P. Govinda Menon, J.
1. These appeals are by accused 1 and 2 against the judgment of the Special Judge, Trichur, convicting both the accused of the offence of criminal conspiracy punishable under Section 120B, Indian Penal Code, the accused 1 under Section 5(2) read with Section 5(1)(c) and (d) of the Prevention of Corruption Act (Act 2 of 1947) hereinafter referred to as the Act, Section 477A, Indian Penal Code, and under Section 471 read with Section 467, Indian Penal Code, and the accused 2 for abetment of the offences under Sections 5(2), 477A and 471, Indian Penal Code. They were sentenced to varying terms of imprisonment and fine. In Calendar Revision No. 2 of 1962 notice has been issued by this Court calling upon the, accused to show cause why the sentence awarded on them should not be enhanced.
2. The prosecution case shortly stated is as follows:
Sri G.V. Nair, the accused 1 in the case, is a public servant in the service of the Kerala Government. During the relevant period his services had been lent to the Coir Board, Ernakulam, a statutory body constituted by the Coir Industry Act 45 of 1953 and functioning under the Ministry of Commerce and Industry of the Government of India. He was first appointed as a superintendent and later as the propaganda officer. P.W. 28 was the Secretary. When he left the board on 24 July 1957 the accused 1 was put in additional charge of the Secretary's place and he continued as Secretary till 8 August 1958 on which date P.W. 1 took over charge as the permanent Secretary. The accused 2 was first appointed on 25 September 1956 under the Coir Board as a stall assistant, for assisting the accused 1 on dally wages and later he was appointed on 18 June 1957 as a clerk-cum-typist. He is the brother-in-law of the accused 1.
3. One of the objects of the Coir Board was to popularize the coir products of Kerala and for that purpose the board used to participate in the exhibitions conducted in the various places. Whenever an exhibition is to be held, the executive committee decides whether the board should participate in the exhibition and if it decides to participate the committee passes a resolution to that effect and names the officer who should be in charge of the exhibition. That officer would be paid some money in advance for meeting the expenses. A stall assistant would also be deputed to work under him. After the exhibition is over, the officer in charge has to render accounts of the moneys received and expended, producing the necessary supporting vouchers.
4. The charge against the accused is that is respect of certain exhibitions in which the board participated between September 1956 and June 1958 the two accused along with some others unknown entered into a criminal conspiracy to misappropriate the funds of the board and in pursuance of the conspiracy they got up bogus and forged vouchers misappropriating the amounts covered by such vouchers, thereby committing offences of criminal conspiracy, criminal misconduct, falsification of accounts and using forged documents knowing them to be false. During this period, even though the board participated in several exhibitions, charges were framed in respect of only six exhibitions, viz., the 1956 Mysore Dasara Exhibition, the 1957 Palghat Exhibition, the 1957 Bangalore Exhibition, the 1957 Madurai Exhibition, the 1957 Mysore Dasara Exhibition and 1958 Calicut Exhibition. The accused 1 was in charge of all these exhibitions and in three of these exhibitions the accused 2 was working as stall assistant.
5. Sometime in August 1958 P.W. 56, the investigating officer in this case, happened to hear some rumours at Ernakulam that the accused were misappropriating funds entrusted to them for participating in the exhibitions. He conducted certain preliminary enquiries and sent up a report Ex. D. 51 to his Superintendent of Police. A case was then registered and a report Ex. P. 171 was sent to the sub-divisional magistrate of Trichur for according sanction to P.W. 56 to investigate into the case. Exhibit P. 172 is the sanction order granted under Section 5A of the Act. P.W. 56 then conducted a detailed Investigation, questioned various witnesses and an application was made to sanction the prosecution of the accused 1 who was a public servant under the Kerala Government. Sanction was accorded under Ex. P. 138. Sanction was also obtained from the Coir Board for the prosecution of the accused 2. Fifty-seven witnesses were examined on the side of the prosecution and various documents were exhibited in the case.
6. When questioned on the prosecution evidence, both the accused denied the commission of the offence. They denied the existence of any criminal conspiracy and stated that all the amounts covered by the vouchers had really been paid to the concerned persons, that the vouchers were in fact executed by them, that no amounts were misappropriated by them and that they were not guilty of any of the offences charged against them. The accused 1 filed a written statement Ex. D. 58 and gave evidence as D.W. 1 under the provisions of Section 7 of the Act and Section 342A, Criminal Procedure Code.
7. The learned Special Judge, on a consideration of the evidence, held that the charge of criminal conspiracy against both the accused was proved, that the charge of criminal misconduct under Section 5(2) against the accused 1, and abetment of the said offence by the accused 2 had also been proved. The learned Judge found that in respect of the Mysore Dasara exhibition of 1956 vouchers Exs. P. 12 to P. 16 were forged vouchers, that the moneys covered by such vouchers had been misappropriated and that these forged vouchers were used as genuine in giving the statement of accounts to the Board. In respect of the Palghat exhibition the learned Judge found vouchers Exs. P. 27 to P. 36 to be forged vouchers and in respect of the Bangalore exhibition the learned Judge found Exs. P. 43 to P. 46 and P. 48 to P. 51 to be forged vouchers and that the moneys covered by these vouchers bad been misappropriated by the accused. Regarding the other vouchers the learned Judge was of opinion that the prosecution had not succeeded in proving that they were forged vouchers and acquitted the accused of the specific charges in respect of those items.
8. The learned Counsel for the appellants have pressed before us certain legal objections which they unsuccessfully raised before the Special Judge. We shall, therefore, first deal with those contentions before considering the arguments advanced on the merits of the case. One of the main contentions raised by the learned Counsel for the appellants relates to the validity of the order sanctioning the prosecution of the accused 1.
9. Section 6(1) of the Act reads:
6. (1) No Court shall take cognizance of an offence punishable under Sections 161 or 164 or 165 of the Indian Penal Code or under Sub-section (2) of Section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanotion:
(a) in the case of a person who is employed in connexion with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government;
(b) In the case of a person who is employed in connexion with the affairs of a State and is not removable from the office save with the sanction of the State Government;
(c) in the case of any other person of the authority competent to remove him from his office.
10. There is no dispute that the accused 1 was a public servant under the State Government at the time of the alleged commission of the offence and at the time the Court was asked to take cognizance and be he cannot be prosecuted without the sanction of the State Government.
11. The sanction order in this case is Ex. P. 138. It recites the various offences alleged to have been committed by the accused and the several vouchers got up for the purpose of misappropriating the moneys and states that the Government of Kerala after fully and carefully examining the materials placed before it consider that the accused 1 should be prosecuted for the said offences and concludes by saying,
Now, therefore, the Government of Kerala doth hereby accord sanction for the prosecution of the accused.
The order is signed by Sri C.P. Gopalan Nair, Additional Secretary to the Government, by order of His Excellency the Governor.
12. It is argued that the President of India by his proclamation dated 31 July 1959 had taken over the administration of the Kerala State under Article 356 of the Constitution and therefore sanction for prosecution must be by the President of India and not by the Governor.
13. Sub-clause (1) of Article 356 of the Constitution provides that on receipt of a report from the Governor...of a State or otherwise, if the President is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution, the President may, by proclamation-
(a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the legislature of the State;
(b) declare that the power of the legislature of the State shall be exercisable by or under the authority of Parliament;
(c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to anybody or authority in the State.
The president, in exercise of these powers, made the following provisions in the proclamation:
(a) assume to myself as President of India all functions of the Government of the said State and all powers vested in or exercisable by the Governor of that State;
(b) * * *(c) make the following incidental and consequential provisions which appear to me to be necessary or desirable for giving effect to the objects of this proclamation, namely,
(d) in the exercise of the functions and powers assumed to myself by virtue of Clause (a) of this proclamation as aforesaid, it shall be lawful for me as President of India to act to such extent as I think fit through the Governor of the said State; * * *
14. In exercise of this power on the same day the President made the following order:
In pursuance of Sub-clause (1) of Clause (c) of the proclamation issued on this the 31 day of July 1959, by the President under Article 356 of the Constitution of India, the President is pleased to direct that all the functions of the Government of the State of Kerala and all the powers vested in or exercisable by the Governor of that State under the Constitution or under any law in force in that State which have been assumed by the President by virtue of Clause (a) of the said proclamation shall, subject to the superintendence, direction and control of the President, be exercisable also by the Governor of the said State.
15. A reading of this order would make it clear that the power taken over by the President has been made over and made exercisable by the Governor subject, of coarse, to the superintendence, direction and control of the President.
16. It is not contended that the President has imposed any restriction on the exercise of such power by the Governor as was the case in S. Mohan Singh v. Patiala and East Punjab States Union, Patiala A.I.R. 1954 Pepsu 136. In that case powers vested in the Rajpramukh had been curtailed by a condition added in the order by the President that the Rajpramukh will act on the advice of the adviser appointed by the President. The argument raised in that case was that the President had no powers to do be. The contention was negatived. Here in the absence of any such restriction on the powers to be exercised by the Governor that decision does not help the appellants and it mast be taken that the Governor has been invested with all the powers exercisable by the President. Therefore we find ourselves unable to agree with the contention raised by the learned Counsel for the appellants that the proper person to accord sanction was the President and not the Governor.
17. The next question that arises is even if sanction is to be accorded by the Governor, whether the sanction granted in this case, namely, Ex. P. 138, is valid. Ex facie this order purports to have been issued in the name of the Government of Kerala and is signed by Sri C.P. Gopalan Nair, Additional Secretary to the Government, by order of the Governor.
18. Article 154(1) says that the power vested in the Governor shall be exercised by him either directly or through officers, subordinate to him in accordance with the Constitution, This provision has been made because as head of the State it is not possible for the Governor to act personally and in the ordinary circumstances the constitutional head of the State acts through officers subordinate to him.
19. In Emperor v. Sibnath Banarji A.I.R. 1945 P.C. 156 it has been held that:
the Home Minister is an officer subordinate to the Governor within the meaning of Section 49(1) of the Government of India Act, 1935.
20. Section 49(1) of the Government of India Act makes similar provision as Article 154(1) of the Constitution, and the Governor acts in accordance with the Constitution, when he exercises his executive powers through any subordinate officer under him.
21. It was contended that by Clause (c)(ii) of the proclamation some of provisions of the Constitution Including Clause (3) of Article 166 of the Constitution had been suspended and therefore the business rules promulgated by the Governor would stand suspended and would no longer be in existence. Clause (3) of Article 163 is in these words:
The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.
22. The administration having been taken over by the President under Article 356 and there being no Ministers, Clause (3) of Article 166 should necessarily be suspended and there can be no doubt that the rules made under that sub-clause would not be in force. But Clause (2) of Article 166 has not been suspended and the rules framed by the Governor under Clause (2) would continue to be in force until they are amended or substituted by the President or by the Governor himself.
23. Under Clause (1) of Article 166 all executive action of the Government of a State shall be expressed to be taken in the name of the Governor and under Clause (2) thereof orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and if orders are so authenticated, the validity of such an order shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.
24. In exercise of the powers so conferred the Governor of Kerala had framed rules called the Rules of Business of the Government of Kerala and Rule 12 says:
Every order or instrument of the Government of the State shall be signed by a Secretary, an Additional Secretary, a Joint Secretary, a Deputy Secretary, an Under Secretary, or an Assistant Secretary, or by such other officer as may be specifically empowered in that behalf and such signature shall be deemed to be the proper authentication of such order or instrument.
25. In this case the order has been expressed to be taken in the name of the Governor and has been authenticated by a person duly authorized.
26. The contention that is raised is that the proof of the sanction order by the proof of the signature of the Additional Secretary is not sufficient evidence that sanction has, in fact, been accorded by His Excellency the Governor. It is argued that although the genuineness of the sanction order may be said to have been proved by the prosecution, something more is necessary to establish that His Excellency exercised his individual judgment when according the sanction. It is stated that the Secretary who signed the order has not been examined to prove that he was present when the Governor applied his mind and sanctioned the prosecution. This contention is not well founded.
27. A similar contention was raised in the case In re T.S. Swaminathan A.I.R. 1945 Mad. 284 where Wadsworth, J., negativing the contention stated:
When once the Secretary to the Government under the orders of His Excellency certifies that His Excellency has accorded sanction under Section 197, Criminal Procedure Code, that is in our opinion a sufficient proof that His Excellency has sanctioned the prosecution in the exercise of his individual judgment as prescribed in that sanction in the absence of any evidence to the contrary.
28. The same view was expressed in the case in Pioneer Motors, Ltd., Tirunelveli v. O.M.A. Majeed Mirania Motor Service, Tirunelveli : AIR1957Mad48 , where their lordships Rajagopalan and Rajagopala Ayyangar, stated:
Under Rule 12 of the Business Rules read in conjunction with Article 166(2), the signature of the Secretary or that of any of the other officers designated under the rules serves a double purpose:
(1) of substance and
The signature of the Secretary in the first instance embodies the consent of the (Governor and indicates to the outside world the acceptance of the advice tendered by the Minister. Secondly, it authenticates and provides evidence that the pre-requisites for the emergency of an order of government have been compiled with. The production of that order is conclusive proof hat the formalities for emergence of that order have been complied with and no further investigation is possible or is permitted to the Court
29. In the case in State of Bombay v. Purushotham Jog Naik : 1952CriLJ1269 the validity of an order made by the Bombay Government under Section 3 of the Preventive Detention Act, 1950, came up for consideration. There, in the body of the order the 'satisfaction' was shown to be that of the Government of Bombay, at the bottom of the order the Secretary to the Government of Bombay, Home Department, signed it under the words 'By order of the Governor of Bombay.' It was contended that the order was defective as it was not expressed to be in the name of the Governor within the meaning of Article 166(1) of the Constitution and that there can be no protection under Clause (2) of the said article, Bose, J., speaking for the Court, said:
One of the meanings of 'expressed' is to make known the opinions or the feelings of a particular person and when a Secretary to Government apprehends a man and tells him in the order that it is being done under the order of the Governor, he is in substance saying that he is acting in the name of the Governor and, on his behalf, is making known to the detenue the opinion and feelings and orders of the Governor. The Constitution does not require a magic incantation which can only be expressed in a set formula of words. What the Court has to see is whether the substance of the requirements of Article 166(1) is there.
30. This decision, therefore, lays down that we must look at the substance of the order and compliance with the requirements of Article 166 gives an immunity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor.
31. This decision was followed in another case, Joseph John v. State of Travancore-Cochin 1956-I L.L.J. 235. There a show-cause notice issued under Article 311 of the Constitution was impugned on the ground that it was contrary to the provisions of Article 166 inasmuch as it was not expressed to have been made in the name of the Rajpramukh. The notice was issued on behalf of the Government and was signed by the Chief Secretary to the Government who had, under the rules of business framed by the Rajpramukh, the charge of the portfolio of 'service and appointments' at the secretariat level in the State. It was held that the notice was issued in substantial compliance with the directory provisions of Article 166 of the Constitution.
32. In a more recent decision of the Supreme Court in State of Bombay v. Harnan Singh Ram Singh Kochhar : 1961CriLJ828 all the previous decisions were reviewed and his lordship Subba Rao, J., stated:
The foregoing decisions authoritatively settled the true interpretation of the provisions of Article 166 of the Constitution. Shortly stated, the legal position is this: Article 166(1) is only directory. Though an impugned order was not issued in strict compliance with the provisions of Article 166(1), it can be established by evidence aliunde that the order was made by the appropriate authority. if an order is issued in the name of the Governor and is duly authenticated in the manner prescribed in Rule 2 of the said article, there is an irrebuttable presumption that the order op instrument is made or executed by the Governor. Any non-compliance with the provisions of the said rule does not invalidate the order, but it precludes the drawing of any such irrebuttable presumption. This does not prevent any party from proving by other evidence that as a matter of fact the order has been made by the appropriate authority.
33. It, therefore, follows that when the sanction order as in this case is expressed to be taken in the name of the Governor and is duly authenticated as prescribed in Rule 2 of Article 166, it is immune from challenge in a Court of law on the ground that it is not an order of the Governor.
34. It is true that sanction under the Act is not intended to be nor is it an automatic formality and it is essential that the provisions in regard to sanction should be observed strictly. But for a sanction order no specific type, design, form or particular words have teen prescribed. Therefore, in accordance with the commonsense and the requirements of justice all that the order of sanction must Show Is that all the relevant materials were placed before the sanctioning authority and the authority considered those materials and the order sanctioning the prosecution resulted therefrom. The sanction order need not set out the full facts or the reasons why sanction was accorded. The object of sanction is nothing more than to ensure the discouragement of frivolous, doubtful and impolitic prosecutions. It should be dear from the order that the sanctioning authority considered the materials before it and after a consideration of all the circumstances of the case sanctioned the prosecution.
35. An argument was raised that the secretariat file marked Ex. D. 55 shows that a draft sanction order was sent by the Central Government and what was done by the Additional Secretary Sri C.P. Gopalan Nair was only to subscribe his signature thereto. We cannot agree to this contention, because the file contains the report of the Superintendent of Police, Delhi Special Police Establishment, and the sanction order details the various vouchers which were alleged to have been forged and states that it was after fully and carefully examining the materials and satisfying that the prosecution was ordered. The Court may presume under Section 111(a) of the Evidence Act that judicial and official acts have been regularly performed.
36. The decision in Gokulchand Dwarakadas Morarka v. The King A.I.R. 1948 P.C. 82 has no application to the facts of this case. In that case there was nothing on the face of the sanction order to indicate that the sanctioning authority had before them the report made by the police or that the sanctioning authority was appraised of the facts alleged to constitute the offence and it was in such circumstances that the Judicial Committee held that sanction was invalid. The sanction order in this case has fully compiled with the legal requirements and we hold that the sanction accorded in this under Section 6 of the Act is perfectly legal and proper.
37. Now we will take up the question of the validity of the sanction accorded for the prosecution of the accused 2. Exhibit P. 133 is the application dated 25 September 1956 made by the accused 2 to be appointed as a stall assistant. The accused 1 recommended his appointment and Ex. P. 134 is his order of appointment. He was appointed as an assistant in the stall run by the board in the Mysore Dasara Exhibition on a remuneration of Rs. 7 a day from the date of joining duty till he is relieved of the work connected with the exhibition. It is on the same terms that he was appointed for the other exhibitions also. His work as stall assistant came to an end on 30 May 1957. On 18 June 1957 he is seen to have been appointed in the Coir Board office as a clerk-cum-typist. Exhibit D. 13 is his service register.
38. Exhibit P. 1 is the printed copy of the Coir Board Manual. On p. 25 of the book we have the bylaws made by the Coir Board in exercise of the powers conferred by Section 27 of the Coir Industry Act, 1953, and confirmed by the Central Government. The bylaws are called the Coir Board (Transaction of Business, Conditions of Service of Employees and Maintenance of Accounts) Bylaws, 1955. Bylaw 13(1) says that the executive Committee, the Chairman and the Secretary shall exercise the powers and perform the duties specified in the schedule annexed to the bylaws and the schedule shows that Executive Committee is the authority to make appointments to posts the pay or the maximum pay of which floes not exceed Rs. 220 per mensem. Exhibit P. 158 is the resolution of the Coir Board and Ex. P. 159 is the resolution of the Executive Committee suspending the accused 2 and Ex. P. 5 is the sanction order for the prosecution of the accused 2. P.W. 1 who is the secretary of the board has given evidence that Ex. P. 5 contains his signature and that he lad been authorized to sign the documents on behalf of the Coir Board. He has stated that all the connected papers were placed before the Executive Committee and the Executive Committee after examining all those records passed the order of sanction. To further questions in cross-examination he has also stated that the letter from the Superintendent of Police for obtaining sanction for the prosecution of the accused 2 was placed at the meeting. He denied the suggestion that Ex. P. 5 was drafted and signed by him and given to the investigating officer without placing the same before the board. P.W. 3, the accountant of the Coir Board, has produced the minutes of the Executive Committee of the Coir Board. The resolution dated 28 January 1960 is marked as Ex. P. 158. He has stated that P.W. 50 the Chairman presided at the meeting. That resolution only shows that sanction was accorded to prosecute some of the employees of the board without naming the accused 2. But P.W. 3 has stated that one of the employees referred to in the minutes is the accused 2. He farther stated that there is a resolution dated 29 April 1960 which specifies the action takes on the previous resolution. That resolution is marked as Ex. P. 159 and it refers specifically to the name of the accused 2. P.W. 50, the Chairman of the board, has stated that lie was present at the meeting which passed the resolution sanctioning the prosecution of the accused 2. He has stated that he received some papers relating to the investigation of a case against the accused 2 from the Superintendent of Police, Madras, and that himself and the Executive Committee were satisfied that there was a case for giving sanction to prosecute and that Ex. P. 5 is the sanction order given by the Secretary in pursuance of the resolution of the board. He has stated that the Secretary is competent to sign documents according to the sanction of the Executive Committee. A perusal of Ex. P. 5 also would go to show that the facts were placed before the sanctioning authority and it is only after fully satisfying them selves that the sanction was accorded. The sanction order is, therefore, perfectly in order.
39. Even otherwise we do not think that any sanction is necessary for the prosecution of the accused 2. On a careful reading of Section 6 of the Act it is clear that an officer cannot invoke the protection of the section unless two conditions are fulfilled: Firstly, that he was a public servant when the offence charged against him was committed; and secondly that on the date when he is prosecuted there is some authority who could remove him from his office. If any one of these two conditions does not exist, his case goes out of the ambit of Section 6. In other words, Section 6 affords protection to those public servants who were in office both on the date of the commission, of the offence and the date when a Court is asked to take cognizance. So in neither of the following cases would he be protected by Section 6 and sanction could not be necessary: Firstly: when the offence charged is alleged to have been committed before he became a public servant although the prosecution is launched while he is holding a public office: and secondly where the alleged offence was committed on a date when he was a public servant, but the prosecution was launched after he ceased to be a public servant.
40. The question is whether the accused 2 was a public servant at the time he is alleged to have committed the offence under Section 5(2) of the Act. Section 2 of the Act says:
For the purposes of this Act 'public servant' means a public servant as denned in Section 21 of the Indian Penal Code.
41. It is argued that the accused 2 would be a public servant as defined in Clause 12 of Section 21, Indian Penal Code. Clause 12 reads:
Every officer in the service or pay of a local authority of a corporation engaged in any trade or industry which is established by a Central, Provincial or State Act or of a Government company as defined in Section 617 of the Companies Act, 1956.
42. But it will be seen that Clause 12 was added to Section 21 of the Penal Code by the Criminal Law Amendment Act II of 1958 and it came into force only on 27 February 1958. Therefore, it is only from 27 February 1958 for the first time that the accused 2 would come into the category of a public servant and at the time he is alleged to have committed the offence of abetment of criminal misconduct between September 1956 and May 1957 he would not be a public servant. The learned Counsel for the defence has not been able to point out any other clause of Section 21 in which the accused 2 would come in. Therefore no sanction is necessary for his prosecution.
43. The learned Special Public Prosecutor argued that Section 6 of the Act requires sanction only for the offence under Section 5(2) of the Act and the sanction does not contemplate sanction for the offence of abetment of the said offence.
44. He has referred to a decision in Amarlal Vaseammal Hingorani v. Emperor A.I.R. 1945 Sind 51 where it was held that previous complaint or consent under Section 196A, Criminal Procedure Code, is not necessary for prosecuting an offender for abetting under Section 109A, Criminal Procedure Code, an offence which has in fact been committed in pursuance of a conspiracy notwithstanding the fact that a prosecution under Section 120B for the offence of criminal conspiracy cannot be launched without the previous complaint or consent under Section 196A, Criminal Procedure Code.
45. Another argument raised by the learned Special Prosecutor is that the accused 2 was a person on dally wages during the relevant period and could not be Bald to be a permanent employee under the Coir Board and as such in any view he will not become a public servant within the meaning of Section 21 of the Penal Code.
46. Reference was made to the decision in Queen v. Nachi Muttu I.L.R. 7 Mad. 18 where it was held that labourers or menial servants employed to do work or labour on account of the Government are not officers, and do not fall within the definition of public servant in Section 21 of the Penal Code. It is unnecessary to decide these questions in view of the finding that on the relevant date the accused 2 could not be a public servant within the meaning of Section 21 of the Penal Code.
47. Another legal objection raised by the defence is that there is no sanction under Section 196A of the Criminal Procedure Code for the prosecution of the accused for the offence of criminal conspiracy. Section 196A says that no Court shall take cognizance of the offence of criminal conspiracy punishable under Section 120B, Indian Penal Code, and Sub-clause (2) says that in a case where the object of the conspiracy is to commit any non-cognizable offence, or a cognizable offence, unless the State Government or a Chief Presidency Magistrate or District Magistrate empowered in this behalf by the State Government, has, by order in writing, consented to the initiation of the proceedings. It was argued that as the prosecution case is that there was a conspiracy between the accused 1, the accused 2 and certain other unknown persons to commit the offence of forgery and using forged documents, offences which are non-cognizable, sanction under Section 196A was imperative.
48. We cannot agree. Where the main object of criminal conspiracy was to commit criminal misappropriation, an offence punishable under Section 409, Indian Penal Code, or Section 5(2) of the Prevention of Corruption Act and when that was the dominant object of the conspirators and the forgery of certain documents and their use as genuine were not committed for their own sake bat in furtherance of the conspiracy to commit the misappropriation, that is, to commit a cognizable offence which did not require sanction under Section 196A, the forging of the documents and the use of the same in furtherance of the main object of misappropriation being subsidiary objects of the conspiracy, sanction under Section 196A is not necessary.
49. Authority for this position may be had in the decisions in Paresh Nath Koval v. King Emperor A.I.R. 1947 Cal. 32; Ramachandra Rango Sawkar v. Emperor A.I.R. 1939 Bom. 129 and In re Labhai alias Sheik Abdul Khadir A.I.R. 1946 Mad. 7.
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50. Portions of the judgment where their lordships discuss the evidence regarding vouchers have been omitted.
51. We have thus reviewed and reappraised the evidence regarding the vouchers produced in the case and discussed the question as to how far the prosecution has succeeded in proving them to be forged vouchers and found that at least in the case of Exs. P. 14, P. 15, P. 36, P. 43, P. 44, P. 45, P. 46, P. 48, P. 49, P. 50 and P. 51 the prosecution has succeeded in Clearly proving that they are not genuine Vouchers and that they are forged ones. If that be so, the money covered under those vouchers must necessarily have been mis-Appropriated by the accused 1 or he must have allowed the accused 2, his brother-in-law, to misappropriate them. In either case the accused 1 can be said to have committed the offence of criminal misconduct under Section 5(1)(c). He has also, by corrupt and illegal means and abusing his position as a public servant, obtained for himself or for any other person pecuniary advantage within the meaning of Section 5(1)(d). The charges for offences under Section 5(2) are, therefore, proved against him. These forged vouchers have been produced by him along with the statements of account to the Coir Board knowing full well that they are bogus and forged vouchers and in doing so the accused 1 has committed offences punishable under Section 471 read with Section 467, Indian Penal Code, and also under Section 477, Indian Penal Code, and the accused 2 has abetted the commission of the said offence.
52. Reliance has also been placed by the learned Special Judge on the presumption contained in Sub-section (3) of Section 5 of the Act, namely, that the accused 1 has not satisfactorily accounted for the large deposits made by him and his wife in the banks during the relevant period which sums were wholly disproportionate to their known sources of income.
53. The learned Counsel for the accused 1 has contended that on the facts proved, the ingredients of Section 5(3) of the Act has not been established, that if as argued by him the vouchers are not forged ones and moneys had not been misappropriated, it should have been held by the Judge that the contrary of the presumption contemplated by Section 5(3) had been established, and thirdly that the case put forward by the accused 1 in his statement and the evidence given by him as D.W. 1 has not been proved to be false and therefore the learned Special Judge ought to have found that the case against him has not been proved beyond reasonable doubt.
54. Section 5(3) is in the following terms:
(3) in any trial of an offence punishable under Sub-section (2) the fact that the accused person or any other person on his behalf is in possession, for which the accused person cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of Income may be proved, and on such proof the Court shall presume, unless the contrary is proved, that the accused person is guilty of criminal misconduct in the discharge of his official duty and his conviction therefor shall not be invalid by reason only that it is based solely on such presumption.
55. In enacting Sub-section (3) of Section 5, the. legislature did not intend to create an offence, separate from the one created under Sub-section (1) but intended to lay down a rule that if a person's pecuniary resources, as compared to his known or legitimate sources of income, reached a point which was disproportionate to the said income, it shall be presumed, unless the person concerned accounted satisfactorily for it, that he had acquired those pecuniary resources by the commission of an offence mentioned in Section 5(1) of the Act. This sub-section lays down a role of evidence enabling the Court to raise the presumption of guilt in certain circumstances-a rule which a complete departure from the established principle of criminal jurisprudence that the burden always lies on the prosecution to prove all the ingredients of the offence charged and that the burden never shifts on to the accused to disprove the charges framed against him. Under Sub-section (3) of Section 5 we have, therefore, to see as to what are the pecuniary resources or property which are in the possession of the accused or of any other person on his behalf, secondly, what are his known sources of income, and thirdly, are the resources disproportionate to the known sources of income and if they are disproportionate to the known sources of income, the Court is bound to raise the presumption unless the accused satisfactorily accounts for such possession.
56. In State of Madras v. Vaidyanatha Ayyar 1958-II L.L.J. 653, it is observed:
The legislature has chosen to use the words 'shall presume' and not 'may presume,' the former a presumption of law and latter of fact. Both these phrases have been denned in the Indian Evidence Act, no doubt for the purpose of that Act, but Section 4 of the Prevention of Corruption Act is in pari materia with the Evidence Act because it deals with a branch of law of evidence, e.g., presumption, and therefore should have the same meaning. 'Shall presume' has been denned in the Evidence Act as follows:
Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved.
It is a presumption of law and therefore it is obligatory on the Court to raise this presumption in every case brought under Section 4 of the Prevention of Corruption Act, because unlike the case of presumption of fact presumptions of law constitute a branch of jurisprudence.
57. According to the prosecution since the date of the first exhibition which started on 5 October 1956 the accused 1 and his wife Swarnamma who was only a teacher getting a Day of Rs. 55 with an allowance of Rs. 33 have been making large deposits in their bank accounts, that these deposits are disproportionate to their known source of income and therefore the learned Judge was Justified and was, in fact, bound to make the presumption that the accused had committed the offence of criminal misconduct.
58. The accused 1 had a savings bank account and a current account with Palai Central Bank at its branch at Ernakulam. The certified extracts of these accounts have been produced and duly proved by P.W. 45. They are Exs. P. 154 and P. 155. His wife had an account with the Travancore Forward Bank and the certified extracts of her accounts are Exs. P. 149 and P. 150. Exhibit P. 147, the certified extract of the ledger of the Kottayam Co-operative Banking Union, shows that the accused 1's wife was contributing Rs. 100 every month towards a chitty. There is no case that the wife of the accused 1 had any independent source of income other than her pay and it is not contended that it is out of her own funds that the money had been deposited in her name. The learned Special Judge has in Paras. 150 to 154 detailed the various remittances into the bank, calculated the pay and allowances drawn by the accused 1 and his wife and he has found that assuming the entire salary of the accused 1 and his wife had gone into the bank accounts there was yet an excess of Rs. 14,786.08 to be accounted for by the accused 1.
59. The accused 1 has attempted to account for these remittances in the written statement filed by him, Ex. D. 58, and he has given an account explaining that the traveling allowance drawn by him, the sale-proceeds of the car, etc, had been deposited in the bank.
60. When giving evidence the accused 1 came forward with a story that before he joined the Coir Board he was conducting a Tutorial College at Trivandrum, that on an average himself and his wife, who was a lecturer in the college were, getting Rs. 500 per mensem, that he had written certain books Exs. D. 46 and D. 47 and out of the sale-proceeds of those books he was making Rs. 1,000 annually. These sources of income, even if true, are matters of history in relation to the period for which the charge had been framed. These items of income were challenged in cross-examination and after admitting that no documents had been produced in proof of these sources of income, the accused 1 admitted that he has no case that any income from such sources were in his bands daring the period concerned in this case.
61. To explain the excess deposit and the purchase of the car the accused 1 stated that he bad brought with him Rs. 3,000 when he came to Ernakulam to join the Coir Board. Excepting his word, no other proof has been adduced. No explanation has been offered as to why the amount was not put into the bank. Then he says he had received a sum of Rs. 1,300 from his father in August 1956 and in December 1956 another sum of Rs. 1,800 was received making a total Rs. 3,100. His case is that he got this money to purchase a oar. This amount is also not seen to have been deposited in the bank. When questioned, he stated 'this amount was kept floating till the oar was purchased.' Apart from the improbability of keeping the money with him when he and his wife had a bank account, we find that the father is not one who could have given him any money, and the suggestion is that the father is a person in indigent circumstances. He is said to be a pleader practicing in the criminal courts in Kottayam but he is not a law graduate. No account has been produced as to the income derived by him from his profession.
62. P.W. 40 is the village officer of Nattakam in Kottayam district who had sworn that the father of the accused 1 has one acre of garden land in his name, that it belongs to the tar-wad consisting of eight or ten members and the income of the property would be only Rs. 400 a year. P.W. 41 is another village officer at Naduvila village, Vaikom, who has proved that the accused 1's mother had only 28 cents of garden land in her village with a small house in it and the income from the property would be only about Rs. 140 a year and that amount is being appropriated by the father. The accused 1 has admitted that neither himself nor his wife had any other independent source of income except their pay. According to the accused 1 his father keeps accounts and the accounts would prove that Rs. 3,100 had been paid to him, but he has not chosen 10 summon him to give evidence or to prove his account books. The accused 1 has stated that he does not know the income of his father and that he does not know from which source the father got the money to pay him. From the evidence it is seen that the accused 1 has been rendering financial help to his father by giving small amounts like Rs. 25 on 18 May 1957, Rs. 100 on 30 April and Rs. 100 on 13 May. These payments would only show that the father himself was a person who was off and on depending on his son for his maintenance.
63. The accused 1 has also a case that he had received a loan of Rs. 700 from his sister-in-law. In cross-examination he was questioned about it and his answers may be reproduced here:
I cannot deny or affirm that her pay is Rs. 50 per mensem. I don't know if she has any other source of income except her pay, Her husband is a landowner. I don't know from where she got the money, I don't know if her husband pays any assessment. I don't know when she got married. I deny she got married after December 1953, but I don't know the year she got married. I don't have any document to show she gave me this Rs. 700. I don't know when his amount was put into my bank account. She has bank accounts. I don't know if she sent the 700 rupees by cheque. She must have documents to show she gave me this loan of Rs. 700.
64. No attempt has been made to examine her or to prove her bank accounts and there is not a little of evidence to substantiate the receipt of the loan from her. We must, therefore hold that the accused 1 has not succeeded in proving that he had got Rs. 3,100 from his father or that he had taken a loan of Rs. 700 from his sister-in-law.
65. According to the accused 1, after receiving from his father Rs. 3,100 and Rs. 3,000 which he had brought over from Trivandrum he purchased a Morris car. He says ha purchased it in April and sold it in May to purchase a 'Fiat car from P.W. 32. According to P.W. 32 the accused 1 purchased the car for Rs. 7,000, out of which Rs. 6,200 he received by cheque, Rs. 300 from the accused's 1 wife by a cheque and the balance in cash. The accused 1 would have it that this was purchased from out of money he got by the sale of the Morris oar. He has shows in his statement that Rs. 5,600 is out of sale-proceeds of the Morris oar, but the Morris oar itself was purchased in April 1957, after he came to the Coir Board and bow he got the money to purchase that oar has not been satisfactorily accounted for as already stated by us. Therefore, what we find is that immediately after coming to the Coir Board and soon after he began taking part in the exhibitions he purchases a Morris car and then sells it within a month to buy a Flat oar costing Rs. 7,100.
66. The prosecution would say that considering the salary of the accused 1 he is not a person who could afford to maintain a car, that his wife and children were living in a rented house in Edappilly paying a monthly rent of Rs. 40 and that it is impossible to believe that with only his salary and his wife's salary to go upon, he would have found it possible to go in for a car coating Rs. 7,100 and to maintain it, especially as he had no other legitimate source of acquiring money.
67. The first accused has mentioned in his statement that he had received a travelling allowance of Rs. 7,019.00 and his case is that that money had also gone into either his bank accounts or his wife's accounts and this would explain the large deposits seen in their bank accounts. When cross-examined on this aspect of the case, he has stated that in the case of the travelling allowance received by cash it is not possible to trace them in his bank accounts. The travelling allowance received by him by cheque has been mentioned by him in his statement. So apart from the fact that the travelling allowance will not be a source of income and that it is intended to cover the travelling expenses, the accused 1 has failed to prove that the travelling allowance received by him has gone into the account on any particular date. The learned Judge has examined the amounts received by the accused as travelling allowance during the period of the exhibition and found that even if they would have gone into the bank accounts, which itself is unlikely, it will not cover the amounts he had by this time deposited in the bank.
68. Another item of deposit which is sought to be explained by the accused are the remittances of Rs. 250 by draft on 8 May, Rs. 200 on 10 May and Rs. 300 on 17 May. The concerned drafts are Exs. P. 117, P. 118 and P. 119. The case of the accused 1 is that even though the amounts of the drafts have gone into his personal account, they were really sale-proceeds of coir products at the Bangalore exhibition and the amounts have been paid over to the Coir Board. There is no satisfactory evidence to prove that the amount had been remitted.
69. It is also significant to notice that immediately after these amounts were credited into his accounts he purchased the Flat oar from P.W. 32 and issued a cheque for Rs. 6,500 on 23 May 1957, After issuing the cheque to P.W. 32 the amount due to the credit of the first accused in his current account would be only Rs. 137.79, or in other words he had utilized this amount and Rs. 750 also for the purchase of his car and he had no sufficient amounts at that time to repay the Coir Board.
70. An argument was raised by the learned Counsel for the accused that the investigating officer having admitted that he had seen an entry of Rs. 3,100 in the account book of the father of the first accused, he ought to have included this item in the category of 'known source of the accused's income.'
71. What is 'known source of income' has been explained in the decision in C.S.D. Swami v. State : 1960CriLJ131 . It is observed:
The expression 'known source of income' must have reference to sources known to the prosecution on a thorough investigation of the case. It was not, and it could not be, contended that 'known sources of Income' means sources known to the accused. The prosecution cannot, in the very nature of things, be expected to know the affairs of an accused person. Those will be matters 'specially within the knowledge' of the accused within the meaning of Section 106 of the Evidence Act. The prosecution can only lead evidence as it has done in the instant case, to show that the accused was known to earn his living by service under the Government during the material period. The prosecution would not be justified in concluding that travelling allowance was also a source of income when such allowanoe is ordinarily meant to compensate an officer concerned for his out-of-pocket expenses incidental to journeys performed by him for his official tours. That could not possibly be alleged to be a very sub-stantial source of income. The source of income of a particular individual will depend upon his position in life with particular reference to his occupation or avocation in life. In the case of a Government servant, the prosecution would naturally infer that his known source of income would be the salary earned by him during his active service. His pension or his provident fund would come into calculation only after his retirement, unless he had a justification for borrowing from his provident fund. We are not therefore impressed by the argument that the prosecution has failed to lead proper evidence as to the appellant's known sources of income. It may be that the accused may have made statements to the Investigating officers as to his alleged sources of income, but the same strictly would not be evidence in the case, and if the prosecution has failed to disclose all the sources of income of an accused person, it is always open to him to prove those other sources of income which have not been taken into account or brought into evidence by the prosecution.
72. In this case complaint regarding the misconduct of the accused had been received early In 1958 and there is nothing surprising if P.W. 56 at the time of investigation of the base was shown the account book of the father showing an entry of a loan to the son, but that would not by itself prove the truth of the payment. It was for the accused to lave examined his father, got his account books produced and proved to the satisfaction of the Court that money was really given to him by the father. In the absence pf any such evidence, we have necessarily to hold that the particular source of income is not satisfactorily proved.
73. It was next contended that the burden cast an the accused by Sub-section (3) of Section 5 of the Act was not such a heavy burden as lies on the prosecution positively to prove the ingredients of an offence.
74. What is the degree of proof required has been considered by a Division Bench ruling of this Court in Sreekrishnanarayana Rao v. Republic of India 1958-II L.L.J. 728. There tie charge was for an offence under Section 165, Indian Penal Code, and the scope of Section 4(1) of the Act was being considered. Raman Nayar, J., observed:
What in the degree of proof required for isnoh satisfaction has been laid down in the fading English case of Rex v. Carr-brint (1943) 1 K.B. 607 with reference to the similar presumption in Section 2 of the (English) Prevention of Corruption Act, 1916. There it was laid down that 'where, either by statute or at common law, some matter is presumed, against an accused person 'unless the contrary is proved,' the Jury should be directed that it is for them to decide whether the contrary is proved, that the burden of proof required is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt, and that the burden may be discharged by evidence satisfying the Jury of the probability of that which the accused is called upon to establish.' To borrow the words of Lord Goddard, C.J., In Rex v. Dubbar (1957) 2 All. E.R. 737: 'This case is often cited as showing that where an onus is placed on an accused person it may be discharged by proving what would be enough to support a verdict in a civil action, and that to use the words of Willes, J., In Cooper v. Slade (1858) 6 H.L. Cas. 746 at 772 'in civil cases the preponderance of probability may constitute sufficient ground for a verdict'.' Rex v. Carr-briant has been uniformly followed by the Courts in England, in all cases where the law casts an onus on an accused person and so far as has been brought to our notice, by the Courts in India in dealing with the presumption under Section 4(1) of our Prevention of Corruption Act.
75. In our opinion, these decisions do not assist the appellants in the present case. In this case there is no acceptable evidence beyond what the accused 1 has deposed to show that the contrary of what has been proved by the prosecution has been established, because the requirement of the section is that the accused parson shall be presumed to be guilty of criminal misconduct in the discharge of his official duties 'unless the contrary is proved.' The words of the statute are peremptory and the burden must lie all the time on the accused to prove the contrary. After the conditions laid down in the earlier part of Sub-section (3) of Section 5 of the Act have been fulfilled by evidence to the satisfaction of the Court, as discussed above, the Court has got to raise the presumption that the accused person is guilty of criminal misconduct in the discharge of his official duties, and this presumption continues to hold the field unless the contrary is proved, that is to say unless the Court is satisfied that the1 statutory presumption has been rebutted by cogent evidence. Not only that, the section goes further and lays down in forceful words that
his conviction therefore shall not be invalid by reason only that it is based solely on such presumption.
76. We, therefore, hold that the Special Judge was perfectly justified in drawing the presumption under Section 5(8) of the Act and the accused can be found guilty under Section 5(2) the Act solely on such presumption.
77. Turning now to the charge of criminal conspiracy, Section 120A of the Penal Code provides that when two or more persons agree to do, or cause to be done, an illegal act or an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. Section 120B is the penal section. Thus the essence of criminal conspiracy is an agreement to do an illegal act. Direct evidence in proof of conspiracy is seldom available and even when available it will be tainted being that of an accomplice and would require corroboration. Generally, conspiracy is a matter of inference by circumstantial evidence. From the acts and conduct of the parties agreement could be inferred. For instance, if it can be proved that the accused pursued by similar acts the same object often by the same means, one performing one part of the act and the other another part of the same act, so as to complete it with a view to the attainment of the object which they were pursuing, the Court will be at perfect liberty to conclude that they had conspired together to effect that object. So proved acts of forgery and misappropriation by accused 1 and 2 at various times and at various places by the same devices would furnish strong evidence of the existence of a conspiracy between them. In the case before us there is no direct evidence of conspiracy, but the discussion made earlier in dealing with the question of the forgery of the vouchers would show unmistakably the existence of conspiracy between accused 1 and 2. Without the conjunction and bat for the conspiracy it would not have been possible for the accused 1 to get up all these false vouchers and misappropriate the amounts covered by those vouchers. The learned Special Judge has discussed this question elaborately in Paras. 166 to 170 of the judgment and need not be re-stated.
78. We have examined the case at great length, giving careful consideration to every piece of evidence that his been brought to our notice giving due weight to all the arguments which the learned counsel for the defence urged before us and we are satisfied that the conclusions arrived by the learned Special Judge on the several charges framed against each of the accused are correct and we confirm the conviction recorded against each of them.
79. The only question that now remains to be considered is the question of sentence. This Court had issued notice to the accused to show cause why the sentence awarded should not be enhanced. Breach of trust and criminal misconduct by a public servant are certainly serious offences calling for a deterrent sentence, but the question of sentence is a matter of discretion and when that discretion has been exercised by the trial Judge, the High Court would rarely interfere, even if it were of opinion, that had the case been tried by itself, it would have imposed a heavier sentence than that imposed by the trial court and particularly be in a case where the State has not chosen to apply for enhancement of the sentence. Having regard to all the circumstances, we feel that the sentence awarded in this case is not so grossly inadequate as to amount to a miscarriage of justice and we do not think that any interference is called for. We confirm the sentence awarded by the Special Judge on each of the accused.
80. In the result, the conviction and sentence are confirmed, the appeals filed by the accused are dismissed and the rule issued by this Court in Calendar Revision 2 of 1062 is discharged. The accused who are on ball will be committed to prison to serve their sentence.