{"id":143557,"date":"1976-08-31T00:00:00","date_gmt":"1976-08-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rabindra-kumar-dey-vs-state-of-orissa-on-31-august-1976"},"modified":"2016-04-22T13:30:18","modified_gmt":"2016-04-22T08:00:18","slug":"rabindra-kumar-dey-vs-state-of-orissa-on-31-august-1976","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rabindra-kumar-dey-vs-state-of-orissa-on-31-august-1976","title":{"rendered":"Rabindra Kumar Dey vs State Of Orissa on 31 August, 1976"},"content":{"rendered":"<div class=\"docsource_main\">Supreme Court of India<\/div>\n<div class=\"doc_title\">Rabindra Kumar Dey vs State Of Orissa on 31 August, 1976<\/div>\n<div class=\"doc_citations\">Equivalent citations: 1977 AIR  170, \t\t  1977 SCR  (1) 439<\/div>\n<div class=\"doc_author\">Author: S M Fazalali<\/div>\n<div class=\"doc_bench\">Bench: Fazalali, Syed Murtaza<\/div>\n<pre>           PETITIONER:\nRABINDRA KUMAR DEY\n\n\tVs.\n\nRESPONDENT:\nSTATE OF ORISSA\n\nDATE OF JUDGMENT31\/08\/1976\n\nBENCH:\nFAZALALI, SYED MURTAZA\nBENCH:\nFAZALALI, SYED MURTAZA\nBHAGWATI, P.N.\n\nCITATION:\n 1977 AIR  170\t\t  1977 SCR  (1) 439\n 1976 SCC  (4) 233\n CITATOR INFO :\n RF\t    1991 SC1853\t (6)\n\n\nACT:\n\t    Prevention\tof  Corruption Act, 1947--Sec.\t5(1)(c)\t and\n\t5(1)(d)\t r\/w  Sec. 5(2)--Misappropriating  Govt.  Funds--Re-\n\ttaining\t Govt.\tFunds  by  a  Govt.  servant--Evidence\tAct.\n\tSec.  154--When can a witness be declared hostile--Can\tevi-\n\tdence  of a hostile witness be accepted-- Evidence Act\tSec.\n\t105--onus    of\t   proving   exceptions\t  in\tI.P.C.\t  on\n\taccused---Degree  of  proof--Criminal  Trial-Effect  of\t non\n\texamination of material witness--Conviction on evidence\t  of\n\ta  solitary witness--Whether adverse inference can be  drawn\n\tagainst accused\t for not leading evidence--Onus of  prosecu-\n\ttion--Presumption of innocence.\n\n\n\nHEADNOTE:\n\t    The\t appellant ,who was the Additional  District  Magis-\n\ttrate in overall charge ,of the Nizarat and the Land  Acqui-\n\tsition sections of the Collectorate was charged for criminal\n\tmisconduct under section 5(2) read with section 5(1)(c)\t and\n\t5(1  ) (d) of the Prevention of Corruption Act,\t 1947.\t The\n\tallegation against the appellant was that he withdrew a\t sum\n\tof Rs. 10,000\/- on 9-1-1965 on the ground that he wanted  to\n\tdistribute the said amount amongst the villagers whose\tland\n\twas acquired as the compensation; that in fact the appellant\n\tnever  wanted  to  distribute the said amount  and  that  he\n\tretained,the  money with him for about 6 months\t dishonestly\n\tand only after that the money was deposited in the Treasury.\n\tThe  defence of the appellant was that the Secretary of\t the\n\tWorks  Department  called a meeting in\tthe  Secretariat  on\n\t25-9-1964- and that the appellant was expressly directed  to\n\tproceed to the spot and persuade the villagers to accept the\n\tcompensation  money;  that it was pursuant to  that  mandate\n\tthat  the appellant withdrew the money on 9-1-1965; that  he\n\tcould not go to the village in question in that day  because\n\tone of the officers who was to accompany him was not  avail-\n\table;  that  he, therefore, again deposited the\t money\tback\n\twith  the  Nazir and collected the money from him  again  on\n\t20-1-1975; that he went there along with several  officials;\n\tthat the villagers, however, refused to accept the compensa-\n\ttion.  The  appellant was, however, hopeful of\tgetting\t the\n\tcompensation increased and     to persuade the villagers  to\n\taccept\tthe increased compensation.  He, therefore,  on\t his\n\treturn\thanded over the money to the Nazir,  however,  asked\n\thim  not  to deposit the same in the Treasury so  that\tcash\n\twould be readily available as soon as needed.\n\t    Nazir  was\texamined by the prosecution  and  he  denied\n\thaving\treceived  the money as suggested by  the  appellant.\n\tSecretary  of the Works Department was not examined  by\t the\n\tprosecution. The Land Acquisition Officer PW 8 deposed\tthat\n\tthe  Secretary\tdirected the appellant to  take\t action\t for\n\tpayment of the compensation money to the villagers and\tthat\n\tthe  appellant should personally persuade the  villagers  to\n\taccept\tthe  compensation.  The said witness  was,  however,\n\tdeclared hostile on the ground that he did not state to\t the\n\tPolice\tthat when the appellant and the\t Executive  Engineer\n\tvisited\t the village they did not persuade the villagers  to\n\treceive\t the compensation amount.  PW 7 the Executive  Engi-\n\tneer  deposed that he accompanied the appellant to the\tvil-\n\tlage and that the appellant tried to persuade the  villagers\n\tto  receive  the compensation but that they  refused\t  to\n\taccept\tthe  same.  This witness was also  declared  hostile\n\tbecause\t of certain minor omissions in his statement  before\n\tthe  Police.  PW 6, one of the villagers also  deposed\tthat\n\tthe  appellant persuaded them to give up possession but\t the\n\tvillagers  did\tnot agree. This witness\t was  also  declared\n\thostile\t because  he  omitted state some  facts\t before\t the\n\tPolice.\n\t    The\t Trial Court and the High Court relying on the\tevi-\n\tdence of Nazir and certain documents convicted the appellant\n\tunder  section 5(1)(c) and 5(1)(d) read with section  5(2)of\n\tthe Prevention of Corruption Act, 1947.\n\t12--1104SCI\/76\n\t440\n\tAllowing the appeal by Special Leave,\n\t    HELD:  1. In a charge of misappropriation once  the\t en-\n\ttrustment of money is proved and although the onus to  prove\n\tthe entrustment is on the prosecution. if the explanation of\n\tthe  accused is found to be false he must be   presumed\t  to\n\thave retained the money with himself.  [444 A-B]\n\t    <a href=\"\/doc\/1739302\/\">Jaikrishnadas  Manohardas  Desai and Anr.  v.  State  of\n\tBombay,<\/a>\t [1960]\t 3 S.C.R. 319. 324; followed.\n\t    2. Three principles of criminal jurisprudence which\t are\n\twell settled are as under:\n\t\t    (i)\t that  the onus ties  affirmatively  on\t the\n\t\t prosecution  to  prove its case  beyond  reasonable\n\t\t doubt\tand it cannot derive any benefit from  weak-\n\t\t ness or falsity of the defence version while  prov-\n\t\t ing its case;\n\t\t    (ii)  that in a criminal trial the accused\tmust\n\t\t be presumed to be innocent until he is proved to be\n\t\t guilty; and\n\t\t (iii)\tthat  the  onus\t of  the  prosecution  never\n\t\t shifts.  [444 G-H, 445 A]\n\t    3.\tUnder  section 105 of the Evidence Act the  onus  of\n\tproving\t exceptions mentioned in the Indian Penal Code\tlies\n\ton the accused but the said section does not at all indicate\n\tthe nature and the standard of proof required.\tIt is suffi-\n\tcient  if  the,\t accused is able to prove his  case  by\t the\n\tstandard  of preponderance of probabilities as envisaged  by\n\tsection 5 of the Evidence Act.\t[445 A-B]\n\t    Harbhajan  Singh  v. State of Punjab, [1965] 3 SCR\t235,\n\t241  and <a href=\"\/doc\/593031\/\">State of U.P. v. Ram Swarup &amp; Anr.<\/a> [1975] 1  S.C.R.\n\t409, 416-17, followed.\n\t    The\t accused succeeds if the probability of his  version\n\tthrows doubt on the presecution case.  He need not prove his\n\tcase to the hilt.  It is sufficient for the defence to\tgive\n\ta version which competes in probability with the prosecution\n\tversion\t for that would be sufficient to throw suspicion  on\n\tthe  prosecution case entailing its rejection by the  court.\n\t[445 B-C]\n\t    4.\tIn a criminal trial it is not at all  obligatory  on\n\tthe  accused to produce evidence in support of\this  defence\n\tand  for the purpose of proving his version he can  rely  on\n\tthe  admissions\t made  by prosecution witnesses\t or  on\t the\n\tdocuments  filed by the prosecution. The courts\t below\twere\n\tnot  justified\tin  drawing adverse  inference\tagainst\t the\n\taccused\t for not producing evidence in support his  defence.\n\tThe  prosecution cannot derive any strength or support\tfrom\n\tthe weakness of the defence case.  [446 E-G]\n\t    5.\tThe courts below erred in basing conviction  of\t the\n\tappellant  on  the sole testimony of  the  Nazir  completely\n\tignoring  the  important admissions made in  favour  of\t the\n\taccused\t by other prosecution witnesses, some of  whom\twere\n\tdeclared hostile and some were .not.  [446 H, 447 A]\n\t    6.\tNo  explanation is coming forth why  the  Secretary,\n\tWorks Department Who was a Government servant, has not\tbeen\n\texamined.  It was a part of the prosecution case that in the\n\tsaid  meeting the Secretary did not direct the appellant  to\n\tgo to the village for making payment. The prosecution  ought\n\tto  have examined the Accountant who was a material  witness\n\tin  order to unfold the prosecution narrative  itself.\t The\n\tcourt drew adverse inference  for  his non-examination.\n\t[447 D:E]\n\t    7. Section 154 of the Evidence Act confers. a discretion\n\ton  the court to permit a witness to be cross-examined by  a\n\tparty calling him. The section confers a judicial discretion\n\tand must be exercised judiciously and properly in the inter-\n\test  of\t justice.  The court will not nor.m.  ally  allow  a\n\tparty to cross-examine his own witness and declare the\tsame\n\thostile unless the court is Satisfied that the statement  of\n\tthe witness exhibits an element of hostility. or that he has\n\tresiled\t from a material statement which he made  before  an\n\tearlier authority.  [448 G-H, 449 A]\n\t441\n\t    <a href=\"\/doc\/1589322\/\">Dahyabhai  Chhaganbhai  Thakker  v.\t State\tof  Gujarat,<\/a>\n\t[1964] 7 S.C.R. 361, 368. 69. 70 followed.\n\t    Merely  because a witness in an unguarded moment  speaks\n\tthe truth which may not suit the prosecution or which may be\n\tfavourable to the accused, the discretion to allow the party\n\tconcerned  to  cross-examine  his own  witnesses  cannot  be\n\tallowed.  The contingency _of permitting the  cross-examina-\n\ttion  of the witness by the party calling him is  an  extra-\n\tordinary  phenomenon and permission should be given only  in\n\tspecial cases.\t[449 G-H, 450 C]\n\t    8.\tOn  the facts the court found that the\tTrial  Court\n\twrongly exercised its discretion in permitting the  prosecu-\n\ttion to cross-examine  its  own\t witnesses.\n\t  [451 F]\n\t   9.  Merely because a witness is declared hostile it\tdoes\n\tnot  make him unreliable so as to exclude his evidence\tfrom\n\tconsideration altogether.  [450 E-F]\n\tBhagwn Singh v. State of Haryana, [1976] 1 S.C.C. 389,\t391-\n\t92 followed.\n\t    10.\t The court found that the defence version  was\tren-\n\tdered  probable by the testimony  of  witnesses as  well  as\n\tdocuments.  [457 A-D]\n\t    11.\t The Court found that the Nazir was not\t a  reliable\n\twitness and that the courts below ought not to have acted on\n\this sole testimony.  [455-C]\n\n\n\nJUDGMENT:\n<\/pre>\n<p>\t    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 193<br \/>\n\tof 1971.\n<\/p>\n<p>\t    Appeal  by\tSpecial Leave from the\tJudgment  and  Order<br \/>\n\tdated  11-5-71 of the Orissa High Court in  Criminal  Appeal<br \/>\n\tNo. 14\/70.\n<\/p>\n<p>\t    Gobind   Das,  Mrs. Sunanda Bhandare, ,A. K. Mathur,  A.<br \/>\n\tK. Sharma and M.S. Bhandare, for the Appellant.<br \/>\n\tS.C. Agarwal and G.S. Chatterjee, for the Respondent.<br \/>\n\tThe Judgment of the Court was delivered<br \/>\n\t    FAZAL  ALl,\t J.  In this appeal by special\tleave,\t the<br \/>\n\tappellant  has been convicted for criminal misconduct  under<br \/>\n\ts.5(2) read with S.5(1) (c) of the Prevention of  Corruption<br \/>\n\tAct,  1947 and sentenced to rigorous imprisonment for  three<br \/>\n\tyears.\t He has also been convicted under s. 5(1)(d) of\t the<br \/>\n\tPrevention  of Corruption Act but no separate  sentence\t has<br \/>\n\tbeen passed thereunder.\t The  appellant preferred an .appeal<br \/>\n\tto  the High Court of Orissa against the order\t    of\tthe-<br \/>\n\tSpecial Judge which was, however, dismissed, and the convic-<br \/>\n\ttions  and  sentences imposed on him were confirmed  by\t the<br \/>\n\tHigh  Court.  Thereafter an application for leave to  appeal<br \/>\n\tto  this Court was made before the High Court, which  having<br \/>\n\tbeen refused the appellant obtained special leave from\tthis<br \/>\n\tCourt, and hence this appeal.\n<\/p>\n<p>\t    After  going through the judgments of the Courts  below,<br \/>\n\twe are constrained to observe that the High Court as well as<br \/>\n\tthe Trial Court have made a wholly wrong approach in  apply-<br \/>\n\ting  the provisions of the Prevention of Corruption  Act  in<br \/>\n\tthe  case  of the appellant.  Put briefly,  the\t prosecution<br \/>\n\tcase was as follows:\n<\/p>\n<p>\t    The\t appellant was the Additional  District\t Magistrate,<br \/>\n\tCuttack from September 1964 to June 1966 and in that capaci-<br \/>\n\tty he was in<br \/>\n<span class=\"hidden_text\">\t442<\/span><br \/>\n\toverall charge of the Nizarat and land acquisition  sections<br \/>\n\tof the Collectorate.  Sayad Allamuddian Ahmed P.W. 8 was the<br \/>\n\tDistrict Land Acquisition Officer and one A. Ballav  Pradhan<br \/>\n\tP.W.  9 was the Nizarat Officer, whereas Prahalad  Mahapatra<br \/>\n\tP.W.  1\t was  the Nazir and Rajkishore Das P.W.\t 2  was\t the<br \/>\n\tAssistant Nazir\t under\tP.W. 1 P.W. 3 Bhakta Charan  Mohanti<br \/>\n\twas the Land Acquisition Inspector. It appears that a number<br \/>\n\tof  lands  had been acquired by the Government\tfor  certain<br \/>\n\tpublic\tprojects  in  various  villages\t particularly  Mauza<br \/>\n\tBalichandrapur\twith which we are concerned in\tthe  present<br \/>\n\tcase.  A huge compensation amount to be given to land-owners<br \/>\n\thad been deposited in the treasury for payment to them.\t  It<br \/>\n\tappears\t that a sum of Rs. 31,793.85 had been  disbursed  by<br \/>\n\tJuly  24,  1964 leaving a balance of Rs.  11,650-61  but  no<br \/>\n\tdisbursement could be made between July 24, 1964 and January<br \/>\n\t20, 1965 as the villagers refused to accept the payments and<br \/>\n\twanted\tthe  Land Acquisition proceedings to  be  withdrawn.<br \/>\n\tThe prosecution case further is that the appellant as  Addi-<br \/>\n\ttional District Magistrate attended a meeting at the  Secre-<br \/>\n\ttariat in the office of the Secretary of Works Department at<br \/>\n\tBhubaneswar  on September 25, 1964 where  certain  decisions<br \/>\n\twere taken.  There appears to be some divergence of  opinion<br \/>\n\tbetween\t the appellant and the prosecution on the  delibera-<br \/>\n\ttions  of  the\taforesaid meeting which\t we  shall  consider<br \/>\n\tlater.\t It is further alleged that on January 9,  1965\t the<br \/>\n\tappellant  directed  the  Nazir\t to pay him  a\tsum  of\t Rs.<br \/>\n\t10,000\/from  the cash which remained with the Nazir  P.W.  1<br \/>\n\tfor  the  purpose of distributing the amount  to  the  land-<br \/>\n\towners\tof  the village Balichandrapur.\t  As,  however,\t the<br \/>\n\tA.D.M.&#8217;s  visit\t to  Balichandrapur  could  not\t materialise<br \/>\n\tbecause the Executive Engineer with whom he was to go  there<br \/>\n\twas  not available, the visit was postponed and\t the  A.D.M.<br \/>\n\twent to some other place.  On January 20, 1965 the appellant<br \/>\n\tagain took a sum of Rs. 10,000\/- from the Nazir and  decided<br \/>\n\tto visit the village Balichandrapur along with the Executive<br \/>\n\tEngineer  and  the Land Acquisition Inspector.\tIt  is\tsaid<br \/>\n\tthat  the S.D.O., P.W.D., also accompanied the party to\t the<br \/>\n\tvillage\t Balichandrapur,  and the case of the  appellant  is<br \/>\n\tthat the Land Acquisition Inspector also travelled to  Bali-<br \/>\n\tchandrapur with the appellant, though this fact is  disputed<br \/>\n\tby  the\t Land Acquisition Inspector.  It  is,  however,\t the<br \/>\n\tadmitted  case\tof the prosecution that there ,was  no\tdis-<br \/>\n\tbursement  in village  Balichandrapur  and   thereafter\t the<br \/>\n\tamount of Rs. 10,000\/- was not deposited with the Nazir\t but<br \/>\n\tremained  in the personal custody of the appellant  who\t ap-<br \/>\n\tpears to have retained it dishonestly for about six  months.<br \/>\n\tThis  is the gravamen of the charges against the  appellant.<br \/>\n\tWe  may also mention that the amount was paid to  the  Nazir<br \/>\n\ttowards\t the end of September 1965 when it was deposited  in<br \/>\n\tthe  treasury. On receiving certain applications, the  Vigi-<br \/>\n\tlance  Organisation  of the State of  Orissa  instituted  an<br \/>\n\tinquiry against the appellant and after completing the\tsame<br \/>\n\tlodged\ta  formal  F.I.R. on May 13,  1966.   The  appellant<br \/>\n\tthereafter  was\t challaned  under various  sections  of\t the<br \/>\n\tPrevention  of\tCorruption Act and ultimately  convicted  as<br \/>\n\tindicated above.\n<\/p>\n<p>\t    The\t case  of  the appellant was that he  had  no  doubt<br \/>\n\twithdrawn a sum of Rs. 10,000\/- from the Nazir on January 9,<br \/>\n\t1965  but on his return from tour as he could  not  disburse<br \/>\n\tthe money to the<br \/>\n<span class=\"hidden_text\">\t443<\/span><br \/>\n\tvillagers  he  had returned it to the Nazir  at\t Cuttack  on<br \/>\n\tJanuary 13, 1965.  When, however, he again decided to go  to<br \/>\n\tthe village with the Executive Engineer and others on  Janu-<br \/>\n\tary  20,  1965 he again directed the Nazir to  pay  him\t the<br \/>\n\tamount\tfor disbursement.  He went to the village  Balichan-<br \/>\n\tdrapur\tand  tried to persuade the villagers to\t accept\t the<br \/>\n\tcompensation  amount so that the Government project  may  be<br \/>\n\tstarted\t as  soon as possible.\tThe  villagers\twanted\tsome<br \/>\n\tother  alignment  to  be made or the  compensatioion  to  be<br \/>\n\tincreased,  and the appellant persuaded them to accept\tpart<br \/>\n\tpayment and assured them that he will try to get the  amount<br \/>\n\tincreased.   It was also the definite case of the  appellant<br \/>\n\tthat in the meeting held in the secretariat on September 25,<br \/>\n\t1964, the appellant was expressly directed to proceed to the<br \/>\n\tspot and persuade the villagers to  accept the\tcompensation<br \/>\n\tmoney  and  it was in consequence of this mandate  from\t the<br \/>\n\tSecretary     of works Department that the A.D.M.  proceeded<br \/>\n\tto the village Balichandrapur and made all possible  efforts<br \/>\n\tto  persuade  the  tenants to accept  compensation  even  by<br \/>\n\tholding\t out promises to them.\tUnfortunately, however,\t the<br \/>\n\tvillagers  refused to accept the compensation and the  party<br \/>\n\thad  to\t come back to Cuttack disappointed.   The  appellant<br \/>\n\tfurther\t seemed\t to suggest that although he had  failed  to<br \/>\n\tpersuade  the villagers to accept the money he had not\tcom-<br \/>\n\tpletely\t lost all hopes and that there was a possibility  of<br \/>\n\tthe  villagers coming round to his point of view  and  ulti-<br \/>\n\tmately\tdecide\tto accept the  compensation   and  for\tthis<br \/>\n\treason the appellant returned the sum of Rs. 10,000\/- to the<br \/>\n\tNazir on his return from the village but directed him not to<br \/>\n\tdeposit the same in the treasury or to make any entry in the<br \/>\n\tCash  Register so that if the villagers came to\t Cuttuck  to<br \/>\n\tdemand\tthe money they could be given the  same\t immediately<br \/>\n\twithout any formality of a fresh withdrawal.  The  appellant<br \/>\n\tfurther averred\t that because  of some personal\t jealousies,<br \/>\n\ta false complaint was made against him which necessitated an<br \/>\n\tinquiry.  The Courts below accepted the prosecution case and<br \/>\n\tdisbelieved the version of the defence completely. The\tHigh<br \/>\n\tCourt  has  found that as the entrustment was\tproved\t and<br \/>\n\tadmitted by the appellant himself and the explanation  given<br \/>\n\tby  him was absolutely false, this would lead to  the  irre-<br \/>\n\tsistible inference that the appellant had temporarily misap-<br \/>\n\tpropriated the money.  It was also suggested by the prosecu-<br \/>\n\ttion that at the relevant time the appellant was building  a<br \/>\n\thouse and he had already applied for loans from the  Govern-<br \/>\n\tment and it may be that for this purpose he might have\tbeen<br \/>\n\tin need of the money to build his house.\n<\/p>\n<p>\t    One of the essential peculiarities of this case is\tthat<br \/>\n\tas  many as three witnesses examined by the  prosecution  to<br \/>\n\tprove its case, namely, P.Ws. 6, 7 and 8, had been  declared<br \/>\n\thostile\t and the Public Prosecutor sought permission of\t the<br \/>\n\tCourt  to  cross-examine those witnesses which\twas  readily<br \/>\n\tallowed.  According to the prosecution these witnesses tried<br \/>\n\tto  help the accused and made certain statements which\tsup-<br \/>\n\tported\tthe case of the appellant and, therefore, had to  be<br \/>\n\tcrossexamined by the prosecution.\n<\/p>\n<p>\t    Having  regard  to the stand taken by the  parties,\t the<br \/>\n\tmatter\tlies  within a very narrow compass.  So far  as\t the<br \/>\n\tentrustment of Rs.\n<\/p>\n<p><span class=\"hidden_text\">\t444<\/span><\/p>\n<p>\t10,000\/-  is concerned that is undoubtedly admitted  by\t the<br \/>\n\tappellant, and the only explanation given by him is that  he<br \/>\n\thad  returned the money to the Nazir after his\treturn\tfrom<br \/>\n\tthe  village  Balichandrapur and he had\t also  directed\t the<br \/>\n\tNazir not to deposit the money in the treasury.\t If once the<br \/>\n\texplanation  of the accused is disbelieved, or proved to  be<br \/>\n\tabsolutely  false, then it is quite natural that he must  be<br \/>\n\tpresumed  to  have  retained the money with  himself  for  a<br \/>\n\tperiod of six months.  Although the Onus lies on the  prose-<br \/>\n\tcution\tto prove the charge against the accused,  yet  where<br \/>\n\tthe entrustment is proved or admitted it will be  difficult.<br \/>\n\tfor  the prosecution to prove the actual mode or  manner  of<br \/>\n\tmisappropriation  and in such a case the  prosecution  would<br \/>\n\thave  to  rely largely on the truth or the  falsity  of\t the<br \/>\n\texplanation given by the accused.  In Jaikrishnadas Manohar-<br \/>\n\tdas Desai and Anr. v. State of Bombay(1) this Court observed<br \/>\n\tas follows:\n<\/p>\n<p>\t\t       &#8220;The  principal\tingredient  of\tthe  offence<br \/>\n\t\t being\tdishonest  misappropriation  or\t  conversion<br \/>\n\t\t which\tmay  not ordinarily be a  matter  of  direct<br \/>\n\t\t proof,\t entrustment  of  property  and\t failure  in<br \/>\n\t\t breach of an obligation to account for the property<br \/>\n\t\t entrusted,  if\t proved, may in the light  of  other<br \/>\n\t\t circumstances, justifiably lead to an inference  of<br \/>\n\t\t dishonest misappropriation on conversion.   Convic-<br \/>\n\t\t tion of a person for the offence of criminal breach<br \/>\n\t\t of  trust may not, in all cases, be founded  merely<br \/>\n\t\t on his failure to account for the property entrust-<br \/>\n\t\t ed to him, of over which he has dominion, even when<br \/>\n\t\t a duty to account is imposed upon him, but where he<br \/>\n\t\t is unable to account or renders an explanation\t for<br \/>\n\t\t his  failure to account which is untrue, an  infer-<br \/>\n\t\t ence of misappropriation with dishonest intent\t may<br \/>\n\t\t readily be made.&#8221;\n<\/p>\n<p>\tThe  Courts below appear to have convicted the appellant  on<br \/>\n\tthe  basis of the decision referred to above and  have\theld<br \/>\n\tthat since the explanation given by the appellant was false,<br \/>\n\tan  inference of misappropriation could reasonably be  drawn<br \/>\n\tagainst\t him.  This proposition cannot be doubted.  But\t the<br \/>\n\tquestion is whether the\t explanation given  by the appellant<br \/>\n\tin  this case can be said to be absolutely false ?   Another<br \/>\n\tquestion  that\tarises is what are the standards to  be\t em-<br \/>\n\tployed in order to judge the truth or falsity of the version<br \/>\n\tgiven  by  the defence ? Should the accused prove  his\tcase<br \/>\n\twith the same amount of rigour and certainty, as the  prose-<br \/>\n\tcution\tis  required, to prove a criminal charge, or  it  is<br \/>\n\tsufficient if the accused puts forward a probable or reason-<br \/>\n\table  explanation which is sufficient to  throw\t  doubt\t  on<br \/>\n\tthe prosecution case ?\tIn our opinion three cardinal  prin-<br \/>\n\tciples of criminal jurisprudence are well-settled, namely:\n<\/p>\n<p>\t\t     (1)  that\tthe onus lies affirmatively  on\t the<br \/>\n\t\t prosecution   to prove its case beyond\t  reasonable<br \/>\n\t\t doubt\tand it cannot derive any benefit from  weak-<br \/>\n\t\t ness or falsity of the defence version while  prov-<br \/>\n\t\t ing its case;\n<\/p>\n<p>\t(1) [1960] 3 S.C.R. 319, 324.\n<\/p>\n<p><span class=\"hidden_text\">\t445<\/span><\/p>\n<p>\t\t     (2)  that in a criminal trial the accused\tmust<br \/>\n\t\t be presumed to be innocent unless he is. proved to.<br \/>\n\t\t be guilty; and<br \/>\n\t\t (3) that the onus of the prosecution never shifts.<br \/>\n\tIt  is true that under section 105 of the Evidence  Act\t the<br \/>\n\tonus  of  proving exceptions mentioned in the  Indian  Penal<br \/>\n\tCode  lies on the accused, but this section does not at\t all<br \/>\n\tindicate  the nature and .standard of proof  required.\t The<br \/>\n\tEvidence  Act does not contemplate that the  accused  should<br \/>\n\tprove  his case with the same strictness and rigour  as\t the<br \/>\n\tprosecution  is\t required to prove a  criminal\tcharge.\t  In<br \/>\n\tfact,  from  the cardinal principles referred to  above,  it<br \/>\n\tfollows\t that,\tit is sufficient if the accused is  able  to<br \/>\n\tprove his case by the standard of preponderance of probabil-<br \/>\n\tities  as envisaged by s. 5 of the Evidence Act as a  result<br \/>\n\tof  which he succeeds not because he proves his case\t  to<br \/>\n\tthe hilt but because probability of the version given by him<br \/>\n\tthrows\tdoubt  on the prosecution case and,  therefore,\t the<br \/>\n\tprosecution  cannot be said to have established .the  charge<br \/>\n\tbeyond reasonable doubt.  In other words, the mode of proof,<br \/>\n\tby  standard of benefit of doubt, is not applicable  to\t the<br \/>\n\taccused,  where\t he is called upon to prove his case  or  to<br \/>\n\tprove the exceptions of the Indian Penal  Code on  which  he<br \/>\n\tseeks  to rely.\t It is sufficient for the defence to give  a<br \/>\n\tversion\t which competes in probability with the\t prosecution<br \/>\n\tversion, for  that would be sufficient to throw suspicion on<br \/>\n\tthe  prosecution case entailing its rejection by the  Court.<br \/>\n\tThis  aspect of the matter is no longer res integra  but  is<br \/>\n\tconcluded by several authorities of this Court.\t In  Harbha-<br \/>\n\tjan  Singh v. State  of\t Punjab (1)  this   Court   observed<br \/>\n\tas follows:\n<\/p>\n<p>\t\t  &#8220;But the question which often arises and has\tbeen<br \/>\n\t\t frequently  considered\t by  judicial  decisions  is<br \/>\n\t\t whether the nature and extent of the onus of  proof<br \/>\n\t\t placed on an accused person who claims the  benefit<br \/>\n\t\t of  an Exception is exactly the same as the  nature<br \/>\n\t\t and extent of the onus placed on the prosecution in<br \/>\n\t\t a criminal case; and there is consensus of judicial<br \/>\n\t\t opinion in favour of the view that where the burden<br \/>\n\t\t of  an issue lies upon the accused, he is  not\t re-<br \/>\n\t\t quired to discharge that burden by leading evidence<br \/>\n\t\t to prove his case beyond a reasonable doubt.  That,<br \/>\n\t\t no  doubt,  is the test prescribed  while  deciding<br \/>\n\t\t whether the prosecution has discharged its onus  to<br \/>\n\t\t prove\tthe guilt of the accused; but that is not  a<br \/>\n\t\t test which can be applied to an accused person\t who<br \/>\n\t\t seeks\tto  prove substantially his claim  that\t his<br \/>\n\t\t case  falls under an Exception.  Where\t an  accused<br \/>\n\t\t person is called upon to prove that his case  fails<br \/>\n\t\t under\tan  Exception, law treats the onus  as\tdis-<br \/>\n\t\t charged if the accused person succeeds &#8220;in  proving<br \/>\n\t\t a  preponderance of probability.&#8221;  As soon  as\t the<br \/>\n\t\t preponderance of probability is proved, the  burden<br \/>\n\t\t shifts\t to.  the  prosecution which  has  still  to<br \/>\n\t\t discharge its original onus. It must be  remembered<br \/>\n\t\t that basically, the original  onus<br \/>\n\t(1) [1965] 3 S.C.R. 235, 241<br \/>\n<span class=\"hidden_text\">\t446<\/span><br \/>\n\tnever  shifts and the prosecution has, at all stages of\t the<br \/>\n\tcase, to prove the guilt of the accused beyond a  reasonable<br \/>\n\tdoubt.&#8221;\n<\/p>\n<p>\tThe same view was taken in a later case in <a href=\"\/doc\/593031\/\">State of U.P.  v.<br \/>\n\tRam Swarup &amp; Anr.<\/a>(1) where this Court observed as follows:\n<\/p>\n<p>\t\t       &#8220;That  is  to  say, an accused  may  fail  to<br \/>\n\t\t establish  affirmatively the existence\t of  circum-<br \/>\n\t\t stances which would bring the case within a general<br \/>\n\t\t exception  and\t yet  the  facts  and  circumstances<br \/>\n\t\t proved\t by him while discharging the  burden  under<br \/>\n\t\t section  105 of the Evidence Act may be  enough  to<br \/>\n\t\t cast a reasonable doubt on the case of the prosecu-<br \/>\n\t\t tion,\tin  which event he would be entitled  to  an<br \/>\n\t\t acquittal.   The burden which rests on the  accused<br \/>\n\t\t to prove the exception is not of the same rigour as<br \/>\n\t\t the  burden of the prosecution to prove the  charge<br \/>\n\t\t beyond\t a reasonable doubt.  It is enough  for\t the<br \/>\n\t\t accused  to  show,  as in a civil  case,  that\t the<br \/>\n\t\t preponderence of probabilities is in favour of\t his<br \/>\n\t\t plea.&#8221;\n<\/p>\n<p>\t    While the Courts below have enunciated the law  correct-<br \/>\n\tly, they seem to have applied it wrongly by overlooking\t the<br \/>\n\tmode and nature of proof that is required of the  appellant.<br \/>\n\tA  perusal of the oral and documentary evidence led  by\t the<br \/>\n\tparties\t goes  to show that the Courts not only\t sought\t the<br \/>\n\tstrictest  possible proof from the appellant  regarding\t the<br \/>\n\texplanation  given by him, but went to. the extent  of\tmis-<br \/>\n\tplacing\t the onus on.the accused to prove even the  prosecu-<br \/>\n\ttion  case by rejecting the admissions made by the  prosecu-<br \/>\n\ttion  witnesses\t and by not relying on the  documents  which<br \/>\n\twere  in power and possession of the prosecution  itself  on<br \/>\n\tthe  speculative  assumption  that they\t were  brought\tinto<br \/>\n\texistence  by the accused through the aid of  the  officers.<br \/>\n\tFurther more, the Courts below have failed to consider\tthat<br \/>\n\tonce the appellant gives a reasonable and probable  explana-<br \/>\n\ttion, it is for the  prosecution to prove affirmatively that<br \/>\n\tthe  explanation is absolutely false.  In a criminal  trial,<br \/>\n\tit  is not at all obligatory on the accused to produce\tevi-<br \/>\n\tdence  in  support  of his defence and for  the\t purpose  of<br \/>\n\tproving\t his version he can rely on the admissions  made  by<br \/>\n\tthe  prosecution witnesses or  on the  documents  field\t  by<br \/>\n\tthe  prosecution. In  these circumstances,  the Court has to<br \/>\n\tprobe  and  consider the  materials relied upon by  the\t de-<br \/>\n\tfence  instead of raising an adverse  inference against\t the<br \/>\n\taccused,  for not producing  evidence in  support   of\t his<br \/>\n\tdefence, because as we have already stated that the prosecu-<br \/>\n\ttion  can not derive any strength or support from the  weak-<br \/>\n\tness  of the defence case.  The prosecution has to stand  on<br \/>\n\tits  own  legs,\t and if it fails to prove  its\tcase  beyond<br \/>\n\treasonable  doubt,  the entire edifice\tof  the\t prosecution<br \/>\n\twould  crumble down.  Thus it would appear to us  that\tboth<br \/>\n\tthe  Courts below have made an absolutely wrong approach  in<br \/>\n\tdeciding  the  truth  of the defence version  and  have\t not<br \/>\n\tfollowed  principles laid down by this Court in judging\t the<br \/>\n\tcase of the accused.\n<\/p>\n<p>\t    The Courts below have based the conviction of the appel-<br \/>\n\tlant   on  the sole testimony of P.W. 1 the  Nazir  who\t has<br \/>\n\tcategorically stated<br \/>\n\t(1) [1975] 1.S.C.R. 409, 416-17.\n<\/p>\n<p><span class=\"hidden_text\">\t447<\/span><\/p>\n<p>\tin  the\t Court\tthat the appellant had taken a\tsum  of\t Rs.<br \/>\n\t10,000\/- on January 9, 1965 and thereafter he never returned<br \/>\n\tthis  amount  to the Nazir until September  30,\t 1965.\t The<br \/>\n\tCourts\tbelow have chosen to place implicit reliance on\t the<br \/>\n\tevidence of P.W. 1 completely ignoring the important  admis-<br \/>\n\tsions  made in favour of the accused  by  other\t prosecution<br \/>\n\twitnesses  some\t of whom were declared hostile and  some  of<br \/>\n\twhom  were  not.  Before analysing the evidence, it  may  be<br \/>\n\tnecessary  to  describe\t the exact allegation  made  by\t the<br \/>\n\tprosecution against the accused.  The starting point of\t the<br \/>\n\tcase  is a meeting which is said to have taken place in\t the<br \/>\n\tSecretariat on September 25, 1964  in which according to the<br \/>\n\tappellant  he was positively directed to visit the  villages<br \/>\n\tand persuade the land-owners to receive the compensation and<br \/>\n\tthis  formed the occasion for the A.D.M. to  have  withdrawn<br \/>\n\tthe  money to visit the spot with the money.   According  to<br \/>\n\tthe   prosecution no such decision was at all taken  in\t the<br \/>\n\tmeeting\t and the visit to the village  Balichandrapur  might<br \/>\n\thave been for some other purpose and the question of distri-<br \/>\n\tbution was  only a pretext invented by the accused to shield<br \/>\n\this  guilt.  We would, therefore, now take up  the  evidence<br \/>\n\tregarding the meeting said to have taken place on  September<br \/>\n\t25,  1964.  We might also mention that the  learned  Special<br \/>\n\tJudge has believed the statement of the accused that he\t did<br \/>\n\tattend the meeting in the Secretariat on September 25, 1964,<br \/>\n\tas  would appear from the finding given by him at p.  79  of<br \/>\n\tthe Paper Book.\t What the Special Judge has not accepted  is<br \/>\n\tthe  assertion of the accused that he had been\tdirected  to<br \/>\n\tvisit  the village personally and distribute the amounts  to<br \/>\n\tthe  villagers.\t The meeting is said to have been called  by<br \/>\n\tthe  Secretary Works Department and therefore the  Secretary<br \/>\n\tWorks  Department was the best person who would have  thrown<br \/>\n\tlight on the subject and would have clinched the issue.\t The<br \/>\n\tSecretary,  Works  Department, was a Government servant\t and<br \/>\n\tit  was\t not at all difficult for the  prosecution  to\thave<br \/>\n\texamined him to settle the controversy on this matter.\t For<br \/>\n\tthe  reasons best known to the prosecution,  the  Secretary,<br \/>\n\tWorks  Department, was not at all examined and we   have  to<br \/>\n\tdecide\tthis question on the basis of oral  and\t documentary<br \/>\n\tevidence  produced by the prosecution.\tThe  Special  Judge,<br \/>\n\tinstead of drawing an adverse inference against the prosecu-<br \/>\n\ttion,  has  placed the onus on the accused  for\t not  having<br \/>\n\tsummoned  the Secretary, Works Department, as  a witness  in<br \/>\n\tdefence forgetting that it was part of the prosecution\tcase<br \/>\n\titself that no decision to distribute the amount was   taken<br \/>\n\tin   the meeting and therefore, the money was not taken\t for<br \/>\n\tdistribution  to tenants in the village but was misappropri-<br \/>\n\tated.\tIt was not for the defence to prove the\t prosecution<br \/>\n\tcase which formed the bulwark of     the charge of misappro-<br \/>\n\tpriation.   Further more, the Secretary,  Works\t Department,<br \/>\n\twas  a\thigh Officer of the Government and  he\t could\thave<br \/>\n\tthrown a flood of light on this question.\n<\/p>\n<p>\t    Now\t coming\t first to the oral evidence,  P.W.  8  Sayad<br \/>\n\tAllamuddin who was the Land Acquisition Officer Cuttack\t has<br \/>\n\ttestified to the fact that in the meeting held on  September<br \/>\n\t25,  1964 the appellant had been asked to take early  action<br \/>\n\tfor  payment  of compensation money by going  personally  to<br \/>\n\tpersuade  the  tenants.\t  Perhaps, it was  because  of\tthis<br \/>\n\tstatement,  that this witness was declared hostile, and\t the<br \/>\n\tprosecution<br \/>\n<span class=\"hidden_text\">\t448<\/span><br \/>\n\tsought\tpermission to cross-examine him.  The actual  state-<br \/>\n\tment made by him in the Court may be quoted thus:\n<\/p>\n<p>\t\t       &#8220;The  accused  had been asked to\t take  early<br \/>\n\t\t action\t for payment of the compensation  money,  by<br \/>\n\t\t going personally and by persuading the tenants.  It<br \/>\n\t\t was the duty  of  the accused to see that compensa-<br \/>\n\t\t tion amounts were paid for land acquisition.&#8221;<br \/>\n\tWhen the witness was declared hostile, all that was elicited<br \/>\n\tfrom him was as follows:\n<\/p>\n<p>\t\t       &#8220;It  is not a fact that I had not  stated  to<br \/>\n\t\t Investigating\tOfficer\t that the  accused  and\t the<br \/>\n\t\t Executive Engineer persuaded the tenants to receive<br \/>\n\t\t the  compensation amount.  It is not a fact that  I<br \/>\n\t\t had stated to the Investigating Officer that  while<br \/>\n\t\t we were returning, some people wanted to take\tpart<br \/>\n\t\t payments  for\tthe lands already acquired,  but  no<br \/>\n\t\t payment  was  made by the accused as we  were\tthen<br \/>\n\t\t leaving.&#8221;\n<\/p>\n<p>\tThus the prosecution even in cross-examination did not\tgive<br \/>\n\tany  suggestion\t that  the witness who was  present  in\t the<br \/>\n\tmeeting\t held  on September 25, 1964 had stated\t on  earlier<br \/>\n\toccasions that no decision was taken in the meeting  direct-<br \/>\n\ting  the accused to visit the village and persuade the\tten-<br \/>\n\tants to receive the compensation amounts.  He merely did not<br \/>\n\tstate to the police that when the accused and the  Executive<br \/>\n\tEngineer visited the spot they did not persuade the  tenants<br \/>\n\tto  receive the compensation amounts.  This was\t a case\t  of<br \/>\n\ta mere omission of a broad detail and not a case of  contra-<br \/>\n\tdiction.   In  these circumstances, therefore, the  evidence<br \/>\n\tof this witness on the question as to what transpired in the<br \/>\n\tmeeting and the nature of the directions given to the appel-<br \/>\n\tlant remains unchallenged, and even if\the  was declared  to<br \/>\n\tbe  a  hostile witness, he does not cease to be\t a  reliable<br \/>\n\twitness. if the Court chooses to accept his testimony.<br \/>\n\t    Before proceeding further we might like to state the law<br \/>\n\ton  the subject at this stage.\tSection 154 of the  Evidence<br \/>\n\tAct  is the only provision under which a party\tcalling\t its<br \/>\n\town  witnesses may claim permission of the Court  to  cross-<br \/>\n\texamine them.  The  section  runs thus:\n<\/p>\n<p>\t\t       &#8220;The  Court may in its discretion permit\t the<br \/>\n\t\t person\t who calls a witness to put any question  to<br \/>\n\t\t him which might be put in cross-examination by\t the<br \/>\n\t\t adverse party.&#8221;\n<\/p>\n<p>\tThe  section confers a judicial discretion on the  Court  to<br \/>\n\tpermit crossexamination and does not contain any  conditions<br \/>\n\tor  principles which may govern the exercise of\t discretion.<br \/>\n\tIt  is,\t however,  well-settled that the discretion must  be<br \/>\n\tjudiciously  and  properly  exercised in  the  interests  of<br \/>\n\tjustice.   The\tlaw on the subject is  well-settled  that  a<br \/>\n\tparty will not normally be allowed to cross-examine its\t own<br \/>\n\twitness\t  and declare the same hostile, unless the Court  is<br \/>\n\tsatisfied  that\t the statement of the  witness\texhibits  an<br \/>\n\telement of  hostility or that he  has<br \/>\n<span class=\"hidden_text\">\t449<\/span><br \/>\n\tresiled\t from a material statement which he made  before  an<br \/>\n\tearlier\t authority or where the Court is satisfied that\t the<br \/>\n\twitness is not speaking the truth and it may be necessary to<br \/>\n\tcross-examine him to get out the truth.\t One of the  glaring<br \/>\n\tinstances  in  which this Court sustained the order  of\t the<br \/>\n\tCourt  in allowing cross-examination was where\tthe  witness<br \/>\n\tresiles from a very material statement regarding the  manner<br \/>\n\tin which the accused committed the offence.    In  Dahyabhai<br \/>\n\tChaganbhai  Thakker v..State of Gujarat(1) this\t Court\tmade<br \/>\n\tthe following observations:\n<\/p>\n<p>\t\t       &#8220;Section 154 does not in terms, or by  neces-<br \/>\n\t\t sary implication confine the exercise of the  power<br \/>\n\t\t by  the  court before the  examination-in-chief  is<br \/>\n\t\t concluded or to any particular stage of the  exami-<br \/>\n\t\t nation of the witness.\t It is wide in scope and the<br \/>\n\t\t discretion  is entirely left to the court to  exer-<br \/>\n\t\t cise  the power when the circumstances\t demand.  To<br \/>\n\t\t confine this power to the stage of  examination-in-<br \/>\n\t\t chief\tis  to make it ineffective in  practice.   A<br \/>\n\t\t clever\t witness in his examination-in-chief  faith-<br \/>\n\t\t fully\tconforms to what he stated earlier  to.\t the<br \/>\n\t\t police\t or  in\t the committing court,\tbut  in\t the<br \/>\n\t\t cross-examination   introduces\t statements.  in   a<br \/>\n\t\t subtle way contradicting in effect what he  ;stated<br \/>\n\t\t in  the  examination-in-chief.\t If  his  design  is<br \/>\n\t\t obvious,  we  do  not see  why\t the  court  cannot,<br \/>\n\t\t during\t the course of his cross-examination, permit<br \/>\n\t\t the  person calling him as a witness to  put  ques-<br \/>\n\t\t tions\tto him which might be put in cross  examina-<br \/>\n\t\t tion by the adverse party.&#8221;\n<\/p>\n<p>\t\t       &#8220;Broadly stated, the position in the  present<br \/>\n\t\t case  is  that the witnesses  in  their  statements<br \/>\n\t\t before\t the police attributed a clear intention  to<br \/>\n\t\t the   accused\tto  commit  murder, but\t before\t the<br \/>\n\t\t court they stated that the accused was insane\tand,<br \/>\n\t\t therefore, he committed the murder.&#8221;\n<\/p>\n<p>\tA  perusal of the above observations will  clearly  indicate<br \/>\n\tthat the permission to cross-examination was upheld by\tthis<br \/>\n\tCourt because the witnesses had categorically stated  before<br \/>\n\tthe  police  that the accused had committed the\t murder\t but<br \/>\n\tresiled\t from  that  statement and made out a  new  case  in<br \/>\n\tevidence before the Court that the accused was insane.\tThus<br \/>\n\tit  is clear that before a witness can be  declared  hostile<br \/>\n\tand  the party examining the witness is allowed\t to   cross-<br \/>\n\texamine\t him, there must be some material to show  that\t the<br \/>\n\twitness\t is not speaking the truth or has exhibited an\tele-<br \/>\n\tment  of  hostility to the party for whom  he  is  deposing.<br \/>\n\tMerely\tbecause a witness in an unguarded moment speaks\t the<br \/>\n\ttruth  which  may not suit the prosecution or which  may  be<br \/>\n\tfavourable  to\tthe accused, the  discretion\t  allow\t the<br \/>\n\tparty concerned to cross-examine its own witnesses cannot be<br \/>\n\tallowed.   In  other words a witness should be\tregarded  as<br \/>\n\tadverse and liable to be cross-examined by the party calling<br \/>\n\thim only when the Court is satisfied that the witness  bears<br \/>\n\thostile animals against the party for whom he is deposing or<br \/>\n\tthat he does not appear<br \/>\n\t(1) [1964] 7 S.C.R. 361,368, 369-70.\n<\/p>\n<p><span class=\"hidden_text\">\t450<\/span><\/p>\n<p>\tto  be\twilling to tell the truth.  In\torder  to  ascertain<br \/>\n\tthe   intention\t of the witness or his\tconduct,  the  Judge<br \/>\n\tconcerned  may look into the statements made by the  witness<br \/>\n\tbefore the Investigating Officer or the previous authorities<br \/>\n\tto find out as to whether or not there is any indication  of<br \/>\n\tthe witness making a statement inconsistent on a most  mate-<br \/>\n\trial point with the one which he gave before  the i previous<br \/>\n\tauthorities.  The Court must, however, distinguish between a<br \/>\n\tstatement made by the witness by way of\t an unfriendly\t act<br \/>\n\tand  one which lets out the truth without any hostile inten-<br \/>\n\ttion.\n<\/p>\n<p>\t    It may be rather difficult to lay down a rule of univer-<br \/>\n\tsal  application  as to when and in what  circumstances\t the<br \/>\n\tCourt  will be entitled to exercise its discretion under  s.<br \/>\n\t154  of the Evidence Act and the matter will largely  depend<br \/>\n\ton  the\t facts\tand circumstances of such case\tand  on\t the<br \/>\n\tsatisfaction  of  the Court on the basis  of  those  circum-<br \/>\n\tstances.   Broadly,  however, this much is  clear  that\t the<br \/>\n\tcontingency  of\t cross-examining the witness  by  the  party<br \/>\n\tcalling\t him is an extra-ordinary phenomenon and  permission<br \/>\n\tshould be given only in special cases.\tIt seems to us\tthat<br \/>\n\tbefore\ta Court exercises discretion in declaring a  witness<br \/>\n\thostile,  there must be some material to show that the\twit-<br \/>\n\tness  has  gone\t back on his earlier  statement\t or  is\t not<br \/>\n\tspeaking the truth or has exhibited an element of  hostility<br \/>\n\tor  has\t changed sides and transferred his  loyalty  to\t the<br \/>\n\tadversary.  Further more, it is not merely on the basis of a<br \/>\n\tsmall  or insignificant omission that the witness  may\thave<br \/>\n\tmade  before the earlier authorities that the party  calling<br \/>\n\tthe  witness can ask the Court to exercise  its\t discretion.<br \/>\n\tThe  Court, before permitting the party calling the  witness<br \/>\n\tto cross-examine him, must scan and weigh the  circumstances<br \/>\n\tproperly and should not exercise its discretion in a  casual<br \/>\n\tor routine manner.\n<\/p>\n<p>\t    It is also clearly well settled that the mere fact\tthat<br \/>\n\ta  witness is declared hostile by the party calling him\t and<br \/>\n\tallowed to be crossexamined does not make him an  unreliable<br \/>\n\twitness\t so  as to exclude his evidence\t from  consideration<br \/>\n\taltogether.  In Bhagwan Singh v. State of Haryana(1),  Bhag-<br \/>\n\twati, J., speaking for\t  this Court  observed\tas follows:\n<\/p>\n<p>\t\t       &#8220;The  prosecution  could\t have  been  avoided<br \/>\n\t\t requesting  for  permission  to  cross-examine\t the<br \/>\n\t\t witness under Section 154 of the Evidence Act.\t But<br \/>\n\t\t the  fact  that the court gave\t permission  to\t the<br \/>\n\t\t prosecutor  to\t  cross-examine\t his   own  witness,<br \/>\n\t\t thus characterising him as, what is described as  a<br \/>\n\t\t hostile  witness,  does not completely\t efface\t his<br \/>\n\t\t evidence.  The evidence remains admissible  in\t the<br \/>\n\t\t trial\tand there is no legal bar to base a  convic-<br \/>\n\t\t tion  upon his testimony if corroborated  by  other<br \/>\n\t\t reliabIe evidence.&#8221;\n<\/p>\n<p>\t    Applying  these  principles, we would  now\texamine\t the<br \/>\n\tposition. So far as P.W. Sayad Allamuddin was concerned,  he<br \/>\n\twas  the   Land Acquisition Officer and\t merely\t because  he<br \/>\n\thappened to be working<br \/>\n\t[1976] 1 S.C.C. 389, 391-92.\n<\/p>\n<p><span class=\"hidden_text\">\t451<\/span><\/p>\n<p>\tunder  the  accused, there was no reason for him  to  depose<br \/>\n\tfalsely at a time when the appellant had been suspended\t and<br \/>\n\twas facing a trial before the Special Judge.  Further  more,<br \/>\n\ton  the basic point that the accused had been  asked in\t the<br \/>\n\tmeeting\t to go\tpersonally to the village and  persuade\t the<br \/>\n\ttenants\t  to  receive  compensation money nothing  has\tbeen<br \/>\n\telicited  from\thim even in cross-examination to  show\tthat<br \/>\n\tthis  statement was an after-thought  or  was in  any  event<br \/>\n\tincorrect  or  false.\tWe shall presently  show  that\tthis<br \/>\n\tstatement  is  supported by documents  of  an  unimpeachable<br \/>\n\tnature\twhich have been produced by the\t prosecution  itself<br \/>\n\tand  whose genuineness cannot be doubted.  Exhibit  2  which<br \/>\n\tis   a\tnote  by  this\twitness dated January 9,  1965\tlong<br \/>\n\tbefore\tan inquiry started against  the\t accused    contains<br \/>\n\tcategorically\ta  statement  which  runs  as follows:\n<\/p>\n<p>\t\t       &#8220;In the last meeting held in the\t Secretariat<br \/>\n\t\t the Secretary, Works Department suggested that\t the<br \/>\n\t\t A.D.M.\t  and  the  Executive  Engineer\t (R   &amp;\t  B)<br \/>\n\t\t should\t .try  to persuade the\tvillagers  and\tmake<br \/>\n\t\t payment of the compensation.&#8221;\n<\/p>\n<p>\t This note further shows that the appellant proposed to\t pay<br \/>\n\ta visit to the area along with the Executive Engineer and he<br \/>\n\thad  suggested that the A.D.M. should take an amount of\t Rs.<br \/>\n\t10,000\/-  for disbursement if the     villagers agreed\t  to<br \/>\n\treceive\t compensation.\tThis document, according to P.W.  1,<br \/>\n\tthe Nazir, who is the star  witness of the prosecution,\t was<br \/>\n\treceived  by him as far back as January 9, 1965\t along\twith<br \/>\n\tExt. 1 the order of the appellant directing the Nazir to pay<br \/>\n\thim Rs. 10,000\/-.  It would be impossible to suggest that as<br \/>\n\tearly as January 9, 1965 the witness Sayad Allamuddin  Ahmed<br \/>\n\tP.W.  8\t was fabricating this document\tregarding  an  event<br \/>\n\twhich  had taken three or four months ago without any  rhyme<br \/>\n\tor  reason.  Thus Ext. 2 fully corroborates the evidence  of<br \/>\n\tP.W.  8\t on the point as to what transpired at\tthe  meeting<br \/>\n\theld in the Secretariat and demolishes the prosecution\tcase<br \/>\n\tthat no instructions were given to the appellant on  Septem-<br \/>\n\tber  25, 1964 in the meeting for visiting the spot and\tper-<br \/>\n\tsuade  the tenants to accept compensation money.   In  these<br \/>\n\tcircumstances,\ttherefore, we feel that the Trial Court\t was<br \/>\n\tnot  at all justified in declaring P.W. 8 as a hostile\twit-<br \/>\n\tness  or in allowing the prosecution to\t cross-examine\thim.<br \/>\n\tEven  if  he was cross-examined his evidence appears  to  be<br \/>\n\tfully  acceptable and worthy of credence. He is a person  of<br \/>\n\tstatus\tand responsibility and there is nothing to show\t why<br \/>\n\the should depose falsely merely to help the accused  knowing<br \/>\n\tfull  well  that being a Government  servant  he  might\t  be<br \/>\n\tharmed if he made a false statement in order to support\t the<br \/>\n\tappellant.\n<\/p>\n<p>\t   This fact is further supported by another official  docu-<br \/>\n\tment which is Ext. 10, namely, the tour diary of the  appel-<br \/>\n\tlant  dated  January 7, 1965 to January 31, 1965.   In\tthis<br \/>\n\tdiary the appellant, as far back as January 7, 1965, made  a<br \/>\n\tclear  mention of the facts that transpired at\tthe  meeting<br \/>\n\tand stated thus:\n<\/p>\n<p>\t\t       &#8220;Discussed with Revenue Secretary   regarding<br \/>\n\t\t various  allegations of Kanika Tahasil pending\t for<br \/>\n\t\t enquiry.   He also wanted that I should  visit\t the<br \/>\n\t\t spot and enquire into the matter<br \/>\n<span class=\"hidden_text\">\t\t 452<\/span><br \/>\n\t\t personally  and also make a thorough  enquiry\tinto<br \/>\n\t\t the  various  encroachments  in  different   forest<br \/>\n\t\t blocks of Kanika Tahasil.&#8221;\n<\/p>\n<p>\tThis statement which is made in an official document in\t the<br \/>\n\tdischarge of his duties has been made even before the  money<br \/>\n\twas  sought to be withdrawn from the treasury and at a\ttime<br \/>\n\twhen  there was no dispute at all regarding the question  of<br \/>\n\tmisappropriation.  This document also fully corroborates the<br \/>\n\tevidence of P.W. 8.  Thus from the evidence of the  prosecu-<br \/>\n\ttion itself, the fact that in the meeting held in the Secre-<br \/>\n\ttariat\ta  decision  was taken by Which\t the  appellant\t was<br \/>\n\tdirected  to visit the village Balichandrapur  and  persuade<br \/>\n\tthe  tenants  to  accept the  compensation  has\t been  amply<br \/>\n\tproved.\t  The only person who could have  contradicted\tthis<br \/>\n\tfact  or falsified the same would have been  the  Secretary,<br \/>\n\tWorks  Department, in whose presence the meeting took  place<br \/>\n\twhom  the  prosecution\tdid not choose to  examine.  On\t the<br \/>\n\tmaterials produced by the prosecution itself, it is manifest<br \/>\n\tthat the prosecution has miserably failed to prove  that the<br \/>\n\tvisit  of the A.D.M. to the village Balichandrapur on  Janu-<br \/>\n\tary  9, 1965 was not in connection with the payment of\tcom-<br \/>\n\tpensation to the villagers as no such decision was taken  in<br \/>\n\tthe meeting.\n<\/p>\n<p>\t    The\t next question that arises is whether the  appellant<br \/>\n\thad  actually taken the money for disbursement to the\tvil-<br \/>\n\tlage   Balichandrapur. On this point also oral and  documen-<br \/>\n\ttary  evidence\tled by the prosecution\tclearly\t proves\t the<br \/>\n\tversion\t given by the appellant.  To begin with, P.W. 7\t who<br \/>\n\twas an Executive Engineer at the relevant. time has categor-<br \/>\n\tically\tstated\tthat  he had accompanied  the  appellant  to<br \/>\n\tvillage Balichandrapur and the appellant did try to persuade<br \/>\n\tthe tenants to receive the compensation but they refused  to<br \/>\n\taccept the same.  In this connection the witness deposed  as<br \/>\n\tfollows:\n<\/p>\n<p>\t\t       &#8220;The  accused  thereafter enquired  from\t the<br \/>\n\t\t parties  as to on what terms they were\t willing  to<br \/>\n\t\t give  up  possession of  their\t lands\t which\t had<br \/>\n\t\t already  been\t selected    for   acquisition.\t The<br \/>\n\t\t parties stated\t that if  they\twere  paid   compen-<br \/>\n\t\t sation\t at  the  rate\tof  Rs.\t 200\/-\tper   gunth,<br \/>\n\t\t they  would  part with their  lands.\tThe  accused<br \/>\n\t\t stated that he did not have sanction for payment of<br \/>\n\t\t Rs.  200\/-  per gunth and could not  pay  them\t off<br \/>\n\t\t hand, but if the parties wanted payment at the rate<br \/>\n\t\t of  Rs. 150\/- per gunth he was willing to pay\tthem<br \/>\n\t\t cash at the spot.  The parties did not agree.\t The<br \/>\n\t\t accused  said\tthat they would be paid\t Rs.  200\/-.<br \/>\n\t\t when that rate would be sanctioned and he was going<br \/>\n\t\t to write about it.&#8221;\n<\/p>\n<p>\tThis  witness  was also declared hostile and  that  too\t not<br \/>\n\tbecause\t he  had not made the statement\t referred  to  above<br \/>\n\tbefore the police, but because of certain minor omissions in<br \/>\n\this  statement before the police. These omissions  consisted<br \/>\n\tof the facts that there is  no\tmention about  the  previous<br \/>\n\tvisit\tto   Balichandrapur  or\t that  he  had\tstated\tthat<br \/>\n\twhile he was returning to Cuttuck he remained sitting in the<br \/>\n\tcar and the accused asked P.W. 3 to follow him with the bag<br \/>\n<span class=\"hidden_text\">\t453<\/span><br \/>\n\tand  things like that.\tIt has, however, not  been  elicited<br \/>\n\tfrom  him in cross-examination nor has it been\targued\tthat<br \/>\n\tthe  witness  had told the Investigating  Officer  that\t the<br \/>\n\taccused\t had not met or had not talked at all with the\tten-<br \/>\n\tants in his presence in order to persuade them to accept the<br \/>\n\tcompensation.\n<\/p>\n<p>\t   P.W. 6 Udaynath Parida who is a villager of\tBalichandra-<br \/>\n\tpur has categorically supported the statement of P.W. 7 that<br \/>\n\tthe  accused had agreed to pay compensation at the  rate  of<br \/>\n\tRs. 200\/- per gunth and persuaded them to give up possession<br \/>\n\tbut  the villagers refused. In this connection, the  witness<br \/>\n\tstated thus:\n<\/p>\n<p>\t\t      &#8220;On  hearing of the arrival of the accused  we<br \/>\n\t\t met  him in Balichandrapur near the  market  place.<br \/>\n\t\t We demanded payment of compensation money at a rate<br \/>\n\t\t higher\t than what was proposed by Government.\t The<br \/>\n\t\t accused and his party agreed to pay us compensation<br \/>\n\t\t at  the rate of RS. 200\/per gunth and persuaded  us<br \/>\n\t\t to give up possession so that Government may not be<br \/>\n\t\t forced to take possession forcibly with the help of<br \/>\n\t\t police.&#8221;\n<\/p>\n<p>\t\t      &#8220;The  accused had informed the  villagers\t in-<br \/>\n\t\t cluding  me that if we would be willing  to  accept<br \/>\n\t\t the rate already fixed by Government, at Rs.  150\/-<br \/>\n\t\t per gunth, he would pay us at the spot;&#8221;\n<\/p>\n<p>\t This witness was also declared hostile, merely because\t  of<br \/>\n\tcertain\t facts\twhich  he had omitted to  state\t before\t the<br \/>\n\tpolice.\t  Thus\tit  would appear that  all  the\t prosecution<br \/>\n\twitnesses  P.Ws. 6, 7 and 8 had been allowed to be  declared<br \/>\n\thostile without any justification and the Trial Court appear<br \/>\n\tto  have  exercised its discretion mechanically\t in  readily<br \/>\n\taccepting  the prayer of the prosecution without making\t any<br \/>\n\tprobe  into the reasons for allowing the  cross-examination.<br \/>\n\tIndeed\tif suck a discretion is freely exercised,  then\t the<br \/>\n\taccused\t will suffer serious prejudice and will be  deprived<br \/>\n\tof  taking advantage of any damaging admission made  by\t the<br \/>\n\tprosecution  witnesses, merely\tbecause\t the prosecution  is<br \/>\n\tallowed\t to cross-examine them by  declaring  them  hostile.<br \/>\n\tSuch  a course of action would have serious repercussion  on<br \/>\n\tthe fairness of the trial.\n<\/p>\n<p>\t   After going through the evidence of P.Ws. 6 and 7 we\t see<br \/>\n\tabsolutely no reason to distrust their evidence.  So far  as<br \/>\n\tP.W.  7\t is  concerned he is a very high  officer  being  an<br \/>\n\tExecutive Engineer at the relevant time and in no way subor-<br \/>\n\tdinate\tto  the appellant.  He has admitted  in\t his  cross-<br \/>\n\texamination  by the prosecution that even  his\tconfidential<br \/>\n\treports\t are  not  written by the accused.   There  is\talso<br \/>\n\tnothing\t to  show that he was in any way interested  in\t the<br \/>\n\taccused\t or  was his great friend and supporter.   In  these<br \/>\n\tcircumstances,\the had no reason to make a  false  statement<br \/>\n\tthat  the accused had visited the village and persuaded\t the<br \/>\n\ttenants\t to  accept the compensation. The  evidence  of\t the<br \/>\n\tvillager P.W. 6 Udayanath Parida who is an independent\twit-<br \/>\n\tness also proves that the accused had taken the money to the<br \/>\n\tvillage\t and made efforts to persuade the tenants to  accept<br \/>\n\tthe money.  In fact the evidence of these two  witnesses  on<br \/>\n\tthis  point follows as a logical corollary from the decision<br \/>\n\ttaken  at the meeting held by the Secretary,  Works  Depart-<br \/>\n\tment, where the appellant was<br \/>\n<span class=\"hidden_text\">\t454<\/span><br \/>\n\tdirected  to  visit  the spot and persuade  the\t tenants  to<br \/>\n\taccept\tcompensation.  The evidence of P.W. 7 is fully\tcor-<br \/>\n\troborated  by  Ext. B a letter written by P.W.\t7  Executive<br \/>\n\tEngineer   dated July 6,  1966, a copy of which was sent  to<br \/>\n\tthe  appellant and other officers.  In this letter which  is<br \/>\n\taddressed  to  the Assistant Engineer, Road, Office  of\t the<br \/>\n\tChief  Engineer, Bhubaneswar, P.W. 7 as\t Executive  Engineer<br \/>\n\thad  clearly mentioned that he along with the appellant\t had<br \/>\n\tvisited the site at Balichandrapur and persuaded the tenants<br \/>\n\tto accept the money by enhancing the amount to Rs. 200\/- per<br \/>\n\tgunth to which the tenants. agreed but for this the sanction<br \/>\n\thad to be taken.  It was, however, submitted by counsel\t for<br \/>\n\tthe State that this letter appears to have been brought into<br \/>\n\texistence after the inquiry against the accused was launched<br \/>\n\tin order to help him.  This was an official letter and we do<br \/>\n\tnot see any reason why such a high officer as the  Executive<br \/>\n\tEngineer  should have gone to the extent of  fabricating  an<br \/>\n\tunnecessary  letter to help the appellant against   whom  an<br \/>\n\tinquiry\t had been ordered.  Even if this letter be  excluded<br \/>\n\tfrom  consideration, the other evidence both oral and  docu-<br \/>\n\tmentary clearly show that the appellant had visited the spot<br \/>\n\tin village Balichandrapur on January 20, 1965 with a view to<br \/>\n\tdistribute the compensation money and did make an attempt to<br \/>\n\tpersuade  the  tenants to accept the compensation  but\tthey<br \/>\n\trefused\t to  accept  the same unless  the  compensation\t was<br \/>\n\traised to Rs. 200\/- per gunth.\n<\/p>\n<p>\t    As\tagainst\t this the prosecution relied merely  on\t the<br \/>\n\tfact  that  in the tour diary of the accused Ext. 8  of\t the<br \/>\n\teven  date,  viz. January 20, 1965, as also  in\t the  office<br \/>\n\treport there is no clear mention that the appellant tried to<br \/>\n\tpersuade  the  tenants to accept the money or  that  he\t had<br \/>\n\ttaken  the  money  with him to the  spot.   These  documents<br \/>\n\tundoubtedly contain the statement regarding the visit of the<br \/>\n\tappellant to the spot and some other matters.  The  question<br \/>\n\tof actual distribution or persuasion of the tenants  being a<br \/>\n\tmatter\tof detail does not appear to have been mentioned  in<br \/>\n\tthose  documents.  It would have been necessary to  be\tmen-<br \/>\n\ttioned in the documents, if the tenants had agreed to accept<br \/>\n\tthe  money and if the money was actually disbursed to  them.<br \/>\n\tAs the proposal suggested by the appellant did not  materia-<br \/>\n\tlise,  there was no occasion for mentioning these  facts  in<br \/>\n\tthose documents.\n<\/p>\n<p>\t    As we have already indicated, it was not for the accused<br \/>\n\tbut for the prosecution to prove, before raising an  adverse<br \/>\n\tinference against the accused, that the visit of the  appel-<br \/>\n\tlant to Balichandrapur\twas merely a hoax.  On the materials<br \/>\n\tplaced\tbefore\tus, not only the prosecution  has  miserably<br \/>\n\tfailed to prove this fact, but the explanation given by\t the<br \/>\n\taccused\t appears to be not only probable but proved  by\t the<br \/>\n\taccused, even applying the standard of benefit of doubt. For<br \/>\n\tthese reasons, therefore, we do not agree  with the  finding<br \/>\n\tof the Courts below that the accused did not take the  money<br \/>\n\twith him to Balichandrapur or made any attempt to distribute<br \/>\n\tit  to the tenants but has misappropriated and\tretained  it<br \/>\n\tdishonestly.\n<\/p>\n<p>\t    We might mention here that P.W. 3 Bhakta Charan  Mohanti<br \/>\n\tis  another  Witness who has supported the case of  the\t ac-<br \/>\n\tcused.\tBut as<br \/>\n<span class=\"hidden_text\">\t455<\/span><br \/>\n\tthe witness has made inconsistent statements which sometimes<br \/>\n\tgo to support the prosecution and sometimes the accused\t and<br \/>\n\tis  further,  contradicted by his own tour  diary  and\tT.A.<br \/>\n\tBills, we do not choose any reliance on the evidence of this<br \/>\n\twitness.\n<\/p>\n<p>\t    The next and the last question that falls for determina-<br \/>\n\ttion  is  as to whether or not the accused  after  returning<br \/>\n\tfrom Balichandrapur handed over the money to the Nazir.\t  It<br \/>\n\tmay  be mentioned that the appellant had made no  secret  of<br \/>\n\tthe fact that after returning the money to the Nazir he\t had<br \/>\n\tinstructed  him not to deposit the same in the treasury\t but<br \/>\n\tto keep it out of cash for the reason which we have  already<br \/>\n\tindicated.  In this connection we have only the word of P.W.<br \/>\n\t1 the Nazir as against the word of the appellant.  The Nazir<br \/>\n\talso does not appear to be a witness who is completely above<br \/>\n\tsuspicion.   Crossexamination  of this witness\tclearly\t re-<br \/>\n\tvealed that the manner in which he had kept the accounts was<br \/>\n\tnot at all satisfactory and he was in the habit of  allowing<br \/>\n\thuge  amounts to remain with him without depositing them  in<br \/>\n\tthe treasury and that he was also building a house for which<br \/>\n\the had taken some loans..  Instead of applying a very strict<br \/>\n\tstandard  to test the testimony of such a witness, the\tHigh<br \/>\n\tCourt  seems to have explained the irregularities  committed<br \/>\n\tby the Nazir P.W. 1 thus:\n<\/p>\n<p>\t\t       &#8220;Heavy  cash remaining with the\tNazir\tthat<br \/>\n\t\t Ext. D discloses and the facts of the Nazir  having<br \/>\n\t\t secured housebuilding advance during September 1965<br \/>\n\t\t may  raise  speculations and surmises\tagainst\t the<br \/>\n\t\t Nazir.&#8221;\n<\/p>\n<p>\t    There are, however, important circumstances to  indicate<br \/>\n\tthat the explanation given by the appellant is both probable<br \/>\n\tand  reasonable. P.W. 9 who was the Nizarat Officer and\t who<br \/>\n\thad  not been declared hostile (emphasis ours)\thas  clearly<br \/>\n\tstated\tthat the amount was taken by the appellant for\tdis-<br \/>\n\tbursement.   The witness further deposes that in March\t1965<br \/>\n\the had a discussion with the appellant regarding the  amount<br \/>\n\tof Rs. 10,000\/- taken by him and the appellant had then told<br \/>\n\thim  that the amount could not be disbursed as\tthe  tenants<br \/>\n\tdid  not agree to take the amounts and that he had kept\t the<br \/>\n\tamount with the Nazir.\tIn this connection his statement  is<br \/>\n\tas follows:\n<\/p>\n<p>\t\t       &#8220;In March, 1965, I had a discussion with\t the<br \/>\n\t\t accused regarding the amount of Rs. 10,000\/-  taken<br \/>\n\t\t by him and the accused then told me that the amount<br \/>\n\t\t could not be disbursed as the tenants did not agree<br \/>\n\t\t to take the amounts and that he had kept the amount<br \/>\n\t\t with  the Nazir.  I did not make any  enquiry\tfrom<br \/>\n\t\t the  Nazir regarding this as the balance amount  as<br \/>\n\t\t shown\tin  the cash Book was the same in  the\tcash<br \/>\n\t\t sheet.\t The accused had told me that the Nazir\t had<br \/>\n\t\t kept the amount of Rs. 10,000\/- outside the cash as<br \/>\n\t\t per his instructions.&#8221;\n<\/p>\n<p>\tIt  is,\t therefore, clear from the admission  made  by\tthis<br \/>\n\twitness\t that  the case of the accused t,hat  he  had  given<br \/>\n\tmoney to the Nazir is fully supported by him because he\t has<br \/>\n\treferred  to the statement made to him by the  appellant  as<br \/>\n\tfar back as March 1965 when there was absolutely no dispute,<br \/>\n\tno inquiry and no allegation of misappropriation against the<br \/>\n\tappellant.   Much  was made by the learned counsel  for\t the<br \/>\n\t13&#8211;1104SCI\/76<br \/>\n<span class=\"hidden_text\">\t456<\/span><br \/>\n\tState  out  of the fact that the accused  had  directed\t the<br \/>\n\tNazir to keep the amount outside the cash which betrayed the<br \/>\n\tfalsity of his explanation.  A careful study of the  circum-<br \/>\n\tstances in which the accused was placed would show that\t the<br \/>\n\taccused\t was very much anxious to disburse the\tpayments  to<br \/>\n\tthe  villagers, he had tried to persuade them to accept\t the<br \/>\n\tmoney, but the villagers wanted more compensation and he had<br \/>\n\talready\t taken steps to move the Government  for  increasing<br \/>\n\tthe amount of compensation to Rs. 200\/- per gunth.  In these<br \/>\n\tcircumstances, therefore, there may be some justification in<br \/>\n\this  thinking that the money should be readily available  to<br \/>\n\tbe paid as soon as the villagers decided to accept the same.<br \/>\n\tIt is possible that he may have made an error of judgment or<br \/>\n\tcalculation or he was rather too optimistic but this conduct<br \/>\n\tby itself does not lead to the inference of dishonest inten-<br \/>\n\ttion  to misappropriate the money.  At any rate, in view  of<br \/>\n\tthe  evidence of P.W. 9 the Nizarat Officer that the  amount<br \/>\n\twas  given  to\tthe Nazir by the appellant  which  fact\t was<br \/>\n\tdisclosed  to  him  as far back as March 1965,\tit  will  be<br \/>\n\tdifficult to accept the uncorroborated evidence and testimo-<br \/>\n\tny  of P.W. 1 the Nazir, that he did not receive  the  money<br \/>\n\tfrom the appellant after January 9, 1965.\n<\/p>\n<p>\t    Further  more there were other  important  circumstances<br \/>\n\twhy  no\t reliance should be placed on the  evidence  of\t the<br \/>\n\tNazir  P.W.  1.\t It would appear from the  evidence  of\t the<br \/>\n\tNazir  himself that on September 15, 1965 the cash  in\t the<br \/>\n\thands  of  the\tNazir  was Rs. 11,16,066.57 out of which Rs.<br \/>\n\t7,36,810.86  were for land acquisition proceedings.   Admit-<br \/>\n\ttedly he did not deposit this amount until October 20, 1965.<br \/>\n\tHe  has\t given no explanation as to why he had kept  such  a<br \/>\n\thuge  amount  with him without depositing the  same  in\t the<br \/>\n\tTreasury.  This was undoubtedly a grave lapse on the part of<br \/>\n\tthe  Nazir and should have been taken notice by\t the  Courts<br \/>\n\tbelow. Exhibit D is the order of the appellant dated Septem-<br \/>\n\tber 27, 1965 by which the Nazir was directed to deposit\t the<br \/>\n\tamount\tin the treasury and it was only on October 20,\t1965<br \/>\n\tas would appear from Ext. D\/4 that the Nazir deposited\tthis<br \/>\n\tamount in the treasury.\t The Nazir has given no\t explanation<br \/>\n\tfor  this delay.  Again it appears that the Nazir  was\talso<br \/>\n\tbuilding  a  house  and he had received\t advances  from\t the<br \/>\n\tGovernment which he had not repaid and the possibility\tthat<br \/>\n\the might have himself misappropriated the money handed\tover<br \/>\n\tto  him\t by the appellant for the purpose of  returning\t the<br \/>\n\tadvances cannot safely be excluded. It would appear that the<br \/>\n\tNazir  had taken a loan of Rs. 4,500\/- on September 8,\t1965<br \/>\n\tand another loan of Rs. 4,500\/- was taken by him on  Septem-<br \/>\n\tber  27,  1965,\t total being Rs. 9,000\/-, and  it  is  quite<br \/>\n\tpossible  that the Nazir may have paid these amounts of\t the<br \/>\n\tloans from out of the money given to him by the appellant.<br \/>\n\t    Finally  even if the accused had not given any money  to<br \/>\n\tthe  Nazir P.W. 1 right from January 9, 1965 he should\thave<br \/>\n\tat least approached him and should have drawn the  attention<br \/>\n\tof the appellant to the fact that the money paid to him\t for<br \/>\n\tthe  purpose of disbursement had not so far  been  deposited<br \/>\n\twith  him.   No such thing was done by the  Nazir.   It\t was<br \/>\n\tsuggested  by the prosecution that as the appellant  was  in<br \/>\n\tcharge of the Treasury, the Nazir did not think it proper to<br \/>\n\tinterrogate him.  It was, however, not a question of  inter-<br \/>\n\trogation.  It was<br \/>\n<span class=\"hidden_text\">\t457<\/span><br \/>\n\tonly a question of a subordinate officer pointing out  some-<br \/>\n\tthing of very great importance to a superior officer which a<br \/>\n\tsuperior  officer  would never misunderstand.\tIn  view  of<br \/>\n\tthese circumstances, therefore, we are not in a position  to<br \/>\n\tplace implicit reliance on P.W. 1.\n<\/p>\n<p>\t    There  is yet another very important document which\t has<br \/>\n\tbeen  brought  on record by the appellant which\t is  Ext.  A<br \/>\n\tdated December 8, 1965.\t This is a statement by P.W. 3 which<br \/>\n\tto a very great extent supports the case of the accused, but<br \/>\n\tas  we do not propose to rely on the evidence of P.W. 3,  we<br \/>\n\twould  exclude\tthis document from  consideration.   Another<br \/>\n\tdocument Ext. H is a  statement\t of  the Accountant Ghansham<br \/>\n\tDas  which appears at p. 215 of the Paper Book\twherein\t Mr.<br \/>\n\tGhansham  Das clearly mentions that when he found  that\t Rs.<br \/>\n\t10,000\/-  were not traceable, be brought the matter  to\t the<br \/>\n\tnotice of the officer in charge and he was told by the Nazir<br \/>\n\tthat  the amount of Rs. 10,000\/- had been left with  him  by<br \/>\n\tthe appellant with instructions not to refund in the  treas-<br \/>\n\tury.   TIffs  statement\t clinches the issue so\tfar  as\t the<br \/>\n\tdefence case is concerned and fully proves that the explana-<br \/>\n\ttion  given  by the appellant was  correct.   This  document<br \/>\n\twould  also  have falsified the evidence of P.W. 1  who\t has<br \/>\n\ttried to put the entire blame on the shoulders of the appel-<br \/>\n\tlant.\tUnfortunately,\thowever,  the  prosecution  did\t not<br \/>\n\tchoose to examine Ghansham Das the Accountant who was a very<br \/>\n\tmaterial  witness in order to unfold the prosecution  narra-<br \/>\n\ttive itself, because once a reasonable explanation is  given<br \/>\n\tby  the\t appellant that he had entrusted the  money  to\t the<br \/>\n\tNazir on his return from Balichandrapur on January 20,\t1965<br \/>\n\twhich is supported by one of the prosecution witnesses, P.W.<br \/>\n\t9, as referred to above, then it was for the prosecution  to<br \/>\n\thave affirmatively disproved the truth of that\texplanation.<br \/>\n\tIf  Ghansham Das would have been examined as a\twitness\t for<br \/>\n\tthe  prosecution, he might have thrown a flood of  light  on<br \/>\n\tthe  question.\t In his absence, however, Ext. H  cannot  be<br \/>\n\trelied\tupon, because the document is inadmissible.  At\t any<br \/>\n\trate, the Court is entitled to draw an inference adverse  to<br \/>\n\tthe prosecution for not examining Ghansham Das Accountant as<br \/>\n\ta result of which the explanation given by the appellant  is<br \/>\n\tnot only reasonable but stands unrebutted by the prosecution<br \/>\n\tevidence produced before the Trial Court.<br \/>\n\t    Having  regard to these circumstances. it is not  neces-<br \/>\n\tsary for us to consider the other documents, like Exts. F, G<br \/>\n\tand  E produced by the appellant because they do  not  throw<br \/>\n\tmuch  light on the question and the facts contained  therein<br \/>\n\thave been seriously disputed by the prosecution.   Similarly<br \/>\n\twe have not referred to the other documents produced by\t the<br \/>\n\tprosecution  which show the entry of the money\treceived  by<br \/>\n\tthe appellant and 50 on because these facts are not disputed<br \/>\n\tby the appellant at all.\n<\/p>\n<p>\t    On a consideration of the evidence and the circumstances<br \/>\n\twe  are satisfied that the appellant has been able to  prove<br \/>\n\tthat  the  explanation given by him  was  both\tprobable.and<br \/>\n\treason.able  judged by the standard of the preponderance  of<br \/>\n\tprobabilities\tThis  being  the position, it  was  for\t the<br \/>\n\tprosecution to prove affirmatively m what manner the  amount<br \/>\n\twas  misappropriated after it had been transferred from\t the<br \/>\n\tcustody of<br \/>\n<span class=\"hidden_text\">\t458<\/span><br \/>\n\tthe  appellant to the custody of the Nazir.  Such  proof  is<br \/>\n\twholly\tlacking\t in this case.\tAs the accused has  given  a<br \/>\n\treasonable  explanation,  the  High Court was  in  error  in<br \/>\n\tdrawing an adverse inference against him to the effect\tthat<br \/>\n\the had misappropriated the money.\n<\/p>\n<p>\t    For these reasons, the appeal is allowed, the  judgments<br \/>\n\tof  the\t Courts\t below are set aside,  the  convictions\t and<br \/>\n\tsentences  imposed  on the appellant are quashed and  he  is<br \/>\n\tacquitted of the charges framed against him. .\n<\/p>\n<pre>\tP.H.P.\t\t\t\t\t Appeal allowed.\n<span class=\"hidden_text\">\t459<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"<p>Supreme Court of India Rabindra Kumar Dey vs State Of Orissa on 31 August, 1976 Equivalent citations: 1977 AIR 170, 1977 SCR (1) 439 Author: S M Fazalali Bench: Fazalali, Syed Murtaza PETITIONER: RABINDRA KUMAR DEY Vs. RESPONDENT: STATE OF ORISSA DATE OF JUDGMENT31\/08\/1976 BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA BHAGWATI, P.N. CITATION: [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-143557","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Rabindra Kumar Dey vs State Of Orissa on 31 August, 1976 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/rabindra-kumar-dey-vs-state-of-orissa-on-31-august-1976\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rabindra Kumar Dey vs State Of Orissa on 31 August, 1976 - Free Judgements of Supreme Court &amp; 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