ORDER
L. Rath, J.
1. The petitioner’s conviction under Section 409 IPC and sentence to undergo R.I. for one year and to pay a fine of Rs. 3,000/- in default to undergo S.I. for three months having been upheld in appeal, he has preferred this revision.
2. The petitioner was an Assistant District Welfare Officer at Talcher and was prosecuted for having committed misappropriation during the period 6-6-78 to 22-12-78 of a sum of Rs. 10,803.88 out of an entrusted amount of Rs. 19,933.53 which he had received towards the boarding charges, staff salary of Ashram School and stipend of scheduled castes and scheduled tribes students. The petitioner though admitted to be the disbursing officer along with the S.D.O. and the D.W.O. in respect of boarding charges, salary of staff of the school and the stipend of scheduled castes and scheduled tribes students, yet maintained a plea of complete denial of any entrustment of money to him.
3. Mr. S. Misra I, learned Counsel for the petitioners; assailing the conviction of the petitioner, has urged two contentions; firstly, that there was no valid sanction for the petitioner’s prosecution, inasmuch as the sanction order was never proved; and secondly, there was no proof of any entrustment having been made to the petitioner of the sums alleged to be misappropriated by him. The submissions of Mr. Misra have been strenuously contested by the learned Addl. Standing Counsel submitting that the offence of the petitioner was such that no sanction was necessary to prosecute him and that even if such sanction was necessary, the sanction exhibited in the case was the proper and valid sanction legally proved. He has further urged that the entrustment of the amount to the petitioner has been fully established and that in the absence of the petitioner’s showing that the amount had not been misapprpriated, it must be held that the charge under Section 409, IPC had been completely brought home against the petitioner.
4. In view of the submissions and counter submissions, it is necessary to examine as to the requirement of sanction for the prosecution of the petitioner for the offence alleged against him. There is no dispute that the petitioner is a person removable by the sanction of the Government and hence as stipulated under Section 197, Cr.P.C. if the offence levelled against the petitioner is alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, the cognizance in respect of the same could not have been taken except with the previous sanction of the State Government.
5. It has been tenaciously urged by Mr. Misra that the offence alleged against the petitioner had no independent existence than the very discharge of his duties and the two being inseparable, the conclusion is inevitable that he could not have committed the act complained of otherwise than while discharging official duty and hence sanction for prosecution is a must. Developing the contention, he has submitted that the allegation against the petitioner being that he had been entrusted with money and that though he had submitted some vouchers in respect of disbursements of the money, yet had not submitted vouchers for a portion of the amount, in the first place it could not be said to be a misappropriation at all, and secondly, such non-submission of vouchers by him, if at all true, would only point to an action by him connected with his official duty and not otherwise.
6. The question whether sanction is required for prosecution of a public servant with relation to any offence alleged against him is always one of fact to be determined on the basis of the duties discharged by him and relation of such duties to the conduct complained of. It was observed in AIR 1948 PC 128 : 1948 (49) Cri LJ 503 (H.N.B. Gill v. The King) that when a question arises to determine whether the offence is one committed while acting or purporting to act in the discharge of official duty the test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office. The decision approved AIR 1939 FC 43 : 1939 (40) Cri LJ 468 (Dr. Hori Ram Singh v. Emperor) and was again reaffirmed in AIR 1948 PC 156 : 1948 (49) Cri LJ 660, it could hardly be said that misappropriation of Government money is an offence committed while either acting or purporting to act in discharge of official duty. Could it be said that when an officer is charged for misappropriation, he can say “Yes, I have misappropriated, but I have done so by virtue of my office and hence you must obtain sanction before you prosecute me?” The stand could never be upheld as a demand under Section 197, Cr.P.C.
7. The necessity or otherwise of a sanction for prosecution of the public servant has to be determined on the basis of the allegations made against him and when challenged, all materials on record up to the stage of the challenge is available for consideration to determine whether sanction is necessary or not. Thus, it is for the prosecuting agency to determine at the first instance, on the basis of their complaint, as to whether the facts disclosed warrant the obtaining of a sanction. But if the initiation of the criminal proceeding is challenged, then the necessity of a sanction has to be determined on the basis of the allegations made without any investigation as to whether such allegations are true or false. The Supreme Court in (S.B. Saha v. M.S. Kochar) observed:
…Whether this allegation or charge is true or false, is not to be gone into at this stage. In considering the question whether sanction for prosecution was or was not necessary, these criminal acts attributed to the accused are to be taken as alleged.
The allegation against the petitioner was that money had been entrusted to him for disbursement, but however a large amount of it remained unaccounted for even after being asked for and hence the petitioner had misappropriated the same. Such being the allegation against him, it was clearly taken that a criminal act had been committed by him in respect of the money put to his care for a specific purpose. Receiving money or being entrusted with it as a public servant by virtue of his office is undoubtedly a part of official duty and disbursement or disposal of the same as officially required is also a part of official duty and even non-disbursement may also be a matter connected with official duty, say for example, when the amount has not been able to be spent due to factors beyond the control of the officer. But however misappropriation of the same is completely different and could not be in discharge of his duty. Such an act is not in any way linked with discharge of his duty. When a public servant acting in discharge of his official duty uses it as a cloak, and dishonestly converts the money in his trust to his own use, it could most certainly be said as not an act which is anticipated and in any way related to the duties assigned to him.
8. Discussing the question of necessity of sanction AIR 1939 FC 43 : 1939 (40) Cri LJ 468 (supra) held that an act cannot be said to be done or purported to be done in discharge of official duty unless the offender professes to be acting in pursuance of his official duty and means to convey to the mind of another the impression that he is so acting. A misappropriation cannot be committed while professing to act in an official capacity. A person may even be ostensibly acting in discharge of his official duty, but even while so acting if he is actually misappropriating, it cannot be said that that part of his conduct is in any way related to the duty he is expected to discharge. An act which is contrary to the very duties of a public servant cannot be said to be one in discharge of his official duty. Misappropriation by its very nature does not agree with the functions of a public servant and being an act which is contrary to his very duties, cannot be said to be one in discharge of his official duty. An offence which arises out of the abuse of official position could never be said to require a sanction for prosecution for it. As was observed in (Matajog Dobey v. H.C. Bhari), the act must bear such relation to duty, that when challenged, the accused could lay a reasonable but not a pretended or fanciful claim that he did it in course of performance of his duty. Similar is the test laid down in AIR 1966 SC 220 (Baijnath v. State of Madhya Pradesh) and the entire law on the subject was analysed and reproduced in categorically holding that in a case under Section 409, IPC the official capacity is material only in connection with the “entrustment” and does not necessarily enter into the later act of misappropriation or conversion which is the act complained of. The decision also considered the earlier decision in (Shreekantiah Ramayya Munipalli v. State of Bombay) and , (Amrit Singh v. State of Pepsu) which were heavily relied upon by Mr. Misra as also (Om Prakash Gupta v. State of U.P.), a decision of five Judges, deciding that no sanction is necessary to prosecute a public servant as he does not normally act in his capacity as a public servant when committing criminal breach of trust. Even in an earlier decision of this Court AIR 1956 Orissa 86 : 1956 Cri LJ 540 (Prasanna Kumar Mohapatra v. The State), the facts of which case were almost similar to the present one, Justice Panigrahi (as he then was) on a resume of the authorities had held that the offence was clearly one of misappropriation of public funds and had no relation to the duties assigned to the public servant and hence no sanction for prosecution under Section 197, Cr.P.C. was necessary. The facts of the case were that the accused was a clerk in an industrial school and was in charge of accounts and cash dealings. While so engaged, he was found to have misappropriated a large amount belonging to the institution and when charged of having committed an offence under Section 409, IPC, had taken the plea that he had never been entrusted with any cash and never attempted to explain how the money had been spent.
9. In a prosecution under Section 409, IPC, the burden of the prosecution is, as was decided in (Krishan Kumar v. Union of India) only to establish entrustment of the money to the accused, his liability to account for the amount received and his failure to do so. If such facts are proved, then unless the accused explains his conduct, the charge of misappropriation would have been brought home against him. The onus on the accused is not the same as that on the prosecution and is discharged only by offering a reasonable explanation which may lead the Court to believe in the probability of its truth. In other words, while the burden on the prosecution is to establish, by proving the three factors as stated above, to reach a definite conclusion that the allegation against the accused must have been true, all that the accused needs show is that the explanation offered by him might have been true. The difference is between that of a certainty and probability. (Rabindra Kumar Dey v. State of Orissa) and (Janeshwar Das Aggarwal v. State of U. P.) followed in (1983) 56 Cut LT 288 (Md. Sabir Hussain v. State of Orissa) relied on by Mr. Misra in no way lay down the law differently and hence are of no assistance to him.
10. The conclusion that irresistibly follows is that on the allegation as it is, no sanction was necessary for the prosecution.
11. In view of such conclusion, it is not necessary to go into the further question raised by Mr. Misra that the sanction produced was never proved and was to be regarded as no sanction.
12. Even though the petitioner fails on the question of sanction, yet the other submission of Mr. Misra regarding the offence of misappropriation having not been established, has substantial force. The very basis of the charge of misappropriation, as has been seen, is to first establish the entrustment to the accused. The petitioner in this case has throughout denied the fact of entrustment to him. The fact of such entrustment is sought to be proved from Exts. 1, 2, 5 and 8 which are stated to be receipts granted by the petitioner acknowledging receipt of different amounts respectively on 6-6-78, 7-9-78, 16-12-78 and 22-12-78. The other exhibits by which such fact is sought to be proved are Exts. 34/1, 35 and 36 which are respectively the signatures of the petitioner on a review report prepared by the S.D.O. (P.W. 23) on 23-2-79 after verification of the office and the cash balance showing a shortage of Rs. 9,922.88; and the entries dated 6-6-78 and 7-9-78 by the petitioner in the Advance Register. The petitioner has throughout denied his signatures on the exhibits and his specific plea is that he had not received any such money. The two witnesses through whom these signatures as also the fact of entrustment are sought to be proved are P.Ws. 1 and 23, respectively the Nizir and the S.D.O. It is the admitted case of the prosecution that P.W. 1 used to keep the cash, as he himself says, prior to its taking by the petitioner. He is also admittedly the person who remains in charge of cash book, advance cash register, Government draft register, bill register, connected vouchers, etc. which documents were seized from his custody by the police. Thus, if the money has not been received by the petitioner, then P.W. 1 becomes accountable for the same, since either the plea of the petitioner was false or the statement of P.W. 1 was false. P.W. 23 who is the S.D.O. was admittedly the controlling officer of the office. He has also sought to prove the aforesaid exhibits to be in the hand of the petitioner. It is his evidence that he is the controlling officer and that he receives Government drafts from the District Welfare Officer, encashes the same and passes orders for payment of the cash to the petitioner. He expressly has admitted himself to be the drawing officer. It is the specific plea of the petitioner that the S.D.O. and D.W.O. were also the disbursing officers. Thus, the fact remains that P.W. 23 was the officer directly responsible for the cash as the drawing officer and if the entrustment to the petitioner is not proved, then both P.W. 1 and P.W. 23 would become accountable for the same.
13. Since there was a vulnerability to the prosecution case in view of the denial of the petitioner of the signatures in the exhibits to be his, a memo, was filed by the public prosecutor on 21-9-81 to send the signatures of the petitioner for examination by an expert. Such request of the public prosecutor was turned down by the court on 23-9-81 since the learned Magistrate was of the view that the signatures had been proved by P.Ws. 1 and 23 who had worked with the petitioner and hence were qualified to identify his writings. He was of the view that non-examination of the disputed handwritings and signatures by an expert was not detrimental to the prosecution case since an expert’s evidence is not conclusive and the person’s handwritings can also be proved otherwise, and ultimately observed:
…Even though there is no admitted documents for comparison here the reliable evidence of two Government officials P.Ws. 23 and 1 leads to the only conclusion that the writings and signatures in question are of none else other than the accused.
14. The reasoning was wholly unsatisfactory and unsafe to base a conviction. P.Ws. 1 and 23 were highly interested witnesses. The petitioner was also an officer of the Government and there is no reason as to why the version of P.Ws.1 and 23 is to be preferred to that of the petitioner when they themselves would have an interest in establishment of the charge against the petitioner. There was no other independent material before the court to come to the conclusion that the writings and signatures were unmistakably of the petitioner. The signatures could thus not be held as certainly of the petitioner.
15. It thus could not be said that the prosecution has been able to establish the very fact of entrustment against the petitioner and in the absence of such fact, the charge of misappropriation must fail.
16. In the result, the revision is allowed and the conviction and sentence passed against the petitioner are set aside. The bail-bond furnished by the petitioner be discharged and fine, if any paid, be refunded to the petitioner.