance on nomination basis and have committed departmental lapse yet, none of the circumstances relied upon by the prosecution are of any conclusive nature and all the circumstances put together do not lead to the irresistible conclusion that the said circumstances are compatible only with the hypothesis of the guilt of the appellants and wholly incompatible with their innocence. In Abdulla Mohammed Pagarkar v. State (Union Territory of Goa, Daman and Diu), [1980] 3 SCC 110] , under somewhat similar circumstances this Court opined that mere disregard of relevant provisions of the Financial Code as well as ordinary norms of procedural behaviour of government officials and contractors, without conclusively establishing, beyond a reasonable doubt, the guilt of the concerned officials and contractors, may give rise to a strong suspicion but that cannot be held to establish the guilt of the accused. The established circumstances in this case also do not establish criminality of the appellants beyond the realm of suspicion and, in our opinion, the approach of the trial court and the High Court to the requirements of proof in relation to a criminal charge was not proper. xx xx” 20. The said view was reiterated by the Apex Court in C.K.Jaffer Sharief v. State (through CBI) [(2013) 1 SCC 205]. Unless the prosecution is able to establish that the accused has obtained some material thing or pecuniary advantage on account of the misconduct, misusing his official position, a conviction for the offence under Section 13(1)(d) of the PC Act is not possible. The same principle is applicable to the offence under Section 420 of the IPC as well. As held by the Apex Court in Abdulla Mohammed Pagarkar v. State (Union Territory of Goa, Daman and Diu) [(1980) 3 SCC 110] , a suspicion, however strong is not enough to convict an accused. It was held: “24. Learned counsel for the State sought to buttress the evidence which we have just above discussed with the findings recorded by the learned Special Judge and detailed as items (a) to (e) in paragraph 9 and items (i) and (iii) in paragraph 10 of this judgment. Those findings were affirmed by the learned Judicial Commissioner and we are clearly of the opinion, for reasons which need not be restated here, that they were correctly arrived at. But those findings merely make out that the appellants proceeded to execute the work in flagrant disregard of the relevant Rules of the G.F.R. and even of ordinary norms of procedural behaviour of Government officials and contractors in the matter of execution of works undertaken by the Government. Such disregard however has not been shown to us to amount to any of the offences of which the appellants have been convicted. Such disregard however has not been shown to us to amount to any of the offences of which the appellants have been convicted. The said findings no doubt make the suspicion to which we have above adverted still stronger but that is where the matter rests and it cannot be said that any of the ingredients of the charge have been made out.” 21. In view of the law laid down in the aforesaid decisions, violation of norms by the 1 st accused in the matter of drawing Exts.P4, P8, P12, P17, P24, P28, P31, P35 and P38 proceedings by itself would not amount to an offence under Section 13(1)(d) of the PC Act. No evidence to establish that the 1 st accused did so with dishonest intention of obtaining any material thing or pecuniary advantage for himself or for any other person is adduced either. In the circumstances, conviction of the accused by the Special Court for the offences not only under Section 13(1)(d) read with Section 13(2) of the PC Act, but also for the offences under Section 120B read with Section 420 of the IPC is liable to be set aside. Accordingly, these appeals are allowed. Conviction of accused Nos.1 and 2/appellants and consequent sentence imposed on them as per the impugned judgment are set aside. They are acquitted and set at liberty.