1. ' The appellant was placed on trial on the charges under sections 409, 468 and 477-A, P. P. C. Read with section 5(2) of Act II of 1947 before the Special Judge (Anti-Corruption), Hyderabad (Mr. F. E.
2. Ansari), who acquitted him by his Judgment dated 31-5-68. The State challenged the acquittal before the High Court who ordered retrial from the stage of the recording of the statement of the appellant under section 342, Cr. P.C. On the ground that the appellant was 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 (11 of 1947) and sentenced to R. I. For one year and a tine of Rs.
3. 10,000 or in default to suffer further R. I. For one year. He was acquitted of rest of the charges under sections 46S and 477-A, P. P. C.
4. ' The prosecution case in nutshell was that between 4-3-1961 and 10-3-1961 appellant being Tapedar of the beat received various amounts from various Khattdars which he deposited in the treasury after making entries in the village Form VIII-B and cash book. Subsequently, on checking the accounts. Supervisirg Tapedar Haji Mohammad Khan noticed that in the entry relating to Khatedar Hamza Khan, the appellant had shown recovery of Rs. 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 Rs. 100 only. Accordingly, the Supervising Tapedar, Haji Mohammad Khan, corrected this figure of Rs 1,000 into Rs. 100 to correspond with the total of Rs. 3,300 shown by the appellant in the Form as other wise, according to the Supervisirg Tapedar, the total should have been Rs. 4,200. Subsequently, the Supervising Tapedar was informed by Tapedar Parsram, who had succeeded the appellant, that P. W. Kamaluddin claimed to have paid Rs 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 Rs. 100 had been credited to the account of Khatedar Hamza Khan and thus Rs 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.
5. ' The defence of the appellant at the trial was of denial and false implication. Be pleaded that he had in fact received Rs. 1,000 from P. W. Kamaluddin and issued the receipt Exh. 3 for the said amount and in the village Form VIII-B also be had shown the same amount against the relavant entry Exh 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 Exb. 35 by showing it as Rs. 1,000 instead of Rs. 100 as originally entered by him in the village Form VIII-B. He further pleaded that he had been implicated by the Supervising Tapedar and Parsarm 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 con feted and sentenced the appellant as stated above.
6. ' The question for consideration is whether the appellant has been rightly convicted. Appellant admits to have received Rs. 1,000 from P. W. Kamaluddin 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 Exb. 7 showed the recovery of Rs. 1,000 on behalf of Khatedar Hamza Khan which entry he (P. W. Haji Mohammad Khan) corrected to Rs.
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 charges. 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 ay 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 Judge may be reproduced as under :- "The total sum or this money comes to Rs. 3,300. Had the Exh. 7 been Rs. 100 it would have been Rs.
7. 4,200. The accused avers that there is tampering with record. According to him one figure of Rs.
8. 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 out to any witness about raking Rs. 100 Exh. 2 into Rs. 1,000 I feel that this is an afterthought. Exb. 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 ash (---) 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 examine/ Umerdin son of Abdul Majid to prove tha. He had paid R9. 1,000 and not Rs. 100 and that receipt of Rs. 1,000 was given to him.'
9. ' I do not agree with the reasoning of learned Special Judge. It is well established that burden of proof never shifts and 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 case. It having been admitted by the prosecution that in the village Form VIII-B, appellant had shown receipt of Rs. 1,(00 in the entry relating to he 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.
10. 1,000 received by him from the Khatedar Hamza Khan through his lessee Kamaluddin. 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 R. 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 had been made out against Urn by the Supervising Tapedar Haji Mohammad Khan by tampering 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 has 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 prosecution to have either produced the Khatadar Abdul Majid or whatsoever paid on his behalf to rebut the explanation of the appellant. The least that the prosecution could have done was to have produced the receipt in original which must have been issued to the Khatedar Abdul Majid or even the Tape tar'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 rejecting this explanation on the ground that no question was put to any witness about changing the figure of R.
11. 100 into 1,000 shown against this entry, as the High 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 to 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 not 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 in the village Form about which the appellant was asked to explain before the present learned Special Judge only and not before the previous Special Judge (Mr. F. E. Ansari) who had acquitted him.
12. ' 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 fire if paid by him shall b refunded to him.