JUDGMENT
A. Ramamurthi, J.
1. The accused in Special Case No. 2 of 1992 on the file of Special Judge and Chief Judicial Magistrate, Pudukottai has preferred the appeal aggrieved against the conviction and sentence imposed on him, wherein he was found guilty under Section 7 of the Prevention of Corruption Act and sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 500/- and he was also found guilty under Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act and sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- with a further direction that both the sentences shall run concurrently by the judgment dated 7-2-95.
2. The case in brief for disposal of the appeal is as follows :
P.W.I Maharajan is working as an Assistant in the Joint Director of Agriculture, Kandarvakottai. One Sampath is also working as an Assistant in the same office. Both of them went to the Office of the Vigilance at Pudukottai on 28-1-91 at about 10.30 a.m. on information. The Inspector of Police gave the complaint said to have been given by one Manickam. They also perused the same and later the said Manickam was also introduced to them and on enquiry, the said Manickam admitted the same true. It appears ‘that the accused has demanded a sum of Rs. 100/- from the said Manickam. This money was entrusted with the Inspector of Police and the Inspector with the help of sodium carbonate powder, prepared the solution and conducted the test. There was no change in colour after applying phenolphthalein powder in the currency note and P. W. 1 got the currency note and later put his fingers in the solution, he noticed the colour change. The currency note numbers were also entered In the mahazar Ex. P.2. Later, the currency notes were put into that cover and entrusted with the said Manickam, for the purpose of funding over to the accused if he demanded the amount P.W. 1 along with the Police party as well as Manickam, went a pudukottai and P.W. 1 and Manickam went to the shop and waited for the arrival of the accused. The said Manickam was also instructed to give a pre-arranged signal if the amount was paid. P.W. 1 and others along with Manickam were waiting in the grocery shop till 5.30 p.m. on the said date, but the accused has not turned up. There was drizzling at that time-
3. P.W. 1 further stated that on the next day also at about 9.30 a.m. Manickam and others went to the Vigilance office and another mahazar Ex. P.2 was prepared and they have signed. Another mahazar Ex. P. 4 was prepared with reference to the currency notes. Again Phenolphthalein powder was applied to the currency notes as well as the cover and entrusted with the said Manickam and earlier instruction was given to him again. On 29-10-91 at about 10.10 a.m., P.W.I and others along with Manickam went to the shop and even on the said date till 5.30 p. m. the accused did not arrive in the shop. At about 6.00 p.m. the Inspector of Police came to the shop of Manickam and directed him to send a person to the office of the accused and they came to know that the accused also is not available in the office. On the said date also, there was drizzling. Manickam told the Inspector that on the next day, the accused will definitely come-
4. On 30-10-1991 at about 9.30 a.m. they also again went to the vigilance office and the currency notes as well as cover was entrusted to the said Manickam. They were given the earlier instructions again and Phenolphthalein powder was. applied to the currency notes as well-as the cover and mahazar Ex. P. 6 was prepared. P.W.I and Manickam went in advance to the shop and Inspector and other persons came later. Till 4.00 p.m. the accused did not turn up and thereafter Manickam took cover containing the currency notes and kept in the iron box and went out for the purpose of finding out whether the goods have been received in the lorry. Manickam returned to the shop half-an-hour later and told the other persons that he had seen the accused near the lorry office and at that time, the accused enquired as to whether he had brought the money and for which, Manickam had replied that the money has not been brought and thereafter the accused directed him to come to the Labour Office at about 5.30 p.m. with the money. Manickam had also gave the information with the Inspector of Police. The Inspector gave instructions to the said Manickam if and when the accused demanded the amount can be given to him. If the accused received the money, Manickam was directed to given a pre-arranged signal. Accordingly, P.W. 1 accompanied with the said Manickam went to the office and they were followed by the Inspector, witness Sampath and other Police Constables. At about 5.45 p.m. in the Labour Office, there was crowd of labourers of Cauvery Mill relating to bonus disbursement Manickam and P.W.I entered the Office through the back door. On seeing Manickam, the accused got up form the seat and came near Manickam and ascertained as to whether the money was brought by him and for which, Manickam stated that he had brought the money and later Manickam entrusted the cover containing the currency notes with the accused and the accused later put the cover in the right side pant pocket. P.W. 1 and Manickam came out and gave signal to the Inspector and immediately Inspector and other persons came there and Manickam identified the accused to the Inspector. Later Manickam was asked to come out and witness Sampath as well as P.W. 1 were available with the Inspector. The Inspector of Police introduced himself to the accused and the accused was nervous at that time. Inspector prepared sodium carbonate solution in two glass tumblers and the accused was called upon to immerse his left hand fingers and right hand fingers separately. The accused further stated that he has not received any money, but the same was inserted in his pant pocket by the said Manickam. When the accused immersed his right hand fingers, there was colour change. But so far as the other solution, wherein the left hand fingers were immersed, there was no change of colour. They were separately sealed. Later, the accused from his right pant pocket, took the cover and handed over the same to the Inspector and the currency notes were compared and they tallied. The pant of the accused was secured and the right side pant pocket was immersed in another sodium carbonate solution and there was also colour change. It was also collected separately. About 15 documents were also collected from the Labour Officer in a mahazar Ex. P.7, attested by them. Observation mahazar Ex. P.8 was also prepared. The house of the accused was also searched on the same night and about 11 documents were also recovered under mahazar Ex. P. 10 attested by them. At about 4.30 a.m. they came to Pudukottai and Inspector and Inspector Jayapal examined him.
5. P.W. 2 Adhimoolam was working as Labour Commissioner at Chennai. He received a communication accompanied with the documents from the Director of Vigilance to accord sanction to prosecute the accused, since he was working under his control. He perused the first information report, mahazar, statement of witnesses and other documents and on proper application of mind, gave the sanction order to prosecute him under Ex. P. 11.
6. P.W. 3 Veeriah was working in the grocery shop of Manickam. According to him, on 25-10-91 at about 11.00 a.m. the accused came to the shop and discussed with the owner. P.W. 4 Kothandaraman was also assisting his junior paternal uncle Manickam in the shop. He further stated that on 25-10-91 at about 11.30 a.m. the accused came to the shop of Manickam and they had some discussion. On 28-10-91 at about 5.45 p.m. he was asked to come to the Labour Office to find out whether the accused was available. He went to the office and returned, stating that the office was locked. Similarly on 29-10-91 he was called upon to go to the Labour Office to find out whether the accused was available and/at the time also, the Office was locked on 30-10-91 at about 6.35 p.m. Manickam case to the grocery shop and informed the accused had received the bribe amount and action had been taken against him.
7. P.W. 5 Panner Selvan was working as Assistant in the Office of the Assistant Labour Commissioner at Pudukottai. He was also examined by the Inspector of Police relating to the Official records maintained in the office. Ex. P.20 is the document to show that the accused had inspected one shop on 3-4-91 and 16-4-91.
8. P.W. 6 Govindarajan, Inspector of Police received the complaint Ex. P1 from one Manickam on 28-10-91 at about 9.00 a.m. He also sent for two witnesses from the Agricultural Department after giving a requisition and they reached the Office at about 10.00 a.m. on the same day. The said Manickam was also introduced to the witnesses and they have also gone through the complaint. He received the money from the said Manickam and applied Phenolphthalein powder to the currency notes as well as the cover and also observed all the formalities. He also corroborated the evidence of P.W. 1 in other particulars. He had given specific instructions to Manickam that if and when the amount was demanded by the accused, it can be given to him and he was also given instructions to give a specific signal after the amount was paid. He further stated that when the amount was paid on 30-10-91, the said Manickam came’ out and gave the signal and thereafter, he and other persons went to the place and the said Manickam identified the accused. At that time, the accused was nervous and he informed that he did not demand the money, but the cover containing the money was put in his pant pocket. Thereafter, he prepared sodium carbonate solution in two temblers and called upon the accused to immerse his left hand and right hand fingers. There was colour change in the water wherein the right hand fingers were immersed, but there was no colour change in the other solution. Thereafter, the accused took the cover containing the money from his right side pant pocket and entrusted the same. Subsequently the pant of the accused was secured and the right side pant pocket was also immersed in another sodium carbonate solution and there was colour charge. Mahazars were also prepared in respect of these acts. The house of the accused was also searched on the same day and documents were recovered. Further, investigation was taken up by P.W.7 Jayapal, another Inspector. According to him, on 31-10-91 he took up further investigation from P.W. 6 and examined the witnesses and recorded their statements. He gave a requisition to the Court to send M.Os. 1 to 5 for scientific examination. Ex. P.24 is the report. He also gave requisition to the Director and after obtaining sanction, filed a charge-sheet against the accused.
9. On behalf of the prosecution, 7 witnesses were examined, Exs. PI to P24 were marked and M.Os. 1 to 5 were produced. No witness was examined and no document was marked on the side of the defence. The accused was also examined with reference to the incriminating evidence against him under Section 313 of the Code of Criminal Procedure. He denied the evidence and stated that only at the instigation of one Perumal Samy, the case has been foisted against him. He filed a written statement also. The learned Judge found him guilty, convicted and sentenced him as aforesaid and aggrieved against this, the present appeal is filed.
10. Learned Counsel for the appellant contended that the Court below was not justified in convicting the appellant for the offences. No proper sanction for the prosecution of the appellant was taken by the prosecution. The investigation has been done only by the Inspector of Police, who is below the rank of Deputy Superintendent of Police and, as such, the trial is vitiated. The non-examination of said Manickam is also fatal to the case of the prosecution. He ought to have been examined before examining the other witnesses. One other official witness Sampath was also not examined and there is no explanation for the same. The Court below ought to have acquitted the appellant by giving him benefit of doubt. There was no necessity for the appellant to demand the amount on the eve of the Deepavali since he belongs to Christianity.
11. Learned Additional Public Prosecutor however, contended that the Court below was justified in convicting him for the offences. There is no reason to discard the evidence of P.W.I., who was physically present along with the complainant and the money has been collected by the accused. Only on proper application of mind, P.W. 2, the Officer had given the sanction for prosecuting the accused. The Phenolphthalein test conducted at the spot, clearly disclosed the colour change and the report received from the Forensic department also proved the case of prosecution. The decoy witness viz; Manickam could not be examined as he was not well and because of that only, the official witness was examined as P.W. 1 and later the said Manickam died and under the circumstance only, he could not be examined and the non-examination is not fatal to the case of the prosecution. The complaint was received by P.W. 6 and later the investigation was done by the another Inspector P.W. 7 and, as such, no prejudice is caused to the accused in the manner of investigation. There is no illegality or infirmity and the sentence also appears to be lenient and no interference is called for.
12. Heard the learned counsel on either side.
13. The accused Sathianathan was working as Assistant Inspector of Labour First Circle, Pudukottai till 30-10-91 and he is a public servant. One 25-10-91 at about 11.30 hrs, he visited the shop of S. Manickam in South Main Street, Pudukottai and demanded a sum of Rs. 200/- as gratification other than legal remuneration for Deepavali expenses and for not harassing him by putting up cases against Manickam in Courts and later, reduced the amount to Rs. 100/- and di-rected the said Manickam to give the amount in cover on 28-10-91 when the accused visited his shop again. On 30-10-91 between 4.30 and 5.30 p.m. at west second street, Pudukottai near Palaniyampathi Lorry service, the said Manickam met the accused. Wherein he also reiterated his prior demand and claimed the amount. On the same day in the office of the accused between 5.15 and 6.15 p.m. the accused demanded and obtained the sum of Rs. 100/- from the said Manickam as gratification other than legal remuneration as a motive or reward for not harassing him.
14. The prosecution examined seven witnesses to prove the charges against the accused. Learned counsel for the appellant mainly con-tended that there was absolutely no demand on the part of the appellant. The trap did not succeed on 28-10-91 and also on 29-10-91 and if really the appellant had demanded the money from the said Manickam he would have gone to the shop to get the said amount. There was enmity between Perumalasamy and himself and only at this instance, the case has been foisted against him. It was also stated that the complainant Manickam has not been examined in the case and he has been deliberately withheld and he died only on 1 -8-93. Tile’ evidence of P.W. 1 was only hearsay and he had not secured any permission to accompany the said Manickam to his Office on 30-10-91. The other official witness Sampath was also not examined by the prosecution. There is no valid sanction by P.W.2 and the Sanction order Ex. P. 11 was given without proper application of mind and it was mechanically issued by him. It was also contended that investigation has been done only by the Inspector of Police, but according to the provision in Section 17 of the prevention of corruption Act, the investigation ought to have been done by an Officer not below the rank of Deputy Superintendent of Police and, as such, the investigation and further proceedings are only vitiated.
15. P.W.I Maharajan was working as Assistant in the Joint Director of Agriculture, Kandarvakottai. One Sampath was also working as Assistant in the same Office. Their services were secured by P.W. 6 for the purpose of trap. P.W. 1 categorically stated that he had perused the complaint Ex. P. 1 given by the said Manickam dated 20-10-91 and he had also seen the entire formalities carried out on all these dates. P.W. I had accompanied the said Manickam to his grocery shop on 28-10-91,29-10-91 and also on 30-10-91. He also spoke about the applying of the Phenolphthalein powder in the currency notes as well as the cover given by the said Manickam and the currency note numbers were also entered in a mahazar signed by P.W. 1 and the said Sampath. He further stated that P.W. 6 gave instructions to the said Manickam to hand over the money only if the appellant demanded the same and directed him to give the pre-arranged signal if and when the amount was paid. On 30-10-91 also at about 9.30 a.m. P.W. 1 accompanied with Manickam in his T. V. Section 50 two wheeler followed by the Police and other witnesses. P.W. 1 andManickam were sitting in the grocery shop till 4.00 p.m. but, however the accused did not turn up. Subse-_ quently Manickam put the cover coniaining the currency note in the iron chest and after locking the same, went out for the purpose of finding out whether the goods for his shop have been re- -ceived in the lorry, Manickam returned within half-an-hour and informed all of them that he had seen the accused near the lorry office and at that time, the accused enquired as to whether the money was brought and. for which, Manickam replied that the money has not been brought and thereafter, the accused directed him to come to the Labour Office at about 5.30 p.m. With money. The Inspector also gave instructions to the said Manickam if and when the accused demanded the amount, it can be given to him. Accordingly, P.W.I accompanied with the said Manickam, went to the Office at about 5.45 p.m. There was crowed of labourers of Cauvery Mill relating to bonus disbursement and as such they entered the. Office through the back door. On seeing Manickam, the accused got up from the seat and came near him and ascertained by action whether the money was brought and for which, Manickam stated that the money was brought and later Manickam entrusted the cover containing the currency note with him and the accused received the same with his right hand and put the same in his right side pant pocket. P.W. 1 and Manickam came out and gave the pre-arranged signal to the Inspector and immediately the inspector and others came there and Manickam identified the accused and later the formalities were complied with. P.W.6 prepared the sodium carbonate solu-‘tion in two glass tumblers and the accused was called upon to immerse his left hand fingers and right hand fingers separately. The colour change was noticed only in the solution where the right hand fingers were immersed. Later the accused also took out the cover and entrusted the same with P.Ws. Later, the pant was also secured and right side pant pocket was also immersed in another sodium carbonate solution and the colour change was also noticed. P.W.I and Sampath were given the currency notes and they found out that the numbers already written in the mahazar were also tallied with.
16. The evidence of PW1 is clear, cogent and convincing. Now, the main attack on the part of the appellant is that the non examination of the complainant Manickam is fatal to the case of the prosecution. No doubt, the complainant could have been normally examined in the first instance by the prosecution. There is evidence to the effect that the complainant was not keeping good health for a long period and the summons sent to him also been returned only on medical grounds. Because of this only, PW 1 was examined in Nov. 1992. However, the complainant died only on 1 -8-1993. Because of his death only, the complainant could not be examined. This does not mean that the prosecution has deliberately withheld the examination of Manickam. The prosecution has positively given valid and cogent reasons for not examining the said Manickam in the first instance. Hence, 1 am of the view that the reasoning given by the trial Court for non-examination of Manickam is proper and correct.
17. The next contention put forward by the appellant is that there was absolutely no demand on the part of the appellant. In support of his contention, it was stated that the appellant belongs to Christianity and there was no necessity for him to demand money for Deepavali expenses. It has come out in evidence that the appellant was working as Assistant Inspector of Labour and he has got power to inspect the grocery shop and also check the weights and measures in all these shops and he has also got power to prosecute persons by filing cases in the competent Courts. It is clear from the evidence of PWs 3 and 4 also that on 25-10-1991 at about 11.30 a.m. the appellant came to the grocery shop of Manickam and discussed with him. This is one circumstance to show that the appellant had visited the shop of Manickam and there is a possibility for demand of some amount. The complainant under Ex. PI is also relevant to be considered. It has been categorically staled that originally the accused demanded a sum of Rs. 200/- and later when Manickam pleaded, it was reduced to Rs. 100/-. There is also a clear recital that this amount is required for Deepavali expenses and also to prevent the appellant from filing cases in a Court of law. Simply because the appellant belongs to Christianity, there is no rule or any bar that he should not demand any money on some pretext or other.
18. The learned counsel for the appellant further contended that only on 28-10-1991 information was given by PW 6 to the higher officials for a trap on the appellant and as it did not succeed, there is no material to show that any permission was obtained in respect of other dates. It has come out in the evidence that although the appellant assured to come to the shop of Manickam and collect the amount of Rs. 100/- he did not turn up on 28-10-1991 and also on 29-10-1991. In fact, PW 3 went to the office of the appellant and found out that the office was locked. PW 1 and PW 6 also stated that there was some drizzling on these two dates. However, it may be, it is seen from the evidence that the appellant is a resident in Subramaniapuram at Trichy. It is quite probable that the appellant could have gone to Trichy to his house. On 30-10-1991 also till 4.00 p.m. the appellant had not visited the shop and when the complainant went out of the shop on the way, he met the appellant and even at that time, the appellant had called upon the complainant as to whether the money was brought. Thereafter, only on the instruction of the appellant, the complainant and PW 1 went to the office where the appellant was working and the amount was paid as and when demanded by the appellant. PW 1 categorically stated that the appellant enquired with the complainant as to whether the money has been brought and immediately the complainant stated that the money was brought and the cover containing the currency note was handed over by the complainant to the appellant, who received the amount and kept in his right side pant pocket. PW 1 had actually seen the demand made by the appellant, amount paid by the complainant, amount received by the appellant and kept the some in his right side pant pocket. The prosecution has, therefore, established about the demand made by the appellant. The non-examination of other official witness Sampath would not affect the case of the prosecution.
19. Section 17 of the Prevention of Corruption Act relates to investigation into cases under the Act. Section 17 reads as follows :
Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no Police Officer below the rank :-
(a)and(b)…
(c) elsewhere, of a Deputy Superintendent of Police or a Police Officer of equivalent rank shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefrom without a Warrant.
Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the came may be, or make arrest therefore without a Warrant.
20. The prosecution relied upon a O.G.Ms. No. 269 dated 4-6-1990, which empowers the Inspector of Police to investigate the cases under, the Prevention of Corruption Act relating to cases of public servants, who are drawing salary up to Rs. 3500/-. During the relevant period, the appellant was also drawing less than Rs. 3500/-. As adverted to, the proviso under Section 17 of the Act also clearly empowers if there is a general order empowering the Inspector of Police to investigate the case, they are competent to do the same, thereby implying that the investigation by the Deputy Superintendent of Police is not necessary. Based upon this reason only, the trial Court also rejected the contention of the appellant relating to the investigation done by the Inspector of Police.
21. Learned counsel for the appellant relied on Vishnu Kondaji Jadhav v. State of Maharashtra AIR 1994 SC 1205 : 1994 Cri LJ 1579, wherein it is observed that the trapLald down on third occasion by Police Inspector without prior permission of Judicial Magistrate is illegal. This decision is not applicable to the case on hand since it has been categorically stated in the deci-sion cited, that every offence under the Act, it was necessary for the Inspector of Police who was admittedly not authorised by the State Government either by general or special order, to take the prior permission of the Magistrate. However, in the present case, there is a Government Order empowering the Inspector of Police to investigate and it is a general order and, hence, this decision is not applicable.
22. Learned counsel for the appellant also relied on Raghbir Singh v. State of Punjab , wherein it is observed that where the accused who was alleged to have demanded and accepted the bribe for granting exemption from goods tax was in fact not dealing with such application, held a serious infirmity is introduced in the prosecution case. The appellant also relied on Suryabhan v. State of Maharashtra 1995 Cri LJ 107 (Bom), wherein,it is observed that “Documentary evidence showing that the mutation was already effected by accused in the knowledge of complainant party – No independent evidence of demand of bribe by accused – Rebuttal of presumption drawn under Section 20 in favour of prosecution for offence of bribery, the conviction is not proper. These two decisions have no application to the case on hand. The decisions cited supra, clearly indicate that in one case, the concerned accused has no authority to grant any exemption and in the second case, the document mutation register was already effected even before the alleged trap. However, in the present case, it has come out in evidence that the appellant visited the shop of the complainant on 25-10-1991 and thereafter only, demanded illegal gratification in the name of Deepavali expenses and also not to put up any cases.
23. Learned counsel for the appellant further stated that mere recovery of the amount from the appellant is not sufficient to come to the conclusion that the accused has committed an offence under the Prevention of Corruption Act. He further pointed out that the evidence of PW 1 has not been fully corroborated by any other independent evidence. Learned counsel relied on Som Parkash v. State of Punjab , wherein it is observed that witnesses forming part of the raiding party found to be not independent and evidence regarding handing over money to the accused/appellant found to be not believable – Held, guilt of the appellant not proved beyond reasonable doubt and hence appellant entitled to benefit of doubt. This decision is also not applicable because the evidence was not reliable. However, a reading of the evidence of PW 1 established that it has inspired confidence of the Court and there is absolutely no motive for him to implicate the appellant.
24. Learned counsel also relied on Suraj Mal v. State (Delhi Admn.) that in a case of bribery, more recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. There is no dispute about this proposition, but it has no applicability to the case on hand. The appellant also relied on S. Narayana Pillai v. State represented by Inspector of Police, Nagercoil 1993 Mad LW (Cri) 107 : 1993 Cri LJ 1303 for the same proposition and the facts in that case also would indicate that it has no application to the case on hand.
25. Section 20 of the Prevention of Corruption Act relates to presumption where public servant accepts gratification other than legal remuneration, which reads as follows:
(1) Where, in any trial of an offence punishable under Section 7 or Section 11 or Clause (a) or Clause (b) of Sub-section (e) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration which he knows to be inadequate.
26. The evidence of PW 1 clearly established that the appellant had demanded money from the complainant and he had also received the sum of Rs. 100/- with the Cover. Immediately after the pre-arranged signal PW 6 came there and the complainant duly identified the appellant. Thereupon, sodium carbonate solution was prepared in two glass tumblers and the appellant was also directed to immerse his hands. There was colour change in one of the sodium carbonate solution, wherein the right had was immersed. Subsequently, the appellant took the cover containing the money from his right side pant pocket and entrusted the same. Another sodium carbonate solution was prepared separately and the right side pant pocket was also immersed and the colour change was noticed and these solutions were also collected separately in bottles and sealed after observing the necessary formalities. They were also sent to the Chemical examination through Court and the report Ex P. 24 also disclosed that the three items were examined and both Phenolphthalein and sodium carbonate were detected in all the three items. Hence, the scien-tific examination also corroborated the evidence of PW 1 and there is no reason to reject the prosecution case.
27. There is also presumption under Section 20 of the Prevention of Corruption Act and in the present case also, the appellant admitted that the cover containing the currency was handed over by him with PW 6. At on point of time the appellant stated that the case has been filed against him at the instigation of the Perumalasamy. Subsequently, the appellant in the cross examination of the witnesses suggested that the cover containing the currency was thrusted into his pocket by the complaint. At one point of time, the appellant stated that in the office he received the cover from the complainant thinking that he had sought permission for opening the shop on the date of Deepavali. Although the presumption under Section 20 is a rebuttable one, there is no material to take a different view. Even assuming that under a bona fide belief the appellant had received the cover from the complainant that it was given for a different purpose, there was no necessity for him to keep the same in his pant pocket, but he ought to have put the same in the office file or ought to have entrusted the same with the conr cerned staff for putting up a note. In the absence of any of these things, the only conclusion that can be drawn is that the explanation now given is invented only for the purpose of this case.
28. Learned counsel for the appellant next contended that there is no valid sanction and the sanction given under Ex. P. 11 by PW 2 is mechanical in nature without any application of mind. In support of his contention, he relied on Mohd. Iqbal Ahmed v. State of Andhra Pradesh , wherein it is observed that it is well Settled that in criminal case this Court or for that matter any Court should not ordinarily direct fresh evidence to fill up a lacuna deliberately left by the prosecution. The liberty of the subject was put in jeopardy and it cannot be allowed to put in jeopardy again at the instance of the prosecution which failed to avail of the opportunity afforded to it; This decision has no application to the case on hand.
29. The appellant also relied on Charles Waker Devadas v. State by the Inspector of Police, etc. 1993 LW (Cri) 346, wherein it is observed that sanction order, held, is vitiated as it was a mere repetition of the allegation in the charge sheet and a mechanical and the authority had not applied his mind nor gave any reasons for according sanction. The appellant also relied on Duraisamy v. State, Rep. by Inspector of Police, Vigilance and Anti-Corruption Wing (1997) 2 Crimes 412 for the same proposition. These decisions are not applicable to the case on hand for the simple reason that in the cases cited above, the entire sanction order is extracted wherein in the reference, it is stated as “report of the Director of Vigilance and Anti-Corruption” and connected materials. There is nothing in the sanction order to show that any document has been perused by him. But on the other hand, it is seen from Ex. P. 11 that apart from the report, PW 2, the sanctioning authority had seen copies of first information report, statements mahazars and other connected records. PW 2, the Commissioner of Labour also categorically stated the documents were seen by him and it has been possibility established that there was proper application of mind and the Sanction order, was given based on sound material and, as such, there is no reason to reject the same. It has also come out in evidence that PW 3 was the officer, who has got power to remove the appellant from service and only after satisfying, he had issued the necessary sanction order.
30. Reliance was also placed upon a decision of the Apex Court in State of Tamil Nadu v. Damodaran , wherein it is Observed that when all relevant, material placed before sanctioning Authority, the granting Of sanction after fully applying his mind, the sanction is valid.
31. Laarned Additional Public Prosecutor relied, on State Of Maharashtra v. Ishwar Piraji Kalpatri 1996 SCC (Cri) 1560 : 1996 Cri LJ 1127, wherein it is observed that “officer signing the sanction order not required to state that he had personally scrutinised the file and had arrived at the required satisfaction – On facts, there had been application of mind and the material on record had been examined by the sanctioning authority before according sanction.” This decision is applicable to the case on hand.
32. The prosecution also relied on State of U.P. v. Sakaullah (1998) 1 Mad LW (Cri) 311 that every citizen of India must be presumed to be an independent person unless it is proved that he was a dependent of the Police of other officials. This has been relied upon in order to show,th,at evidence of PW 1 can be safely accepted and acted upon and no corroboration is necessary.
33. The prosecution also relied upon Jainarain v. The State of U.P. , wherein it is observed that where the accused person, in a prosecution under Section 161, Penal Code, read with Section 5(2) of the Prevention of Corruption Act, caught by a trap, did not dispute the recovery of the initialled currency notes from the pocket and the explanation offered by him was disbelieved on account of infirmities, the conviction on the basis of prosecution evidence consisting only of the witness who had participated in the trap (without corroboration), was not illegal. This decision is also applicable to the case on hand.
34. It is, therefore, clear that the prosecution has positively established the charges against the appellant beyond any doubt. Learned counsel for the appellant stated that the punishment imposed on the appellant is also severe. It cannot be said that the punishment is severe. Minimum punishment has been provided for the offence under Section 7 as well as Section 13(2) of the Prevention of Corruption Act. The trial Court has awarded only minimum punishment and, as such, I am of the view that no interference is also called for relating to the punishment also.
35. The trial Court has rightly appreciated the evidence as well as the documents in its proper perspective and there is absolutely no illegality or infirmity to take a different view. Hence, I hold that the prosecution has established the charges against the accused/appellant positively and no interference is called for in the sentence also.
36. For the reasons stated above, the appeal fails and is dismissed. The conviction and sentence imposed by the trial Court are confirmed. The appellant is directed to surrender to undergo the remaining period of sentence. It is open to the Jail Authorities to consider the applicability of the remission G.O.’s to the appellant if they are applicable to him.