S. K. Kapur ( 1 ) THIS is an appeal against the judgment of Shri P. S. Pattar, Special Judge, Delhi, dated 18/06/1964, convicting P. B. Pardasani, appellant, under section 5 (2) read with sections 5 (1) (c) and 5 (1) (d) of the Prevention of Corruption Act and section 409, Indian Penal Code, and sentencing him to rigorous imprisonment for four years and to pay a fine of Rs. 40. 000. 00 or in default of payment of fine to undergo further rigorous imprisonment for one year. ( 2 ) THE appellant,an Assistant in the Ministary of External Affairs,government of India, was working as Cashier in the Indian Embassy atmoscow for the period 1/10/1960 to 29/09/1961. He was prosecuted under section 5 (2) read with section 5 (l) (c) and 5 (l) (d) of the Prevention of Corruption Act and section 409, Indian Penal Code. The chargeagainst him was that having dominion and control over the cash kept withhim he dishonestly and fraudulently or by otherwise asing his positionas a public servant misappopriated Roubles 28097. 24 or dishonestly usedor disposed of the same in violation of the directions of law prescribingthe mode in which the trust was to be discharged or wilfully allowedothers to do so. It was alleged by the prosecution that as a Cashier theduty of the appellant was to receive cash, properly disburse the same andmaintain the cash book and vouchers showing the disbursement. He alsohad the custody of cash in hand. From 1/10/1960, to 29/09/1961. he dishonestly misappropriated or otherwise converted to hisown use a sum of Roubles 28097. 24 which had been entrusted to him as apublic servant. The appellant was to hand over the charge to N. A. . Amin (P. W. 7) on 1/10/1961 and it was alleged by the prosecution thatknowing that large amounts had been dishonestly misappropriated by himhe caued disappearance of the evidence of the offence by tearing pagesnos. 81 to 96, both inclusive, of the cash book of the Embassy of Indiaat Moscow, containing accounts for August and September 1961 and partlyfor July 1961. He was also alleged to have destroyed the vouchers, bothoriginal and duplicate, for the month of September 1961. 81 to 96, both inclusive, of the cash book of the Embassy of Indiaat Moscow, containing accounts for August and September 1961 and partlyfor July 1961. He was also alleged to have destroyed the vouchers, bothoriginal and duplicate, for the month of September 1961. The torn pagesof the cash book, so far as the months of August and September are concerned, related both to the receipts and expenditure for the said monthsand regarding July 1961 they contained accounts for the expenditure only. According to the prosecution, the appellant destroyed these documentslate in the evening on 29/09/1961, and burnt them in the fireplace, in the Embassy building while, according to appellant, they wereintact on 29/09/1961, when he left the office and must have beendestroyed by some one on 30/09/1961. There is no directevidence about the misappropriation of money but the shortgage is soughtto be established on the basis of resonstituted accounts, in view of thefact, that the original accounts, as stated earlier, were not available. Shri S. Than (P. W. 3) gave evidence regarding the reconstruction of theaccounts and stated- "the accounts for the month of July were reconstructed withthe papers which were available with Shri Kedar Nath Accountant. Forthe Agust account, Pardasni himself made the receipt side from thebank statements and the other record available in the office. Theexpenditure side was compiled from the vouchers for the month ofagust which were with Shri Kedar Nath. For the month of September 1961 the receipt side was again compiled from Bank statements and other records available from office and the expenditureside was reconstructed from memory and from making enquiries fromthe members of the staff and other officers concerned, and consultingfiles and office records. "again Shri N. P. Jain (P, W. 6) deposed regarding thereconstruction of the accounts and his statement is also more orless on the same lines. The main evidence of the prosecution consisted of the circumstances showing that it was the appellant alonewho had access to the cash book and the vouchers. He alone usedto withdraw and keep the money and consequently no one elsecould have misappropriated the amounts. Besides these circumstances,the prosecution sought to place reliance on the recovery of burnt papers,which, according to them, were the pages torn off from the cash book andthe burn injuries on the hands of the appellant, alleged to have beensustained in the process of burning the papers. Besides these circumstances,the prosecution sought to place reliance on the recovery of burnt papers,which, according to them, were the pages torn off from the cash book andthe burn injuries on the hands of the appellant, alleged to have beensustained in the process of burning the papers. The defence case broadlywas that others in the office had access to to-the cash book and the vouchers which used to be kept open in the room, the cheque book was alsoavailable to others for withdrawal and the amount withdrawn may nothave necessarily been given to the appellant but misaparopriated by someone else. It was further contended on behalf of the defence that event themis-apropriation of money had not been proved inasmuch as (a) no reliancecould be placed on a bank statement which was prepared by the appellanton the dictation of Mr. Jain (P. W. 6) and no statement from the bankhad been produced, (b) the reconstituted accounts may not be correct,and (e) there was every possibility of some vouchers having been withheld or misplaced and for this reason also the reconstructed accounts maynot correctly reflect the expenditure actually incurred. It was also saidthat amounts were being withdrawn by letters without the use of thecheque book and it was possible that there may have been some suchwithdrawals not handed over to the appellant. Strong reliance was placedon the evidence of Shri N. P. Jain (P. W. 6) when he stated :- "pardasani brought the cash book to me on the 29th Septemberwith entries completed up to that date from the 2nd September to29th September 1961. He brought the corresponding vouchers also. I checked entries in the cash book with reference to the vouchers andintialled each entry in the cash book. Vouchers were intialled aridsigned as and when Parsadni had prepared them and brought themto me for signatures before 29/09/1961. "reliance was also placed on the evidence of Shri Jain that on2 9/09/1961, the appellant had informed him about the exact amountof cash with him and it was suggested that if the appellant had shownthe account book and the vouchers and had told him about the positionof the eash in hand there was no possibility of his having misappropriatedany amount. Mr. Mehta, the learned counsel for the State, on the otherhand, broadly relied on the following facts :- (1) No one except the appellant had access to the cheque book. Mr. Mehta, the learned counsel for the State, on the otherhand, broadly relied on the following facts :- (1) No one except the appellant had access to the cheque book. (2) No one would be interested in with holding the vouchers forthe reconstruction of the account because the only other person dealingwith the vouchers was Kedar Nath (P. W. II ). and if he had misapropriated the amount he would have been interested in inflating the amountrather than in keeping back the vouchers. (3) The accounts had been reconstructed from the bank statamentwhich was prepared by the appellant himself. (4) Though vouchers for the month of September were not available but the reconstituted accounts show an expenditure of about 23. 000roubles and the expense in the month of September could not have beenover 50,000 Roubles. (5) No one except the appellant presented the letters of withdrawal or the cheques for withdrawing money from the bank and it wasclear from the evidence of Kedar Nath (P. W. II) that if any amounthad been withdrawn without the knowledge of the appellant he would, inany case, have come to know of it at the end of the month even if it hadbeen handed over to him earlier. (6) The withdrawals for the month of July had not been challangedby the appellant and the withdrawals for September were made by onlytwo cheques and one letter all got signed by the appellant. That, according to Mr. Mehta excluded any possibility of mistake about the withdrawals. (7) The withdrawals for the months of August and September hadbeen detailed in the charge-sheet Exhibit P. 202 and if there had beenany other withdrawal or if any amount had in fact not been withdrawnthe appellarit would have objectedto the same in his reply. On theother hand, in reply to the charge-sheet all that he stated was that certainpayments had been made but vouchers not entered in the account books. (8) If there had been any large expense the appellant would haveknown the same. (9) The recovery of burnt papers and the burn injuries on the handsof the appellant fully corroborated the prosecution story. (10) Strong reliance was placed by Mr. Mehta on the destruction ofthe cash book which, according to him, used to be in the sole custody ofthe appellant. He pointed out that vouchers for September had been,according to the appellant, shown by him to Mr. (10) Strong reliance was placed by Mr. Mehta on the destruction ofthe cash book which, according to him, used to be in the sole custody ofthe appellant. He pointed out that vouchers for September had been,according to the appellant, shown by him to Mr. Jain (P. W. 6) on 29th September, 1961, at 5 P. M. If that be so then there was no reason towithhold the vouchers from Kedar Nath (P. W. 11) on 30/09/1961, while it was clear from the evidence of Kedar Nath (P. W. II)and N. A. Amin (P. W. 7) that the appellant evaded to give the voucherswhen demanded by Kedar Nath. I have not set out the rival contentions in detail because I am inagreement with the submission of the learned counsel for the appellantthat there has been no proper sanction in this case If that be so, thecase may have to be retried. At first I thought that I should express myviews also on the merits of the case so that in case my judgment is notup held regarding the preliminary objection the matter may not have tocome back to this Court for expressing opinion on the merits Aftercareful consideration I have decided not to express opinion on the merits. for in the event of retrial the evidence would practically be the same andit may not be fair to any of the parties if there is an expression of opinionabout the evidence by this Court. ( 3 ) NOW I come to the preliminary objection raised by Mr. R. L. Tandon, the learned counsel for the appellant. It is not disputed thatin view of section 6 (1) (e) of the Prevention of Corruption Act no Courtcan take congnizance of anoffence punishable under section 161, Indianpenal Code, and section 5 (2) of the Prevention of Corruption Act exceptwith the previous sanction of the authority competent to remove theaccused from office. It is also not in dispute that the proper authorityfor granting sanction was the Central Government. The learned counselalso agree that in case it is held that the sanction has not been properlygen the conviction of the appellant will have to be set aside even undersection 409, Indian Penal Code, and he may be retried after propersanction. It is also not in dispute that the proper authorityfor granting sanction was the Central Government. The learned counselalso agree that in case it is held that the sanction has not been properlygen the conviction of the appellant will have to be set aside even undersection 409, Indian Penal Code, and he may be retried after propersanction. According to the learned counsel for the parties conviction will have to be quashed even if I take the view that the charge stands provedon the evidence on. record because if no proper sanction has been given,the trial itself is without jurisdiction. That takes me now to the questionwhether the sanction has been properly granted. . Exhibit P 212 is theorder granting sanction and is in the following terms :- "whereas it is alleged that Shri P. B. Pardasani, an Assistant inthe Ministry of External Affairs, while functioning as Cashier in theindian Embassy at Moscow, between 7-11-1958 and 30-9-1961, hadbeen entrusted with, or had under his control. Government money, inhis capacity as a public servant ; that from 1/10/1960 to 30thseptember, 1961, he dishonestly misappropriated or otherwise convertedto his own use a gross sum of Roubles 28,097. 24 out of Roubles. 96,299. 07 which he had under his control and dominion as a public servantat the close of September, 19 50 ; that the said Shri P. B. Pardasani,obtained pecuniary advantage to himself to the above extent by corruptand illegal means or otherwise abusing his position as public servant;that between 29-9-61 and 30-9-61 he caused evidence regarding thecommission of these offencesby him to disappear with the intentionof escaping legal punishment by fraudulently removing and destroyingsome pages in the cash book and thus mutilating the same belongingto the Government and which he was maintaining as an officer of thegovernment. Whereas, the said facts constitute offences punishable under section5 (1) (e) and (d) read with section 5 (2) of the Prevention of Corruptionact, 1947, (Act II of 1947), sections 409, 201 and 477-A of the Indianpenal Code, 1860 (Act XLV of 1860 ). Whereas, the said facts constitute offences punishable under section5 (1) (e) and (d) read with section 5 (2) of the Prevention of Corruptionact, 1947, (Act II of 1947), sections 409, 201 and 477-A of the Indianpenal Code, 1860 (Act XLV of 1860 ). And whereas, the Central Government, being the authority competent to remove the said Shri Pardasani from service, after fully andcarefully examining the materials in regard to the said allegations, andcircumstances of the case, cansider that the said Shri Pardasani shouldbe prosecuted in a Court of law for the said offences ;now THEREFORE, the Central Government, hereby doth accordsanction under section 6 (1) (a) of the Prevention of Corruption Act1947 (Act II of 1947) and section 197 (1) (a) of the Code of Criminalprocedure 1898 (Act V of 1898) for the prosecution of the said Shri P. B. Pardasani for the said offences and any other offences punishable underother provisions of law in respect of the facts aforesaid and for takingcognizance of the said offences by a Court of competent jurisdiction. "mr. R. L. Tandon, the learned counsel for the appellant, submitsthat under Article 77 of the Constitution, which is the relevant Article, allexecutive action of the Government of India must be expressed to be takenin the name of the President. He points out that veil of protection fromattack against the order is provided by Sub-Article (2) of Article 77 onlyif the order made and executed in the name. of the President is authenticated in such manner as may be specified in the rules to be made by thepresident. That being not the case here, submits the learned counsel, it isopen to him to challange the legality of the sanction order on the groundthat no sanction has been given on behalf of the Government of India byan authorised person. It is said that the order is signed by Shri Jagatsingh, Deputy Secretary to the Government of India, purporti r g to act inhis own right. That shows that he has given sanction in his own rightand not authenticated an order issued in the name of the President. Asauction given by an officer in his own right, according to the learnedcounsel, could have been given only by a person authorised to do so onbehalf of the Government of India and there was nothing on the record to show that Shri Jagat Singh had any such authority". Mr. Asauction given by an officer in his own right, according to the learnedcounsel, could have been given only by a person authorised to do so onbehalf of the Government of India and there was nothing on the record to show that Shri Jagat Singh had any such authority". Mr. Tandon relieson the observations of their Lordships of the Supreme Court in Majore. G. Barsay V. State of Bombay. There it was observed :- "the Deputy Secretary may have power to make some orders in hisown right and also may have power to authenticate other ordersissued in the name of the President. But in this case this witness hasclearly deposed that the Deputy Secretary had power to accord sanction in his own right and when the order giving the sanction ex fadeshows. that h; did not authenticate it by order of the President, we musthold that he gave the sanction in his own right. "again it was said-If that be the legal position, in the instant case the impugnedorder does not comply with the provisions of Article 77 (2) of theconstitution and, therefore, it is open to the appellant to question thevalidity of the order on the ground that it was not an order made by thepresident and to prove that it was not made by the Central Government. But this legal position does not help the appellant, for as we havepointed out, the uncontroverted evidence of P. W. 36, an Assistant inthe Home Ministry, which was accepted by the High Court and thespecial Judge, establishes that the order was made by the Deputysecretary on behalf of the Central Government in exercise of the powerconferred on him under the rules delegating such power to him. Basing himself on the above observations, the learned counsel forthe appellant points out that Shri Jagat Singh was only authorised toauthenticate orders issued in the name of the President but had noauthority to grant the sanction himself. He has drawn my attention tothe evidence of Shri Jagat Singh (P. W. 5 ). He stated- "as Deputy Secretary I am authorised to authenticate documents. on behalf of the Central Government. When I accorded the sanctionexhibit P. 212 on behalf of Government of India to prosecute theaccused Pardasani I have been sure that the Central Government was. the authority cometent to accord sanction. He stated- "as Deputy Secretary I am authorised to authenticate documents. on behalf of the Central Government. When I accorded the sanctionexhibit P. 212 on behalf of Government of India to prosecute theaccused Pardasani I have been sure that the Central Government was. the authority cometent to accord sanction. The sanction P. 212 wasaccorded after going through the report of the Special Policeestablishment and the various documents receive I from the Indianembassy at Moscow. "he has not statedthat he was authorised in his own right to accordsanctian. Mr. Mehta, the learned counsel for the State, on the other hand,raises two-fold contentions :- (1) The sanction ex fade purports to have been given by thecentral Government and in view of illustration (e) to section 114,indian Evidence Act, there was a presumption that the official act hadbeen regularly performed. (2) The onus was on the appellant to prove that Shri Jagat Singh,deputy Secretary, had no authority to accord sanction. The appellanthaving even failed to ask the Deputy Secretary, when he was in thewitness-box, as to whether he had the necessary authority he cannotnow be permitted to contend to the contrary. The learned counsel, however, do not dispute that Article 77 of theconstitution is not mandatory,. The sanction order Exhibit P. 212 showsthat Shri Jagat Singh, Deputy Secretary, did not authenticate it by orderof the President. I must, therefore, hold that he gave the sanction in hisown right. The question then arises whether he was competent todoso?the case was heard by my learned brother Mehar Singh J. in May 1965and both the learned counsel point out that the question regarding theauthority of the Deputy Secretary was raised before Mehar Singh, J. Againthe case was heard by me for over two days but still no order conferringauthority upon Shri Jagat Singh was produced before me. As a matter offact, Mr. Mehta, the learned counsel for the State, frankly pointed out thathe was unable to produce any such authority and principally relied on theabove- mentioned two contentions. Mr. Mehta has REFERRED TO to the followingauthorities in support of his contentions :-1. His Excellency the Governor of Bengal in Cocunil v. Tusharkanighosh,2. Public Prosecutor v. M. Jwala Subrahmanyam,3. P. J. Ratnam v. D. Kanikaram, and4. Mr. Mehta has REFERRED TO to the followingauthorities in support of his contentions :-1. His Excellency the Governor of Bengal in Cocunil v. Tusharkanighosh,2. Public Prosecutor v. M. Jwala Subrahmanyam,3. P. J. Ratnam v. D. Kanikaram, and4. P. Joseph John v. State of Travancoro-Cochin,in P. J. Ratnam s case their Lordships of the Supreme Courtobserved- "the fact that in the order of reference of the proceedings undersections 10 (2) to the District Judge there is no explicit statement thatthe Bar Council had previously been consulted is not decisive on thepoint. There would be a presumption of regularity in respect of officialand judicial acts and it "would be for the party who challengessuch regularity to plead and prove his case. "reference may also be made to the decision of the Supreme Courtin Tulsi Ram v. State of Uttar Pradesh. " In that case there was a letter onthe record from an Under Secretary to the State Govenment in the homedepartment addressed to the District Magistrate informing that the Governor had been pleased to grant sanction for prosecution of certain persons. Their Lordships held that the document being-an-official communication emanating from the Home Department and addressed to the District Magistrateat Kanpur a presumption would arise that sanction to which reference hadbeen made in the document had in fact been accorded and since the communication was an official one, a presumption would also arise that the official actto which reference had been made in the document was regularly performed. Mr. Tandan, the learned counsel for the appellant, has placed reliance onvenkataramana Udupa v. Kannan Chettiar Mahabir Prasad v. P. E. S. Corporation , and Shankar Bhai v. Emperor", and submits that the Courtscannot presume that there was a delegation of power in favour of an authority purporting to Act. In Bombay case the question arose whether theadministrator, who filed the complaint, was the person authorised underthe statute in question to file a complaint. Beaumont C. J. observed- "we are asked in this Court to presume that he had been validlyappointed under section 114, Evidence Act, 1872, which provides thatthe Court may presume the existance of any fact which its thinks likelyto have happened, regard being had to the common course of naturalevents, human conduct and public and private business, in their relation to the facts of the particular case. How can we draw such apresumption in view of the facts ? How can we draw such apresumption in view of the facts ? On 21/08/1942, the powers ofthe Administrator were vested in the Collector of Ahmedabad, and Ishould certainly presume that if those powers had been taken out ofthat Officer s hands, and transfered to somebody else, there must havebeen an order to that effect, which could be easily proved. This is notlike the case cited by the Advocate General where some person hadbeen acting in an office for years, and it was held that his appointment might properly be peesumed. We cannot presume that powersvested in one person on 21st August had been transferred to anotherperson by 15th September when no order is produced. The only naturalpresumption from the failure to prove the making of an order appointing Mr. Whit worth as Administrator is that no such order was passed. " ( 4 ) MR. Tandon further submits that the presumption arises only ifan act is proved to have been done and before such presunption can ariseit must be prved that the official act was done. In this case, according tomr. Tandon, there was nothing to show that the Central Govenment evergave the sanction. It is also the contention of Mr. Tandon that the Courtis not bound to presume and the presumption is only optional. He refersto Mt. Jawai v. Emperor, and submits that in view of the various opportunities given to the State to produce the authority in favour of the Deputysecretary concerned and in view of his evidence that he was authorisedto authenticate documents no presumption should be drawn. Regarding noquestion having been put to Shri Jagat Singh (P. W. 5), Mr. Tandoninvites my attention to his evidence and points out that he merely statedthat he was authorised to authenticate documents on behalf of the Centralgovernment and that the Central Government was the authoritycompetent to accord sanction. ( 5 ) I have carefully considered the contentions raised at the bar andam of the opinion that having regard to the circumstances mentioned bymr. Tandon no presumption should be drawn in this case. In spite ofseveral opportunities the State failed to produce any authority in favourof the Deputy Secretary concerned. If the power had realy been delegatedto him it would not have been difficult for the Government to producethe relevant document. As pointed out earlier Mr. Mehta frankly conceded that he was unable to produce any. In spite ofseveral opportunities the State failed to produce any authority in favourof the Deputy Secretary concerned. If the power had realy been delegatedto him it would not have been difficult for the Government to producethe relevant document. As pointed out earlier Mr. Mehta frankly conceded that he was unable to produce any. Moreover, the Deputy Seceretaryhaving appeared as a witness only for the purpose of proving the sanctionwould have definitely stated that he had the authority to accord the same. He confined his evidence only to two facts : (i) The Central Government was the competent authority to givesanction, and (ii) he was authorised to authenticate the same. In myopinion, Mr. Tandon is right when he says that the Deputy Secretaryhaving himself confined his evidence as above the appellant need not havecarried the matter further. Since the sanction order shows that it wasgiven by the Deputy Secretary in his own right it must be held that hehad no authority to accord sanction. ( 6 ) I might say a few words regarding the contentions of Mr. Tandon that there is no presumption about the official act having been done and, therefore, illustration (e) of section 114 of the Evidence was not attracted. In my opinion, the Deputy Secretary having stated that when he accorded the sanction "on behalf of the Government of India to prosecute the accused" he made sure that the Central Government was the authority competent to accord sanction shows that the official act ws done and but for the circumstances set out above I would hive invoked the presumptioncontemplated by illustration (e) to section 114 of the Evidence Act. I amalso of the view that in that event the onus would have been on theappellant to prove that valid sanction had not been granted. To thisextent I am not in agreement with the submissions of Mr. Tandon thatonus would still have been on the prosecution to prove that a valid sanction had been granted. I must also notice the judgment of the Calcuttahigh Court in Mahabir Prosad v. P. E. S. Corporation. In that casen. K. San, J. observed that there was no rule of law by which a delegation of power could be presumed. In that case the question was regardingthe acquiescense by the Electric Inspector to the use of electric energycontrary to certain orders issued by the respondent company. In that casen. K. San, J. observed that there was no rule of law by which a delegation of power could be presumed. In that case the question was regardingthe acquiescense by the Electric Inspector to the use of electric energycontrary to certain orders issued by the respondent company. It was inthose circumstances that the Court held that there was no presumption ofdelegation. That case is of no assistance to the appellant because in thiscase the sanction order ex fade shows to have been issued by the Centralgovernment consquently but for the facts set out above presumption couldlegitmately arise and the burden thrown on the appellant to prove lackof authority. ( 7 ) HAVING regard to the above, I must hold that the sanction orderissued by Shri Jagat Singh Deputy Secretary, was issued in his own rightand that he had no autority to act on behalf of the Central governmentin this behalf. The appeal, therefore, must be allowed and the judgmentunder appeal and the conviction of the appellant set aside. The appellantwill be set at liberty forthwith unless required in any other case and thefills if realised, shall be refunded to him. It would, however, be open to the state to prosecute him again after proper sanction. ( 8 ) IN the end, I must express my extreme gratitude to the learned counsel for the parties for very valuable assistance rendered to me in the case.