Criminal Appeal No 310 of 1971
Appeal by Special Leave from the Judgment and Order dated 23 4 1971 of the Allahabad High Court in Criminal Appeal No 168 69 with Criminal Appln
No 98669
Frank Anthony and UP Singh for the Appellant
OP Rana for the Respondent
The Judgment of the Court was delivered by KRISHNA IYER J
Some exceptions disprove the rule
Cases are legion where the proverbial proposition of litiga tive finality at the High Court level on findings of fact has been affirmed by this Court but the exceptions which prove the
rule are also weB established
We must at the outset state that this case does not fit into the conventional legal mould but nevertheless pos sesses such strange features that our ultimate  power may legitimately come into play
690 A petty store keeper cum cashier in a rural block devel opment office in the district of Shahjehanpur was charged
with misappropriation of several sums adding up to a little over Rs 5000 
The charges having been denied and the real culprit having been pointed out as the boss of the block development office the Sessions Court received evi dence on both sides found the testimony of the Block Development Officer BDO acronymically completely false and unbelievable  in regard to many of the items of embez zlement and made critical observations about his culpability in respect of many of the malversations
We may have something to say
about the not unusual phenomenon of the small fry getting caught and the big shark breaking through the net  in economic offences where public money is handled by public servants
For the nonce we may content ourselves with the statement that the little official in his twenties which the accused was was acquitted of all but one charge and the misappropriation of Rs 519482 dwindled into a solitary fugitive item of Rs 50 for which he was punished with imprisonment for one year a fine of Rs 300 
The conviction was confirmed but the sentence was reduced by the High Court
The aggrieved appellant urges before us that the soli tary surviving item of misappropriation held proved concur rently had in fact been vitiated in the process by funda mental flaws
We will proceed briefly to narrate the epi sode and examine the tenability of the extraordinary fea tures leading to the exculpatory sequel
The agrestic immensity of Indian backwardness is sought to be banished by developmental activities through block level infrastructures
Jaitipur Block is one such and it has a nucleus of small officials and some rural development assistants the hegemony being vested in the BDO
The dramaris personae here are the accused the stock clerk cure cashier the BDO PW 8 and the Panchayat Secretary PW 7 whose magnificent salary is Rs 50 per mensem
The prosecution narrative runs long but can be short if we abandon the plurality of charges and limit the facts to
the single item of Rs 50 
In skeletal brevity there was aBlock Office in Jaitipur where a small staff worked on low salaries to stimulate rural development
The accused was cashier and used to be entrusted in such capaci ty with sums large and small
The case as originally projected was that Rs 519482 was committed to his custo dy and the whole sum was siphoned off into his own pocket by various acts of criminal breach of trust
Admittedly it was the duty of the accused cashier to maintain the cash book and deal with the monies
Equally clear is the fact that the head of the office the BDO was duty bound to tally and check the dally entries of the cash book with the rele vant vouchers to affix his signature after checking the total at the end of the day 
The block office has on its rolls Panchayat Secre taries drawing small salaries
One of them is PW 7 on a monthly pay of Rs 50 
Another unfortunate feature of these
offices as disclosed in the evidence is that even these petty emoluments are paid irregularly pro 691 ducing both discontent and inclination for manipulation
That public offices should be so run is not too complimen tary
Anyway PW 7 received his pay for December 1964 on February 22 1965 and his pay for the later month of January 1965 he drew a few days earlier on February 15 1965 vide Exhibits Ka 26 and Ka 29
These oddities in disburse ments led to the plausible plea by Asiam the accused that PW 7 not having received his pittance for the month of December 1964 even after January had come and gone pleaded his dire need for money and received Rs 50 as pay for the month of January 1965 and signed a separated voucher bearing that date viz February I 1965
It is conceivable that a little man with a little pay packet which is tantalizing ly postponed pressurizes the cashier to pay him the small sum signing a voucher and it need not surprise us if the cashier gives in to compassion and makes the payment
This is precisely the case of the accused
To shore up this plea he points out a regular entry in the cash register against the date February 1 1965 of a payment of Rs 50 as salary for the month of January 1965 to PW 7
Rein forcement is received from the further fact that this spe cific entry of payment the falsification of which is the foundation
for the charge of misappropriation of Rs 50 is ticked and initialled by the BDO PW 8
We have earlier referred to the practice and the obligation of this officer to tally and check the daily entries in the cash book with the relevant vouchers and then to affix the signature after checking the total at the end of day
Moreover he had the special responsibility as the most responsible officer on the staff on his own showing to keep the cash balance found at the end of every day in the cash chest register 
He does not do daily physical verification of the cash but does it on a monthly basis and he keeps the key of the same although another key is left with the cashier
The accused s contention that he paid the salary of Rs 50 to PW 7 on February 1 1965 supported though it is by an entry in the Books duly initialled by the BDO presuma bly after verification with the corresponding voucher has been rejected by the Courts without advertence to these spinal circumstances by the superficial plea that PW 7 is seen to have been paid the salary for December 1964 on February 22 1965 with a regular entry and a stamped voucher
PW 7 when examined denied the earlier payment on February 1 with a touch of dubious candour and owned up the payment for December supported by the stamped voucher on February 22 1965
A streak of mystique generates doubt in PW 7 s testimony because in cross examination he says 1 do not remember as such that along with other officials the cashier would have given me the salary for the month of January 1965 for two times by mistake 
In the next breath he corrects himself to say that he had not been paid twice
On the strength of these materials a conviction of guilt has been rendered by both the Courts and
be the appreciation right or wrong we as the final court should have held back ordinarily from temptation for reappraisal vehement argu ment notwithstanding
But certain grave factors condu cive to miscarriage of justice have bulked forward to induce us to make an exception which we will presently expatiate 692 There were nine items of misappropriation originally imputed to the accused
All but one remained unproven and the guilt is now fixed on one of the inconsiderable items
Not that the littlest sum of public money can be taken on privately with impunity but that the perspective is coloured somewhat by the substantial failure of the prosecution to make out its case regarding all the major items
More disquieting is the fact that the Single surviving charge stands or falls on the veracity or unveracity of a solitary witness appreciated in the light of the conspectus of circumstances
What are those circumstances  The BDO charged as he is with serious responsibilities including guardant functions over the finances of the institution has sworn that he checks the daily entries in the cash book with the relevant vouchers and affixes his signature checks the total at the end of the day and again affixes his signature
It is a pregnant piece of evidence that there is a specific entry on February 1 1965 in the cash book that a payment of Rs 50 by way of salary to PW 7 has been made
The BDO has signed against the entry which means in the ordinary course he has verified the payment with reference to the relevant voucher
If this be a fact the accused has proba bly paid the salary made the necessary entry shown it together with the relevant voucher to the BDO got his signature totalled up the figures correctly and secured the BDO s signature over again
The exculpatory impact of this testimony is sufficient according to ordinary canons of criminal jurisprudence to relieve the accused of culpa bility since reasonable doubt is generated
The sensi ble scepticism about guilt which springs from the BDO s signature against the relevant entry is heightened by the fact that the Finance Handbook referred to by the High Court in its judgment states that it is the duty of the drawing and disbursing officer to check each and every entry of receipt and expenditure recorded in the cash book and peri odically to check physically the cash balances
The BDO according to the High Court has made evasive statements to suppress certain facts and spoken some apparent ties 
Startlingly enough the Sessions Court has recorded PW 8 the BDO as false and unbelievable in regard to certain other charges and gone to the further extent of concluding that four entries figuring as charges against the accused had been really made to the BDO himself who probably embezzled these amounts 
The consequential acquittal of the accused on these four charges has not been disturbed
In sum therefore the conclusion is irresistible that the BDO the top officer in full financial control had behaved irresponsibly or delinquently with regard to the funds of the block office had been described as too mendacious to be depended and had convicted himself of gross neglect of public duty in regard to the checking of the cash register out of his own mouth
If we are to attach there is no reason for a Court not to do so weight to the contemperane ous entry in the cash register coupled with the signature of the BDO the same day as against his ipse dixit later the accused is entitled to the benefit of reasona ble doubt
There is likely to have been a separate voucher evidencing the payment of Rs 50 which is the subject of the defalcation because the BDO is not likely to have at tested the entry of that payment without checking it up with the corresponding receipt
693 Two circumstances fall to be mentioned before the probative balance sheet can be struck
The entry of Rs 50 on February 1 1965 is seen scored off
Who did it  Can we guess in the dark  Nothing on record suggests that the accused alone could have done it There is much credibil ity in the theory that with the connivance of the BDO and the clerks petty sums are quietly abstracted from the public exchequer make believe entries are made and attest ing signatures appended by the BDO and if the peril of detection by higher officers is apprehended scorings additions alterations and the like are made
It is common case that in the cash register there are many such cross ings cuttings scorings and like tamperings
Many scape graces were perhaps party to these processes but one scape goat cannot for that reason get convicted in the criminal court
In this context it is pertinent to remember that the District Accountant after a fuller examination of the books of the block offices has stated that the several embezzle ments have been facilitated by the laxity of the BDO who should be directed to make good the loss
A further recom mendation by him to proceed departmentally as against the BDO and as against the Cashier is also found in the report
Whether action had been taken against the BDO the State s counsel was not able to tell us
The sole lip service to the criminality imputed is lent by PW 7
Did he receive his salary of Rs 50 twice over  Undoubtedly he was interested in denying it
Doubt hardly exists of the fact that he got his small December salary of Rs 50 only in February next
Far more likely that in such a situation he would have pressed for the payment of Rs 50 to be adjusted later
Likewise his initial ambi guity in plainly denying that he had been paid twice en hances this suspicion
When the cash affairs of the office is in a mess when the Chief is guilty of dereliction when the clerks are receiving petty salaries at irregular intervals the somewhat tainted testimony of PW 7 is fax too slender a string to hang the guilt upon pitted as it is against the cash register entry by the BDO apparently after consulting the payment voucher
The accused was suspended promptly and therefore this voucher if it did exist must have been in the office and its non production in court is not a matter for drawing an inference against the ac cused
We have made this unusual probative survey of the evi dence for the sole reason that the bona fides of the prose cution leaving off bigger and going at the smaller mixing false testimony with true seriously suspect and holding on to the conviction of the accused on no evidence which a reasonable person reasonably instructed in the law will rely upon is neither just nor legal
The accused at the time of the offence was in his early twenties probably a neophyte or new entrant into a little racket
Doubts there are about his complicity but that a man may be guilty is different from saying that he must be guilty
The dividing line between the two is 694 sometimes fine but always real
There is undoubtedly collective
guilt in the conjoint delinquency in the running of the block development office
Public affairs and public funds especially on the developmental front require far more integrity orderliness activism and financial pru dence
Its absence we regret but the specific guilt of the particular accused not having been proved as mandated by the law results in his acquittal
We accordingly allow the appeal
The guilt finding function is over but judges have accountability to the country to the extent matters falling within their professional examination deserve sounding the tocsin
With this alibi we make a few observations
The popular art of helping oneself to public money in little bits or large slices is an official pathology whose pernicious spell has proliferated with the considerable expansion in institutions of public welfare and expenditure for rural development
From Kautilya s Arthashastra to Gunnar Myrdal s Asian Drama the vice is writ large and the demoralising kink in the projects for criminal prosecution to eradicate these vices in public offices is that more often than not the bigger engineer of these anti social schemes figures as prosecuting witness and the smaller men in the package deal are put up as sacrificial goats
The head escapes the hand is chased down and when the Court convicts cynicism instead of censure is the unintended public response
In a social system of the high and low where the wheels of punitive processes are steered by the former laws equal in the face quirk unequal at heart
Crack down Crime Control itself takes its alignment from the social philosophy of the agencies of public power
The present ease is a small symptom of a spread out disease and the State in its highest echelons determined to down this rocket of economic offences must launch massive quick acting broad spectrum prosecutorial remedies regardless of personal positions and leisurely procedural apparatuses if high social dividends are to be drawn
The mystique of making the dubious officer the veracity vendor in the witness box and the collaborating minion the dock dweller is suspected as intrigue to Shelter the upper berth culprit
Caesar s wife where public interest is at stake must be above suspicion if prosecutorial credibility is to be popular purchase
If the nation poised for socialism must zero in on public office offences what we have observed must not and surely will not slumber as obiter sermons but serve as catalysts to crash strategies on white collar crimes
In a developing country of scarce resources husbanding public funds has a special onerousness
Gross negligence even absent mens rea in handling the nation s assets by those in office must be visited with criminal liability as it in flicts double injury on that voiceless faceless woe stricken have not community which is aplenty
Public power under the penal Law must be saddled with 695 higher degree of care if Indian jurisdiction is to fulfil its social mission through developmental legislation
Had such a law existed many superior officers routinely signing away huge sums or large contracts could have been alterted into better standards by potential penal consequence
The present case is an instance in point and our parliamen tarians we hope will harken
MR Appeal allowed


Summary:
The appellant a cashier in a rural block development office of Shahjahanpur district was convicted for misappro priating public money
Both the courts concurrently found that he had pocketed the sum which he claimed to have paid the Panchayat Secretary as salary
The appellant contended that the charge against him was falsified by the voucher and regular entry of the cash register regarding the above payment which had been ticked and initialled by the Block Development Officer and pro duced in evidence
Allowing the appeal the Court HELD 1 The proposition of litigative finality at the High Court level on findings of fact has been affirmed by this Court but the exceptions which prove the rule are also well established
A conviction of guilt has been rendered by both the Courts but certain grave factors conducive to miscarriage of justice induce us to make an exception
The accused is entitled to the benefit of reasonable doubt owing to the contemporaneous entry in the cash register coupled with the signature of the BDO the same day as against ipsi dixit later
689 G 691 H 692 G H 2 Our observations must serve as catalysts to crash strategies on white collar crimes
Gross negligence even absent mens rea in handling public funds by those in office must hold penal consequences as it inflicts double injury on the poor masses
694 G H