JUDGMENT
K.P. Mohapatra, J.
1. The appellant has challenged the judgment passed by the learned Special Judge, Bhubaneswar, convicting and sentencing him for offences under Section 5(1) (c) and (d) read with Section 5(2) of the Prevention of Corruption Act (hereinafter referred to as the ‘Act’) and under Sections 467 and 471, I.P.C.
2. The prosecution case in brief is that the appellant was serving as Motor Vehicles Inspector (Technical), a gazetted post and in the year 1975 he was posted at Baripada in Mayurbhanj district. On 19-8-1975 he was checking motor vehicles at a place called Asanjoda on the national highway. A passenger bus bearing Registration No. RJY 3091 of which P. W. 7 was the driver, P. W. 8 was the owner and P. W. 9 was the conductor, was travelling from Jhansi in Rajasthan carrying in all 62 pilgrims to Puri in Orissa although its seating capacity was 54. The vehicle was checked by the appellant who found that it was overloaded and so he realised a sum of Rs. 800/- as compounding fee from the driver and conductor (P.Ws. 7 and 9 respectively) and gave a receipt (Ext. 5) showing collection of the said amount. But by manipulating the carbon copy of the receipt (Ext. 5/1), he represented that a sum of Rs. 400/- only was realised from them and deposited the aforesaid amount of cash after return to the office at Baripada. Thereby, he made an illegal gain of Rs. 400/- to himself. The above action of the appellant would have gone unnoticed, but for a second check of the said vehicle at Puri by another Motor Vehicles Inspector. During check, the compounding receipt of Rs. 800/- (Ext. 5) was produced before him and for further verification he made correspondence with the Regional Transport Office at Baripada. It was then revealed that although compounding fee of Rs. 800/- had been realised the appellant had deposited a sum of Rs. 400/- only in the office cash and had appropriated the balance Rs. 400/- by making interpolation of documents. The matter was reported to the Vigilance Police and after drawing up F.I.R. (Exts. 18 and 18/2), the case was investigated. After close of investigation, sanction for prosecution was obtained under Section 6 of the Act and charge-sheet was submitted in Court.
3. The defence of the appellant was very simple. He admitted that on the relevant date he checked the passenger bus and as he found it to be overloaded, he demanded compounding fee of Rs. 800/- from the driver and conductor and accordingly wrote the receipt with a carbon copy. The conductor of the bus pleaded that he did not have Rs. 800/- with him and requested for payment of compounding fee of Rs. 400/-. After some insistence and hesitation, the appellant acceeded to his request and charged compounding fee of Rs. 400/-, instead of Rs. 800/-, but as it was already late in the evening and other vehicles were waiting for check, due to haste and oversight, he forgot to correct the amount from Rs. 800/- to Rs. 400/- in the receipt (Ext. 5) given to the conductor and allowed the vehicle to pass. He realised his mistake next day in the office when he deposited the compounding fee of Rs. 400/- for the passenger bus. He corrected the carbon copy of the receipt in order to show that a sum of Rs. 400/- had been realised as compounding fee from the passenger bus bearing Registration No. RJY 3091. He denied having appropriated a sum of Rs. 400/- for personal gain.
4. The above narration of facts and the appellant’s defence thus show that on 10-8-1975 late in the evening a passenger bus bearing Registration No. RJY 3091 travelling with 8 more passengers than the seating capacity of 54 was checked by the appellant. Vehicle checking report and receipt showing realisation of compounding fee of Rs. 800/- were handed over to the driver and conductor of the passenger bus. But a sum of Rs. 400/- was deposited in the Regional Transport Office by making alteration in the vehicle checking report and the receipt showing therein that a sum of Rs. 400/- was realised as compounding fee. In view of the above basic facts, it is necessary to consider how for the appellant’s defence that actually he had realised compounding fee of Rs. 400/- was proved by preponderance of probabilities, or otherwise the prosecution case as presented and substantially not disputed cannot be disbelieved. For the above purpose, it is necessary to discuss the evidence.
5. P.W. 3 was the Regional Transport Officer of Baripada at the relevant time. He stated in his evidence that the Checking Officer at times proposed higher compounding fees and bargain went on between the officer and the party. Ultimately, if the party agreed to pay the compounding fee as fixed by the State Transport Authority, the Checking Officer considered the amount reasonable and accepted the same as compounding fees. P. W. 7 was the driver of the passenger bus belonging to Jhansi District in Rajasthan. He stated that the appellant imposed fine of Rs. 800/-. As the conductor did not have sufficient money to pay Rs. 800/-, he incurred a loan from one of the passengers and paid the amount to the appellant who gave a receipt. He was cross-examined in great detail, but he stuck to his version that a sum of Rs. 800/- was paid to the appellant. He, however, admitted that he had no knowledge as to the amount the conductor had borrowed from the passenger to make up the sum of Rs. 800/-. It was natural, because the occurrence had taken place in 1973 and the witness deposed in 1981. The witness made an important disclosure to the effect that the appellant had gone to Jhansi to persuade him to speak that a sum of Rs. 400/- was realised by him and not a sum of Rs. 800/-. He, however, admitted that there was a bargain in the sense that he had requested the appellant to impose a lesser fine, but the latter replied that he had already imposed the fine and had prepared the receipt for the amount realised P. W. 8 was the owner of the passenger bus. He stated that after the bus returned to Jhansi, the driver and the conductor reported that they had paid a fine of Rs. 800/- to the Checking Officer in Orissa. But the receipt was not given to him obviously due to the fact that it had been seized at Puri by another Checking Officer. This witness was also examined in great detail and there is nothing to disbelieve his version. P. W. 9 was the conductor of the passenger bus. He stated that the appellant imposed a fine of Rs. 800/- on the ground that 7 or 8 passengers were more than the permitted seating capacity of the bus. He did not have the sum of Rs. 800/- and so he incurred a temporary loan from one of the passengers to make the total of Rs. 800/- and paid the amount to the appellant. He did not, however, remember the amount he secured from the passenger. It was natural, because after lapse of about 6 years, he came to depose in the case. On return, he informed P. W. 8 about the fine. This witness was also examined searchingly, but there is nothing to disbelieve his testimony.
6. It is very significant to note that P.Ws. 7, 8 and 9 belonged to a distant place. P.Ws. 7 and 9 came from Jhansi in Rajasthan. Out of them the owner of the passenger bus did not at all know the appellant, because he did not travel with the bus. The driver and the conductor came for a temporary visit. They had neither any acquaintance nor any enmity with the appellant. They had no axe to grind against him. If as a matter of fact. They had paid only Rs. 400/-, I believe, they would have said so. But because they paid a sum of Rs. 800/- as compounding fee to the appellant, they stuck to their version. Their conduct in reporting the fact to the owner of the passenger bus after return had corroborative value. Being total strangers to the appellant, they had no reason to implicate him in a grave criminal case, unless the fact was true. It is difficult to disbelieve their evidence and in my opinion, the learned Judge was justified in accepting the same.
7. The whole of the facts, evidence and circumstances revealed in this case betray the unusual conduct of the appellant If it was true that he had actually realised a sum of Rs. 400/- from the driver and conductor of the passenger bus, but due to oversight, mistake, confusion or haste it was not possible on his part to correct the original vehicle checking report and the receipt made over to the conductor (P. W. 9), soon after return to the office the next day or at least at the time of making the cash deposit in the office, it was his bounden duty to make a clean breast of things and inform P. W. 3, the Regional Transport Officer about the mistake committed by him. Had he done so, his bona fide and clean intention could have been established without any shadow of doubt. But instead of doing so, he made interpolations in the carbon copies of the vehicle checking report and the receipt by showing that a sum of Rs. 400/- was realised and not a sum of Rs. 800/- as compounding fee. The interpolations were detected as reported by the handwriting expert (P. W. 14). The above conduct appears incriminating.
8. The appellant had examined three defence witnesses. D. W. 1 was plying his vehicle bearing Registration No. ORC 1748 and on the relevant date and time his vehicle was also checked soon after the passenger bus bearing Registration No. RJY 3091 was checked by the appellant. As he waited, he saw that the appellant imposed a fine of Rs. 800/- for the passenger bus, but the conductor of the bus only paid Rs. 400/- and went away. D. W. 2 was an Anti-smuggling Guard He stated that he was present at the time of checking of the passenger bus. The appellant imposed a fine of Rs. 800/-, but after some bargain received only a sum of Rs. 400/- from the conductor of the passenger bus. D. W. 3 was a local Shop-keeper. He stated that the appellant received only Rs. 400/- after bargain, although he gave out that he had imposed a fine of Rs. 800/-. Even if these witnesses were present, they were local persons and it was not unlikely that they wanted to support the appellant Their evidence will not outweigh the evidence of P.Ws. 7 and 9, the persons who paid the amount. These defence witnesses might or might not have given attention to the affairs of P.Ws. 7 and 9 when their vehicle was being checked by the appellant. Their evidence was, therefore, rightly disbelieved by the learned Judge.
9. On giving my anxious consideration to the oral and documentary evidence adduced by the prosecution and the defence, 1 am of the view that the learned Judge arrived at the correct conclusion that the appellant received a sum of Rs. 800/- as compounding fee, but by interpolation of documents deposited a sum of Rs. 400/- in the office of the Regional Transport Officer and at the same time made a personal gain of Rs. 400/- for himself.
10. For S.K. Mund, learned Counsel appearing for the appellant, strenuously challenged the order of sanction under Section 6 of the Act mainly on the following grounds:
(1) The prosecution was not sanctioned by the State Government, but by the Special Secretary, P. & S. Department (P. W. 11), which was not in accordance with law; and
(2) As all the material documents referred to in a decision of this Court reported in ILR (1977) 1 Cuttack 545, (Dr.) Hemanta Kumar Nayak v. State of Orissa, were not produced even before P. W. 11, there was no proper application of mind before sanction for prosecution was accorded.
Learned Additional Government Advocate, on the other hand, urged that the Government accorded sanction to the prosecution and not P. W. 11. But P. W. 11 being the Special Secretary of the P. & S. Department dealing with the subject, examined the materials placed before the Government and after being satisfied on due application of mind that there were materials for sanction of the prosecution, placed his notes to Government and after the prosecution was sanctioned, he issued the sanction order. Therefore, it was not a case in which P. W. 11 by himself and without obtaining orders of the Government, sanctioned prosecution of the appellant He further urged that all relevant materials necessary for application of mind were before the Government which were examined by P. W. 11 and, therefore, it cannot be said that relevant materials were not placed and so there was no application of mind before sanction of prosecution. These contentions require careful examination.
11. Ext. 15, the sanction order, is reproduced for easy reference;
Whereas, it is alleged that Shri Braja Gopal Bhuyan during his incumbency as M.V.I., Baripada checked contract carriage No. RJY 3091 near Asanjode Check Gate on 10-8-75 at 9 p.m. and realised Rs. 800/- as spot compounding fine from the Driver of the aforesaid Contract Carriage and issued Check Report No, 43237 and Money Receipt No. 324380 of Book No. 6488 as the aforesaid vehicle was found carrying 8 passengers in excess against the sitting capacity. Shri Bhuyan M.V.I. being a public servant by abusing his official position committed criminal breach of trust of Rs. 400/- out of the above amount of Rs. 800/- by making false entry in the carbon copies of the aforesaid receipt and Check Report and deposited only Rs. 400/- in the office of R.T.O. Baripada.
And whereas, the said acts constitute offence punishable Under Section 5(2) read with Section (1)(c)(d) P.C. Act/409/467/477A, I.P.C.
And whereas, the State Government, being the authority competent to remove the said Shri Braja Gopal Bhuyan from office, after fully and carefully examining the materials in regard to the said allegations and the circumstances of the case, consider that the said Shri Braja Gopal Bhuyan should be prosecuted in a Court of Law for the said offences.
Now, therefore, the State Government do hereby accord sanction Under Section 6(1)(b) of the P.C. Act/197(b), Cr. P.C. (Act 2 of 1974) for the prosecution of the said Shri Braja Gopal Bhuyan for the said offences and for any other offences punishable under the provisions of law in respect of the acts aforesaid and for taking cognisance of the said offence by a court of competent jurisdiction.
It will appear from Ext. 15 that sanction was accorded by the State Government and not by P. W. 11 who being the Special Secretary to the Government of the P & S. Department issued the sanction order in the name of the State Government. As a Special Secretary to the Government it was the duty of P. W. 11 to consider the relevant materials before him, apply his mind and then recommend to the State Government for according sanction or for withholding to do so. In this case, P. W. 11 stated that he had gone through all the materials received from the Vigilance Department. After going through the materials, he was satisfied that there was a prima facie case against the appellant and so he obtained Government orders for prosecution of the accused. From his cross-examination it appears that the consolidated vigilance report (Ext. 15/1) containing all relevant materials was placed before him. He considered the same and then formulated the opinion which he placed before the State Government in support of according sanction for the prosecution. At this stage, it is necessary to look into the sanction order itself. The first part thereof contains succinctly the prosecution case. The consolidated report (Ext. 15/1) is a detailed one stating the entire facts of the prosecution including the gist of statements and copies of relevant documents. Consideration of the consolidation report would satisfy a normal person that a prima facie case existed against the appellant.
12. The case of (Dr.) Hemanta Kumar Nayak v. State of Orissa ILR (1977) 1 Cuttak 545 (supra) was considered by a Division Bench of this Court in Criminal Appeal No. 173 of 1982 (decided on 3-9-1987) (reported in 1988 Cri LJ 461 at p. 468) and it was held:
…But it cannot be stated as a broad proposition of law that the investigating agency must necessarily place the first information report, seizure-lists, statements of prosecution witnesses and all other material documents including case diary before the sanctioning authority for obtaining a valid sanction order and if such documents are not produced before him, the sanction order must necessarily be construed to be invalid in contravention of Section 6 of the Act. On the other hand, if a consolidated report containing the allegations and all material facts including statements of prosecution witnesses and details of documents and the investigation report are placed before the sanctioning authority and on application of mind he finds that the facts contained therein constitute an offence and thereafter he accords sanction, such order of sanction will be unexceptionable and valid in the eye of law. If, on consideration of such materials as referred to above, the sanctioning authority will not be satisfied so as to find out a prima facie case constituting the offence, he shall be free to call for other documents such as, first information report, seizure-lists, statements of prosecution witnesses and other documents and materials from the Investigating agency for consideration and satisfaction before according sanction. Application of these principles will depend on the facts of each particular case and the facts of each case have to be considered so as to find out if the order of sanction is valid or not. The law has not prescribed any circumscribed limit nor can each and every case be put into a strait-jacket.
13. In view of the above dictum, the principle laid down in the case of (Dr.) Hemanta Kumar Nayak v. State of Orissa (supra) has no binding effect and cannot be pressed into service in this case. On the other hand, on consideration of the above facts and principle of law, I am of the view that the order of sanction for prosecution under Section 6 of the Act was passed by the State Government after due application of mind and on perusal of all the material facts of the case although the executive pan of it was done by the Special Secretary of the P & S. Department (P. W. 11). I do not find any legal lacuna in the sanction order and so the contention of Mr. Mund is untenable.
14. The contentions raised in the appeal having failed, the last question for consideration is about the sentence. The occurrence look place in the year 1975 and the appellant was convicted and sentenced by the learned Special Judge in 1982. In the meantime, because of the conviction, the appellant might have lost his service. The amount involved was Rs. 400/- only. After expiry of a period of nearly 13 years it would cause real hardship to the appellant to undergo imprisonment for one year. In the facts and circumstances of the case, sentence for the period already undergone and a consolidated fine of Rs. 3000/- (Rupees three thousand), in default to undergo simple imprisonment for a period of three months, will serve the ends of justice.
15. In the result, the appeal is dismissed subject to modification of sentence. In place of the sentence imposed, the appellant is sentenced to imprisonment already undergone and further to pay consolidated fine of Rs. 3000/- (Rupees three thousand), in default to undergo simple imprisonment for a period of three months.