( 1 ) THE appellant K. S. Subramanya has been convicted by the Special judge, Bangalore, in CC. 7 of 1972 for having committed the offence specified in S. 5 (1) (a) punishable under S. 5 (2) of the Prevention of Corruption act, 1947 (to be hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000 and in default to undergo further rigorous imprisonment for six months. He has, in this appeal, challenged the conviction and sentence. ( 2 ) THE appellant was. during the peried between Novr 1968 and 17-11-70, working as senior clerk in the purchase department of the Indian Telephone industries Ltd, Bangalore, (to be hereinafter referred to as the company ). As Senior clerk he was, it is said and that is not in dispute, required to do the following duties: (1) follow up the orders placed by the Company to the suppliers and see to it that supplies are made by the concerned suppliers; (2) in case of rejection of materials supplied by the suppliers, to et the rejected goods replaced or to get the value thereof refunded by the suppliers; (3) to link up the bills of the suppliers to the payments made to the suppliers and also to correspond with the suppliers in regard to payment; and (4) to follow up the orders for getting the supplies and to maintain the note-sheets. The charge against the accused was as follows ;" That you being a public servant employed as a senior clerk in the 'follow-up Group' section of the Purchase Dept of the 1ti Ltd, bangalore, during the period between Novr 1968 and 17th Novr 1970, at Bangalore, habitually accepted gratification other than legal remuneration to the tune of Rs. The charge against the accused was as follows ;" That you being a public servant employed as a senior clerk in the 'follow-up Group' section of the Purchase Dept of the 1ti Ltd, bangalore, during the period between Novr 1968 and 17th Novr 1970, at Bangalore, habitually accepted gratification other than legal remuneration to the tune of Rs. 16,900 for yourself from four firms namely m/s Devidayal Cable Marketing Co, Bombay, (2) M/s Associated Electrical Agencies, madras, (3) M/s Eastern Engineering Co, Bombay, and (4) M/s Ravindra Heraeus Ltd, Bombay, as a motive or reward for showing official favours to the said firms in the course of your official dealings with them, as an official of the purchase dept, in connection with their supplies and amounts due to them or bills for their supplies to the ITI Ltd, Bangalore, and thereby committed the offence specified in S. 5 (1) (a)of the Prevention of Corruption Act, 1947 (Act II of 1947) punishable u/s. 5 (2) of the said Act and within my cognizance. " ( 3 ) THE prosecution case is that the Central Gcvt holds about 90 per cent shares and the Karnataka Govt holds about 7 to per cent shares in the company. Therefore, the Company in question is a Company falling within the definition of S. 617 of the Companies Act, 1956, and as such its servants are public servants within the meaning of S. 21 IPC. The accused was staying with his wife Smt. K. L. Subbalakshmi in house No. 54/1, nagasandra Road, Basavangudi, Bangalore-4. The accused secured telephone connection and got a telephone installed, the telephone number being 4751. This was done on 31-3-1970. The accused got either himself or his wife Smt. Subbalakshmi appointed as representative of the four firms mentioned in the charge and drew remuneration, as a reward or motive, mainly in older to show favour to the said firms in his official capacity and in the dealings of the firms with the Company and he, therefore, committed the offence in question. ( 4 ) IN order to establish the charge against the accused, the prosecution has examined in all 23 witnesses. PW. 1 Mahabir Swarup and PW. 21 R. Nagabhushana Rao are the officers of the Company. PW. 1 is the Personnel manager and PW. 21 is the Deputy Purchase Officer. PW. ( 4 ) IN order to establish the charge against the accused, the prosecution has examined in all 23 witnesses. PW. 1 Mahabir Swarup and PW. 21 R. Nagabhushana Rao are the officers of the Company. PW. 1 is the Personnel manager and PW. 21 is the Deputy Purchase Officer. PW. 15 R. Anand is the partner of M|s Eastern Engineering Co, Bombay. PW. 17 Chandrakanth choksi is one of the directors of M/s Ravindra Heraeus Ltd, Bombay. PW. 18 Bankey Aggarwal is one of the partners of M|s Devidayal Cable marketing Co, Bcmbay. PW. 19 S. R. Jevarajkar is a partner and PW. 20 r. Krishna Murthy is the manager of M/s Associated Electrical Agencies, madras. These witnesses have been examined by the prosecution to establish that the accused got either himself or his wife Smt. Subbalakshmi appointed as their representatives and drew remuneration froam them as motive or reward to show favour in his official capacity in the transactions of the said firms with the Company. ( 5 ) EX. P78 (A)DT. 20-3-70 is said to be the agreement entered into between mjs Eastern Engineering Co, Bombay, and the accused. Ex. P122 d/-26-3-69 is said to be the agreement entered into between Mjs Ravindra Heraeus ltd, Bombay, and Smt. Subbalakshmi. Ex. P179 d/-30-ll-1970 is said to be the agreement entered into between the said firm and the accused. It is the say of the prosecution that the accused was orally appointed as a representative of M/s Devidayal Cable Marketing Co, Bombay and that fact is available in the evidence of PW. 18. Similarly there was an oral agreement appointing Smt. Subbalakshmi as a representative of M/s Associated electrical Agencies, Madras, and that fact is available in the evidence of pws. 19 and 20. Exts. PI2 to P16 and P121 are cheques issued by M/s Eastern Engineering co to the accused. Exts. P163 to P163 (g) are the receipts depicting, payments made to Smt. Subbalakshmi by Mjs Ravindra Heraeus ltd, Bombay. Exts. P-164 to P164 (e), P166 (b) and P169 are cash vouchers also depicting the same. Exts. P168 and P169 (a) are M. O. receipts showing payment of money to Smt. Subbalakshmi by the said firm. Exts. P32 to p35 are the demand drafts showing payments to Smt. Subbalakshmi by m/s Devidayal Cable Marketing Co, Bombay. Exts. P19 to P22 are the cheques and Ext. Exts. P168 and P169 (a) are M. O. receipts showing payment of money to Smt. Subbalakshmi by the said firm. Exts. P32 to p35 are the demand drafts showing payments to Smt. Subbalakshmi by m/s Devidayal Cable Marketing Co, Bombay. Exts. P19 to P22 are the cheques and Ext. P213 is the demand draft showing payments made by M/s associated Electrical Agencies, Madras, to Smt. Subbalakshmi. It is the case of the prosecution that the total amount depicted in the above-mentioned cheques, demand drafts, receipts, cash vouchers and MO. receipts, is the gratification received by the accused other than legal remuneration within the meaning of S. 161 of the Indian Penal Code. ( 6 ) THE accused has admitted that he was serving as a senior clerk in the purchase department of the Company. He has, in regard to the charge, stated that he resigned his job from 18-11-70 by writing a letter to that effect as per Ext. P2 d/-17-ll-70, but the Company did not accept his resignation, hence, he remained in the employment of the Company and as such he was a public servant on the date when the Special Judge took cognizance of the offence and therefore the prosecution against him is bad in law for want of sanction under S. 6 of the Act. According to him, he was doing his duty as per the orders of his superiors in the Company and he did not show any favour to any of the firms. His wife was appointed as representative of the said firms and she was attending to her job. He wrote letters to the said firms on her behalf, but in that regard he was only a name-lender. Even the agreements Exts. P78 (a) and P170 are signed by him for his wife Smt. Subbalakshmi and in fact she was appointed the representative of Mjs Eastern Engineering Co, Bombay, and Mjs Ravindra heraeus Ltd, Bombay, respectively. He has stated that the amount evidenced by cheques, demand drafts, receipts, cash vouchers and MO receipts, was in fact received by his wife Smt. Subbalakshmi and sometimes i. e. , when the cheques or the demand drafts were drawn in his favour, he has encashed them but that was for his wife Smt. Subbalakshmi. He has stated that the amount evidenced by cheques, demand drafts, receipts, cash vouchers and MO receipts, was in fact received by his wife Smt. Subbalakshmi and sometimes i. e. , when the cheques or the demand drafts were drawn in his favour, he has encashed them but that was for his wife Smt. Subbalakshmi. ( 7 ) THE Special Judge has found that the prosecution has been able to establish satisfactorily that it was the accused who acted as the representative of these firms and it was he who received the said amounts from them and that the accused showed official favour to M/s Devidayal Cable marketing Co, Bombay, in the matter of security deposit, 100 per cent inspection, return of copper, expediting the bills of M/s Devidayal Cable marketing Co, return of bank guarantees, issuing of debit notes and sending the Chief Internal Auditor's objection notes (hereinafter referred to as CIA objection notes ). The Special Judge has not accepted the prosecution case in regard to M/s Eastern Engineering Co, Bombay, M/s Ravindra Heraeus Ltd, bombay and M/s Associated Electrical Agencies, Madras. ( 8 ) IN view of what is stated in the preceding paragraphs it would not be necessary to look into the evidence of PWs. 16, 17, 19 and 20. PW. 16 ha categorically admitted that there were no transactions of his "firm with the company during the period in question. Though PW. 17 has stated in regard to certain transactions, no material has been placed by the prosecution to establish that the accused had received gratification from the said firm within the meaning of S. 161 of the IPC. PW. 20 has not supported prosscution while PW. 19 has supported the prosecution to a little extent, but his evidence has not advanced the case of the prosecution. Now it is to be seen whether the prosecution has satisfactorily established the charge at least in regard to the dealings concerning M/s Devidayal Cable marketing Co, Bombay. ( 9 ) SRI H. R. Venkataramanaiah, the learned Advocate appearing on behalf of the accused-appellant, pointed out that the twelfth clause to S. 21, ipc came to be incorporated by Act 2 of 1958 and thereafter, was again amended by Act 40 of 1964, and this clause was not in S. 21 when the Act came into force. ( 9 ) SRI H. R. Venkataramanaiah, the learned Advocate appearing on behalf of the accused-appellant, pointed out that the twelfth clause to S. 21, ipc came to be incorporated by Act 2 of 1958 and thereafter, was again amended by Act 40 of 1964, and this clause was not in S. 21 when the Act came into force. He adumbrated his argument by contending that when the Act came into force, the said clause was not in S. 21 IPC and as such it would not be in accordance with law to read this clause into S. 5 (1) (a) of the Act. Section 2 of the Act reads as follows : " For the purposes of this Act, 'public Servant' means a public servant as defined in S. 21 of the Indian Penal Code. " section 5 (1) (a) of the Act reads as follows :"5 (1 ). A public servant is said to commit the offence of criminal misconduct.- (a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in S. 161 of the IPC, or. . . "in other words, the argument of Sri Venkataramanaiah is that while understanding s. 2 and S. 5 of the Act, the Court has to refer to S. 21 of the IPC as it stood when the Act came into force and should not take into consideration the subsequent amendments to S. 21 IPC. The sum and substance of his argument is that the doctrine of incorporation cannot be applied to penal provisions. This argument of Sri Venkataramanaiah is set at test by the Supreme Court in the decision in State of MP v, M. V. Narusimhaun, 1. (1975) SCC. 377. It has been held : " As regards the doctrine of incorporation by reference, the position is that after the provision of the previous Act is incorporated in the subsequent Act, the offspring, namely the incorporated provision, survives even if the previous Act is repealed, amended, declared a nullity or erased from the statute book. (1975) SCC. 377. It has been held : " As regards the doctrine of incorporation by reference, the position is that after the provision of the previous Act is incorporated in the subsequent Act, the offspring, namely the incorporated provision, survives even if the previous Act is repealed, amended, declared a nullity or erased from the statute book. ( 10 ) ON a consideration of various authorities, the following proposition emerges : where a subsequent Act incorporates provisions of a previous Act then the borrowed provisions become an integral and independent part of the subsequent Act and are totally unaffected by any repeal or amendment in the previous Act. This principle, however, will not apply in the following cases : (a) where the subsequent Act and the previous Act are supplemental to each other; (b) where the two Acts are in pari materia; (c) where the amendment in the previous Act, if not imported into the subsequent Act also would render the subsequent Act wholly unworkable and ineffectual; and (d) where the Pmendment of the previous Act, either expressly or bv necessary intendment, applies to the said provisions to the subsequent Act. " ( 11 ) IT has also been held as follows :" The Prevention of Corruption Act, 1947, is not in pan materia with 1pc. Firstly, the Act is a completely self-contained statute with its own provis ons and had created a specific offence of criminal misconduct which is quite different from the offence of bribery as defined in the Penal Code. They do not form one system. Secondly, while the IPC is essentiallv a penal statute of a much wider scope than the act, the Act no doubt contains a penal flavour but it is in effect a piece of social legislation directed towards eradication of the evil of corruption amongst the services alone. In other words, public servants alone fall within the mischief of the Act, i. e. , the Prevention of Corruption Act, and no one else. In other words, public servants alone fall within the mischief of the Act, i. e. , the Prevention of Corruption Act, and no one else. " ( 12 ) THE Supreme Court has further on laid down in the said decision as fellows :"but having regard to the preamble and the object of the Act and the Penal Code there can be no doubt that the Act was undoubtedly a statute supplemental to the Penal Code and that being the position any amendment in the definition of S 21 of the Penal Code would have to be read into S. 2 of the Act, because once the definition of s. 21 of the Penal Code was incorporated in the Act, it had to be imported into the other Act and considered pan passu the Penal Code. "in view of this authoritative pronouncement by the Supreme Court, it is in my opinion, not necessary to consider this argument any further. The next argument of Sri Venkataramanaiah is that the resignation tendered by the appellant-accused as per Ext. P2 d/-17-11-70 was not accepted by the Company, as is clear from its letter Ext. P273 d/-18-11-70 and, hence, Ext. P2 did not survive to be considered any further by the company. The accused having not tendered any resignation thereafter, the say of the Ccmpanv that it accepted the resignation of the accused with effect from 15-11-70, as is clear from its letter Ext. P277 d/-27-11-71, cannot be relied upon to hold that the accused had resigned from service. The Company could not issue its letter Ext. P277 when there was no letter of resignation sent by the accused to the Company before it. In this very connection he argued that when once the Company refused to accept the resignation tendered by the accused as per Ext. P2, the matter came to amend and the accused continued to be in the employment of the Company and as such was a public servant on the date when the prosecution was launched and the Special Judge took cognizance of the offence. He pointed out that it is an admitted fact that no sanction to prosecute within the meaning of S. 6 of the Act has been taken. He pointed out that it is an admitted fact that no sanction to prosecute within the meaning of S. 6 of the Act has been taken. He urged on this basis that the Special Judge had no power to take cognizance of the offence in the absence of sanction to propecute under S 6 of the Act. In regard to Exts p274 dt. 18-11-70 and P275 dt. 19-11-70 which are the letters written by the accused to the Joint General Manaper and the Senior Administrative Officer respectively of the Company, intimating that whether or not the Company agreed to accept his resignation, he had by himself severed his connections with the Company, Sri Venkataramanaiah unned that such a unilateral act cf severing cna's connection was not permissible under the conditions of service of the employees of the Company and, hence, by writing these letters the accused could not have in law severed his connection with the Company and there by abandoned the service of the Company and cased to be an employee of the cmpany. and as such he continued to be in the employment of the Company and in that view of the matter also he was a public servant on the date when the Special Judge took cognizance of the offence Sri Venkataramanaiah argued that the terms of service of the employees of the Company are depicted in the Standing Orders Extp1. It may be stated here itself that there is no dispute on this point. No other terms of service are brought to the notice of the Court. Both sides rely on the Standing Orders to show what are the terms governing the service of the employees under the Company. The say of Sri Venkataramanaiah is that none of the terms found in Ext. P1 give any right to any employee of the Company to voluntarily terminate his service. The right to terminate the service of an employee is given only to the Company. He referred tq standing Order Nos. 17 and 18. ( 13 ) THE same argument was advanced before the Special Judge. The special Judge has held that under Standing Order No. 18 an employee has a right to voluntarily terminate his service and such tprminatjon of service takes effect from the date when he intimates accordingly the authorities of the Company. 17 and 18. ( 13 ) THE same argument was advanced before the Special Judge. The special Judge has held that under Standing Order No. 18 an employee has a right to voluntarily terminate his service and such tprminatjon of service takes effect from the date when he intimates accordingly the authorities of the Company. He has also held that the stand of the prosecution that tha Company by its letter Ext. P277 d/-27-11-71 accepted the resignation of the accused with effect from 18-11-70, is not sound in law. Having held that the accused voluntarily terminated his service within the provisions of Standing Order No. 18, he has concluded that no sanction to prosecute under S. 6 of the Act was necessary and as such the prosecution was in accordance with the provisions of law. ( 14 ) IN the above context itself, Sri Venkatamanaiah argued that even if the reply given by the Company by its letter Ex. P-273 dated 18-11-1970 refusing to pccept the resignation tendered by the accused by his letter Ext p-2 dated 17-11-1970, is considered to be a tentative stand on the part of the Company because the Company was awaiting the report of an investigation instituted against the accused, the Company having not communicated its acceptance of the resignation tendered by the accused within a reasonable time from 18-11-1970 but having communicated the same by its letter Ex. P-277 dated 27-11-1971, it should be held, in view of Section 6 of the Contract Act, that the offer of the accused to resign his job was deemed to have been revoked. Sri K. H. N. Kuranga, the learned Govt Pleader argued that under standing Order No. 18 an employee of the Company has a right to voluntarily terminate his service and that is what the accused did, not only by writing Ext. P2, but also by writing Exts. P274 and P275 d|-18-ll-70 and 19-11-70. He further urged that such voluntary termination of service became effective from the dates of writing of these letters. On this basis he argued that though the Ccmpany had communicated to the accused by by its letter Ext. P2, but also by writing Exts. P274 and P275 d|-18-ll-70 and 19-11-70. He further urged that such voluntary termination of service became effective from the dates of writing of these letters. On this basis he argued that though the Ccmpany had communicated to the accused by by its letter Ext. P277 d/-27-ll-71 that it had accepted his resignation with effect from 18-11-70, that letter has no effect in law inasmuch as the accused had voluntarily terminated his service, at the latest by 18-11-1970, and that showed that on the date the Special Judge took cognizance of the offence, the accused was not an employee of the Company and as such was not a public servant thereby making securing of previous sanction under s. 6 of the Act not necessary in law. ( 15 ) IN view of the stand taken on behalf of the State in regard to Exts. P2, p274 and P275, the argument of Sri Venkataramanaiah on the basis of S. 6 of the Contract Act need not be, in my opinion, gone into. What is to be considered is whether the accused had a right to voluntarily terminate his service and whether he in fact did so and if so whether it was with effect from either 17-11-70 or 18-11-70 or 19-11-70. Sri Venkataramanaiah contended that it is not possible to comprehend that power to voluntarily terminate one's service would be given to an employee of such an Industry because if a highly technically skilled employee suddenly takes into his head to voluntarily terminate his service, the Industry might go out of gear. He drew support from the decision in savabhai Nanibhai v. VIN (D. M.), Presiding Officer, First Labour court, 2. . 1964-II LLJ, 201. where in it has been observed that if the view were to be taken that the moment an employee tenders his resignation it becomes effective and the bond of service is completely snapped, it is likely to introduce chaos in the sector of employment, and unless one is compelled to do so, one will not agree to such a proposition. He also urged that there is no term in the terms of service contained in Ext. P1-the Standing Orders- providing a right to an employee to voluntarily terminate his service. To my mind, this contention does not appear to be sound. He also urged that there is no term in the terms of service contained in Ext. P1-the Standing Orders- providing a right to an employee to voluntarily terminate his service. To my mind, this contention does not appear to be sound. It is to be remembered that the Standing Orders in Ext. P1 are the terms of contract of service between the emplpoyees and the Company. That is an admitted fact. Standing Order No. 10 (6) reads as follows :" If an employee absents himself without leave for more than fifteen days or remains absent beyond the period cf leave granted for more than 15 days, he shall be considered as having volunarily left and abandoned the Company's service and voluntarily terminated his employment with the Ccmpany provided that on intimation sent to him to report within a specified period he fails to do so and provided further that registered letter sent by the Company on last known address recorded in Company's record or intimated by the workman in leave application, shall be deemed good service for this purpose and will not be challenged. " ( 16 ) A plain reading of this Order shows that an employee can voluntarily terminate his service by remaining absent for fifteen davs without leave or over-staying his leave for more than fifteen days and then failing to report to duty on being called upon by the Company to do so. Sri Venkataramanaiah urged that this Order is not meant for achieving such an object by an employee, but is intended to safe-guard the interests of the Company by enabling it to prevent unauthorised absence of the employees. Even so, it is clear that it is open to an employee of the Company to voluntarily leave and abandon the Company's service by adopting this provision. To achive this puipose, an employee is not as is clear from the provision, required to give any period intimation, particularly by way of notice to the company. Even so, it is clear that it is open to an employee of the Company to voluntarily leave and abandon the Company's service by adopting this provision. To achive this puipose, an employee is not as is clear from the provision, required to give any period intimation, particularly by way of notice to the company. When this is so clearly provided by a term in the contract of service, the reasoning in Savabhai Nanjibhai's case (2) cannot apply because their Lordships of the Gujarat High Court have, while observing that chaos would be likely to be introduced relied on a fact that there was no term of contract in the said case so as to compel the Court to hold that the resignation became effective immediatelv on it being tendered. There fore. I held that it is not correct to contend that under these terms of service there is no scope for an employee to leave and abandon his service and also to voluntarily terminate his service. ( 17 ) STANDING Order No. 17 consists of seven clauses. The purpose for which these 7 clauses which represent terms of contract are incorporated is clearly stated in the beginning of Standing Order No. 17. These clauses relate to 'service termination of-by the Company', Hence, it is plain that whenever the company intends to terminate the service of any of its emplovees, it has to act within these seven clauses. Clause 1, which is the only clause which is necessary for our purpose, reads as follows :" The employment of any permanent monthly rated employee may be terminated, if it, is no longer required in the interest of the company, by giving 30 days' notice or by payment of wages at the basic rate of pay plus D. A. for a like period in lieu of notice and the employment of any permanent daily-rated employee may be terminated, if it is no longer required in the interest of the Company by giving him 14 days' notice or by payment of basic wages plus D. A. for a like period in lieu of notice. Provided always that no notice will be required where an employee is dismissed for misconduct after enquiry. Provided always that no notice will be required where an employee is dismissed for misconduct after enquiry. "both sides are agreed that according to this clause, the Company has power to terminate the service of its permanent monthly rated emplovee by giving 30 days' notice or by paying wages at the basic rate of pay plus d. A. for a like period in lieu of 30 days' notice. We are not concerned with the remaining part of the clause relating to the permanent daily rated employees because the accused was permanent monthly rated employee. ( 18 ) WHAT is to be, in mv opinion, specifically borne in mind is that a specificterm is provided in the terms of contract of service empowering the Company to terminate the service of its employee. The very next Standing order viz, Standing Order No. 18 relates to 'service termination-by the employee'. This Order contains four clauses. We are concerned with Cl. 1 only. It reads as follows :" A permanent monthly rated employee desirous of leaving the company's service shall give 30 davs' notice to the Manager of his intention to do so or forfeit to the Company one month's wages at the basic rate of pay and D. A. in lieu of notice, and a permanent daily rated employee desirous of leaving the Company's service shall give 14 days' notice to the Manager of his intention to do so, or forfeit to the Company 14 days' wages at the basic rate of wages and D. A. in lieu of notice. "one thing which is clear to my mind is that the object of incorporating these four clauses in the Standing Order, relates to 'service termination 0f-by the employee'. ( 19 ) IN regard to interpretation of Standing Order No. 18, the argument of sri Venkataramanaiah is that the title 'service termination of-by the employee' appearing at the top of the four clauses in Standing urder no. 18, ought not to be read within any of the four clauses. He drew support from the settled principle of interpretation of Statutes in regard to marginal notes of a section and the provisions of the said section. He further on pointed out that in Cl. 1 of Standing Order No. 17, it is specifically mentioned that 'the employment of any permanent monthly rated employee may be terminated' while in Cl. He drew support from the settled principle of interpretation of Statutes in regard to marginal notes of a section and the provisions of the said section. He further on pointed out that in Cl. 1 of Standing Order No. 17, it is specifically mentioned that 'the employment of any permanent monthly rated employee may be terminated' while in Cl. 1 of Standing Order No. 18, what is specifically mentioned is that a permanent monthly rated employee desirous of leaving the Company's service', and urged that if the contracting parties wanted to provide a right to an employee to voluntarily terminate his service under Standing Order No. 18, Cl. 1 of Standing Order No. 18 would have specifically mentioned to that effect instead of stating 'employee desirous of leaving the Company's service', and that showed that all that an employee is entitled to, under Standing Order No. 18, is just to communicate to the Company that he is desirous of leaving the Company's service by giving 30 days' notice or by forfeiting to the Company one month's wages at the basic rate of pay plus DA. in lieu of 30 days' notice, and await acceptance of his offer by the Company. ( 20 ) STANDING Order No. 10 (6) has no application to the facts of this case because it cannot be held that the accused had remained absent without leave for more than 15 days from 18-11-70, inasmuch as on 21-11-70 he received letter Ext. P. 276 d/-20-11-70 issued by the Company informing him that he had been kept under suspension from 21-11-70. It is clear therefrom that he could not have attended to his duties in the Company from 21-11-70. That means that he was absent only from 18-11-70 till 21-11-70. That shows that his unauthorised absence was not for more than 15 days. But, what is clear from Standing Order No. 10 (6) is that an employee of the Company can voluntarily leave and abandon the Company's service and voluntarily terminate his employment. It may be that he may become liable to so many consequences under the other terms of the Standing Orders and under the provisions governing disciplinary proceedings. But, leaving and abandoning Company's service takes effect from the tune he abandons service. It may be that he may become liable to so many consequences under the other terms of the Standing Orders and under the provisions governing disciplinary proceedings. But, leaving and abandoning Company's service takes effect from the tune he abandons service. According to Standing Order 10 (6), the Company can deem it that the employee has left and abandoned service and voluntarily terminated his employment with the Company only after it waits for the necessary period mentioned therein and sends a registered letter to the last known address of the employee calling upon him to report to duty by the time mentioned in the said letter and the employee fails to report accordingly. But, so far as the employee is concerned, the abandonment takes effect from the date he abandons. It is to my mind clear that the act of an employee in so leaving and abandoning service has to be, in law, considered as voluntarily terminating his service. This aspect is to be in my oninion borne in mind while understanding the intendment of Standing Orders nos. 17 and 18. ( 21 ) IT is elementary that a contract has to be read as a whole to get a clear idea of the terms contracted. Ext. P1 the Standing Orders represent the terms of contract between the Company and its employees. No other terms are placed on record. Reading of all the terms contained in Ext. P1, as a whole, makes it plain that in regard to voluntarily leaving and abandoning service of the Company, an employee can do so under Standing Order no. 10 (6) and when an employee does so, the Company, on complying with the provisions of Standing Order No. 10 (6), can deem it that the employee has voluntarily terminated his service, and further that under standing Order No. 17 the Company, when it finds that it is necessary in the interests of the Company to terminate the service of an employee, has power to terminate the service by giving 30 days' notice or by paying wages at the basic rate of pay plus DA in lieu of 30 days' notice in the case of any permanent monthly rated employee. If Standing Order No. 18 is read in this context, I have no hesitation to hold that this Order provides a power to an employee to voluntarily terminate his service just as the Company can terminate his service under Standing Order No. 17. If that is not how Standing Order No. 18 is understood, then there would be no meaning in making the employee forfeit one month's wages as is provided in Cl. 1 of Standing Order No. 18. The analogy relating to reading of marginal notes to a section and the concerned section, given by Sri Venkataramanaiah, cannot at all be applied to these terms of contract in Ext. P1. As is already made clear, all the four clauses in Standing Order No. 18 relate to the subject, viz, service termination of-by the employee'. Hence, meaning of the words 'employee desirous of leaving the Company's service' is according to me, that 'an employee intending to voluntarily terminate his service'. If a monthly rated employee gives 30 days' notice as provided in cl. 1, then termination of his service takes effect immediately after the expiry of 30 days. If he forfeits one month's wages at the basic rate of pay and DA in lieu of notice, as provided in Cl. 1, the termination of his service takes effect from the very moment of time he forfeits one month's wages. In understanding this aspect of the matter, reliance was placed by the State on the decision in V. P. Gindroniya v. State of M. P. . This decision has been relied upon by the Special Judge in holding that under standing Order No. 18, the accused voluntarily terminated his service and such termination came into effect from 18-11-70. In V. P. Gindroniya's case, 3. AIR 1970 SC 1494 . Rule 12 (a) of the Madhya Pradesh Government Servants (Tempolary and Quasi-Permanent Service) Rules (1960) and the notice given by v. P. Gindroniya-the appellant, were considered. The said Rule 12 (a) reads as follows :" 12 (a ). In V. P. Gindroniya's case, 3. AIR 1970 SC 1494 . Rule 12 (a) of the Madhya Pradesh Government Servants (Tempolary and Quasi-Permanent Service) Rules (1960) and the notice given by v. P. Gindroniya-the appellant, were considered. The said Rule 12 (a) reads as follows :" 12 (a ). Subject to any provision contained in the order of appointment or in any agreement between the Govt and the temporary Govt servant, the service of a temporary Govt servant who is not in quasipermanent service, shall be liable to termination at any time by notice in writing given either by the Govt servant to the appointing authority or by the appointing authority to the Govt servant: provided that the services of any such Govt servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances for the period of notice; or as the case may be, for the period by which such notice falls short of one month or any agreed longer period: provided further that the payment of allowances shall be subject to the conditions under which such allowances are admissible. " ( 22 ) THE relevant portion of the notice given by the appellant is excerpted by the Supreme Court in para 14 of the judgment, as follows :" Whereas the undersigned holds no charge this day and is not on duty and intends to bring the terminaion of his employment with the govt of M. P. forthwith on receipt of this writing; and whereas as required by the service rules the undersigned do hereby forfeit and relinquish his claim for one month's pay or allowance whichever is necessary. Now, therefore, this notice is hereby served as required under the rules on receipt whereof the relationship cf employer and employee now existing between the Govt of M. P. and the undersigned shall cease to exist and consequently all rights, duties and obligations arising from and under the afpresaid relationship shall hereafter absolutely cease. Now, therefore, this notice is hereby served as required under the rules on receipt whereof the relationship cf employer and employee now existing between the Govt of M. P. and the undersigned shall cease to exist and consequently all rights, duties and obligations arising from and under the afpresaid relationship shall hereafter absolutely cease. " ( 23 ) THE Supreme Court dis-agreed with the Madhya Pradesh High Court and held that by the said notice the appellant intimated to the Govt that the amounts due from him to the Govt under the provisions to Rule 12 (a) may be deducted from the amount due to him and that the notice given by him was in accordance with the requirements of Rule 12 (a ). On concluding so, the Supreme Court further held that ever since June 9, 1964, the appellant was not in the service of the Govt because he had given notice dt. 6-6-64 and that was received by the Govt on 9-6-64. I have already shown that the reasoning of Sri Venkataramanaiah that the title at the top of the four clauses in Standing Order No. 18 ought not to be considered while understanding the four clauses of the said Order, cannot be accepted. When that is so, the contents of Exts. P2 d/-17-11-70, P. 274 d/-18-11-70 and p275 dt. 19-11-70, written by the accused to the Company (the former two addressed to the Joint General Manager and the latter one to the Senior administrative Officer) have to be looked into. In Ext. P2 the accused has written that he, being in a position to take some concrete decision, requests the Joint General Manager to relieve him of his duties with immediate effect by accepting his resignation with effect from 17-11-70. He has intimated that he would not be attending the office from 18-11-70 and for all pactical purposes he is deemed to have left the service of the Company with effect from 17-11-70 at 5 p. m. He has sent Ext. P2 through proper channel. Ext. P274 makes it clear that he has written it and sent it directly to the Joint General Manager-evidently by way of advance intimation to him. The contents of Ext. P274 are similar to the contents of Ext. P2. Ext. P275 has been written by him on receipt of Ext. P2 through proper channel. Ext. P274 makes it clear that he has written it and sent it directly to the Joint General Manager-evidently by way of advance intimation to him. The contents of Ext. P274 are similar to the contents of Ext. P2. Ext. P275 has been written by him on receipt of Ext. 273 intimating him that his resignation was not accepted as an investigation was pending against him. In Ext. P275, he has unequivocally stated that whether the company accepted his resignaion or not, he had severed his connections with the Company with effect from 17-11-70 and that it was very clear that he had abandoned the services of the Company on his own accord, without waiting for the decision of the Joint General Manager. He has also stated that in token of his so abandoning the services of the Company and severing his connections with it, he had returned the official identity badge, shift badge etc. He has made it clear that he would not be a party to any of the decisions of the Company taken thereafter as they would be unilateral decisions and that in his letter d/-17-11-70 he had made it clear that in any case he was not going to attend to his duties from 18-11-70. In Ext p2 itself he has intimated the Companv that any amount due to the Company may be deducted from his provident fund or any other accumulated amount, and even towards the notice period etc. This pait of Ext P2 shows that he forfeited to the Company the amount mentioned in Cl. 1 of standing Order No. 18 in lieu of notice provided in that clause. " In V. P. Gindroniya's case (3) their Lordships of the Supreme Court laid stress on the words 'whereas as required by the service rules, the undersigned do hereby forfeit and relinquish his claim for one month's pay or allowance whichever is necessary' in the notice sent by the appellant to the Madhya pradesh Govt, and held that the notice given by the appellant was in accordance with the requirements of Rule 12 in question. Same has to be the view to be expressed in the case on hand also. Therefore, I hold that the accused voluntarily left and abandoned the Company's service with effect from 18-11-70 and voluntarily terminated his employment with the company with effect from 19-11-70. Same has to be the view to be expressed in the case on hand also. Therefore, I hold that the accused voluntarily left and abandoned the Company's service with effect from 18-11-70 and voluntarily terminated his employment with the company with effect from 19-11-70. In any view of the matter, he was not a public servant on the date when the Special Judge took cognizance of the offence. Hence, previous sanction to prosecute the accused under S. 6 of the Act, was not necessary. ( 24 ) THE next point urged by Sri Venkataramanaiah is that no offence under S. 161 IPC can be said to have been made out against the accused and as such no offence under S. 5 (1) (a) punishable under S. 5 (2) of the act can be said to have been made out. He pointed out that according to the prosecution case, the accused had accepted employment with the four firms and had worked as their representative, for remuneration and had, in discharge of his obligations to the said four firms, done the acts complained by the prosecution. In this behalf, he read out Standing Order no. 23 and argued that accepting such employment by an employee of the company is prohibited. He further argued that Standing Order No. 23 is a term of contract and that acceptance of such employment by an employee of the Company was not prohibited by any law but was prohibited by this term of contract only. He proceeded further on this basis and argued that the words 'gratification whatever other than legal remuneration' appearing in S. 161 IPC mean 'gratification that is not legal remuneration' and that would further mean 'gratification'which was not legal' and, therefore, 'gratification which was forbidden by law'. In support of this reasoning, he relied on the commentary of learned Author Mr. Reginald A Nelson in his book "the Indian Penal Code', and the commentary of Dr. Sir Hari singh Gour in his book 'the Penal Law of India'. At page 745 in Nelson's indian Penal Code, 6th Edition, it is observed as follows :" The offence is the taking or attempting to take "any gratification whatever dither than legal remuneration". Reginald A Nelson in his book "the Indian Penal Code', and the commentary of Dr. Sir Hari singh Gour in his book 'the Penal Law of India'. At page 745 in Nelson's indian Penal Code, 6th Edition, it is observed as follows :" The offence is the taking or attempting to take "any gratification whatever dither than legal remuneration". Even acceptance of a gratification is not an offence if it is a remuneration which a public servant can lawfully demand or which he is permitted by the Govt, which he serves, to accept. There can be no offence unless the gratification solicited or accepted is illegal". ( 25 ) IN Dr. Sir Hari Singh Gour's Penal Law of India, 9th Edn, (at page 1324), it is observed as follows : " There can be, of course, no offence unless the gratification solicited or accepted was illegal. It would be illegal if it was forbidden by law, or by the rules of Government. " further on it is observed as follows : " In short, the sole test of legality is the order of Govt. It is not a case of mala in se but of mala qua prohibita. " in understanding these observations, it is, in my opinion, necessary to remember how the words 'legal remuneration' are also explained in the explanation to S. 161 IPC. The Explanation runs as follows : " 'legal remuneration'. The words 'legal remuneration' are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the government, which he serves, to accept. ' this Explanation is an inclusive one. As is plain from the meaning of the explanation and the fact that this Explanation existed in the Code even prier to the incorporation of the twelfth clause to S. 21 of the IPC, it related only to public servants serving the Govt. It is in the light of this explrnation that the two learned Authors have observed as above excerpted in their comments. The acsused was not a public servant serving the govt. In fact he was not at all a public servant prior to the year 1958 when Clause twelfthly to S. . 21 IPC came to be incorporated. He became a public servant because of the amendment to S. 21 in 1958. The acsused was not a public servant serving the govt. In fact he was not at all a public servant prior to the year 1958 when Clause twelfthly to S. . 21 IPC came to be incorporated. He became a public servant because of the amendment to S. 21 in 1958. Hence, the words 'legal remuneration' have to mean that the remuneration he was legally entitled to as such public servant in this Company. I hold that the words 'other than' occurring in the phrase 'any gratification whatever other than legal remuneration' in S. 161 IPC, cannot be understood to mean 'that is not' but have to be understood to mean 'apart from'. That is clear from not only the internment of S. 161 IPC, but also the context in which the words are used. When it is so understood, the meaning of the phrase any gratification whatever other than legal remuneration' would be 'any gratification whatever apart from legal remuneration' and that shows that there is no scope to understand that any gratification received should be illppal one and, therefore, not a legal one and hence must have been prohibited by law. Hence, I do not agree with this contention of Sri Venkataramanaiah. Before an offence can be held to fall within Cl (a) of sub-sec (1) of S. 5 of the Act, the reauirements of Sec. 161 IPC, have to be satisfied. If an offence does not fall under S. 161 of the IPC, it cannot fall within S. 5 (1), (a) of the Act. That is how the Supreme Court has ruled in the decision in Dalpat Singh v. State of Raiathan. If an offence does not fall under S. 161 of the IPC, it cannot fall within S. 5 (1), (a) of the Act. That is how the Supreme Court has ruled in the decision in Dalpat Singh v. State of Raiathan. In the very same decision, the supreme Court has held that before an offence is held to fall under S. 161, ipc, the following requirements have to be satisfied: (1) The accused at the time of the offence was or expected to be, a public servant, (2) that he accepted, or obtained, or agreed to accept, or attempted to obtain from some person a gratification, (3) that such gratification was not a legal remuneration due to him, and (4) that he accepted the gratification in question as a motive or reward, for- (a) doing or forbearing to do an official act; or (b) showing, or forbearing to show favour or disfavour to some one in the exercise of his official functions; or (c) rendering, or attempting to render any service or disservice to some one, with the Central or any State Govt or Parliament or the legislature of any State, or with any public servant. "new it is to be seen to what extent the prosecution has, in this case, satisfactorily established the aforementioned ingredients. ( 26 ) THE learned Special Judge has, as already narrated, acted on the evidence of PW. 18 and not on the evidence of PWs. 16. 17, 19 and 20. The learned pecial Judge has held, on the evidence of PWs. 18 and 21, that the prosecution has satisfactorily established that the accused had helped pw. 18 and his firm in the matter of security deposit, 100 per cent inspection, ret urning of copper, expediting their bills, returning of bank guarantee, issuing of debit notes and sending of CIA objection notes, and, therefore, had committed the offence with which he was charged. It is seen from the deposition of PW. 18 that when copies of letters, the originals of which were alleged to have been written either by the accused or his wife either to PW. It is seen from the deposition of PW. 18 that when copies of letters, the originals of which were alleged to have been written either by the accused or his wife either to PW. 18 or his brother, were sought to be produced in evidence, the defence objected on the ground that they are not legally admissible, and the Special Judge has over-ruled the objection by passing the following order :" The witness has given the description of the code number adopted in writing these letters. According to the witness, the original letter received by him and his brothers are not traceable in his office. These letters are found in the files produced by the accused from his house. Under the circumstances , the said letters are admissible. The objection is over-ruled and the letters are marked"few more facts pecessary to understand the nature of the objection raised and the idea underlying the order passed by the Special Judge, may be narrated as follows : On 17-11-70, PW. 22 B. S. Rama Rao, Deputy Superintendent of police, received credible information about the commission of this offence, registered a case at RC. No. 48 of 1970 under S. 5 (1) (a) read with 5. 5 (2) of the Act and issued FIR as per Ext. P272. He obtained a search warrant from the City Magistrate, Bangalore. The warrant empowered him to search the residence of the accused situated at No. 54/1, Nagasandra Circle bangalore-4. He, his staff and panchas including PW. 2 R. G. Satyanara- yana Murthy, went to the house. According to PWs. 2 and 22, the accused got down from the Company bus and PW. 22 accosted him and showed him the warrant. The accused volntarily produced files containing documents. 12 files were in an almirah in the drawing-room of his house. Those files are Exts. P 7 (a) to P 7 (n) except (i ). Ext. P7 is the copy of the search list. The copies sought to be produced were found in these files. The sav of the accused in this regard is that he did not produce those files but when he reached his house, his wife Smt. Subbalakshmi told him that the police had collected some files and on the police asking him to affix his signature, he found that they had bundled up the files and then he affixed his signature. The sav of the accused in this regard is that he did not produce those files but when he reached his house, his wife Smt. Subbalakshmi told him that the police had collected some files and on the police asking him to affix his signature, he found that they had bundled up the files and then he affixed his signature. ( 27 ) THOUGH the accused has not admitted having produced these files, it is clear from the evidence of PWs. 2 and 22 that the files were in the house occupied by the accused and his wife Subbalakshmi. They were in possession of these files and, hence, these documents also. The best that can be said in favour of the prosecution is that the accused was having possession of the copies. Ext. P171 bears the signature of the accused. The accused has denied that signature, but PW. 21 R. Nagabhushana Rao has proved the same. The Special Judge has accepted the evidence of PW. 21 in regard to this aspect of the matter because it is clear from the evidence of pw. 21 that he is competent to identify the hand-writing and the signature of the accused as the accused was serving under him and he was having constant contact with the accused and, therefore, had number of opportunities to observe the accused writing and affixing his signature. Exts. P260. P261, P266, P267. P268 and P271 bear either the signature of the initials of the accused, and that fact is sworn to by PW. 21 The remaining documents cut of Exts. P170 to P212 are only copies which do not bear either the signature or the initials either of the accused or of his wife Smt suhbalakshmi. The objection raised on behalf of the defence pertains to these copies. The Special Judge, as is clear from the order, has over-ruled the objection on the ground that the copies had been produced by the accused himself and that the originals of which these are copies, are proved to have been lost as per the evidence of PW. 18. ( 28 ) SRI Venkataramanaiah urged that this order of the Special ,judge is not sound because it does not satisfy the ingredients of S. 65 of the Indian exidence Act. He placed reliance on the decision of this Court in Maruti rama Kamate v. Sadashiv Randppa, 1964 Myslj. Supp. 6. 18. ( 28 ) SRI Venkataramanaiah urged that this order of the Special ,judge is not sound because it does not satisfy the ingredients of S. 65 of the Indian exidence Act. He placed reliance on the decision of this Court in Maruti rama Kamate v. Sadashiv Randppa, 1964 Myslj. Supp. 6. wherein it is laid down as follows:" Generally speaking the party seeking to give secondary evidence of the contents of a document on the ground that the document was destroyed or lost, must give some evidence that the original once existed end must then either prove its destruction positively or at least presumptively. If he is able to satisfy the Court that a search had been unsuccessfully made in the place or places where it was most likely to be found, then it would be sufficient to hold that the document is lost so as to allow secondary evidence. What degree of diligence is necessary in the search cannot be easily defined, as each case must depend much on its peculiar circumstances and facts. But the party is generally expected to show that he had in goed faith, exhausted in a reasonable degree all the sources of information and means of discovery, which the nature of the case would naturally suggest and which were accessible to him. The object of the proof is merely to establish a reasonable presumption of the less of the document. If there is any reason for suspecting that it had been purposely or fraudulently withheld, a very strict examination will properly be required. "sec. 65 of the Indian Evidence Act lays down cases in which secondary evidence relating to documents may be given. Unless a case falls within s. 65 of the Indian Evidence Act, secondary evidence is not admissible in law. What is secondary evidence, is provided in S. 63 of the Indian Evidence Act. Now it is to be seen in the first instance whether these copies amount to secondary evidence within the meaning of S. 63 of the Indian evidence Act. Thereafter, the question that would arise for consideration is whether a csse has been made out by the prosecution to bring into application the previsions cf S. 65 of the Indian Evidence Act. ( 29 ) SEC. 63 of the Indian Evidence Act reads as follows :" 63. Thereafter, the question that would arise for consideration is whether a csse has been made out by the prosecution to bring into application the previsions cf S. 65 of the Indian Evidence Act. ( 29 ) SEC. 63 of the Indian Evidence Act reads as follows :" 63. Secondary evidence means and includes (1) Certified copies given under the provisions hereinafter containt (2) Copies made from the original by mechanical Proceesses which in themselves insure the accuracy of the copy, and copies compared with such copies; (3) Copies made from or compared with the original; (4) Counterparts of documents as against the parties who did not execute them; (5) Oral accounts of the contents of a document given by some person who has himself seen it. " ( 30 ) IT may be stated at this stage that this aspect of the matter does not appear to have been either urged before the Special Judge or considered by the special Judge when he passed the order permitting the prosecution to produre the copies in question. if at all S. 63 of the Indian Evidence Act has to be applied, it is only Cl. 2 of S. 63 that can be said to apply, and that is also the contention of Sri K. H. N. Kuranga, the learned Govt Pleader, what is clear from Cl. 2 is that the copies made from the original by mechinical processes which in themselves insure the accuracy of the copy, would become secondary evidence, and copies compared with such copies also would become secondary evidence. That means that the prosecution has to establish in this case that the copies in question had been made from the orginals by such mechanical processes as contemplated in Cl. 2 of Section 63 of the Indian Evidence Act. The only evidence adduced by the prosecut on in this behalf is that of PW. 18. All that PW. 18 has stated is that the original letters had been kept in a file and that file had been keptin an almirah under lock and the key of which was with him and that he did not make any efforts to trace those files, but his clerk T. Raja told him that the files were not traced. In regard to these copies, he has stated that each one is a copy of a letter received by him. In regard to these copies, he has stated that each one is a copy of a letter received by him. He has nowhere stated as to by what process or mechanical process the copies had been prepared and that too from the originals. There being no other evidence, it is manifest that the prosecution has nrt at all established that the copies in question were made from the originals by mechanical process which in themselves insure the accurary of the copies. The latter part of Cl. 2 of S. 63 of the Indian evidence Act has no application because the earlier part viz, the above one has not been established by the prosecution. In view of this conclusion. the next question whether the prosecution has made out a case for the application of S. 65 of the Indian Evidence Act, does not at all arise. Therefore, I held that there copits have been admitted in evidence contrary to the provisions of law and no reliance can be placed by the prosecution on these copies. ( 31 ) A reading of the judgment of the Special Judge shows that he has made copious reference to portions of these copies while accepting the evidence of PWs. 18 and 21. He has, of course, referred to and relied upon two letters proved to have been written by the accused and notes proved to have been put up by the accused in his own hand. The letters proved to have been written by the accused are Exts. P171, P260, P261, P262, P266, p267, P268 and P271. The prosecution has also proved that the accused had put up notes marked Exts. P235, 236, P252, P237, P237 (b), P237 (c), p246, P247 and P256. Exts. P260. P261 P266 and P267 are innocuous in nature. Ext. P268 has been written by the Company and signed by the accused for the Deputy Purchase officer. It is apparent that it is an official letter and not one written by the accused in any other capacity. Exts. P171 and P271 do not have a bearing on what official acts were done by the accused. They have a bearing on the question whether it was the accused who actually was the representative of the firms or whether it was Smt. Subbalakshmi, the wife of the accused, was the representative. They will be dealt with while considering that question. Ext. They have a bearing on the question whether it was the accused who actually was the representative of the firms or whether it was Smt. Subbalakshmi, the wife of the accused, was the representative. They will be dealt with while considering that question. Ext. P236 is the note-sheet written by the accused in regard to waiving of security deposit to be made by M|s Devidayal Cable Marketing Co, bombay. It is in pursuance of this note that an order as per Ext. P236 (a) to the effect that security deposit need not be insisted upon, was passed under the initials of the Joint General Manager. Ext. P237 is the note-sheet prepared by the accused. It relates to release of copper in favour of M/s devidayal Cable Marketing Co. In pursuance of these notes a decision as per Ext. P237 (a) to supply two tonnes of copper to the said firm was taken by the Company. Ext. P237 (b) (c) the notes prepared by the accused is on the same topic. Exts. P246 and P247 are the note-sheets prepared by the accused. In view of these note-sheets, decision as per Ext. 248 was taken by K. M. Shanbhogue, and that relates to release of bank guarantee in favour of the said firm in regard to taking delivery of copper from the company. Ext. P250 is the office notes put up by the accused. It relates to acceptance of supplies made by the said firm and another firm due to acute shortage of copper. Ext. P252 is also office notes put up by the accused, but those notes appear to be innocuous. Ext. P256 goes along with the item concerned in Ext. P237 because it also relates to release of 3 tonnes of copper in favour of the said firm. ( 32 ) FROM what is narrated and discussed in the preceding two paragraphs, it is manifest that it is only the notes put up by the accused that depict what official acts the accused did and what he did in exercise of his official functions. Scrutiny of this material contained in the said note-sheets shows that the official acts did by the accused Re: M/s Devidayal Cable Marketing Co, bombay, relate to release of copper and return of bank guarantee to the said firm. Scrutiny of this material contained in the said note-sheets shows that the official acts did by the accused Re: M/s Devidayal Cable Marketing Co, bombay, relate to release of copper and return of bank guarantee to the said firm. Hence, there is no reliable evidence produced by the prosecution in proof of any other acts done by the accused, particularly in regard to security deposit, 100 Per cent inspection, expediting the bills, issue of debit notes and sending of CIA objection notes. In this view of the matter, even if it is for the sake of argument assumed that it was actually the accused who was representing M/s Devidayal Cable Marketing co, Bombay and he had accepted -gratification other than legal remuneration from them, the findings of the Special Judge that the prosecut on had satisfactorily established that the accused had done official acts or had done certain acts in discharge of his official functions in regard to security deposit, 100 per cent inspection, expediting the bills of M/s Devidayal cable Marketing Co, issuing of debit notes and sending of CIA objection notes, to the said firm, cannot be sustained. Now it would be appropriate to consider whether the prosecution has established that it was the accused who actually was the representative of M/s Devidayal Cable Marketing Co, Bombay, and not Smt. Subba- lakshmi, the wife of the accused. ( 33 ) PW. 21 has sworn that he had not at all seen Smt. Subbalakshmi, the wife of the accused, and that she had, to his knowledge, never gone to the office of the Company as a representative of any firm. Ext. P78 (a) dated 20-3-1970 is the agreement entered into between the accused and M/s Eastern engineering Co, Bombay. Exts. P12 to P16 and P121 are the cheques issued by the said firm in favour of the accused. These facts indicate that the accused was engaging himself in activities as a representative of the said firm. If in fact it was Smt. Subbalakshmi who was to be a representative of any firm, even this agreement would have been with Smt. Subbalakshmi, the wife of the accused, and not with the accused. Ext. P122 dt. 26-3-1969 is the agreement entered into between M/s Ravindra Heraeus ltd, Bombay, and Smt. Subbalakshmi the wife of the accused. If in fact it was Smt. Subbalakshmi who was to be a representative of any firm, even this agreement would have been with Smt. Subbalakshmi, the wife of the accused, and not with the accused. Ext. P122 dt. 26-3-1969 is the agreement entered into between M/s Ravindra Heraeus ltd, Bombay, and Smt. Subbalakshmi the wife of the accused. Though this agreement has been made out to be with Smt. Subbalakshmi, it is seen that on 30-11-1970 i. e. , after the accused abandoned his service, an agreement with him as per Ex. , P-170 has come into existence. PW. 18 has stated that his firm orally appointed the accused as its representative. He has further on in his evidence stated that their representative was required to get business for their firm and to see that the bills of the firm were promptly paid. Payments have been made by the firm by means of demand drafts which are available at Exts. P-32 to P-35. But, these are drawn in favour of Smt. Subbalakshmi. When these facts appearing in the evidence of FW-18 are correlated, the necessary inference that flows is that it was for the sake of keeping Up appearances that demand drafts were drawn in favour of the wife of the accused. The say of the accused that he was simply a name-lender for his wife and he even signed Ex. P-170 and Ex. P-78 (a) on behalf of his wife, cannot be accepted. Moreover, it is plain that Smt. Subbalakshmi, the wife of the accused, could not have effectively represented this firm in securing business for it and in chasing their bills. In this connection, it is important to take note of Ex. P-171 which, is proved by the evidence of PWs. 18 and 21, and is under the signature of the accused. Though Ex. P-171 has nothing to do with the dealings of m|s Devidayal Cable Marketing Company, Bombay, with the Company in question, it very clearly depicts that the accused was in fact the representative of M/s. Devidayal Cable Marketing Company, as sworn to by pw. 18. In Ex. P-171, the accused has written to FW. 18 himself stating that he had met one H. Y. Subramanyam, Purchase Officer, H. M. T. , and ascertained what were their requirements. He has communicated their requirements in this letter. 18. In Ex. P-171, the accused has written to FW. 18 himself stating that he had met one H. Y. Subramanyam, Purchase Officer, H. M. T. , and ascertained what were their requirements. He has communicated their requirements in this letter. If in fact Smt. Subbalakshmi was the representative of M/s. Devidayal cable Marketing Company, the accused would not have met H. Y. Subramanyam, Purchase Officer, H. M. T. , and assertained what were the requirements of H. M. T. , and taken the trouble of communicating the same to PW. 18. This letter further shows that the say of PW. 18 that it was the duty of the representative to secure business for their firm, is amply supported and that the accused had attempted to secure business for them. Ext. P271 also is worth noting in this behalf. PWs. 21 and 18 have sworn that this letter has been written by the accused and it is under his initials. It is addressed to Sri Ravindra brother of PW. 18. A reading of this letter leaves no doubt in the mind of anyone that the details about the manner in which the higher officers work in the Company, are supplied to Sri Ravindra. The accused has further on stated as follows: "by that time I shall also give you further tips to convince my people here which I am sure would definitely be advantageous to you to right out your case. . . . . . I have written you what I have felt and it is now for you to decide either this way or the other. I shall however await your immediate reply in the matter. If need be, I do not mind to come over there on my expenses to convince you in the matter. It does not matter how much it may cost me, but it is essential from the point of security in the future. You need not hesitate in the matter. All the expenses would be come by me. . . . . . . . At least we should be firm in this platinum case. I am incompetent to comment any further in the matter and would leave entire thing to your good judgment however I shall expect your immediate comments in the matter. " ( 34 ) SMT. All the expenses would be come by me. . . . . . . . At least we should be firm in this platinum case. I am incompetent to comment any further in the matter and would leave entire thing to your good judgment however I shall expect your immediate comments in the matter. " ( 34 ) SMT. Subbalakshmi, the wife of the accused, could not have been in a position to furnish all the details that are contained in Ex. P-271. The way in which, the accused has expressed himself in Ex. P-271 shows that every thing was being done by him as a representative of M|s. Devidayal Cable marketing Company. Therefore, I agree with the Special Judge in his finding that the prosecution has satisfactorily established that the accused got himself appointed as a representative of M/s. Devidayal Cable Marketing company, Bombay. When that is the conclusion, it further follows that the amounts received by means of cheques, drafts and money orders - may be in the name of Smt. Subbalakshmi, the wife of the accused- have in fact been received by the accused. ( 35 ) SRI Venkataramanaiah argued that neither PW. 18 nor PW. 21 has stated anything in his evidence that the accused did official acts to favour m/s Devidayal Cable Marketing Company, Bombay. He further argued that PW. 18 was competent enough to narrate as to what they expected of the accused as their representative and what they required the accused to do in his official capacity or in discharge of his official functions to show favour to them and how the accused in fact discharged that obligation towards them. He pointed out that PW. 18 has not even whispered anything in regard to this aspect of the matter and that shows that the prosecution has not been able to establish satisfactorily this aspect and as such it will have to be held that the ingredients of S. 161 of the Indian Penal code have not been established. ( 36 ) IT is true that the evidence of PW. 18 in particular, ought to have been put before the Court on the lines argued by Sri Venkataramanaiah. The special Public Prosecutor, who was in-charge of the case at that stage, is the only person who can be expected to know why the evidence of PW. 18 was not adduced on those lines. 18 in particular, ought to have been put before the Court on the lines argued by Sri Venkataramanaiah. The special Public Prosecutor, who was in-charge of the case at that stage, is the only person who can be expected to know why the evidence of PW. 18 was not adduced on those lines. It is for want of this material that further comments in this behalf cannot be made by this Court. I may make it clear here itself that Sri V. A. Rama Sharma, who conducted the case as Special Public Prosecutor after it was remanded, was not the Special public Prosecutor in-charge of the case at that stage. But, the above aspect does not affect the case of the prosecution in view of the documentary material narrated and discussed in the preceding paragraphs. Of course, it would have been of great assistance to the Court if the evidence of PW. 18 had been adduced on the lines suggested in the preceding paras as much time would have been saved in scrutinising and understanding the documentary material. But the documentary material by itself is more than sufficient to show that the accused has done official acts and that he has done certain acts in exercise of his official functions in regard to the transactions of M|s. Devidayal Cable Marketing company, Bombay, with the Company. It is satisfactorily established from the same material and the evidence of PW. 18 that the accused has received gratification other than remuneration that he was receiving from the Company as a representative of M/s. Devidayal Cable Marketing Company, Bombay. Sri Venkataramanaiah contended that the prosecution must establish some nexus between the receipt of such gratification and the acts done by the accused in discharge of his official functions, and unless such rexus is established, the main ingredient in S. 161 of the Indian Penal Code, cannot be said to have been established. Whether a nexus to the effect that the accused had accepted gratification from M's. Devidayal Cable Marketing company, Bombay, as a motive or reward for doing officials acts or for showing favour to the said film in exercise of his official functions, has been established or not, is a matter of inference. In my opinion Exp-271 play an important role on this question. In my opinion Exp-271 play an important role on this question. If the accused had put up the notes referred to above only in discharge of his official duties and not because of accepting gratification from M/s. Devidayal Cable Marketing Company, bombay, the accused would not have written the letter Ex. P-271 to the brother of PW. 18. Hence, I agree with the Special Judge that the prosecution has satisfactorily established the nexus between the receipt of gratification by the accused and the official acts done by the accused and also the acts done by him in discharge of his official functions. Hence, ingredients of S. 161 of the Indian Penal Code have been established and, therefore, the offence contemplated under S. 5 (1) (a) punishable under S. 5 (2) of the Act, has been proved only in regard to the material relating to release of copper and returning of bank guarantee. ( 37 ) SRI Venkataramanaiah submitted that the acts done by the accused, as complained by the prosecution, have not been detrimental to the interests of the Company, and the worst that might be said against the accused is that he has secured some amounts from M/s Devidayal Cable Marketing Co, Bombay. He further submitted that the prosecution has failed in establishing many of the other aspects in regard to not only M/s Devidayal Cable marketing Co, Bombay, but also the other three firms mentioned in the charge. He, on this basis, prayed that a lenient view be taken in the matter of sentence, and argued that the sentence of rigorous imprisonment for six months passed by the Special Judge is too harsh. He sought support from the decision in B. C. Goswami v. Delhi Administration (6 ). The learned Govt Pleader had nothing much to urge as against this submission of Sri Venkataramanaiah. ( 38 ) IN view of the facts and circumstances available in this case and the observations of the Supreme Court in B. C. Goswami's case (5), I agree with the submission made by Sri Venkataramanaiah, in the matter of sentence. From the record, I find that the accused has undergone rigorous imprisonment for some days when he was convicted in the first instance. I hold that the period that he has already undergone meets the ends of justice while maintaining the sentence of fine passed by the Special Judge. I order accordingly. From the record, I find that the accused has undergone rigorous imprisonment for some days when he was convicted in the first instance. I hold that the period that he has already undergone meets the ends of justice while maintaining the sentence of fine passed by the Special Judge. I order accordingly. Before closing the judgment, I consider it appropriate to put on record that Sri H. R. Venkataramanaiah, the learned Advocate appearing on behalf of the accused-appellant, and Sri K. H. N. Kuranga, the learned Govt pleader with the assistance of Sri V. A. Rama Sharma, argued the case ably. For the foregoing reasons, I dismiss this appeal subject to the modification in the sentence as narrated above. --- *** --- .