THE HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL APPEAL No.2408 of 2004 JUDGMENT: Appellant is the accused in C.C.No.6 of 1996 on the file of the Court of Special Judge for SPE & ACB cases, Nellore (trial Court). He was tried on charges punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short Act) relating to alleged bribery based on a trap. He pleaded not guilty. 2. After considering the evidence let in by the prosecution and the appellant, the trial court by its judgment dated 20.10.2004 convicted him of both the charges. Regarding sentences it imposed one year RI on the first count and two years RI on the second count besides imposing fines on both the counts with default clause prison sentences. It however directed the substantive sentences to run concurrently. Questioning the said judgment the appellant has come up with this appeal. 3. According to the prosecution the appellant was at the relevant time working as Assistant Commissioner of Endowments at Ongole and was admittedly a public servant falling within the purview of the Act. P.W.1 Rachamallu Venkateswarlu (de facto complainant) was the Secretary of the Sri Chennakesavaswamy and Sri Anjaneyaswamy Temples Renovation Committee at Daivalaravuru in Prakasam District. Both the temples are old temples. For the purpose of renovation of the temples, the Committee collected Rs.1,67,230/- from the villagers and deposited the same in a joint savings account bearing No.4234 in Union Bank of India at Ravinuthala. It is stated by both sides that on 18.8.1993 the Commissioner, Endowments, sanctioned an amount of Rs.6,18,000/- for the renovation of the above temples and this amount comprises a sum of Rs.1,23,600/- to be spent by the villagers from out of the above amount collected by the Renovation Committee and Rs.4,94,400/- to be made available from the common good fund of the Government. 4. It is not necessary to go into other details. It would be sufficient to note that P.W.1 is the de facto complainant while P.W.2 Kalia Perumal Sekhar was the Contractor for the work of the renovation of the above temples to whom the work was given and the work also commenced. The prosecution version starts from this stage and its case is that P.W.1 presented Ex.P.1 application dated 22.11.1994 in the office of the appellant who was then the Assistant Commissioner, Endowments for release/sanction of a sum of Rs.37,000/- towards purchase of steel and a sum of Rs.50,000/- towards part payment to the contractor i.e. P.W.2. These amounts aggregate to Rs.87,000/-. Again, according to the prosecution, P.W.1 presented Ex.P.2 application dated 09.12.1994 for release of an additional amount of Rs.30,000/- for paying the same to the contractor. 5. P.W.1 after presenting the above two applications went to the office of the appellant on 12.12.1994 and requested him for release of the above amounts. This is an admitted fact. The plea of the prosecution is that on 12.12.1994 the appellant demanded P.W.1 to pay a bribe of Rs.5,000/- for releasing the amounts even though he was satisfied with the accounts submitted. P.W.1 expressed his inability to pay the amount and therefore, the prosecution says, the appellant informed P.W.1 that he would first release the sum of Rs.87,000/- and that thereafter P.W.1 should pay Rs.5,000/- from out of it and thereafter he would release the balance amount of Rs.30,000/-. It is the case of the prosecution that the AO has released the above sum of Rs.87,000/- covered by the Ex.P.1 application accordingly. It must be mentioned here that the prosecution version is that throughout the above dates P.W.2 the contractor was also present and he was a witness to the bribe demand from the appellant. 6. It is the further version of the prosecution that subsequently P.W.1 again met the appellant on 20.01.1995 when he was at his office in Ongole and requested him to grant permission for withdrawal of the balance sum of Rs.30,000/- covered by Ex.P.2. At that time, the prosecution says, the appellant again demanded P.W.1 about the bribe of Rs.5000/- reminding him that he released Rs.87,000/- earlier as P.W.1 promised to pay the bribe and told him that he will not release the amount of Rs.30,000/- unless the bribe is paid and having no other go P.W.1 informed him that he would pay it and thereupon the appellant asked P.W.1 to bring the amount of bribe on 23.01.1995. The prosecution version is that thereafter on Ex.P.3 complaint of P.W.1, P.W.10 P.Damodar the then Deputy Superintendent of Police, ACB, Nellore registered the case and arranged to lay a trap on 23.01.1995 in the office of the appellant by using M.O.5 currency notes worth Rs.5000/-. The trap was accordingly laid and the prosecution version is that M.O.5 currency notes were recovered from the 3rd drawer of the table of the appellant in his office following the handing over of the same by the appellant himself to P.W.10. 7. P.W.5 R.Ashok Kumar the then Assistant Executive Engineer in DRDA, Ongole and another Venkat Rao a Senior Assistant of DRDA, Ongole acted as mediators. Ex.P.5 and Ex.P.10 both dated 23.01.1995 are the first and second mediator reports. A perusal of the evidence of P.Ws.1 and 2, P.W.5 the mediator and P.W.10 the Deputy Superintendent of Police (the trap laying officer) would show that the Sodium Carbonate – Phenolphthalein test on the hands of the appellant proved successful and the previously marked M.O.5 currency notes were recovered from the 3rd drawer of the table of the appellant and the amount was handed over by the appellant himself to P.W.10. The trial Court elaborately discussed the evidence and defences of the appellant and upheld the charges and recorded conviction and sentences as aforesaid. 8. Sri Padmanabha Reddy the learned Senior Counsel appearing for the appellant raised three defences to show that the charges brought against the appellant cannot be sustained. He also assailed the prosecution sanction order as illegal and pointed out that in view of its illegality also the appellant is entitled to an acquittal. On the other hand, Sri Ghani A Musa the learned Standing Counsel cum Special Public Prosecutor pointed out that the trial court has considered the entire evidence on record and rejected all the defences of the appellant and therefore there is no ground to disturb the judgment of the trial court. On the question of sanction order, he argued that it is not illegal and in any event in view of Section 19(2) of the Act this contention cannot be accepted. I shall now refer to the defences of the appellant. 9. The first defence of the appellant is this. It may be noted that as per the Commissioner’s proceedings dated 18.08.1993 a sum of Rs.6,18,000/- was sanctioned for renovation of the two temples and it comprises of Rs.1,23,600/- to be spent from out of the funds contributed by the villagers for the renovation work and the balance of Rs.4,94,400/- allotted from the common good fund of the Government and it may also be noted that the above amount of Rs.1,23,600/- was to be spent first. There is no dispute on this aspect. It may then be noted that in his Ex.P.1 application when P.W.1 requested for sanction of Rs.87,000/- P.W.1 has mentioned that there was a balance of Rs.1,26,335/- in the savings bank A/c.No.4234 in Union Bank of India of Ravinuthala Branch in which the villagers contribution was deposited. 10. The plea of the appellant is that by the date of the Ex.P.1 application there was sufficient amount in the above S.B. account and therefore he ordered the release of the amount of Rs.87,000/- and he did not demand any bribe. His further plea is that when Ex.P.2 application was presented for withdrawal of further amount of Rs.37,000/- there was no balance in the above bank account and consequently he could not grant any permission and the version of P.W.1 that he demanded bribe on 20.01.1995 is false and that he did not demand any bribe even earlier on 12.12.1994 which was the date of the alleged first demand. Simply stated his version is that since he could not release the amount for want of balance in the above SB account the question of demanding any bribe does not arise and P.W.1 foisted this case as he was inspecting the works and pointing out the defects and getting them rectified and as it proved costly for P.W.1 as he was the de facto contractor. The trial court examined this defence elaborately and rejected it. 11. Regarding the availability of the bank balance in the above SB account it is true that the evidence of P.W.7 Ravipati Venkateswarlu the then Junior Assistant in the office of the appellant in his evidence spoke about the various amounts which were earlier withdrawn by P.W.1 and he stated that after the sanction of Rs.87,000/- covered by Ex.P.1 the balance left in the above SB account was only Rs.15,855/- and therefore there was no scope for release of the amount of Rs.30,000/- covered by Ex.P.2 application. His version no doubt supports the defence of the appellant but it cannot be accepted for the following two reasons. 12. Ex.P.7 is the office note contained in Ex.P.6 file pertaining to the renovation of these two temples. This note file starts from 02.03.1993. There are two notings/ endorsements dated 09.12.1994 and 12.12.1994 and they both show that by 12.12.1994 (i.e. the date on which P.W.1 met the appellant for the second time) withdrawal was sanctioned but the amount is not mentioned. It is now the admitted case of both sides that Rs.87,000/- covered by Ex.P.1 was permitted to be drawn on 12.12.1994. Nothing is mentioned in this note file that sanction for the amount of Rs.30,000/- covered by Ex.P.2 application was refused on the ground that there was no balance in the above SB account. The note file does not contain further entries. It therefore follows that the above version of the appellant and P.W.7 stands belied by the note file or in any event it becomes unreliable. 13. The second reason is this. According to the Commissioner’s sanction order dated 18.08.1993 the amount of Rs.4,94,400/- from the common good fund was to be spent after the amount of Rs.1,23,600/- belonging to the villagers was spent. The appellant being the Assistant Commissioner was given the power to release that amount also. It can therefore be said that even if there was no balance in the SB account of the villagers, the amount of Rs.30,000/- to be sanctioned by the AO could be released from the common good fund after permitting the withdrawal of the balance available in the SB account. There could be no obstruction for this. As already mentioned the note file does not contain any noting to the effect that the office of the appellant took any objection for withdrawal of the amount covered by Ex.P.2 for want of balance in the SB account. In fact in Ex.P.7 note file the endorsement dated 12.12.1994 signed by the appellant would show that he directed that office should put up note for withdrawal without mentioning the amount and it shows that the order was to put up for withdrawal of the amounts covered by Exs.P.1 and P.2 aggregating to Rs.1,37,000/-. What follows is that the appellant must be held to have been having knowledge of the Commissioner’s sanction order which permits withdrawal of the amount exceeding the bank balance from the common good fund. For the aforesaid reasons I agree with the trial court’s view in rejecting the above defence. 14. The second defence pertains to the veracity of the testimony of P.Ws.1 and 4 as to what happened or transpired on the date of the trap i.e. 23.01.2005. The version of the appellant is that at about 4.00 pm on that day his two advocate friends namely D.Ws.1 and 2 from Vijayawada came to see him in his office and when they after talking to him left his chambers he also went out with them to their motor car parked in the office premises to see them off. 15. The plea of the appellant is when he returned to his chambers after seeing off his friends he found P.W.1 near his office table in his chambers and P.W.4 was also standing at the entrance of his chambers and thereafter P.W.1 spoke to him (appellant) and shook his hand with the appellant’s right hand and while leaving the room P.W.1 again touched his both hands and left the room. This hand shaking is pleaded by the appellant to explain the sodium carbonate solution test which proved positive. Regarding the recovery of money, the version of the appellant is that in his absence from the room P.W.1 himself has planted the amount in the third drawer of the table. Same suggestions were put to P.W.4 also. They both however denied the above suggestion and asserted that the appellant demanded the money i.e. M.O.5 and took it and he himself kept it in the table drawer from which it was recovered. The evidence of P.W.5 the mediator and also P.W.10 the trap laying officer and the contents of the second mediatornama show that the appellant himself took out the money M.O.5 from the table drawer and gave it to P.W.10. The evidence of above witnesses on this aspect is convincing. 16. It has now to be seen whether the above plea of the appellant regarding presence of D.Ws.1 and 2 in his chambers at about 4.00 pm on the date of trap and about planting of M.O.5 money in his table drawer can be accepted as a probable defence. It may be noted that D.Ws.1 and 2 are stated to be senior advocates of Vijayawada and if they were really present and further if the things have happened in the manner stated by the appellant, the appellant could have come up with explanation by specifically mentioning their names at the earliest point of time. This he did not do. Assuming for a moment that even if he has come up with such explanation on the date of the trap itself and for one reason or the other the investigating officer did not accept it and deliberately failed to mention it in the second mediatornama, still it may be noted that no suggestions were made to P.W.10 the DSP who laid the trap and even P.W.11 the police officer who carried out the subsequent investigation that D.Ws.1 and 2 advocates also came to his chamber on the date and time of the trap indicating his defence. The only suggestion made to P.W.10 was that P.W.1 planted M.O.5 in his table drawer in the absence of the appellant but this was denied. 17. It may be noted that the date of trap is 23.01.1995. P.W.10 was examined on 16.02.2004 and P.W.11 was examined on 08.03.2004. Both D.Ws.1 and 2 were examined on 27.04.2004. The appellant did not choose to confront P.Ws.10 and 11 that the above two senior advocates by giving their names came to his office and when he went out to see them off the money was planted by P.W.1. Nothing is brought to my notice to show that the appellant has any compelling reason to conceal the names of D.Ws.1 and 2 in the cross-examination of P.Ws.10 and 11. He did not mention about their names even in the cross-examination of P.W.1. From the above circumstances it can be said that the appellant has come up with an unreliable defence and to say politely both the above advocates have come to support that. It should also be noted that according to D.Ws.1 and 2 the appellant has started practice as an advocate and was a practicing advocate at Vijayawada by 27.04.2004 and this is an added circumstance which shows that they came only to accommodate the appellant. 18. It was vehemently argued on behalf of the appellant that even P.W.1 in his evidence stated that when he went to the chambers of the appellant on 23.01.1995 he saw two persons in the room of the appellant and that he went into the room only after those two persons went out and the said two persons could be only D.Ws.1 and 2 and therefore the appellant’s version must be accepted. There is no force in this contention. I have already mentioned supra that the appellant did not choose to confront P.W.1, P.W.10 and P.W.11 with the line of defence that D.Ws.1 and 2 advocates giving their names were present in his room giving their names explaining his line of defence in their cross- examination. This itself suggests that the appellant came up with the above defence as an after thought and it cannot be accepted as a probable defence. In view of this position on evidence the decision of the Supreme Court given in Punjabrao v. State of Maharashtra[1] relied upon by the appellant’s counsel cannot help him. Accordingly the second defence is also rejected. 19. The third defence is that P.Ws.1 and 4 developed some grudge against the appellant as he was regularly checking the construction and pointing out the defects. It is also argued that P.W.1 was the de facto contractor and P.W.4 was his benamidar and several irregularities were pointed out by the appellant and therefore they developed grudge and implicated the appellant in this false case. Suggestions were also made to P.W.1 to the effect that he never informed the renovation committee members and its President about the alleged bribe demand by the appellant and the bona fides of P.W.1 cannot be believed. There is no force in this contention also. 20. It may be noted that the appellant has released the amount of Rs.87,000/- covered by Ex.P.1 application and that application was admittedly submitted by P.W.1. Thus he cannot now complain that P.W.1’s bona fides were in doubt. It should also be noted that it transpires from the evidence of P.W.1, P.W.4 and as well as P.W.7 the Junior Assistant of AO’s office that on 12.12.1994 P.Ws.1 and 4 submitted the accounts and they were scrutinised by the appellant and found to be “perfect” and thereupon only the amount of Rs.87,000/- was released. Further Ex.P.7 note file would also show that applications for earlier withdrawals of money were made by P.W.1 and they were permitted even according to P.W.7 which I already mentioned under the first defence of the appellant. The above circumstances are enough to show that P.W.1 was acting on behalf of the renovation committee and the appellant also treated him as its representative and released the amounts. In such a situation and in the absence of any concrete evidence to show that P.W.1 has developed any grudge against the appellant, this third defence of the appellant has also to be rejected. 21. To sum up, the prosecution version that the appellant demanded the money for release of the amounts covered by Exs.P.1 and P.2 and first released Rs.87,000/- and withheld Rs.30,000/- covered by Ex.P.2 and demanded the M.O.5 bribe amount to release it and took M.O.5 on 23.01.1995 and was apprehended and the said amount was recovered when the appellant himself took it from the table drawer and gave it stands proved by the evidence on record. The trial court relied upon the presumption contained in Section 20 of the Act and rightly accepted the prosecution case as the appellant failed to establish his defences. Thus the convictions recorded by the trial court on the charges have to be confirmed. 22. That takes me to the objection relating to the validity of the sanction order which is marked as Ex.P.13. The main objection of the appellant is that this sanction order i.e. G.O.Ms.No.134 Revenue (Edndt.I) Department dated 02.02.1996 does not purport to have been issued in the name of the Governor as required by Article 166 of the Constitution and therefore it is invalid. The other objection is that the contents of the Ex.P.13 would show that the authority which signed it has signed it or has sanctioned the prosecution without appreciating the material properly. Both these objections cannot be sustained for the following reasons. 23. It may be noted that Section 19 of the Act speaks of the necessity of previous sanction by the competent authority for prosecuting the public servant for the offences under the Act. Sub-section (3) of Section 19 of the Act which seeks to cure any defect or irregularity in the sanction reads as follows: “(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-- (a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby; (b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice; (c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.” 24. Thus what should be noted is that even the absence of sanction or any error or irregularity or omission in the sanction does not vitiate the prosecution if it is found that absence of, or irregularity or error or any omission has not caused in any failure of justice. First of all the appellant was not in a position to show how the defects pointed out have resulted in any injustice to him. He contested the matter on merits and came up with his own defences to disprove the charges. The line of cross-examination of the material witnesses would show that he could elicit nothing from them to show as to how the defects in the sanction have prejudiced his case and resulted in injustice. This is the first minus point for the appellant. 25. Then coming to the first defect pointed out on behalf of the appellant it is true that the sanction order G.O. does not purport to have been given in the name of the Governor. A perusal of the sanction order would show that the ACB police has in substance placed all the necessary material before the Government and the latter considered it and have ordered the sanction. Thus the absence of the words “by order and in the name of the Governor of Andhra Pradesh” is only a defect in form. Added to this nothing has been brought to my notice to show that as per the business rules of the Governor the matter should be placed before the Hon’ble Chief Minister or any other Hon’ble Minister in-charge of the department for approving the sanction. Hence the above defect is an ignorable defect as there is nothing on record to show that it has resulted in any injustice to the appellant. 26. Then coming to the material in the sanction order, it shows that it contains all the allegations made by the prosecution barring certain omissions which are insignificant. The wording of the sanction order would show that the concerned authority in the Government which issued it has considered the matter at length and decided to give the sanction after finding that the case is a fit one for prosecution. It is well settled that it is not necessary for the sanctioning authority to go into the question whether the case is likely to end in conviction and give sanction only in such a case. The decision of the Supreme Court given in State of Punjab v. Mohammed Iqbal Bhatti[2] relied upon by the appellant’s counsel deals with the power of the Government