S.K. Kapur, J.
1. This is an appeal against the judgment of Shri P.S. Pattar, Special Judge, Delhi, dated June 18, 1964, convicting P. B. Pardasani, Appellant, under Section 5(2) read with Sections 5(1)(c) and 5(1)(d) of the Prevention of Corruption Act and Section 409, Indian Penal Code, and sentencing him to rigorous imprisonment for four years and to pay a fine of Rs. 40,000 or in default of payment of fine to undergo further rigorous imprisonment for one year.
2. The appellant, an Assistant in the Ministry of External Affairs, Government of India, was working as Cashier in the Indian Embassy at Moscow for the period October 1, 1960 to September 29, 1961. He was prosecuted under Section 5(2) read with Sections 5(1)(c) and 5(1)(d) of the Prevention of Corruption Act and Section 409, Indian Penal Code. The charge against him was that having dominion and control over the cash kept with him he dishonestly and fraudulently or by otherwise abusing his position as a public servant misappropriated Roubles 28097.24 or dishonestly used or disposed of the same in violation of the directions of law prescribing the mode in which the trust was to be discharged or wilfully allowed others to do so. It was alleged by the prosecution that as a Cashier the duty of the appellant was to receive cash, properly disburse the same and maintain the cash book and vouchers showing the disbursement. He also had the custody of cash in hand.
From 1st October, 1960, to 29th September, 1961, he dishonestly misappropriated or otherwise converted to his own use a sum of Roubles 28097.24 which had been entrusted to him as a public servant. The appellant was to hand over the charge to N.A. Amin (P. W. 7) on October 1, 1961, and it was alleged by the prosecution that knowing that large amounts had been dishonestly misappropriated by him he caused disappearance of the evidence of the offence by tearing pages Nos. 81 to 96, both inclusive, of the cash book of the Embassy of India at Moscow, containing accounts for August and September 1961 and partly for July 1961. He was also alleged to liave destroyed the vouchers, both original and duplicate, for the month of September, 1961. The torn pages of the cash book, so far as the months of August and September are concerned, related both to the receipts and expenditure for the said months and regarding July 1961 they contained accounts for the expenditure only. According to the prosecution, the appellant destroyed these documents late in the evening on 29th September, 1961, and burnt them in the fireplace, in the Embassy building while, according to the appellant, they were intact on 29th September, 1961, when he left the office and must have been destroyed by someone on 30th September 1961.
There is no direct evidence about the misappropriation of money but the shortage is sought to be established on the basis of reconstituted accounts, in view of the fact, that the original accounts, as stated earlier, were not available. Shri Section Than (P. :W. 3) gave evidence regarding the reconstruction of the accounts and stated:
'The accounts for the month of July were reconstructed with the papers which were available with Shri Kedar Math, Accountant. For the August account, Pardasani himself made the receipt side from the bank statements and the other record available in the office. The expenditure side was compiled from the vouchers for the month of August which were with Shri Kedar Nath. For the month of September 1961 to receipt side was again compiled from Bank statements and other records available from office and the expenditure side was reconstructed from memory and from making enquiries from the members of the staff and other officers concerned, and consulting files and office records.'
Again Shri N. P. Jain (P. W. 6) deposed regarding the reconstruction of the accounts and his statement is also more or less on the same lines. The main evidence of the prosecution consisted of the circumstances showing that it was the appellant alone who had access to the cash book and the vouchers. He alone used to withdraw and keep the money and consequently no one else could have misappropriated the amounts. Besides these circumstances, the prosecution sought to place reliance on the recovery of burnt papers, which according to them, were the pages torn off from the cash book and the burn injuries on the hands of the appellant, alleged to have been sustained in the process of burning the papers. The defence case broadly was that others in the office had access to the cash book and the vouchers which used to be kept open in the room, the cheque book was also available to others for withdrawal and the amount withdrawn may not have necessarily been given to the appellant but misappropriated by someone else. It was further contended on behalf of the defence that even the misappropriation of money had not been proved inasmuch as (a) no reliance could be placed on a bank statement which was prepared by the appellant OH the dictation of Mr. Jain (P. W. 6) and no statement from the bank had been produced, (b) the reconstituted accounts may not be correct, and (c) there was every possibility of some vouchers having been withheld or misplaced and for this reason also the reconstructed accounts may not correctly reflect the expenditure actually incurred. It was also said that amounts were being withdrawn by letters without the use of the cheque book and it was possible that there may have been some such withdrawals not handed over to the appellant.
Strong reliance was placed on the evidence of Shri N. P. Jain (P. W. 6) when he stated:
'Pardasani brought the cash book to me on the 29th September with entries completed up to that date from the 2nd September to 29th September 1961. He brought the corresponding vouchers also. I checked entries in the cash book with reference to the vouchers and initialled each entry in the cash book. Vouchers were initialled and signed as and when Pardasani had prepared them and brought them to me for signatures before 29th September, 1961.'
Reliance was also placed on the evidence of Shri Jain that on 29th September, 1961, the appellant had informed him about the exact amount of cash with him and it was suggested that if the appellant had shown the account-book and the vouchers and had told him about the position of the cash in hand there was no possibility of his having misappropriated any amount. Mr. Mehta, the learned counsel for the State, on the other hand, broadly relied on the following facts:
(1) No one except the appellant had access to the cheque book.
(2) No one would be interested in withholding the vouchers for the reconstruction of the accounts because the only other person dealing with the vouchers was Kedar Nath (P.W.11) and if he had misappropriated the amount he would have been interested in inflating the amount rather than in keeping back the vouchers.
(3) The accounts had been reconstructed from the bank statement which was prepared by the appellant himself.
(4) Though vouchers for the month of September were not available but the reconstituted accounts show an expenditure of about 23,000 Roubles and the expense in the month of September could not have been over 50,000 Roubles.
(5) No one except the appellant presented the letters of withdrawal or the cheques for withdrawing money from the bank and it was clear from the evidence of Kedar Nath (P. W. 11) that if any amount had been withdrawn without the knowledge of the appellant he would, in any case, have come to know of it at the end of the month even if it had not been handed over to him earlier.
(6) The withdrawals for the mouth of July had not been challenged by the appellant and the withdrawals for September were made by only two cheques and one letter all got signed by the appellant. That, according to Mr. Mehta excluded any possibility of mistake about the withdrawals.
(7) The withdrawals for the months of August and September had been detailed in the charge-sheet Ex. P. 202 and if there had been any other withdrawal or if any amount had in fact not been withdrawn the appellant would have objected to the same in his reply. On the other hand, in reply to the charge-sheet all mat he stated was that certain payments had been made out vouchers not entered in the account books.
(8) If there had been any large expense the appellant would have known the same.
(9) The recovery of burnt papers and the burn injuries on the hands of the appellant fully corroborated the prosecution story.
(10) Strong reliance was placed by Mr. Mehta on the destruction of the cash book which, according to him, used to be in the sole custody of the appellant. He pointed out that vouchers for September had been, according to appellant, shown by him to Mr. Jain (P. W. 6) on 29th September, 1961, at 5 P. M. that be so then there was no reason to withhold the vouchers from Kedar Nath (P. W. 11) on 30th September, 1961, while it was clear from the evidence of Kedar Nath (P. W. 11) and N.A. Amin (P. W. 7) that the appellant evaded to give the vouchers when demanded by Kedar path.
3. I have not set out the rival contentions in detail because I am in agreement with the submission of the learned counsel for the appellant that there has been no proper sanction in this case. If that be so, the case may have to be retried. At first I thought that I should express my views also on the merits of the case so that in case my judgment is not upheld regarding the preliminary objection the matter may not have to come back to this Court for expressing opinion on the merits. After careful consideration I have decided not to express opinion on the merits for in the event of retrial the evidence would practically be the same and it may not be fair to any of the parties it there is an expression of opinion about the evidence by this Court.
4. Now 1 come to the preliminary objection raised by Mr. R. L. Tandou, the learned counsel for the appellant. It is not disputed that in view of Section 6(1)(c) of the Prevention of Corruption Act no Court can take cognizance of an offence punishable under Section 161, Indian Penal Code, and Section 5(2) of the Prevention of Corruption Act except with the previous sanction of the authority competent to remove the accused from office. It is also not in dispute that the proper authority for granting sanction was the Central Government. The learned counsel also agree that in case it is held that the sanction has not been properly given the conviction of the appellant will have to be set aside even under Section 409, Indian Penal Code, and lie may be retried after proper sanction. According to the learned counsel, for the parties conviction will have to be quashed even if I take the view that the charge stands proved on the evidence on record because if no proper sanction has been given, the trial itself is without jurisdiction. That takes me now to the question whether the sanction has been properly granted. Exhibit P. 212 is the order granting sanction and is in the following terms:
'Whereas it is alleged that Shri P. B. Pardasani, an Assistant in the Ministry of External Affairs, while functioning as Cashier in the Indian Embassy at Moscow, between 7-11-1958 and 30-9-1961, had been entrusted with, or had under his control, Government money, in his capacity as a public servant; that from 1st October, 1960 to 30th September, 1961, he dishonestly misappropriated or otherwise converted to his own use a gross sum of Roubles 28,097.24 out of Roubles 96,299.07 which he had under his control and dominion as a public servant at the close of September, 1960; that the said Shri P. B. Pardasani, obtained pecuniary advantage to himself to the above extent by corrupt and illegal means or otherwise abusing his position as public servant; that between 29-9-61 and 30-9-61 he caused evidence regarding the commission of these offences by him to disappear with the intention of escaping legal punishment by fraudulently removing and destroying some pages in the cash book and thus mutilating the same belonging to the Government and which he was maintaining as an officer of the Government.
Whereas, the said facts constitute offences punishable under Section 5(1)(c) and (d) read with Section 5(2) of the Prevention of Corruption Act, 1947, (Act II of 1947), sections 409, 201 and 477A of the Indian Penal Code, 1860 (Act ALVA of 1860).
And whereas the Central Government, being the authority competent to remove 'the said Shri Pardasani from service, after fully and carefully examining the materials in regard to the said allegations, and circumstances of the case, consider that the said Shri Pardasani should be prosecuted in a Court of law for the said offences.
Now therefore, the Central Government, hereby doth accord sanction under Section 6(1)(a) Of the Prevention of Corruption Act 1947 (Act II of 1947) and Section 197(1)(a) of the Code of Criminal Procedure 1898 (Act V of 1898) for the prosecution of the said Shri P. B. Pardasani for the said offences and any other offences punishable under other provisions of law in respect of the facts aforesaid and for taking cognizance of the said offences by a Court of competent jurisdiction.
Deputy Secretary to the Government of India.'
5. Mr. R.L. Tandon, the learned counsel for the appellant, submits that under Article 77 of the Constitution, which is the relevant Article, all executive action of the Government of India must be expressed to be taken in the name of the President. He points out that veil of protection from attack against the order is provided by Sub-Article (2) of Article 77 only if the order made and executed in the name of the President is authenticated in such manner as may be specified in the rules to be made by the President. That being not the case here, submits the learned counsel, it is open to him to challenge the legality of the sanction order on the ground that no sanction has been given on behalf of the Government of India by an authorised person. It is said that the order is signed by Shri Jagat Singh, Deputy Secretary to the Government of India, purporting to act in his own right. That shows that he has given sanction in his own right and not authenticated an order issued in the name of the President. A sanction given by an officer in his own right, according to the learned counsel, could have been given only by a person authorised to do so on behalf of the Government of India and there was nothing on the record to show that Shri Jagat Singh had any such authority. Mr. Tandon relies on the observations of their Lordships of the Supreme Court in Major E.G. Barsay v. State of Bombay, AIR 1961 SC 1.762. There it was observed:
'The Deputy Secretary may have power to make some orders in his own right and also may have power to authenticate other orders issued in the name of the President. But in this case this witness has clearly deposed that the Deputy Secretary had power to accord sanction in his own right and when the order giving the sanction ex facie shows that he did not authenticate it by order of the President, we must hold that he gave the sanction in his own right.' Again it was said---
'If that be the legal position, in the instant case the impugned order does not comply with the provisions of Article 77(2) of the Constitution and, therefore, it is open to the appellant to question the validity of the order on the ground that it was not an order made by the president and to prove that it was not made by the Central Government. But this legal position does not help the appellant, for as we have pointed out, the uncontroverted evidence of P. W. 36, an Assistant in the Home Ministry, which was accepted by the High Court and the Special Judge establishes that the order was made by the Deputy Secretary on behalf of the Central Government in exercise of the power conferred on him under the rules delegating such power to him.'
Basing himself on the above observations, the learned counsel for the appellant points out that Shri Jagat Singh was only authorised to authenticate orders issued in the name of the President but had no authority to grant the sanction himself. He has drawn my attention to the evidence of Shri Jagat Singh' (P. W. 5). He stated--
'As Deputy Secretary I am authorised to authenticate documents on behalf of the Central Government. When I accorded the sanction Exhibit P. 212 on behalf of Government of India to prosecute the accused Pardasani I have been sure that the Central Government was the authority competent to accord sanction. The sanction P. 212 was accorded after going through the report of the Special Police 'Establishment and the various documents received from the Indian Embassy at Moscow.'
He has not stated that he was authorised in his own right to accord sanction. Mr. Mehta, the learned counsel for the State, on the other hand, raises two-fold contentions:
(1) The sanction ex facie purports to have been given by the Central Government and in view of illustration (c) to Section 114, Indian Evidence Act, there was a presumption that the official act had been regularly performed.
(2) The onus was on the appellant to prove that Shri Jagat Singh, Deputy Secretary, had no authority to accord sanction. The appellant having even failed to ask the Deputy Secretary, when he was in the witness-box, as to whether he had the necessary authority he cannot now be permitted to contend to the contrary.
6. The learned counsel, however, do not dispute that Article 77 of the Constitution is not mandatory. The sanction order Exhibit P. 212 shows that Shri Jagat Singh, Deputy Secretary, did not authenticate it by order of the President. I must, therefore, hold that he gave the sanction in his own right. The question then arises whether he was competent to do so? The case was heard by my learned brother Mehar Singh J. in May 1965 and both the learned counsel point out that the question regarding the authority of the Deputy Secretary was raised before Mehar Singh, J. Again the case was heard by me for over two days but still no order conferring authority upon Shri Jagat Singh was produced before me. As a matter of fact, Mr. Mehta, the learned counsel for the State, frankly pointed out that he was unable to produce any such authority and principally relied on the above mentioned two contentions. Mr. Mehta has referred to the following authorities in support of his contentions:
1. His Excellency the Governor of Bengal in Council v. Tusharkanti Ghosh, ILR 80 Cal 608: (AIR 1933 Cal 118). 2. Public Prosecutor v. M. Jawala Subrahmanyam, AIR 1957 Andh Pra 987. 3. P.J. Ratnam v. D. Kartikaram, AIR 1984 SC 244 and 4. P. Joseph John v. State of Travancore Cochin, AIR 1955 SC 160.
In P. J. Ratnam's case, AIR 1964 SC 244, their Lordships of the Supreme Court observed:
'The fact that in the order of reference of the proceedings under Section 10(2) to the District Judge there is no explicit statement that the Bar Council had previously been consulted is not decisive on the point. There would be presumption of regularity in respect of official and judicial acts and it would be for the party who challenges such regularity to plead and prove his case.'
Reference may also be made to the decision of the Supreme Court in Tulsi Ram v. State of Uttar Pradesh, AIR 1963 SC 666. In that case there was a letter on the record from an Under Secretary to the State Government in the Home Department addressed to the District Magistrate informing that the Governor had been pleased to grant sanction for prosecution of certain persons. Their Lordships held that the document being an official communication emanating from the Home Department and addressed to the District Magistrate at Kanpur a presumption would arise that sanction to which reference had been made in the document had in fact been accorded and since the communication was an official one, a presumption would also arise that the official act to which reference had been made in the document was regularly performed. Mr. Tandon, the learned counsel for the appellant, has placed reliance on Venkataramana Udupa v. Kannan Chettiar, AIR 1963 Ker 9; Mahabir Prosad v. P. E. S. Corporation Ltd., AIR 1958 Cal 661; and Shankarbhai v. Emperor, AIR 1943 Bom 314 and submits that the Courts cannot presume that there was a delegation of power in favour of an authority purporting to act. In Bombay case the question arose whether the Administrator who filed the complaint, was the person authorised under the statute in question to file a complaint. Beaumont C. J. observed:
'We are asked in this Court to presume that he had been validly appointed under Section 114, Evidence Act, 1872, which provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. How can we draw such a presumption in view of the facts? On 21st August 1942, the powers of the Administrator were vested in the Collector of Ahmedabad, and I should certainly presume that if those powers had been taken out of that Officer's hands, and transferred to somebody else, there must have been an order to that effect, which could be easily proved. This is not like the cases cited by the Advocate-General where some person had been acting in an office for years, and it was held that his appointment might properly be presumed. We cannot presume that powers vested in one person on 21st August had been transferred to another person by 15th September when no order is produced. The only natural presumption from the failure to prove the making of an order appointing Mr. Whit-worth as Administrator is that no such order was passed.'
7. Mr. Tandon further submits that the presumption arises only if an act is proved to have been done and before such presumption can arise it must be proved that the official act was done. In this case, according to Mr. Tandon, there was nothing to show that the Central Government ever gave the sanction. It is also the contention of Mr. Tandon that the Court is not bound to presume and the presumption is only optional. He refers to Mt. Jawai v. Emperor, AIR 1942 Lah 214, and submits that in view of the various opportunities given to the State to produce the authority in favour of the Deputy Secretary concerned and in view of his evidence that he was authorised to authenticate documents no presumption should be drawn. Regarding no question having been put to Shri Jagat Singh (P. W. 5), Mr. Tandon invites my attention to his evidence and points out that he merely stated that he was authorised to authenticate documents on behalf of the Central Government and that the Central Government was the authority competent to accord sanction.
8. I have carefully considered the contentions raised at the bar and am of the opinion that having regard to the circumstances mentioned by Mr. Tandon no presumption should be drawn in this case. In spite of several opportunities the State failed to produce any authority in favour of the Deputy Secretary concerned. If the power had at all been delegated to him it would not have been difficult for the Government to produce the relevant document. As pointed out earlier Mr. Mehta frankly conceded that he was unable to produce any. Moreover, the Deputy Secretary having appeared as a witness only for the purpose of proving the sanction would have definitely stated that he had the authority to accord the same. He confined his evidence only to two facts:
(i) The Central Government was the competent authority to give sanction, and (ii) he was authorised to authenticate the same. In my opinion, Mr. Tandon is right when he says that the Deputy Secretary having himself confined his evidence as above the appellant need not have carried the matter further. Since the sanction order shows that it was given by the Deputy Secretary in his own right it must be held that he had no authority to accord sanction.
9. I might say a few words regarding the contentions of Mr. Tandon that there is no presumption about the official act having been done and, therefore, illustration (e) of Section 114 of the Evidence Act was not attracted. In my opinion, the Deputy Secretary having stated that when he accorded the sanction 'On behalf of Government of India to prosecute the accused' he made sure that the Central Government was the authority competent to accord sanction shows that the official act was done and but for the circumstances set out above I would have invoked the presumption contemplated by illustration (e) to Section 114 of the Evidence Act. I am also of the view that in that event the onus would have been on the appellant to prove that valid sanction had not been granted. To this extent I am not in agreement with the submissions of Mr. Tandon that onus would still have been on the prosecution to prove that a valid sanction had been granted. I must also notice the judgment of the Calcutta High Court in AIR 1958 Cal 661. In that case N.K. Sen, J. observed that there was no rule of law by which a delegation of powers could be presumed. In that case the question was regarding the acquiescence by the Electric Inspector to the use of electric energy contrary to certain orders issued by the respondent company. It was in those circumstances that the Court held that there was he presumption of delegation. That case is of no assistance to the appellant because in this case the sanction order ex facie shows to have been issued by the Central Government consequently but for the facts set out above presumption could legitimately arise and the burden thrown on the appellant to prove lack of authority.
10. Having regard to the above, I must hold pat the sanction order issued by Shri Jagat Singh Deputy Secretary, was issued in his own right and that he had no authority to act on behalf of the Central Government in this behalf. The appeal, therefore, must be allowed and the judgment under appeal and the conviction of the appellant set aside. The appellant will be set at liberty forthwith unless required in any other case and the fine if realised, shall be refunded to Mm. It would, however, be open to the State to prosecute him again after proper sanction.
11. In the end, I must express my extreme gratitude to the learned counsel for the parties for very valuable assistance rendered to me in the Case.