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Criminal Appeal No. 203 of 1972, decided on 17th March 1977.

---S. 409 read with Prevention of Corruption Act (II of 1947), S,. 5(2) Conviction, propriety of‑Evidence, appreciation of ‑ Burden of proof‑Never shifts‑Explanation given by accused if reasonably possible, reacts on whole prosecution case, entitling accused to acquittal‑Accused a Tapedar convicted under S. 409, P. P. C. on charge of showing short receipt of revenues in record‑Accused offering reasonable explanation and possibility that disputed figure wan subsequently changed by someone to implicate him, not ruled out‑‑Prosecution, held, failed to prove beyond doubt its case against accused‑Conviction and sentence set aside, in circumstances. [Burden of proof‑ Evidence].

M. Ibrahim Memon for Appellant.

Nizam Ali Khan for the State.

Dates of hearing: 14th and 15th April 1975.

The appellant was placed on trial on the charges under sections 409, 469 and 477‑A, Y. P. C. read Vth section 5(2) of Act II of 1947 before the Special Judge (Anti‑Corruption), Hyderabad (Mr. F. E. Ansari), who acquitted him by his Judgment dated 31‑5‑68. The State challenged the acquitt4l before the High Court who ordered retrial from the stage of the recording of the state ment of the appellant under section 342. Cr. P.C. on the ground chat the appel lant as not given an opportunity to explain the entries Exh. 7 and Exh. 19 to 25 on which the prosecution case was based. On retrial, the appellant gave his explanation regarding the entries, which explanation was not accepted by the trial Court and the appellant was convicted under section 409, P. P. C. read with section 5(2) of the Prevention of Corruption Act (II of 1547) and sentenced to R. I. for one year and a tide of Rs. 10,000 or in default to suffer further R. I. for one year. He was acquitted of rest of the charges under sections 46g and 477‑A, P. P. C.

The prosecution case in nutshell was that between 4‑3‑1961 and 10‑3‑1961 appellant being Tapedar of the teat received various amounts from various Khatedars which be deposited in the treasury after making entries in the village Form VIII‑B and cash book. Subsequently, on checking the accounts, Supervising Tapedar Haji Mohammad Khan noticed that in the entry relating to Khatedar Hamza Khan, the appellant had shown recovery of Re. 1,000 from him but the break‑up shown in the various columns pertaining to local cess fund, canal dues and land revenue dues against the entry worked out to Re. 100 only. Accordingly, the Supervising Tapedar, Haji Mohammad Khan, corrected this figure of Re 1,000 into Re. 100 to correspond with the total of Rs. 3,300 shown by the appellant in the Form VIII‑B as other wise, according to the supervising Tapedar, the total should have been Re. 4,200. Subsequently, the supervising Tapedar was informed by Tapedar Parsram, who had succeeded the appellant, that P. W. Kamaluddin claimed .to have paid Re. 1,000 to the appellant on 7‑8‑1961 as land revenue dues on behalf of Khatedar Hamza Khan for which he held a receipt whereas only Re. 100 had been credited to the account of Khatedar Hamza Khan and thus Re. 900 had been misappropriated by the appellant. This information alerted the Supervising Tapedar Haji Mohammad Khan who reported the matter to the police resulting in the prosecution of the appellant.

The defence of the appellant at the trial was of denial and false implication. Be pleaded that he had in fact received Re. 1,000 from P. W. Kamaluddin and issued the receipt Exh. 3 for the said amount and in the village Form VIII‑B also he bad shown the same amount against the relevant entry Exh 7 but P. W. Haji Mohammad Khan, the Supervising Tapedar, in collusion with his successor Parsram, had tampered with the entry in the village Form VIII‑B by substituting the figure of Rs. 1.000 with Rs. 100 and had also tampered with another entry Exh. 35 by showing it as Rs. 1,000 instead of Re. 100 as originally entered by hirer in tae village Form VIII‑B. He further pleaded that he bad been implicated by the Supervising Tapedar and Parsram as he was senior to both of them and they wanted him out of their way. The trial Court however believed the prosecution evidence and conducted and sentenced the appellant as stated above.

The question for consideration is whether the appellant has been rightly convicted. Appellant admits to have received Rs. 1,000 from P. W. Kamalud din on behalf of Khatedar Hamza Khan. He also admits to have issued the receipt Exh. 3 for the same amount. It is also admitted by the prosecution witness Haji Mohammad Khan, the Supervising Tapedar that the entry made by the appellant in the village form VIII‑B Exh. 7 showed the recovery of Rs. 1,000 on behalf of Khatedar Hamza Khan which entry he (P. W. Haji Mohammad Khan) corrected to Re. 100. That being so, the question of the appellant having committed any forgery etc. does not arise and he has been rightly acquitted of the charger;. The learned Special Judge has however, convicted the appellant on the charge of misappropriation of Rs.. 900 on the ground that if the entry made by the appellant in the Form VIII‑B showing receipt of Rs. 1,000 from the Khatedar Hamza Khan was correct, then the total shown by the appellant ought to have been Rs. 4,200 and not Rs. 3,300 as shown by the appellant and accordingly the appellant had made a short deposit of Rs. 900 which amount was thus misappropriated by him. The learned Special Judge reached to this finding by rejecting the explanation of the appellant that another entry regarding Khatedar Abdul Majid had been tampered with by Supervising Tapedar Haji Mohammad Khan by changing the figure of Rs. 100, shown in the entry regarding this Khatedar, to Rs. 1,000, whereas, in fact Rs. 100 only had been received by hi n from this Khatedar Abdul Majid, which amount was so shown against the relevant entry, Exh. 25. The reasoning given by the learned Special Jude may be reproduced as under: ‑

"The total vim of this money comes to Rs. 3,300. Had the Exh. 7 been Rs. 100 it would have been Rs, 4,200. The accused avers that there is tampering with record. According to him one figure of Rs. 1,000 the amount paid by Kamaluddin on behalf of Hamza Khan, was Rs. 1,000 and it is made Rs. 100 (Exh. 7) while entry Exh. 25 pertaining to the recovery made from Abdul Majid son of Abdul Rahim is Rs. 100 but it is tampered with and made Rs. 1,000. This is why the total appears to be Rs. 4,200. No question is put to any witness about making Re. 100 Exh. 25 into Rs. 1,000 I feel that this is an afterthought. Exh. 25 is before me. The observation of this figure Rs. 1,000 in no way shows any tampering. If we take it to be '100' the gap between the dash (-) and figure (100) will be too wide and nobody will believe that such a gap will be left.-------------------------------------------------------------------------------------------------------------------

The burden of proving that there is tampering of Exh. 25, is on .the accused and he has not even examined Umerdin son of Abdul Majid to prove the he had paid Rs. 1,000 and not Rs. 100 and that receipt of Re. 1,000 was given to him."

I do not agree with the reasoning of learned Special Judge. It is well established that burden of proof never shifts a d all that the accused is to show that the explanation submitted by him is reasonably possible in which case it will react on the whole cave. It having been admitted by the prosecution that in the village Form VIII‑B, appellant had shown receipt of Rs. 1,000 in the entry relating to the Khatedar Hamza Khan which figure was changed into Rs. 100 by Supervising Tapedar Haji Mohammad Khan himself, appellant cannot be said to have misappropriated Rs. 900 out of Rs. 1,000 received by him from the Khatedar Hamza Khan through his lessee Kama luddin. The break‑up of Rs. 100 shown in the columns relating to cess fund etc. against this entry (Exh. 7) was denied to have been filled in by the appellant and it has not been satisfactorily proved that this break‑up of Rs. 100 was in fact filled in by the appellant. Further, the explanation of the appellant regarding the allegation that on the relevant date he had received total amount of Rs. 4,200 and not Rs. 3,300 as shown by him in the village Form VIII‑B was, that this total of Rs. 4,200 bad been made out against him by the Supervising Tatxdar Haji Mohammad Khan by tamper ing with another entry Exh. 25 relating to Khatedar Abdul Majid by changing the figure of Rs. 100 to Rs. 1.000, whereas he had in fact received Rs. 100 only from this Khatedar and this was the amount shown by him in the entry made by him in the village From VIII‑B. The entry Exh. 25 has been examined by me and it shows that it is quite possible that the figure of Rs. 100 shown against this entry ass subsequently changed by some one into Rs. 1,000 to implicate the appellant, as the last zero appears to have been written in different ink and added subsequently. In any case, the appellant having specifically taken a stand that the amount shown against this entry was Rs. 100, and not Rs. 1,000 it was not difficult for the prosecu tion to have either produced the Khatedar Abdul Majid or whatsoever paid on his behalf to rebut the explanation of the appellant. The least that the prosecution could hive done was to have produced the receipt in original which must have been issued to the Khatedar Abdul Majid or even the Tapedar's copy. But the prosecution failed to do either. That being so, the explanation given by the appellant being reasonably possible, it reacts on the whole case and the appellant is entitled to acquittal. Learned Special Judge was also wrong in ejecting this explanation on the ground that no question was put to any witness about changing toe figure of Rs. 100 into 1,000 shown against this entry, as the Nigh Court had directed retrial from the stage of the recording of the statement of the appellant under section 342, Cr. P. C. and as such the appellant had no opportunity of putting his explanation of the prosecution witnesses. The judgment of the learned Special Judge would also show that, at the trial, he has been influenced by the observations made by the High Court in the acquittal appeal which however, were no; relevant as the cash book, on the basis of which the High Court observed that the appellant had short deposited Rs. 900, was itself prepared on the basis of the entries made ifs the village Form VIII ‑B about which the appellant was asked to explain before the present lea‑red Special Judge only and not before the previous Special Judge (Mr. F. E. Ansari) who had acquitted him.

For the aforesaid reasons, I find that the prosecution has faild to prove beyond doubt its case against the, appellant and therefore, he is entitled to acquittal. Accordingly, this appeal is accepted and the conviction and the sentence of the appellant is set aside and the fine if paid by him shall be refunded to him.

Appeal Allowed

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