Offenses under Sections 420 and 409, I. P. C. are mutually exclusive.

MOHANTY, J.

( 1 ) THIS is an appeal by the Government under Section 417, Cr. P. C. , from the order of the Magistrate, 1st Class, acquitting Sri R. K. Patnaik of the charges under sections 409, 420 and 465, I. P. C.

( 2 ) THE accused Radhakanta Patnaik was the section officer, Manijanga, under the s. D. O. , P. W. D. , Jagatsingpur, in December 1950. On 17-12-1950, the then chief Engineer Mr. Shaw, Irrigation Department, Orissa, intimated to the S. D. O. , p. W. D. , Jagatsingpur, that he would tour on the canal embankment from Santra bundh to Paradwip from 24th to 27th December, 1950. He wanted the canal bund to be made motorable, vide Ext. 1. The S. D. O. (P. W. 1) directed the accused to

"keep the canal embankment from Anantapur to Paradip in motorable condition on 26th and 27th December", vide Ext. I-a. The order was communicated to the accused on 20-12-50, vide Ext. I-b. The evidence on the record is to the effect that the accused-section-officer personally came to S. D. O. 's office, where the order was communicated to him on the morning of 20-12-1950. The evidence of the S. D. O. (P. W. 1) shows firstly, that he instructed the accused to engage labourers departmentally on muster roll; and that on 25-12-1950 he found the work to have been done satisfactorily. On 2-1-1951, the accused-section-officer submitted the muster roll, Ext. 3 for payment of Rs. 166/-to 31 labourers who, according to him, were engaged for the work on the aforesaid bund from 20th to 25th December, 1950. That muster roll appears to have been prepared by the accused-section-officer in accordance with the daily accounts of work submitted to the S. D. O. , P. W. D. , Jagatsingpur, for the work done from 20th to 26th December, 1950 (Ext. 2 ). In the muster-roll, Ext. 3 the accused has shown the names of the labourers engaged, the amount paid to them and also their signatures and thumb-marks as the case may be against the name of each. Ext. 3 was checked by the cashier with reference to the daily account of work; and an order for payment of Rs. 166/-to the labourers was passed by P. W. 1; and the amount was sent to the accused for payment to the labourers mentioned in Ext. 3. The accused-section-officer re-submitted the muster-roll Ext. 3, with a certificate ext. 3-c dated 20-3-51 showing the disbursement of the amount and the signatures and thumb-marks against the names of those labourers by way of

an acknowledgment of the payment made.

( 3 ) THE patrol K. C. Samantray was the subordinate of the accused, on 31-1-51 he sent three petitions against the accused-section-officer, one to the Chief Engineer, another to the Executive Engineer and the third to the S. D. O. (P. W. 1), alleging therein that the section officer had engaged only five outside labourers for three days and spent only Rs. 26-8-0 but billed for Rs. 166/-in the muster-roll as if thirty-one outside labourers were engaged for doing the repair work. The matter was then handed over to the Enforcement Department, Orissa, for investigation and necessary action, if on investigation, the facts alleged in the petition of K. C. Samantray were found to be true. Accordingly, the police submitted charge-sheet against the accused after necessary investigation, to take his trial under Sections 420, 409 and 465, I. P. C.

( 4 ) THE defence of the. accused was throughout that the muster-roll showed the correct state of affairs in this that besides the departmental gang-coolies and khalasis, 31 outside coolies were engaged for the repair of the embankment from anantapur to Paradip in connection with the impending visit of the Chief Engineer; that the amount of Rs. 166/- sent to him by the S. D. O. , P. W. D. , was rightly disbursed among the labourers; and that they put their signatures and thumb marks as the case may be against their names in the muster-roll on receiving their wages.

( 5 ) THE trying Magistrate has acquitted the accused of all the charges levelled against him.

( 6 ) THE main charge aga