B A KAMESWAR RAO Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant who was the cashier of the Division Office of the Forest Corporation stood charged under Sections 5(1)(c) and 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act as well as under Sections 409 and 477-A of the Indian Penal Code. He has been convicted on all counts and has been sentenced to undergo R.I. for six months for the offence under the Prevention of Corruption Act as well as six months each for the offence under Sections 409 and 477-A, I.P.C. and the sentences have been directed to run concurrently.

(2.) It is the prosecution case that in the capacity as the cashier he has misappropriated to the tune of Rs. 10,044.35 between the period 1-2-1975 to 15-4-1975. According to the prosecution case, P.W. 4 submitted the Account sheet to the Division Office for the period from 20-2-73 to 28-2-75 which shows refund of advance to the tune of Rs. 3935/- and P.W. 12, the Divisional Manager passed the said amount under Ext. 14. But the accused by inserting the number '1' before the same, inflated the advance refunded to customers by Rs. 10,000/-. Then in the cash book dated 28-2-75, the accused also had shown refund of advance to customers as Rs. 16,227.50 which should have been duly Rs. 6,227.50 and in the process by manipulation the cash was reduced by Rs. 10,000/- and the accused misappropriated the said sum. It is the further prosecution case that P.W. 11 the Deputy Divisional Manager, Ramagiri Sub-division recovered a sum of Rs. 23.50 from the pay bill of one D.R. Puruseth and Rs. 20.75 from the pay bill of another staff T.R. Pradhan. But the accused omitted to show the recovery and showed only Rs. 27/- as security deposit and did not include the sum of Rs. 44.25 in the cash book as stated earlier and thereby misappropriated the said sum. It is not necessary to state detailed facts in this case in view of the points urged by the learned counsel for the appellant. It would be sufficient to note that the prosecution examined 15 witnesses and exhibits a large number of documents and on consideration of the same, the learned Special Judge came to the conclusion that on account of manipulation of figures, the accused misappropriated the sum of Rs. 10,000/- and thereby committed the offence under Section 5(1)(c) and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act as well as the offence under Sections 409 and 477-A, I.P.C.

(3.) Mr. K.C. Mohanty, the learned counsel for the appellant does not assail the findings of the learned Special Judge on merits of the case. He, however, contends that the sanction in question is invalid as the materials have not been placed before the sanctioning authority and the sanctioning authority accorded sanction without application of mind. There cannot be any dispute that prior sanction as required under Section 6 of the Prevention of Corruption Act is necessary to clothe the trial judge with the jurisdiction to try the offence under the provisions of Prevention of Corruption Act. In support of the contention with regard to the invalidity of the sanction Mr. Mohanty placed reliance on a decision of this Court in the case of Baikunthanath Mohanty v. State of Orissa, (1985) 1 Orissa LR 263, and also placed the evidence of the sanctioning authority (P.W. 10) and the sanction order (Ext. 39). Before adverting the attention to the evidence of P.W. 10 and also the sanction order (Ext. 39), it would be profitable to take note of the decision on which the learned counsel for the appellant placed reliance. In paragraphs 11 and 12 of the judgement in Baikunthanath Mohanty's case referred to supra, the learned single Judge has taken note of several decisions of this Court as well as of the Supreme Court. In the case of Major Somanath v. Union of India, 1971 SCD 1126, it was observed by the Supreme Court that for a sanction to be valid, it must be established that the sanction was given in respect of the facts constituting the offence with which the accused is proposed to be charged. It was also observed that though it is desirable that the facts should be referred to in the sanction itself, nonetheless if they do not appear on the face of it the prosecution must establish by giving evidence aliunde that those facts were placed before the sanctioning authority. It would be worthwhile to extract a passage from the decision of the Supreme Court in the case of Mohammed Iqbal Ahmed v. State of Andhra Pradesh. AIR 1979 SC 677, :-