169 of 1984

19th September, 1991

Petitioner Counsel: S. R. Chitnis,
Respondent Counsel: S. B. Patil, A.P.P., .

JUDGMENT

JUDGMENT :-The appellant assails his conviction under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act as also under Section 161 of the Indian Penal Code imposed on him by the learned Special Judge, Pune, in Special Case No. 6 of 1981. The appellant has been sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.300/-, in default, to undergo rigorous imprisonment for two months on the first count, and to suffer rigorous imprisonment for six months and to pay a fine of Rs.200/-, in default, to suffer rigorous imprisonment for one month on the second count.

2. It is alleged that the appellant accused, who was at the relevant time a Sub-Engineer attached to the Maharashtra State Electricity Board and who was in charge of sanctioning load, demanded illegal gratification in the sum of Rs.50/- from Arvind Narayan Gagavekar for purposes of sanctioning the load in question. It appears that the amount was settles at Rs.40/- and that on a complaint lodged with the Anti-Corruption Bureau, a trap was laid and that on the morning of 28-10-1980 the complainant with the currency notes on which phenolphthalein powder had been smeared visited the office of the accused along with a Pancha by the name of Mohan Deokule (PW2). The accused is alleged to have asked whether he had brought what he had been asked for and he is alleged to have thereafter instructed the complainant to put the notes into a diary of his which the complainant did. The raiding party thereafter recovered the currency notes from the diary in question, and it is common ground that there was no trace of any powder on the accused. The accused was thereafter charge sheeted on a corruption charge and came to be convicted by the learned Special Judge. It is against this conviction that the present appeal has been filed.

3. Mr. Chitnis, learned Counsel appearing on behalf of the appellant, has at the very outset attacked the validity of the trial on a point of law. He has contended that the sanction order in the present case, which is Exhibit 30 at page 81, is an order whereby the Deputy Chief Engineer, J. C. Mane has granted sanction for the prosecution. Mr. Chitnis contends that this particular document has been proved through Ravati Pathak (PW 3), the Executive Engineer, and that this procedure, according to him, is irregular in law in so far as he states that the document could have been proved only by the authority who had granted the sanction. Within the framework of law, Mr. Chitnis is not justified in making the submission because it is open to the prosecution to tender a document in evidence and to prove it through some person who may be familiar with the signature of the authority granting the sanction. The admissibility of the document cannot, therefore, be

attacked, but the subsequent submission advanced by Mr. Chitnis which flows from the earlier one, namely, that by following such a procedure, the accused has been prejudiced in so far as he has been precluded from questioning the validity or otherwise of the sanction will have to be upheld. It is well-settled law that the accused in a criminal trial is entitled to question not only the correctness but also the validity of the sanction order. Mr. Chitnis submits that if the Prosecution has not made available the authority which granted the sanction that his client was seriously prejudiced because he would have been able to establish that this was not a fit case in which sanction for prosecution should have been accorded. To this extent, the grievance made is justified.

4. Mr. Patil, the learned A. P. P. furiously contested this position because he submitted that it is not a requirement that the same authority must be made available as a witness in every case and that if the accused desired the Deputy Chief Enginner, Mr. Mane, to be produced as a witness, he ought to have asked for it before the trial Court, but having waived his right to do so that he cannot raise this plea before the appeal Court. I was required to put a pointed question to the learned A. P. P. as to whether learned Coursel representing the appellant can be precluded from arguing a point of law when the Prosecution has taken to risk of not examining the concerned authority before the lower Court. Obviously the position that emerges is that if a point which goes to the root of the validity of the sanction order is raised before this Court and if the Prosecution has taken the risk of not examining the most important witness on the point, there can be no two opinions about the fact that the Prosecution will have to suffer for this omission.

5. The challenge to the sanction order does not stop there. Mr Chitnis has relied on a decision of this Court in the case of Jagannath Maruti v. State of Mah., 1991 Mah LJ 976, wherein I have taken the view that a sanction order must pass the requisite test of legality and if there is no application of mind that the sanction order is vitiated. The sanction order in the present case contains the usual recitals and it was certainly open to the authority concerned to have justified accord of sanction if he was in a position to do so. Not having exercised that option, the sanction order in the present case will have to be struck down on the ground that there has been no due application of mind. In support of this argument, Mr. Chitnis has relied on another judgment of this Court in Criminal Appeal No. 253 of 1984 in the case of Bhagwan Jathya Bhoir v. The State of Maharashtra, decided on 19/20th August, 1991. In that judgment, after analyzing a scheme of the Prevention of Corruption Act, I have held that in trifling or petty cases where the amount of the alleged bribe is extremely small that the Legislature could never have intended that the public servant in question ought to be subject to the rigours of criminal trials in so far as the punishment for such an offence, even if established, could never be the minimum prescribed under the law, namely, that of one year's rigorous imprisonment. In the light of that judgment wherein the amount was Rs.38/- whereas the amount is Rs.40/- in the present case, the sanction order will have to be struck down on the ground that there has been no due application of mind. In that view of the matter, the Prosecution itself would be vitiated and the conviction cannot survive.

6. Mr. Chitnis has, however, requested this Court, since the mater has come up in appeal, to also examine the case on merits because Mr. Chitnis advanced the submission that after having gone through the torture for a period of eleven years even if the Appellant was to be acquitted by the Court on the point of the sanction order that the Department is quite capable of restarting the Prosecution or for that matter of commencing departmental proceedings on the same facts. Since the entire appeal has been argued threadbare on both sides, I need not refer to the trap that was laid on 28-10-1980. The solitary point on which I am required to give a finding is the question as to whether the accused can be said to have accepted the illegal gratification or

not. It is the case of Mr. Chitnis that the complainant was annoyed because of the repeated number of times that he had to go back to ask about his load factor and because of the fact that the departmental procedure required reference to different authorities that he had a quarrel with the accused and decided to frame him because he was of the view that the accused was harassing him with the object of extorting money. He, therefore, submitted that the complainant planted the amount of Rs.40/- in the diary of the accused and this is the place from where it was found. The evidence of the complainant and of Panch Mohan Deokule (PW 2) is more or less consistent with regard to this aspect of the case. The learned A. P. P. submits that the modus operandi of the accused was that of a seasoned corrupt public servant who wanted to play safe and who, therefore, instructed the complainant to put the money in the prescribed place, namely, into the diary without running the risk of accepting it himself. He further submitted that the evidence in its totality indicates that the accused asked the complainant whether the money had been brought and that it was at his instance that the money was put into the diary. He submits, therefore, that even if it was not accepted directly by the accused in his hand that this evidence is more than sufficient for an adverse finding against the accused.

7. It needs to be noted that as indicated by me earlier, there were no traces whatsoever of the powder on the hands of the accused. If the version of the complainant and the Panch is to be accepted in their totality, the logical consequence is that the accused, who is alleged to have been so careful about the complainant to put the money into the diary, would most certainly have thereafter handled it and put it in a place whereby he would not attract the attention of anybody. The moment he did this it is inevitable that the powder traces would have been found on his hand. From the fact that no powder was found on the hands of the accused, the irresistible conclusion that would arise is that he did not handle the diary at all, and if this is the case the strong probability that the notes were put there without his knowledge cannot be ruled out. To this extent, therefore, the finding of the trial Court cannot be upheld and will have to be set aside.

8. I do not need to consider any of the other aspects of the case in view of the findings that have been recorded by me above. The appellant is accordingly entitled to succeed. The appeal is allowed. The conviction and sentence of the appellant are set aside. The bail bonds of the appellant are directed to be cancelled forthwith. The fine, if paid, is directed to be refunded to the appellant.

Appeal Allowed