Rajeshwari Singh vs State of U.P.

S.I. Jafri, J.—Rajeshwari Singh Appellant has filed this appeal against his conviction u/s 409 IPC and sentence of 10 years RI and a fine of Rs. 60.000/- (Rupees sixty thousands) recorded by Sri. S.C. Srivastava, II Assistant Sessions Judge, Gorakhpur by his judgment and order dated 16-8-76 in Sessions Trial No. 157-A of 1974, State v. Rajeshwari Singh and Ors. Along with Rajeshwari Singh Appellant, Lal Chand and Janardan Tewari co-accused were also tried on the charge u/s 409 read with Section 109 IPC but they were acquitted by the trial court.

The State of U.P. filed Government Appeal No. 2668 of 1976 against the acquittal of Lal Chand and Janardan Tewari. The appeal against Lal Chand was admitted while the appeal against Janardan Tewari was dismissed summarily by the High Court.

In brief the prosecution case is that there has been a Co-operative Cane Development Union at Siswa Bazar, District Gorakhpur. It was aided by the Government and named as "Sahkari Ganna Vikas Samiti Limited, Siswa Bazar" (hereinafter referred to as the Union). One of the functions of the said Union was to look after the supply of sugar-cane by the Cane Growers to the Sugar Factory, correct weighment of sugar-cane and payment of correct prices by the sugar-cane factory to the cane-growers. The Cane Growers used to take their sugar-cane to the Sugar Factory gates as well as various purchase centres established for the purpose of receiving sugar-cane and the same were weighed in the presence of the representatives of the Union and thereafter weighment slips were issued by the men of the Sugar Factory to the Sugar-cane growers. The Head Cashier of the Union used to realise from the Sugar-cane factory the price of the sugar-cane supplied by the sugar-cane growers to the Factory and got the same paid to the rightful cane growers though their Assistant Cashiers of the Union after deducting some commission for the Union.

It is alleged that Rajeshwari Singh Appellant worked as Assistant Cashier and Incharge of the Classified Section of the Union during the Session 1965-66. It is also alleged that Janardan Tewari accused had worked as Zonal Classified Clerk and Sri. Lal Chand worked as Classified Clerk under Rajeshwari Singh accused during the said period.

The prosecution case is that on the dates given below Rajeshwari Singh had taken various amounts through Bhagwati Singh PW 23, Head Cashier of the Union as advance for payment to cane growers but he bad paid only part of the said amount to the cane-growers and as such he had embezzled the remaining part of the advance money which was entrusted to him by the aforesaid Bhagwati Singh, Head Cashier of the Union:

Serial Date Advance Payment Embezzlement No. 1. 13-1-66 Rs. 20056.55 Rs. 14996.65 Rs. 5059.90 2. 18-9-66 Rs. 19380.40 Rs. 14368.61 Rs. 5011 79 3. 25-1-66 Rs. 17177.88 Rs. 12142.32 Rs. 5035 55

Thus Rajeshwari Singh Appellant is alleged to have committed criminal breach of trust for a total sum of Rs. 15107.24 as a Public Servant. The other two accused Janardan Tewari and Lal Chand were said to have abetted the commission of the aforesaid offence by Rajeshwari Singh.

On the basis of report of embezzlement, lodged by Sri. Salig Ram Srivastava, Hony. Secretary of the Co-operative Union Siswa Bazar Gorakhpur, a case u/s 409 IPC was registered on 22-2-67 at Police Station Kothibhar against Rajeshwari Singh Appellant and Bhagwati Singh PW 23, Head Cashier of the Union for embezzlement of Rs. 35578 53. Lateron, Sri. Salig Ram Srivastava, by his letter dated 2-3-67, had informed the Station Officer, P.S. Kothibhar the final amout of embezzlement as Rs. 51113.86

Investigation followed and ultimately charge-sheet was submitted by Masoom Husain PW 25 Investigating Officer against Rajeshwari Singh Appellant alone. The Investigating Officer exonerated Bhagwati Singh PW 23 and submitted final report in the court in favour of Bhagwati Singh and instead made him a witness in support of the prosecution case. The accused Lal Chand and Janardan Tewari were subsequently charge sheeted by the Investigating Officer on the advice of the Public Prosecutor.

At the preliminary, hearing, it was found that ten distinct offences were committed by the accused on different dates and, therefore, in view of Section 219 Code of Criminal Procedure, the case was split up into four cases as Sessions Trial Nos. 157-A, 157-B, 157-C and 157-D of 1974.

Rajeshwari Singh has denied the prosecution allegations in his statement u/s 313 Code of Criminal Procedure. He stated that he was never entrusted with the alleged money by Bhagwati Singh, Head Cashier on 13-6-66, 18-1-66 and 25-1 -66. He has also stated that on the dates referred to above, he neither acted as Classified Incharge or Assistant Cashier of the Union nor he paid any money to the cultivators. He had also denied to have removed the Cash book, Price Payment Register and Advance register of the Head Cashier from the office of the Union. He has also stated that he was falsely implicated in the case on account of enmity with Bhagwati Singh and due to the pressure of Board of Directors.

Janardan Tewari accused admitted that he was working in the Classified Section and stated that Rajeshwari Singh used to prepare classified sheets and he simply prepared fair copies of the same. Lal Chand accused stated that he was simply a checking clerk in the Union and was not a clerk of Classified Section. The accused Rajeshwari Singh had examined Krishna Swarup Saxena DW 1 in his defence.

The prosecution examined 25 witnesses in support of its case and out of them Kishori Lal PW 7, Harihar Shanker PW 17 and Bhagwati Singh PW 23 were examined on the factum of entrustment of the amount given to the accused Rajeshwari Singh.

Suresh Prasad Srivastava PW 1 deposed that he was posted as Auditor of the Union from 1963 to September 1967. He stated about the procedure adopted for the supply of sugar-cane by the cane-growers and payment of price of the same. According to him the cane-growers were issued supply tickets from the Union for the purpose of supplying sugar-cane. The cane-growers used to go with their sugar-cane and the supply ticket to the sugar mill where the sugarcane was weighed in the presence of the representatives of the Mill and a representative of the Union and each of them prepared separate weighment sheet which included name of the cane-growers supplying sugar-cane, the weight and the price of the sugar-cane. The Mill personnels used to prepare four copies of the slips in respect of sugar-cane supplied by each cane-growers. Two copies of the slips were given to the cane-growers and the two copies remained in the Mill. He further deposed that it was the rule that out of the two copies of the slips retained at the Mill, one copy should be sent to the Union but during the period to which this case relates, the Mill did not send copy of the slip to the Union. He further deposed that the cane-growers used to tender both the copies of the slips with them at the Union where one copy of the slip was returned to them after affixing payment seal with price of the sugar-cane. The Sugar Mill used to direct its bankers for transferring the money as the price of the sugarcane supplied, from the Mills'' accounts to the account of the Union, though some times cash payments were also made at the Mill. The Head Cashier of the Union used to draw the money from the Bank or to take it from the Mill in cash as the case may be and pay lumpsums to the various Assistant Cashiers after entering the same on the advance register and obtain the signatures of the Assistant Cashiers on the said register. The Assistant Cashiers used to enter the amount received from the Head Cashier on their Rokar Bahi (Cash Book) and on receiving the two copies of the Mill''s slips from the Cane-growers affixed payment seals on the back of them, obtained signatures or thumb impressions of the cane-growers on one of the slips and themselves sign on them and return the other slip along with the price of sugar-cane less the dues against the Cane-growers. The Assistant Cashier used to enter in their cane payment register, the number of the Mills slip, weight of sugar-cane, its price and deductions made, and the payments made during the day were summed up by them in the advance register and they returned the balance amount with them along with the payment slips received from the cane-growers to the Head Cashier. He further stated that the Head Cashier maintained a cane price consolidation register in which he used to enter the total number of slips and their total amounts of which payments had been made by the various Assistant Cashiers.

Surendra Prasad Srivastava has also stated that in the year 1965-66 Rajeshwari Singh accused was the Incharge of the Classified Section of the Union and also worked as Assistant Cashier.

Bhagwati Singh PW 23 stated that he was the Head Cashier of the Union from 1959 to 1-4-67 and during the year 1965-66, the accused Rajeshwari Prasad Singh was Classified Incharge and also worked as Assistant Cashier. He further deposed that he had paid to the accused Rajeshwari Singh Rs. 20,500/-on 13-1-66; Rs. 20,000/- on 18-1-66 and Rs. 20,000/- on 25-1-66 for making payments of the Mill''s slip to the cultivators and the accused Rajeshwari Singh had told him to have paid Rs. 20,467.13, Rs. 19,816.12 and 18.529.32 on 13-1-66, 18-1-66 and 25-1-66 respectively to the cultivators. He further deposed that he used to advance money to the Assistant Cashiers for cane price payment to the cultivators and used to make entries in the advance register at the time of giving money to them and the signatures of the Assistant Cashiers were obtained in the said register. It was also stated by him that the Assistant Cashiers used to make entries in their Rokar Bahi (Cash Book) about the money which were advanced to them by him and during the day after payment of the advance money to the cultivators, the Cashiers used to make entries in their payment register. The Assistant Cashiers also used to account before him, the payment made by them to the cultivators and whatever the money remained with them after payment they used to return the same to him. The Assistant Cashiers also used to take his signatures on their Cash book (Rokar Bahi). They also used to keep all paid up payment slips in one bundle and after writing their names on the bundle they used to return the same to him. On the basis of the aforesaid account given by the Assistant Cashiers, he used to get the entries made in the Consolidation Register. He further stated that he did not himself make any entry in the Consolidation Register but it was done by his men. He further deposed after looking into the Consolidation Register of the year 1965-66 that all the entries except the entries dated 3-1-66, 4-1-66, 8-1-56, 10-1-66, 27-1-66, 28-1-66 and 29-1-1966 are in the handwriting of Hari Prasad and the rest are in the handwriting of Kishori Lal. He further stated that he had seen Kishori Lal and Hari Prasad reading and writing and below all these entries, his signatures are also made therein. He further stated that after the entries were made in the Consolidation Register, the Incharge of the date of payment Section uted to take the payment slips from him deposited by the Assistant Cashiers and he used to make entry regarding their receipt in the Consolidation Register and also used to make entries about these slips Cashier-wise in his date of Payment Register. He also used to mention the date of payment on payment sheets and thereafter all the payment slips were sent to the Classified Section. He further deposed that in the Consolidation Register the entries are recorded separately regarding payment of slips by each Cashier.

Bhagwati Singh has further deposed that the embezzlement in this case came to light in the year 1967 when he along with the Accountant and the Auditor were preparing accounts for unpaid slips. He had made a report to the Secretary of the Union regarding the same. The aforesaid original report was received by Sharda Prasad, Establishment Clerk and he had made an endorsement regarding the said report on the carbon copy which is Ex. ka. 637/1. He further deposed that on 22-2-67 he had given a detailed report regarding the embezzlement and on the carbon copy of the said original report which is before me also bears the signature of Sharda Prasad regarding the receipt. The said signature is Ex. ka. 638/1.

He further deposed that the Cane Payment Register and Cash Book (Rokar Bahi) of the year 1965-66 of accused Rajeshwari Singh are not found in the office of the Union and they are missing.

Bhagwati Singh has proved his report Ex. ka. 635/1 dated 5-7-66 to the Secretary of the Union regarding the loss of Advance Register of the year 1965-66 and also the order of the Assistant Secretary of the Union Ex. ka. 635/2 for searching the register. In cross-examination he had stated that he did not remember if he had stated before the Investigating Officer during investigation about the specific advance given by him to the accused as deposed by him. He has also failed to give any explanation as to why his statement regarding specific advance payments was not recorded by the Investigating Officer.

Kishori Lal PW 7 stated that on 25-1-66 Rs. 20,000/- had been given to Rajeshwari Singh by Bhagwati Singh for making payment to cultivators in his presence. However, in cross-examination he had admitted that he did not narrate this fact to the Investigating Officer during investigation.

Harihar Shukla PW 17 stated about the advance payment of Rs. 20,000/- on 13-1-66 and Rs. 20,400/- on 18-1-66 by the Head Cashier Bhagwati Singh to the accused Rajeshwari Singh before him. He also admitted that he was not interrogated by the Investigating Officer.

The learned Sessions Judge has rightly held that the presence of Harihar Shukla PW 17 at the time of giving the alleged advance to Rajeshwari Singh by Bhagwati Singh, Head Cashier is highly doubtful. He was not interrogated by the Investigating Officer and his statement that Rs. 20,000/- and Rs. 20,400/- were given to Rajeshwari Singh by Bhagwati Singh, Head Cashier on 13-1-66 and 18-1-66 respectively is inconsistent with the statement of Bhagwati Singh who had stated that he had advanced Rs. 20,000/- on 13-1-66 and Rs. 20,400/- on 18-1-66 to Rajeshwari Singh accused Under the circumstances, the evidence of Harihar Shukla PW 17 is not reliable on the factum of entrustment of the amount given to accused Rajeshwari Singh.

As far as Kishori Lal PW 7 Assistant Cashier is concerned he had stated about the advance of Rs. 20,000/- given to the accused Rajeshwari Singh on 25-1-66 only. The learned Sessions Judge has rightly held his presence doubtful at the time of giving advance to accused Rajeshwari Singh by Bhagwati Singh, Head Cashier. He also did not remember the amount of advance given to Rajeshwari Singh on 13-1-66 or 17-1-66 or 18-1-66. Moreover, Kishori Lal did not state before the Investigating Officer about the alleged advance of Rs. 20,000/- given to the accused Rajeshwari Singh on 25-1-66 by Bhagwati Singh, Head Cashier. On the consideration of the entire statement of Kishori Lal PW 7, the trial court has rightly held that he is not a reliable witness so far as the alleged advance of Rs. 20,000/- given to Rajeshwari Singh on 25-1-66 by Bhagwati Singh, Head Cashier is concerned.

The remaining evidence of the entrustment of the advance money given to the accused Rajeshwari Singh on 13-1-66, 18-1-66 and 25-1-66 is found in the statement of Bhagwati Singh, Head Cashier alone. It may also be noted that even Bhagwati Singh did not state before the Investigating Officer Masoom Husain PW 25 about the specific amount of advance given to the accused during the investigation. It was stated by him for the first time before the trial court on 28-6-76 i.e. after about 10 years regarding the alleged advance given to Rajeshwari Singh by Bhagwati Singh, Head Cashier. He has also admitted in cross-examination that when Assistant Cashiers are appointed their specimen signatures are taken and they are kept in the office of the Union. He further stated that Rajeshwari Singh''s specimen signature was also kept in the office He also admitted that be did not compare the alleged signatures of the accused Rajeshwari Singh on the payment slips dated 13-1-66. 18-1-66 and 25-1-66 with the specimen signature of Rajeshwari Singh kept in the office. He further stated that he had stated about the payment of the advance money to the accused Rajeshwari Singh on the aforesaid three dates by looking into the classified sheets of those dates. He further stated that he did not know that Bishnath of Siswa Bazar had given an application complaining that by using unfair means he had embezzled money but lateron be admitted that the village people had given an application against him that he had embezzled money and in that application Rajeshwari Singh accused was also one of the signatories. He further admitted that Lal Bahadur Singh of his village was the clerk in the Union and he was in league with Rajeshwari Singh accused. He further admitted that it is correct that be had stated before the Investigating Officer that his Pattidar (Joint Khata Holder) Ram Deo Singh and others were friendly to the accused Rajeshwari Singh from before and they were sending anonymous applications continuously against him.

It may further be noted that Cane Price Register and the Cash Book alleged to have been maintained by the accused Rajeshwari Singh during the relevant period and kept in the office of the Union have not been produced by the prosecution. These would have been the best evidence to establish that Rajeshwari Singh was entrusted with the money by Bhagwati Singh, Head Cashier on the relevant dates and he had acted as Assistant Cashier. Bhagwati Singh had stated that accused Rajeshwari Singh himself removed the Cash Book and Cane Payment Registers and did not deposit the same in the office. Further, Bhagwati Singh in para 26 of his statement had stated that Cash Payment Register and Cash Book remained with the Assistant Cashier and be used to sign on the Cash Book every evening after checking the account. He further stated the issue register of Rokar Bahi or Cash Payment Register was not kept with him and he did not know if it was kept in the office. He also deposed that the Payment Register, and the Cash Book regarding the amount were kept by the accused Rajeshwari Singh himself and he did not deposit them in the office. It may further be noted that Surendra Prasad Srivastava PW 1 Senior Auditor of the Union from the year 1963-1967 stated that during the said period no information was given to him by Bhagwati Singh about the loss of the Advance Register. Moreover, Masoom Husain PW 25 who had investigated the case also stated that no report regarding the loss of the Advance Register was given to him during the investigation. Under the circumstance, the genuineness of the report Ex. Ka-635/1 dated 5-7-66 of Bhagwati Singh regarding the loss of the Advance Register of the year 1965-66 is subject to great doubt. Even the alleged order Ex. Ka-635/2 of the Assistant Secretary of the Union on the said report for searching the register has not been proved by examining the Assistant Secretary of the Union and instead Bhagwati Singh had himself proved it. Under the circumstance, the defence suggestion that the report Ex. Ka-635/1 of Bhagwati Singh regarding the loss of Advance Register and also the order Ex. Ka-635/2 of the Assistant Secretary of the Union, for searching the Advance Register on the aforesaid report were forged and ante-timed cannot be ruled out.

Moreover, the prosecution has failed to produce expert opinion about the alleged signature of accused Rajeshwari Singh on payment slips from his signature which was available in the office of the Union. There is no explanation on the record as to why the expert opinion was not obtained.

The statement of Bhagwati Singh, Head Cashier finds corroboration from the narrated amount of payment from the entries mentioned in the consolidated registers and the classified sheets. However, the Advance Register was the best evidence wherein the accused was said to have received the alleged advance on 13-1-66. 18-1-66 and 25-1-66 from Bhagwati Singh, Head Cashier but the same was not produced by the prosecution. The advance register was the basis of the entries which were subsequently mentioned in the Consolidated Register and thereafter the classified sheets were prepared looking into the entries in the consolidated register. The non-production of the Advance Register creates reasonable doubt regarding the guilt of the accused. Moreover, it was admitted by Bhagwati Singh in cross-examination that in the Consolidation Register there are cuttings and overwriting; as well. It is significant to note that the relevant entries in the Consolidation Register are alleged to be in the hand writing of Harihar Prasad but the prosecution has failed to examine Harihar Prasad and instead, the entries were proved by the evidence of Bhagwati Singh himself. There is no explanation on the record as to why Harihar Prasad was not examined to prove the entries which were alleged to be in his handwriting. Under the circumstance, the defence suggestion that the original Consolidation Register was not produced before the trial court but instead another forged Consolidation Register was produced by Bhagwati Singh cannot be ruled out. Moreover, the entries in the Classified sheets which were based on the entries mentioned in the Consolidation Register cannot be given due weight and relied upon for bringing home the charge to the accused It is also significant to note that no question was put to the accused regarding the entries mentioned in the Consolidation Register and the Classified sheets during the examination of the accused u/s 313 Code of Criminal Procedure and as such the accused was not afforded any opportunity to explain the said circumstance against him. The accused has thus, been seriously prejudice in his defence.

Reliance cannot be placed on the evidence of Bhagwati Singh contained in paragraphs 17 and 18 of his statement. Bhagwati Singh stated therein that the embezzlement came to light in the year 1967 when he along with the Accountant and Auditor were preparing account regarding unpaid slips. He also stated that he made two reports on 20-2-67 and 22-2-67 regarding the embezzlement to the Secretary of the Union, Bhagwati Singh did not prove the aforesaid two reports in original and instead he has proved the two carbon copies Ex. Ka-637/1 and Ex. Ka-638/1. He had himself proved the signature regarding the signature of Sharda Prasad Establishment clerk regarding the receipt of the above mentioned two reports. Bhagwati Prasad also did not state that the two original applications dated 20-2-67 and 22-2-67 were not traceable or missing. He has not even examined Sharda Prasad, Establishment clerk to prove his writing on the carbon copies Ext. Ka-637/1 and .638/1 which are said to be the carbon copies of the original reports. Under the circumstance, no reliance can be placed on the statement of Bhagwati Singh that he had made reports to the Secretary of the Union on 20-2-67 and 22-2-67 regarding the embezzlement when it came to light. Therefore, the possibility that Bhagwati Singh had himself fabricated the carbon copies Exts. Ka-637/1 and 638/1 cannot be ruled out.

The mode of proving any document: by Primary evidence and Secondary evidence has been incorporated in Chapter v. of the Evidence Act. The contents of the document may be proved by Primary or by Secondary evidence. Primary evidence means the document itself produced for inspection of the court vide Section 61 and 62 of the Evidence Act. Documents must be proved by Primary evidence except in cases mentioned in Section 65 of the Evidence Act. Section 65 of the Evidence Act is quoted below:

Secondary evidence may be given of the existence, condition or contents of a document in the following cases:

(a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved or, of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, alter the notice mentioned in Section 66, such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) when the original is of such a nature as not to be easily movable;

(e) when the original is a public document within the meaning of Section 74.

(f) when the original is a document of which a certified copy as permitted by this Act, or by other law in force in (India) to be given in evidence.

(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.

In case (a), (c) and (d) any secondary evidence of the contents of the document is admissible.

In case (b), the written admission is admissible.

In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.

In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.

As shown above, in view of the provisions contained in Section 65(c) of the Evidence Act, Secondary evidence relating to a document may be given "when the original has been destroyed or lost, or when the party offering evidence of its contents, cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time.

In the present case it has not been shown by the prosecution evidence that the original of the carbon copies Exts. Ka-637/1 and 638/1 were destroyed or lost. Under the circumstance tie carbon copies Exts. 637/1 and 638/1 are inadmissible in evidence in view of the provisions contained in Section 65(c) of the Evidence Act and the trial court clearly fell in error in placing reliance on the aforesaid carbon copies Exts. Ka-637/1 and 638/1.

The courts must therefore, keep in their mind the conditions imposed by the Evidence Act while admitting the secondary evidence in the case.

Moreover, the conduct of Masoon Husain PW 25 Investigating Officer does not appear to have been above board in this case. The Investigating Officer has made Bhagwati Singh, Head Cashier as prosecution witness and did not file charge sheet against Bhagwati Singh and he did not give any reason in his evidence. It may be further noted that Bhagwati Singh, Head Cashier was named as accused along with Rajeshwari Singh in the report lodged by Sri. Salig Ram, Hony. Secretary Ganna Vikas Sahkari Samiti, Siswa Bazar, Gorakhpur, whereupon a case u/s 409 IPC was registered against both Rajeshwari Singh and Bhagwati Singh on 22-2-67 at 10 A.M. regarding the embezzlement on 13-1-66, 18-1-66, 25-1-66, 31-1-66, 12-2-66, 17-2-66 and 18-2-66 but after the investigation, the Investigating Officer did not submit the charge sheet against Bhagwati Singh PW 23 and instead made him a witness in support of the prosecution case against Rajeshwari Singh. Sri. Salig Ram. Hony. Secretary of Ganna Vikash Sahkari Samiti on whose report a case u/s 409 IPC was registered at the Police Station Siswa Bazar against Rajeshwari Singh and Bhagwati Singh, Head Cashier, could not be produced as a prosecution witness in this case as he had died before the commencement of the trial. Besides, Bhagwati Singh had admitted in cross-examination that he got himself bailed out in the case u/s 409 IPC which was registered at the Police Station against him and accused Rajeshwari Singh, on the basis of the report lodged by Sri. Salig Ram, Hony. Secretary of the Union. The evidence of Bhagwati Singh, is therefore, just like of an accomplice which required independent corroboration for placing reliance on him but the same is lacking in this case. From over all circumstances of the case as discussed above, the involvement of Bhagwati Singh in the embezzlement appears to be more probable than the accused Rajeshwari Singh.

Under the circumstance as detailed above, it will not at all be safe to place reliance on the evidence of Bhagwati Singh PW 23 for the conviction of Rajeshwari Singh Appellant.

An unsuccessful attempt has been made by the prosecution by the evidence of Avadhraj Prasad PW 4 and Vindhyachal PW 5 that the accused Rajeshwari Singh had made extra-judicial confession of his guilt before them. But considering the lapse of 9 years in between the date of making extra judicial confession by the accused before them and the deposition of witnesses Avadhraj Prasad, PW 4 and Vindyachal, PW 5 before the trial court, it will not be safe to place reliance on the alleged extra judicial confession made by Rajeshwari Singh regarding the embezzlement amount. As the evidence of extra Judicial confession is of a very weak type of evidence, reliance cannot be placed on it without independent corroboration which is lacking in this case. Moreover, there was no occasion for Rajeshwari Singh to have made extra judicial confession before Avadhraj Prasad, PW 4 and Vindhyachal, PW 5. Their evidence, therefore, does not inspire confidence.

Considering the facts and circumstances of the case as stated above, the prosecution has failed to establish satisfactorily that Rajeshwari Singh Appellant had embezzled Rs. 5059 90 paise, 5011.79 paise, Rs. 5035.55 paise on 13-1-66, 18-1-66 and 25-1-66 respectively entrusted to him by Bhagwati Singh PW 23, the Head Cashier of Ganna Vikas Sahkari Samiti, Siswa Bazar, Gorakhpur and as such the order of conviction and sentence recorded by the trial court against the accused deserve to be set aside.

Government Appeal No. 2668 of 1976 preferred by the State of U.P. against the acquittal of co-accused Lal Chand also deserves to be dismissed. The learned Sessions Judge has given good reasons for acquitting Lal Chand accused.

In the result, the appeal is allowed. The conviction of the Appellant Rajeshwari Singh u/s 409 IPC and sentence of 10 years RI and a fine of Rs. 60,000/- recorded by the II Assistant Sessions Judge, Gorakhpur are set aside. The Appellant is on bail. He need not surrender. His bail bonds are discharged Government Appeal No. 2668 of 1976 preferred by the State against Lal Chand is dismissed and the notice issued to Lal Chand Respondent is discharged.