GANESH NARAIN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal filed by Ganesh Narain Joshi is directed against the judgment of the learned Special Judge for Rajasthan, Jaipur City, dated 18th November, 1970, by which the appellant was convicted under sec. 409, I. P. C. and sec. 5 (i) (c) read with sec. 5 (2) of the Prevention of Corruption Act, 1947, hereinafter referred to as the Act, and was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 50/-, in default of payment of fine to further suffer rigorous imprisonment for one month on each count. He was further convicted under sections 467 and 471, I. P. C. and was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 25/-, in default of payment of fine to further suffer rigorous imprisonment for one week on each count. All the substantive sentences were, however, ordered to run Concurrently.

(2.) THE prosecution case against the appellant may be briefly described as follows: Ganesh Narain Joshi was working as Sub Post Master, at Sub-Post Office, Desuri on 1-5 1967. He was incharge of the said post-office and in the capacity of such public servant was operating the S. B. accounts and maintaining the record thereof. It is alleged that on 1-5-1967, Ganesh Narain Joshi while working as sub-Post Master at Sub-Post-Office Desuri, fabricated as application for withdrawal cum warrant of payment in the name of Bhika Kumhar, a resident of Desuri, for the purpose of withdrawal of a sum of Rs 500/-, from Bhikha's S. B. Account No. 151829 and on the basis of the said false document, withdrew a sum of Rs. 500/-, from the cash of the said sub-post-office against the said S. B. account. THE appellant is said to have made necessary false entries relating to the withdrawal of the sum of Rs. 500/-, in the S. B. Journal, S. B. ledger and the daily cash account in order to show that in reality the sum was withdrawn by Bhikha Kumhar. On 5-5-1967 he managed to get the possession of the S. B. pass-book from Bhikha Kumhar when the latter had come to the sub post office to operate his S. B. account and made a back-date entry for the withdrawal of a sum of Rs. 500/-, in the S. B. pass book. In this manner, the appellant dishonestly misappropriated a sum of Rs. 500/-, by affixing his own thumb impression of the right hand on the application form for withdrawal cum warrant of payment dated 1-5-1967 while knowing it fully well that Shri Bhikha Kumhar never visited the said sub-post office, Desuri on 1-5-1967 and never applied for withdrawal of a sum of Rs. 500/-, from his S. B. account. It will not be out of place to mention that according to the prosecution story Bhikha Kumhar was an indoor eye-patient in General Hospital, Udaipur, on 1-5-1967 and had undergone an eye-operation. On his return to Desuri from Udaipur, Bhikha was in need of money. So on 5-5-1967, he visited the sub-post-office, Desuri, for withdrawal of a sum of Rs. 300/-, from his S. B. account. On that date the appellant was on leave but he was present in the sub-post-office. On seeing Bhikha the appellant took him upstairs, got the pass-book into his possession on the pretext of filling the withdrawal form for Rs. 300/-, and made back-date false entry for withdrawal of Rs. 500/-, which he had dishonestly misappropriated on 1 5-1967. THE appellant is said to have affixed a postal stamp for 1-5-1967 against the said entry in the pass-book of Bhikha, Bhikha came to know about the misappropriation of a sum of Rs. 500/-, on 24-5-1967 when the pass-book, which was retained in the post-office for the addition of interest, was returned to him by Shri Ghanshyam Bhatia Sub-Post-Master. Bhikha showed his pass book to Mangi Lal in the presence of Ghanshyam Bhatia and asked how much money was in balance. He was informed that interest had not been added and a sum of Rs. 1000/-, was in balance. Bhikha then told that a sum of Rs. 1500/-, ought to have been in balance after withdrawing a sum of Rs. 300/ -. He was then informed that a sum of Rs 500/-, was withdrawn from his S. B. account on 1-5-1967. Bhikha categorically denied to have withdrawn a sum of Rs. 500/-, on 1-5-1967, as he was admitted as an indoor patient in the General Hospital, Udaipur, that day. Bhikha then sent a written complaint on 26-5-1967 to the Superintendent, Post-offices, Ajmer, about the said criminal breach of trust in respect of a sum of Rs. 500/ -. An inquiry was started into the allegations made in the complaint. Meanwhile the appellant approached Bhikha and asked him to take the money. Bhikha told the appellant that he would not accept the money and that the appellant may deposit the same in the post-office in his account. THEreupon, the appellant deposited a sum of Rs, 500/-, in the sub-post-office, Desuri, in the S. B. account of Bhikha on 31-5-1967. Later on, on 13-9-1967 a criminal case under sections 409, 467, I. . P. C. and S. 5 (2) read with S. 5 (l) (c) of the Act was registered against the appellant by the Superintendent of Police, S. P. E. . Jaipur on the basis of a credible information. Shri Vijai Singh, Inspector, S. P. E. Jaipur, conducted the usual investigation into the case and after collecting necessary evidence, put up a charge-sheet against the appellant in the court of the Special Judge for Rajasthan, Jaipur City, after obtaining the necessary sanction for prosecution from Shri J. L. Arora, Superintend dent, Post-Offices, Pali Division, Pali Marwar.

(3.) FIRSTLY, it has been contended on behalf of the appellant that the sanction for the prosecution accorded by the Superintendent, Post-offices, Pali Division, Pali Marwar, is no sanction in the eye of law, because the sanctioning authority was not competent to do so. It was further urged that the defect in the sanction is not a mere technical defect, but it goes to the very root of the matter and vitiates the trial. According to the learned counsel for the appellant, the sanction of the authority competent to remove the appellant from the service was necessary for his prosecution and as the Superintendent, Post-offices, Pali Division, Pali Marwar, who accorded the sanction was subordinate in rank to the Senior Superintendent, Post-offices, Ajmer Division, by whom the appellant was appointed, the sanction accorded by the former would be invalid. In support of his above contention, the learned counsel for the appellant invited my attention to the orders of appointment and confirmation of the appellant on the posts of Clerk, Temporary Reserve Clerk on probation and the order of passing the confirmation examination and contended on their strength that the appointing authority in the case of the appellant was the Senior Superintendent of Post-offices, Ajmer Division and that the appellant could not be dismissed or removed from service by an authority lower in rank than the one who actually ordered the appointment. The learned counsel lor the appellant placed reliance on Mahesh Prasad vs. State of U. P. (1), wherein their Lordships were pleased to make the following observations at page 73 : "learned counsel for the appellant urged that the requirement both of the Constitution and of the rule of the Railway Code contemplates that the authority competent to remove must be either the very authority who appointed or any other authority directly Superior to the appointing authority in the same department We do not think that this contention is tenable. What the Constitution require is that a person should not be removed by an authority sub ordinate to the one by whom he was appointed and what the rule in the Railway Code prescribes is substantially the same, viz , "the authority competent to remove should not be lower than the one who made the appointment. "