JUDGMENT
Nirmal Singh, J.
1. This appeal is directed against the order of learned Special Judge, Anti-Corruption, Jammu, dated 27-10-1997 by virtue of which the appellant has been convicted and sentenced to undergo rigorous imprisonment for three years and to pay a find of Rs. 5000/- for the commission of offence punishable under Section 409, RPC, in default of payment of fine, he shall further undergo rigorous imprisonment for a period of one year. He has been further convicted and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 5000/- for the commission of offence punishable under Section 5(2) of the Prevention of Corruption Act (hereinafter called as Act), in default of payment of fine, he shall further undergo rigorous imprisonment for a period of one year. It was ordered that both the sentences shall run concurrently.
2. The relevant facts for disposal of this appeal are that appellant was posted as ED BPM, Rajinder Pora, Post Office, during the year 1991-94 and misappropriated a sum of Rs. 47,550/-. During the year 1992, he received Rs. 4,6000/- and after receiving the amount, he recorded the entries in the respective pass books of the account holders but did not reflect the same in his daily accounts and Branch Office (Journals) i.e. RD and SB (Recurring Deposits and Saving Bank) Journals.
3. After investigation of the case, the challan was presented before the Court of learned Special Judge, Anti-Corruption, Jammu. The appellant was charge-sheeted under Section 409, RPC read with Section 5(2) of the Act, to which he has pleaded not guilty and claimed trial.
4. The prosecution in support of its case examined PWs namely Som Dutt Khajuria, Ora Piyari, Ranjodh Singh, Champa Devi, Manzoor Hussain, Subash Chander, Swarna Devi, Jania Devi, Mohan Lal Sharma, Chhotay Ram Teetiyal and D.K. Bali, SI.
5. When the appellant was examined under Section 342, Cr. P.C. to explain the incriminating circumstances appearing in the prosecution story, he denied simpliciter and false implications. Further, he admitted that he was bound to reflect the deposits in the pass books of the account holders, who deposited the amounts and to return the pass books to them after his initials and stamp of the Post Office on the said entry of deposits are appended and then to reflect the same in the RD, SB and TD Journals and also in his BO Account and BO Daily Accounts. Appellant has also admitted the fact that all the entries of the year 1992 in the RD Journal Ex PW-ML/I, SB Journal Ex PW-ML/2, BO Account Ex PW-CR/4 and BO Daily accounts ExPW-CR/5 to ExPW-CR/21 are in his handwriting but denied the fact that he had received the amount mentioned in the charge-sheet from the depositors/account holders. Appellant/accused was called to lead defence evidence but he has not led the same.
6. Learned Special Judge, Anti-Corruption, Jammu, after perusing the evidence of the prosecution, hearing the Public Prosecutor and counsel for the accused/appellant, convicted and sentenced the appellant as stated in paragraph 1 of the judgment, aggrieved by which the appellant has preferred the present appeal.
7. Mr. Chib, learned Counsel for the appellant, assailed the judgment of the trial Court on the ground that the sanction accorded by the Senior Superintendent, Post Offices, Jammu Division, Jammu, is not according to the law. It suffers from the vice of non-application of mind. Sanction Ex PW-ML/3 is with regard to the misappropriation of Rs. 47,550/- but the appellant has been charged for an amount of Rupees 4,600/-.
8. On the other hand, Mr. Bhat, learned Counsel for the respondent submitted that the appellant has misappropriated a sum of Rs. 47,550/- during the period of 1991-94. A joint sanction was accorded for the entire amount but three separate challans were presented. In view of the provision of Section 234, Cr. P.C. that three offences of same kind within a year may be charged together. He further contended that perusal of the sanction order itself shows the due application of mind applied by the Sanctioning Authority as it has accorded the sanction after perusing the entire record, which was produced by the CBI.
9. I have given my thoughtful consideration to the submissions made by the learned Counsel for the parties and perused the record.
10. The allegation against the appellant is that he has misappropriated Rupees 47,550/- during the period 1991-94, when he was posted as ED Branch Postmaster, after collecting the same from the account holders of SB and RD. FIR was registered but at the time of filing the report under Section 173, Cr. P.C, the case was splitted into yearwise. During the year 1992, Rs. 4,600/- were embezzled. These three different reports were presented before the Court in view of Section 234, Cr.
P.C. which reads as under :
Three offences of same kind within a year may be charged together.-
(1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with and tried at one trial for, any number of them not exceeding three.
(2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Ranbir Penal Code or of any special or local law.
11. These challans were presented before the Court to meet the technicalities of law. But when the sanction was accorded, it was accorded for prosecuting the appellant for misappropriating the sum of Rs. 47,550/-. Therefore, it will be appropriate to reproduce the sanction order, which reads as under :
Whereas Shri Khem Raj s/o Shri Hari Chand was working as ED Br. Postmaster, Br. Post Office, Rajinderpora, Jammu during the period 1991-94 and is a public servant.
Whereas Shri Khem Raj was responsible for maintaining the records of Post Office, Rajinderpora being Branch Postmaster of the abovesaid Post Office pertaining to various types of deposits and withdrawals being made by different account-holders correctly and was also required to account for all the day’s transaction of the Post Office, Rajinderpora in the various journals and the branch Post Office accounts maintained in the Post Office, and was also required to account for the day-to-day transactions in the daily Sub-Post Office Gura Salathia.
Whereas it is alleged that abovesaid Shri Khem Raj the then Br. Postmaster, Rajinderpora Post Office received a sum of Rs. 36245/- from account-holders for deposit of the amounts in the RD accounts maintained in the Rajinderpora Post Office during the period 1991-94 as per entries for deposit recorded in the pass books, and deliberately did not record the corresponding deposit in the RD journals and in the branch office account. Shri Khem Raj further did not account for these deposits to the Sub-Post Office Gura Salathia and thus misappropriated the same.
Whereas it is alleged that abovesaid Shri Khem Raj, the then Branch Postmaster of Rajinderpora Post Office received a sum of Rs. 11205/- from different account-holders for deposit of the same in their respective SB accounts maintained in the Post Office Rajinderpora and made entries for these deposits in the pass books of the account-holders but did not record the same in the SB journals nor in the branch office accounts nor in the daily account sent to the Sub-Post Office Gura Salathia and thus he misappropriated the same.
Whereas it is thus alleged that by the abovesaid acts Shri Khem Raj misappropriated a total amount of Rs. 47550/-.
Whereas it is further alleged that Shri Khem Raj by the abovesaid acts abused his official position as a public servant and obtained pecuniary benefit for himself.
Whereas the aforesaid acts committed by Shri Khem Raj constitute offences punishable Under Section 409 RPC and Under Section 5(2) r/w 5(1)(d) of J. & K. PC Act, 2006.
Whereas I, Sr. Supdt. of Post Offices, Jammu Division, Jammu being the authority competent to remove abovesaid Shri Khem Raj, ED Br. Postmaster branch Post Office Rajinderpora, after carefully examining all the Postal record concerned with the above-stated instances of misappropriation and the statements of witnesses placed before me with regard to the aforesaid sections and circumstances of the case consider that Shri Khem Raj be prosecuted in the Court of Law for the abovesaid offences.
Now I, therefore, do hereby accord sanction Under Section 6(b) of the J. & K. PC Act, 2006 and Section 197 of the J. & K. Cr. P.C. for the prosecution of the said Shri Khem Raj for the said offences and in other offences punishable under other provisions of Law, in respect of the acts aforesaid and for taking cognizance of the said offences by the Court of competent jurisdiction.
Sd/-
Disciplinary Authority
with seal
12. Perusal of sanction order itself shows that the Sanctioning Authority has applied its mind before according sanction under Section 6(b) of the Act to prosecute the appellant. The sanction order was passed by the Senior Superintendent of Post Offices, Jammu Division, Jammu, being the Competent Authority to remove Khem Raj, ED Branch Postmaster, Branch Post Office, Rajinder Pora, from service. Before according the sanction to prosecute the appellant, the Competent Authority has carefully examined all the Postal record with regard to the misappropriation of the amount and also perused the statements of witnesses. When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not he may be charged with, and tried at one trial for, any number of them not exceeding three. In this case, the offences have been committed within the period from 1991 to 1994, therefore, three separate challans were presented but the sanction for all the three challans is joint, as such, the sanction cannot be said to be illegal on the ground that joint sanction has been given.
13. After taking into consideration the decision of the Constitution Bench in case
R.S. Pandit v. State of Bihar’ reported in (1963) Supplementary 2 SCR 652 : 1964 (2) Cri LJ 65, their Lordships in case titled ‘C.S. Krishnamurthy v. State of Karnataka’ 2005 AIR SCW 1684 : 2005 Cri LJ 2145, have observed as under :
9. Therefore, the ratio is sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the Sanctioning Authority for due application of mind. In case the sanction speaks for itself than the satisfaction of the Sanctioning Authority is apparent by reading the order. In the present case, the sanction order speaks for itself that the incumbent has to account for the assets disproportionate to his known source of income. That is contained in the sanction order itself. Moreso, as pointed out, the Sanctioning Authority has come in the witness box as witness No. 40 and has deposed about his application of mind and after going through the report of Superintendent of Police, CBI and after discussing the matter with his legal department, he accorded sanction, it is not a case that the sanction is lacking in the present case.
14. learned Counsel for the appellant has placed reliance on the following authorities :
1. Case titled ‘Mohd Iqbal Ahmed v. State of Andhra Pradesh’ .
2. Case titled ‘Gian Chand v. State’ 1989 KLJ 175.
3. Case titled ‘Prithi Pal Singh v. State of Punjab’ 1991 Cri LJ 2541 (P & H).
4. Case titled ‘Subash Chandra Satpathy v. State of Orissa’ 1988 (1) Crime 463.
5. Case titled ‘N.M. Rajendran v. State rep. by Inspector of Police’ 1996 (3) Crimes 32 : 1995 Cri LJ 4195 (Mad).
15. There is no dispute with regard to the proposition of law laid down in aforesaid judgments because it is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. But in the case in hand, perusal of sanction order itself shows that the Competent Authority after perusing the record which was placed before it, has fully satisfied that the case for sanction is made out for the prosecution of the appellant. The sanction order has been duly proved during the trial. Therefore, there is a valid sanction to prosecute the appellant. No other point has been pressed by the learned Counsel for the appellant.
16. I myself perused the evidence on record and from the statements of PWs Som Dutt Khajuria, Om Piyari, Ranjodh Singh, Champa Devi, Manzoor Hussain, Subash Chander, Swarna Devi, Jania Devi, and Mohan Lal Sharma, it proves that the appellant has collected the money from them, which was to be deposited in their SB and RD accounts. Appellant has also made entries in the pass books with his own handwriting but he has not accounted for the same nor he has reflected the amount in the SB and RD (Journals) of the pass books and neither in the daily account of pass books. The learned trial Court has rightly convicted the appellant.
17. The next contention raised by learned Counsel for the appellant is that the appellant is facing trial since more than ten years. He submitted that in case the conviction is upheld, he will lose his service. Therefore, he has suffered both mentally and financially. He fvrther submitted that before and after the registration of the case, the appellant has not indulged in any other criminal activities, therefore, his sentence may be reduced to the sentence already undergone. He also placed reliance on case titled ‘Makhan Singh v. State of Punjab’ and case titled Tarsem Lal v. State of Haryana’ AIR 1987 SC 806: 1987 Cri LJ 715.
18. I have given my thoughtful consideration to the submission made by the learned Counsel for the appellant.
19. In case titled ‘State of Madhya Pradesh v. Shri Ram Singh’ , it has been observed as under:
7. Corruption in a civilised society is a disease like cancer, which if not detected in time is sure to malignise the polity of country leading to disastrous, consequences. It is termed as plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as Royal thievery. The socio-political system exposed to such a dreaded communicable disease is ‘likely to crumble under it sown weight. Corruption is opposed to democracy and social order, being not only anti people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence shaking of the socio-economic-political system in an otherwise healthy, wealthy, effective and vibrating society.
8. The menace of corruption was found to have enormously increased by first and second world war conditions. The corruption, at the initial stages, was considered confined to the bureaucracy who had the opportunities to deal with variety of State largesse in the form of contracts, licences and grants. Even after the war the opportunities or corruption continued as large amounts of Government surplus stores were required to be disposed of by the public servants. As consequence of the wars the shortage of various goods necessitated the imposition of controls and extensive schemes of post-war reconstruction involving the disbursement of huge sums of money which lay in the control of the public servants giving them wide “discretion with the result of luring them to the glittering shine of the wealth and property. In order to consolidate and amend the laws relating to prevention of corruption and matters connected thereto, the Prevention of Corruption Act, 1947 was enacted which was amended from time to time. In the year 1988 a new Act on the subject being Act No. 49 of 1988 was enacted with the object of dealing with the circumstances, contingencies and shortcomings which were noticed in the working and implementation of 1947 Act. The law relating to prevention of corruption was essentially made to deal with the public servants, as understood in the common parlance but specifically defined in the Act.
20. When the minimum sentence is prescribed under the Ranbir Penal Code or under the Special Act, the Courts are to respect the intent of the legislature. In exceptional circumstances, lesser sentence can be awarded. Appellant has been convicted under Section 5(2) of the Act. Under that Section, the minimum sentence is one year. Therefore, no case is made put to award lesser sentence than the minimum prescribed in the Ranbir Penal Code, is pleaded by the learned Counsel for the appellant.
21. However, taking into consideration that the appellant is facing regular trial since ten years and he has suffered both mentally and financially. There is nothing on record to show that before or after the registrtion of case, the appellant has indulged in any other criminal activities. With maintaining conviction, the appellant will also lose his service and retirement benefits.
22. So, taking into consideration all these abovesaid facts, the sentence of the appellant is reduced from five years to two years under Section 409, RPC and the sentence is also reduced from four years to two years under Section 5(2) of the Act. However, the sentence of fine under both the Sections is maintained.
23. With these modifications in the sentences, the appeal shall stand dismissed.