Judgment H.K.Chaudhuri, J. 1. The appellant was convicted by the learned Special Judge of Bhagalpur under Section 5 Sub-section (2) read with Sec. 5 subsection (1) Clause (c) of the Prevention of Corrup-tion Act (Act II of 1947) and sentenced to two years rigorous imprisonment and also to a fine of Rs. 1,000.00 in default, to rigorous imprisonment for a further term of one year. He has also been convicted under Section 477 A of the Indian Penal Code and sentenced to two years rigorous imprisonment. The two sentences of imprisonment are concurrent. 2. Appellant L. M. Chatterjee, aged about 52 years, is in the service of North Eastern Railway since 1928. In February 1954 he was working as a Pay Clerk at Katihar railway station. As Pay Clerk his duty was to disburse salary and other dues to the railway staff at Kishanganj and other stations within the railway district of Katihar. There were two other pay clerks at Katihar besides the appellant, viz., S. N. Mukherjee (P.W. 16) and B. K. Chatterjee (P. W. 12) during the relevant period. On 3-2-54 appellant L. M. Chatterjee, in his capacity as a Pay Clerk, was entrusted with Rs. 328/- (vide bill no. 796 dated 24-12-53), the amount being arrears of salary due to N. B. Das (P.W. 7), a Goods Clerk at Kishanganj. The said amount was not disbursed to N. B. Das (P W7). The charge against the appellant was that he had fraudulently and dishonestly misappropriated or otherwise converted to his own use the aforesaid amount and thereby committed the offence of criminal misconduct in the discharge of his official duty punishable under Sec. 5(2) read with Sec. 5(1) (c) of Act II of 1947. He was also charged under Sec. 477-A of the Indian Penal Code with having wilfully and with intent to defraud made a false entry in the Railway Cash Book showing disbursement of the aforesaid sum of Rs. 326/- to the payee N. B. Das (P.W.7) 3. The appellant did not deny that the amount which is the subject-matter of the charge, had been entrusted to him. It is also undisputed that the amount was not paid to N. B. Das (P.W. 7). The appellant, however, pleaded that he was innocent. 326/- to the payee N. B. Das (P.W.7) 3. The appellant did not deny that the amount which is the subject-matter of the charge, had been entrusted to him. It is also undisputed that the amount was not paid to N. B. Das (P.W. 7). The appellant, however, pleaded that he was innocent. His case was that every month he used to disburse more than two lakhs of rupees among the staff and as the work was heavy a clerk used to be deputed from Gauhati Pay Office each month from the 18th to the 24th to assist him. According to the appellant they both made disbursements simultaneously and the pay sheets used to be docketed by the person who made the payment. It was stated that this particular pay sheet showed on the face of it due disbursement to the payee concerned and the appellant without suspecting any foul play and believing in good faith mat his assistant had made the payment made entries in the Cash Book and the statement of accounts showing disbursement of the amount in question. The appellant denied that he had misappropriated the amount or converted it to his own use and suggested that it was his assistant, who had very probably misappropriated the money. 4. For a proper appreciation of this case it is necessary to refer to three documents. Exhibit 1 is the pay sheet relating to the arrears of salary due to N. B. Das (P.W. 7). It purports to bear the signature of "Nikunj Bihar Das" (P.W.7) - in token of acknowledgment of receipt of Rs. 328/- (marked Y/24 for identification). On the back of the sheet appears the alleged signature of appellant L. M. Chatterjee (marked X/1 for identification). The appellant denied this signature and asserted that somebody must have forged it. Exhibit 6 consists of a statement of payments dated 12-4-54 which was forwarded by the appellant to the Gauhati Pay Office. The item of Rs. 328/-, said to have been paid to N. B. Das (P. W. 7), is included in this statement. Exhibit III is the Cash Boole, The payment of Rs. 328/- to N. B. Das (P.W.7) is noted in it. There is no controversy that the appellant had made the entries in the statement (exhibit 6) and the Cash Book (exhibit III.). 328/-, said to have been paid to N. B. Das (P. W. 7), is included in this statement. Exhibit III is the Cash Boole, The payment of Rs. 328/- to N. B. Das (P.W.7) is noted in it. There is no controversy that the appellant had made the entries in the statement (exhibit 6) and the Cash Book (exhibit III.). The prosecution made an endeavour to show that the signature (Y/24) on the pay-sheet had been forged by the appellant and that X/1 on the back of the pay-sheet was his genuine signature. This attempt on the part of the prosecution to connect the appellant with these two signatures has, however, failed. , The expert (P.W.18) examined the writing (Y/24) with the specimen writings of the appellant. In his examination-in-chief the witness stated that Y/24 had "probably been written by the appellant." With regard to the signature (X/l) he admitted that he "could not locate the person who wrote it." Towards the end of his cross-examination the witness made it clear that he was not definite whether the signature (Y/24) was in the handwriting of the appellant. B. K. Chatterjee (P. W. 12), one of the pay clerks at Katihar who was acquainted with the handwriting of the appellant, deposed that neither X/1 nor Y/24 was in the handwriting of the appellant. Manoranjan Ghosh (P. W. 3), the Regional Cashier and pay Master at Gauhati, stated that "the writing X/1 for identification ig not of the accused." The position, therefore, is that the plea of the appellant that X/l was not his signature or that he had not forged the signature of N. B. Das (P.W.7) on the pay-sheet is, therefore, correct. The prosecution case against the appellant rests only on circumstantial evidence furnished by the entries in the Cash Book and in the statement of payments. These entries are, however, not conclusive. They do not inevitably prove the; guilt of the appellant. These entries were made on the basis of the pay-sheet which on the face of it purported to bear the payees signature. There is no evidence to show that the appellant was acquainted with the handwriting of N. B. Das (P. W. 7). It is necessary to remember that the number of persons to whom he used to make payment each month was extremely large. There is no evidence to show that the appellant was acquainted with the handwriting of N. B. Das (P. W. 7). It is necessary to remember that the number of persons to whom he used to make payment each month was extremely large. It is highly improbable that the appellant should have known the handwriting of all of them so as to enable him to detect the forgery on the paysheet of N. B. Das (P. W. 7), when he prepared the statement of payments and filled in the Cash Book on the basis of the pay-sheet. The learned Standing Counsel next referred to the evidence of N. B. Das (P. W. 7), who deposed that on several occasions between June, 1952 and the middle of 1954, he made enquiries from the appellant as to whether his pay bill in respect of his arrears of pay had been received. According to the witness, the appellant went on telling him that he had not received the pay bill. S. K. Dutt (P.W.6). who was examined to corroborate the witness on the point, however, stated that he was unable to give the date, month or year when these enquiries were made by N. B. Das (P.W.7). The evidence clearly shows that till the end of January, the pay bill of N. B. Das (P.W.7) had not been received by the appellant. The appellant, therefore, can not be said to have made any falsa statement if he had told N. B. Das (P.W.7) till the end of January, that the latters pay bill had not been received. The evidence of the Investigating Officer (P.W.20) is that N. B. Das (P.W.7) never told him that "he used to enquire from the accused every month whether his pay bill for arrears of pay had been prepared....." There is, therefore, no reliable and clear evidence to show that the appellant had made any false statement about the pay bill to N. B. Das (P.W.7) a any time after he had actually received the pay bill in February, 1954. This circumstance, there fore, does not point to the guilt of the appellant. 5. The learned Special Judge took the view that the appellants plea that his assistant dealt with this particular pay bill was not acceptable because it was not the assistants duty to make actual disbursements. This circumstance, there fore, does not point to the guilt of the appellant. 5. The learned Special Judge took the view that the appellants plea that his assistant dealt with this particular pay bill was not acceptable because it was not the assistants duty to make actual disbursements. This finding of the learned Judge is contrary to the evidence on the record. S. P. Sen Gupta (P. W. 11), who was the Assistant Pay Master at Gauhati Pay Office from 1947 to February, 1956, has stated as follows : "The docketing over the pay-sheets are made by the pay clerk concerned or his assistant with necessary fillings. The column headed Paid by in the docketing over the back of the payment M filled either by the District Pay Clerk concerned or by his assistant." The evidence of B. K. Chatterjee (P.W.12), one of the three pay clerks at Katihar, is : "When pay-sheets were received at Katihar from Gauhati, relevant entries used to be made first in the cash book of the pay clerks. After disbursement, the pay clerk would himself make an entry of that fact in the Cash Book according to his convenience. Sometimes the assistant of the Pay Clerk used to make entries regarding disbursements. Pay Clerk No. 2K (i.e. the appellant) always required an assistant. There used to be only one table and 2 chairs at the counter of pay clerk No. 2K. During working hours the pay sheets used to remain at the table of the Pay Clerk." It is clear from these statements that the assistant also used to make payments, docket payments on the back of the pay-sheets and make entries in the Cash Book. 6 Another matter, to which the attention of the learned Special Judge was drawn in the court below, throws considerable light on this case. The T. A. journals (exhibits 66 and 67) of the appellant for the month of February, 1954 show that on 16-2-54, when the disputed payment is said to have been made to N. B. Das, the appellant was away on tour at Barsoi. He left Katihar tor Barsoi in the morning and returned to Katihar at 2 P.M. These journals further show that he had gone to Kishanganj when N. B. Das worked on 8-2-54 and 17-2-54. It is undisputed that N. B. Das received his regular salary for January, on 16-2-54. He left Katihar tor Barsoi in the morning and returned to Katihar at 2 P.M. These journals further show that he had gone to Kishanganj when N. B. Das worked on 8-2-54 and 17-2-54. It is undisputed that N. B. Das received his regular salary for January, on 16-2-54. It was argued on behalf of the appellant that the assistant who had come from Gauhati in February, 1954 must have gone to Kishanganj to make payment of the regular salary bills on 16-2-54 and also dealt with the arrear bill on the same date. The learned Special Judge disposed of this contention with the observation that there was no bar to an employes of a roadside station like Kishanganj to go to Katihar and receive his payment there. It is difficult to understand the line of reasoning adopted by the teamed Judge. Payments are normally made accordingly to programme fixed from before at the stations to which the staff belong. If there was any departure from this normal rule the prosecution should have elicited an explanation in the matter from N. B. Das (P.W.7). In the absence of any such explanation we cannot presume that the payment was made not at Kishanganj where it should normally have been made but at Katihar only because that suits the prosecution case. The probabilities are that the regular salary of N. B. Das (P.W.7) was paid to him at Kishanganj on 16-2-54. The arrear salary bill is also shown to have been disbursed to him on 16-2-54. The contention of the appellant, therefore, that when he made the entries in the Cash Book, he was under the bona fide belief that the assistant who had come from Gauhati in that month and Had gone to Kishanganj to make payment of the regular salary bill of N. B. Das had also dealt with that clerks arrear bill on the same date has considerable force. 7. A belated attempt was made on behalf of the prosecution to show that the appellant was in charge of disbursing the salary of the staff belonging to the Mechanical Department only at Kishanganj and that since N. B. Das (P.W.7) belonged to the Traffic Department there was no substance in the defence contention that payment might have been made to him by the; appellants assistant. I am not at all impressed with the evidence of B. K. Chatterjee (P.W.12), who came forward to support this part of the prosecution case. During cross-examination he admitted that he did not remember if there was any written order that the assistant of the appellant could make payment to the staff of the Mechanical Department only. He further stated that there was no written bar to the assistant making payment to the staff of Departments other than the Mechanical Department. Admittedly the statement that he made in court about the assistant being in charge of payment to the Mechanical Department only was not made by him before the Investigating Officer. 8. The defence counsel has also urged that if really the appellant had misappropriated the money it is highly improbable that he should have put down his own name on the back of the pay-sheet as the person who had dealt with it. This argument has great force. The very fact that the name of the appellant was written on the back of the pay-sheet indicates that somebody wanted it to be believed that it was the appellant who had made the payment. I have already pointed out that the alleged signature of the appellant on the back of the pay-sheet is a piece of forgery. It is inconceivable that the appellant should have inserted his name there in order to prove his connection with that payment. It is highly probable that it was the assistant of the appellant, who had dealt with the regular salary bills at Kishanganj, on 16-2-54, had also made spurious entries on this particular paysheet with a view to implicate the appellant. 9. It is extraordinary that the prosecution in this case made no attempt to produce the assistant at the trial. The records at Gauhati would have shown who had been deputed to assist the appellant in February, 1954. The appellant had sufficiently disclosed his defence long before the prosecution closed its case. On a consideration of all these circumstances, I am of opinion that the prosecution has failed to prove that this particular pay-sheet had been dealt with by the appellant or that he had misappropriated the money or converted it to his own use. 10. The appellant had sufficiently disclosed his defence long before the prosecution closed its case. On a consideration of all these circumstances, I am of opinion that the prosecution has failed to prove that this particular pay-sheet had been dealt with by the appellant or that he had misappropriated the money or converted it to his own use. 10. The learned Standing Counsel has alternatively argued that even if it be held that the prosecution has failed to prove that the appellant misappropriated or otherwise converted for his own use the amount entrusted to him within the meaning of the first part of Clause (c) of Sec. 5(1), he cannot escape liability as he must be deemed to have allowed his assistant to do so which also is an offence under the second part of the clause. Clause (c) of Sec. 5 (1) may be quoted below: "If he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do ........" It was urged on behalf of the appellant in the court below that the necessary metis rea being absent the appellant could not be held guilty of any criminal offence for an act done by his assistant without his knowledge. The learned Judge did not give effect to this contention mainly on the ground that "criminal liability is no longer avowedly based upon a moral standard in cases where the offender is deemed to be sane." It is true that the maxim non est rea, nisi metis sit rea has undergone a modification owing to the greater precision of modern statutes, The question however, in the present case is more or less academic. The full definition of the crime under Clause (c) of Sec. 5, Sub-section (1) contains expressly a proposition as to a state of mind. The definition states that the act i.e., (1) misappropriation or (2) conversion, or (3) allowing any other person so to do, must have been done "dishonestly" Or "fraudulently." Every ingredient of the offence is stated in the definition itself. The guilty mind in this case is, therefore, a dishonest mind or fraudulent mind. If this mental element is proved to have been absent in any given case the crime, as defined above, is not committed. The guilty mind in this case is, therefore, a dishonest mind or fraudulent mind. If this mental element is proved to have been absent in any given case the crime, as defined above, is not committed. Looked at from another aspect, the offence having been fully defined nothing amounts to that crime which does not satisfy that definition. It would indeed be anomalous to hold that while in the case of misappropriation and conversion the section requires that it must be done either dishonestly or fraudulently a person morally innocent of Mama could be held vicariously liable for an assistants crime without there being a dishonest or a fraudulent mind. It has not been urged nor is there any evidence to show that the appellant had fraudulently or dishonestly allowed his assistant or any other person to misappropriate the amount. That being so, I am of opinion that the appellant cannot be held guilty of the second part of Clause (c) either. 11. There is still another obstacle in the way of the prosecution and this relates to the sufficiency or legality of the sanction so far as the charge under the second part of Clause (c) is concerned. The sanction granted by the Financial Adviser and Chief Accounts Officer, North Eastern Railway, Gorakh-pur, mentions only the facts constituting an offence under the first part of Clause (c), Sub-section (1) of Sec. 5. It runs thus : "5. That Shri Lal Mohan Chatterjee criminally misappropriated and converted to his own use the said amount of Rs. 328/- entrusted to him for disbursement to Shri N. B. Das. 6. That the above acts of Shri Lal Mohan Chatterjee constituted offences punishable under Sec. 5 (2) read with 5 (I) (c) of Act II of 1947 and Sec. 477-A, I. P. C.". Mrs. Lall has contended that there is nothing in the sanction nor is there any extraneous evidence to show that all the facts constituting an offence under the second part of Clause (c) of Sec. 5 (1) were placed before the sanctioning authority or considered by him. That being the position, it was urged, the alternative charge pressed for by the learned standing Counsel was not sustainable. There is considerable force in this argument. That being the position, it was urged, the alternative charge pressed for by the learned standing Counsel was not sustainable. There is considerable force in this argument. In Gokulchand Dwarkadas V/s. The King, AIR 1948 PC 82 their Lordships of the Privy Council observed as follows : In their Lordships view, in order to comply with the provisions of Clause 23, it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction .............................. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution - must prove by extraneous evidence that those facts were placed before the sanctioning authority." The same view was expressed by the Supreme Court in Madan Mohan Singh V/s. State of Uttar Pradesh, AIR 1954 SC 637 . After referring to the above Privy Council case their Lordships laid down that the burden which lay upon the prosecution to prove that the requisite sanction had been obtained includes proof that the sanctioning authority "had given the sanction in reference to the facts on which the proposed prosecution was to be based; and these facts might appear on the face of the sanction or might be proved by extraneous evidence." In the present case the facts constituting the offence under the second part do not appear on the face of the sanction nor did the prosecution adduce any extraneous evidence to show that the material facts constituting the offence under the second part of Clause (c) had been placed before the sanctioning authority. This was a matter of substance, for if all the necessary facts had been placed before the sanctioning authority it is possible that the lat-ter might have withheld sanction to prosecute the appellant. 12. The learned Standing Counsel drew my attention to the case of Jaswant Singh v. State of Punjab, AIR 1958 SC 124 in order to show that although the appellant had been charged with an offence under the first part of Clause (c) he could, on the same charge, be convicted for an offence falling within the ambit of the second part of that clause. This authority, however, has no application to this case. This authority, however, has no application to this case. In the case which came up for consideration before their Lordships the accused was charged under Sec. 5 (1) (c) which deals with habitual acceptance of illegal gratification. The sanction indicated consideration by the sanctioning authority of facts relating to the receiving of illegal gratification in one case only. It Was held that on the sanction given the offence of habitually receiving illegal gratification could not be taken cognizance of and the prosecution and trial for that offence was void for want of jurisdiction. There was, however, their Lordships further held, no bar to the accuseds prosecution for an offence under Sec. 5 (1) (d). Section 5 (1) (d) deals with an offence where a person obtains for himself or for any other person any valuable thing or pecuniary advantage. The sanction clearly stated the fact of the accused in that case having obtained for himself a valuable thing or pecuniary advantage. That being so, it could not be successfully urged that there was no previous sanction for the offence of receiving a bribe under Sec. 5 (1) (d). 13 On a review of all these authorities, I am clearly of the view that in the absence of a proper and valid sanction the appellant cannot, in the present case, be charged with and convicted for an offence under the second part of Clause (c) of Sec. 5, Sub-section (1). 14. I find that the charges for which the appellant has been convicted have not been brought home to him. The appeal succeeds and is allowed. The convictions of the appellant and the sentences imposed upon him are set aside.