1. This is an appeal by the State against the acquittal of the respondent ny the Additional First Claas Magistrate, Trivellore, in C. C. No. 20 of 1958, on his file.
2. The respondent was the President of the Panchayat Board of Tirumallaivayal. He auctioned the right to collect the fees from the stalls to be put in Avadi during Congress Session in 1955, P.W. 1 took it for Rs. 4090. But the auction in favour of P.W. 1 was set aside and the accused was therefore under an obligation to return the amount. The collection of the amount is not disputed by the accused. He had deposited some amount in the Sub Treasury and some amount in the post office savings bank. The amount that he had deposited in the treasury was withdrawn on 29-12-1954 and that was about Rs. 2145 and Rs. 1000 was withdrawn from the post office savings batik on 28-12-1954. This fact is also not disputed. The balance of Rs. 945 was withdrawn later. The withdrawal of these sums, therefore from the Sub Treasury and the post office savings bank is admitted by the accused.
3. The case for the prosecution is that the accused did not pay a single pie to P.W. 1. The case of the accused is that on 28-12-1954 he paid Rs. 3145 to P.W. 1 and reserved Rs. 945 towards the loan which P.W. 1 is said to have promised to advance to the accused on a mortgage. The loan that was promised was to the tune of Rs. 3000; Towards this loan according to the accused he reserved Rs. 945. He therefore, pleads payment of Rs. 3145 and admits retention of Rs. 945 for the reasons mentioned by him.
4. If these two circumstances are established certainly it cannot be said that the guilt of the accused has been established beyond all reasonable doubt. But the difficulty arises with regard to the payment of Rs. 3145 to P.W. 1. Admittedly no receipt was obtained by the accused from P.W. 1. According to the accused he asked P.W. 1 to pass a receipt, but P.W. 1 is said to have told him whether he cannot be trusted for this sum and P.W. 1, is further said to have told that on payment of the balance he will pass a final receipt. This payment of Rs. 3145 is said to have been made in the presence of D.Ws. 1 and 2.
It was suggested to P.W. 1 in the course of cross-examination that this sum was paid in the presence of D. W. 1 and one Kadirvelu Mu-daliar. Kadirvelu Mudaliar has not been examined but instead one Krishnaswami Naidu has been examined. It was not suggested to P.W. 1. that Krishnaswami Naidu was present at the time when the accused paid the money. According to the suggestion made to P.W. 1 there were only two persons present at the time of the payment. Pon-nambala Mudaliar, D.W.I and Kadivvelu Mudaliar who is not examined, there was no suggestion that another person was present. Nevertheless D.W. 2 has been called as a witness said to have been present at the time of payment of Rs. 3145. This by itself is sufficient to reject the evidence of D.W. 2.
5. So far as D.W. 1 is concerned, he is a distant relative of the accused and the learned Additional First Class Magistrate very rightly rejected the evidence of these two witnesses. When the evidence of the two witnesses has been rejected, then there is no proof that the accused paid a sum of Rs. 3145 on 28-12-1954. One circumstance, which improbabilises the statement and which confirms the finding of the lower court that the evidence of the defence witnesses cannot be accepted is this. On 24-12-1955 P.W. 1 issued notice to the accused calling upon him to pay the amount due to him. He Has no doubt mentioned that in addition to the sum paid he has also paid another Rs. 100.
To this notice the accused did not send reply at all til! about July 1955. The reply notice is dated 4-7-1955. For about five months the accused has not Sent a reply notice. Instead he has caused Exs. D. 2 and D. 3, Encumbrance certificates to be sent on 7th and 12th March 1955 to P.W. 1. There can be no doubt that Exs. D. 2 and D. 3 were received by P.W. 1, on the respective dates. But on the averments in Ex, P. 4, that the sum of Rs. 4025 is due to him and that he has not paid in spite of repeated demands, if really the accused was paid Rs. 3145 on 28-12-1945, then certainly the accused would not have kept quiet.
He would have immediately rushed to him in person or through a lawyer who would have given immediate reply to the notice, asserting that he has paid on such and such a date the sum and in the presence of two persons. He did nothing of the kind. After arranging to send the two eneurnb-brance certificates, he keeps quiet for about four or five 'months and leisurely sends his reply notice in July 1955 mentioning therein that the sum was paid. The lower court very rightly disbelieved the accused and from his conduct he found that this sum of Rs. 3145 could not have been paid to P.W. 1.
6. Mr. Raghunathachari, appearing for the respondent points out that P.W, 1 admits that he returned the amount which he borrowed from Mul-teni. That shows that he must have paid only from the money paid by the accused. No question is suggested as to how he returned the amount to Multani. According to his evidence he is earning about Rs. 2000 a month. He is worth about a lakh ofrupces. These answers have been elicited in the course of cross examination. There is no thing improbable, therefore, in P.W. 1 returning this Rs. 3145 from his own moneys. In the absence of a suggestion put to him or ascertainment from him as to how he paid the amount to the Multani, this argument that he must have paid from his own amount paid is not of much force.
7. It is true that in the enquiry which was started by the District Panchayat Officer sometime in December 1955 the- accused set up the theory of payment of Rs. 3145 to P.W. 1 and he produced witnesses before the District Panchayat Officer. But it must be remembered that this is about ten months after the notice was received. There Js nothing improbable that by this time ho was procur- ing witnesses to support his case, as undoubtedly he will have to face a criminal prosecution. The fact that these witnesses have made statement before the District Panchayat Officer does not in my opinion carry the case much further. The evidence has been rejected by the lower court and I agree entirely with the lower court in regard to the ap-preciation of the evidence of D.Ws. 1 and 2.
8. On the evidence, therefore, it is clearly established that the accused did not pay the amount to P.W. 1 through he withdrew it from the treasury and from the savings bank. He is, therefore, clearly guilty of the offence with which he has been charged.
9. The lower court found that the accused had not paid the amount, but acquitted him on the ground that no sanction had been obtained to prosecute the respondent. Under Section 106 of the Village Panchayat Act when the president, executive authority or any member is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the Government. Since sanction was not obtained the lower court acquitted the accused. The question is whether it is necessary to obtain sanction to prosecute the accused.
10. At the time when the prosecution was launched the respondent was not a president or executive authority of the pauchayat. For a person who was a president, and in that capacity he withdrew the money and misappropriated the same and when he subsequently ceased to be the president when prosecution is launched against the president after he ceased to be the president, the question is whether Section 106 applies to him.
11. In Muniswami Chetti In re, 1938 Mad LJ Crl. 80 : (AIR 1958 Andh Pra. 66), Krishna Rao J, of the Andhra Pradesh High Court has pointed out referring to this Section 106 itself that there are two conditions precedent to the prohibition thereunder; namely, that the accused is a president, executive authority etc. of a panchayat; (ii) the offence is alleged to have been committed by him while acting or purporting to act in the exercise of his duty. It takes cognizance of offences where these conditions exist. Therefore both these conditions must be satisfied at the time when a criminal Court takes cognizance of the offences in the exercise of its original jurisdiction under Section 190 Crl. P. C. The point of time is when the complaint, or police report or information is received by the Magistrate.
It must bo at that time that the accused has to hold tho status of a president etc. of a panchayat in order to satisfy the first condition. The language of the section does not support the view that the prohibition relates only to the character of the offences complained of which would require an official status for the accused only at the time of the commission of the offence. He, therefore, held in that case that at the time when the pro-secution was launched he did not possess the status. Undoubtedly when he committed the offence he held the status. Therefore Krishna Rao J. held that no sanction was necessary. In one of the cases which came up before him along with these cases which he decided one was a member at the time when prosecution was launched and therefore he upheld that sanction was necessary.
12. The Supreme Court in S. A. Venkatara-man v. The State. considered the question under Act II of 1947. They
have also held to the same effect. But it is contended that Section 6 of Act II of 1947 is different in its wording from Section 106 of the Village Panchayats Act or Section 197 Crl. P. C. In my opinion though there is a slight difference in the wording that difference does not affect the construction to be placed upon this section. Their Lordships of the Supreme Court have pointed out that at the time a court is asked to take cognizance not only the offence must have been committed by a public servant but the person accused 'is still' a public servant, (the underlining (here the words in single inverted commas) is mine) removable from his office by a competent authority.
13. Applying the principles laid down by their Lordships of the Supreme Court in the above decision and following the decision of Krishna Rao J. in 1958 Mad LJ Crl. 80 : (AIR 1958 Andh Pra 66), I hold that no sanction is necessary in this case. The acquittal is, therefore, not justified on this ground, and it is set aside.
14. The only question next to be considered is the sentence to be awarded. As the amount paid by P.W. 1 was not repaid, I gave an oppor tunity to the respondent herein to pay the amount, so that I can deal with him leniently. But in spite of opportunity being given for sufficiently a long time he has not availed himself of it and he has not paid a single pie. In the circumstances I have no other alternative but to award a fairly severe sentence. I find the accused guilty of the offence with which ho has been charged and sentence him to two years rigorous imprisonment and a fine of Rs. 2000, in default six months rigorous imprison ment. Out of the fine collected a sum of Rs. 1000/ will be paid to P.W. 1 as compensation to the los- ses. This amount of Rs. 1000 when paid will be given due credit when the decree is sought to be executed. This appeal is therefore allowed.