Judgment.-The appellant K.S. Subramanys. has been convicted by the Special Judge, Bangalore, in C.C.No. 7 of 1972 for having committed the offence specified in section 5 (1) (a) punishable under section 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 period between November, 1968 and 17th November, 1970 working as a senior clerk in the purchase department of the Indian Telephone Industries Limited, 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 get 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 Department of the Indian Telephone Industries Limited, Bangalore, during the period between November, 1968 and 17th November, 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 Department of the Indian Telephone Industries Limited, Bangalore, during the period between November, 1968 and 17th November, 1970 at Bangalore, habitually accepted gratification other than legal remuneration to the tune of Rs. 16,900 for yourself; from four firms namely (1) M/s. Devidayal Cable Marketing Company, Bombay; (2) M/s. Associated Electrical Agencies, Madras; (3) M/s. Eastern Engineering Company, Bombay; and (4) M/s. Ravindra Herasus Limited 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 Department, in connection with their supplies and amounts due to them or bills for their supplies to the Indian Telephone Industries Ltd., Bangalore, and thereby committed the offence specified in section 5 (1) (a) of the Prevention of Corruption Act (II of 1947) punishable under section 5 (2) of the said Act and within my cognizance." 3. The prosecution case is that the Central Government holds about 90 per cent, shares and the Katnataka Government holds about 7 to 1½ per cent, shares in the Company. Therefore, the Company in question is a Company falling within the definition of section 617 of the Companies Act, 1956, and as such its servants are public servants within the meaning of section 21 of the Indian Penal Code. 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 31st March, 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 order 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. P. W. 1 Mahabir Swarup and P. W. 21 R. Nagabhushana Rao are the Officers of the company. P. W. 1 is the Personnel Manager and P. W. 21 is the Deputy Purchase Officer. 4. In order to establish the charge against the accused, the prosecution has examined in all 23 witnesses. P. W. 1 Mahabir Swarup and P. W. 21 R. Nagabhushana Rao are the Officers of the company. P. W. 1 is the Personnel Manager and P. W. 21 is the Deputy Purchase Officer. P. W. 16 R. Anano is the partner of M/s. Eastern Engineering Company, Bombay. P. W. 17 Chandrakanth Choksi is one of the directors of M/s. Ravindra Heraeus Limited, Bombay. P. W. 18 Bankey Aggarwal is one of the partners of M/s. Devidayal Cable Marketing Company, Bombay. P. W. 19 S.R. Jevarajkar is a partner and P. W. 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 representative and drew remuneration from them as motive or reward to show favour in his officia1 capacity in the transactions of the said firms with the Company. 5. Exhibit P-78 (a) dated 20th March, 1970 is said to be the agreement entered into between M/s. Eastern Engineering Company, Bombay, and - he accused Exhibit P-122 dated 26th March, 1969 is said to be the agreement entered into between M/s. Ravindra Heraeus Limited, Bombay, and Smt. Subbalakshmi. Exhibit P-170 dated 30th November, 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 Company, Bombay, and that fact is available in the evidence of P. W. 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 P. Ws 19 and 20. Exhibits P-12 to P-16 and P-121 are cheques issued by M/s. Eastern Engineering Company to the accused. Exhibits P-163 to P-163 (g) are the receipts depicting payments made to Smt. Subbalakshmi by M/s. Ravindra Heraeus Limited, Bombay. Exhibits P-164 to P-164 (e), P-166 to P-166 (b) and P-l69 are cash vouchers also depicting the same. Exhibits P-168 and P-169 (a) are M.O. receipts showing payment of money to Smt. Subbalakshmi by the said firm. Exhibits P-163 to P-163 (g) are the receipts depicting payments made to Smt. Subbalakshmi by M/s. Ravindra Heraeus Limited, Bombay. Exhibits P-164 to P-164 (e), P-166 to P-166 (b) and P-l69 are cash vouchers also depicting the same. Exhibits P-168 and P-169 (a) are M.O. receipts showing payment of money to Smt. Subbalakshmi by the said firm. Exhibits P-32 to P 35 are the demand drafts showing payments to Smt. Subbalaksnmi by M/s. Devidayal Cable Marketing Company, Bombay. Exhibits P-19 to P-22 are the cheques and Exhibit P-213 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 M. O. receipts, is the gratification received by the accused other than legal remuneration within the meaning of section 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 18th November, 1970 by writing a letter to that effect as per Exhibit P-2 dated 17th November, 1970, 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 section 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 Exhibits P-78 (a) and P-170 are signed by him for his wife Smt. Subbalakshmi and in fact she was appointed the representative of M/s. Eastern Engineering Company, Bombay, and M/s. Ravindra Heraeus Limited, Bombay respectively. He wrote letters to the said firms on her behalf, but in that regard he was only a name-lender. Even the agreements Exhibits P-78 (a) and P-170 are signed by him for his wife Smt. Subbalakshmi and in fact she was appointed the representative of M/s. Eastern Engineering Company, Bombay, and M/s. Ravindra Heraeus Limited, Bombay respectively. He has stated that the amount evidenced by cheques, demand drafts, receipts, cash vouchers and M.O. 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. Subbalakishmi. 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 Company, Bombay, in the matter of security deposit 100 per cent, inspection, return of copper, expediting the bills of M/s. Devidayal Cable Marketing Company, return of bank guarantees, issuing of debit notes and sending the Chief Internal Auditor’s objection notes (hereinafter referred to as C. I. A. objection notes) . The Special Judge has not accepted the prosecution case in regard to M/s. Eastern Engineering Company, Bombay, M/s. Ravindra Heraeus Limited, 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 P. Ws. 16, 17, 19 and 20. P. W. 16 has categorically admitted that there were no transactions of his firm with the company during the period in question. Though P. W. 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 section 161 of the Indian Penal Code. P. W. 20 has not supported, the prosecution while P. W. 19 has supported the prosecution to a little extent but his evidence has not advanced, the case of the prosecution. 9. 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 Company, Bombay. 10. 9. 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 Company, Bombay. 10. Sri H. R. Venkataramaniah, the learned Advocate appearing on behalf of the accused-appellant, pointed out that the twelfth clause to section 21 of the Indian Penal Code came to be incorporated by Act II of 1958 and thereafter, was again amended by Act XL of 1964, and this clause was not in section 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 section 21 of the Indian Penal Code and as such it would, not be in accordance with law to read this clause into section 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 section 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 section 161 of the Indian Penal Code, or....." In other words, the argument of Sri Venkataramanaiah is that while understanding section 2 and section 5 of the Act, the Court has to refer to section 21 of the Indian Penal Code as it stood when the Act came into force and should not take into consideration the subsequent amendments to section 21 of the Indian Penal Code. 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 rest by the Supreme Count in the decision in The State of Madhya Pradesh v. M.V. Narasimahan1. 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. 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. 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 amendmens 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 amendment of the previous Act, either expressly or by necessary intendment, applies to the said provisions to the subsequent Act. It has also been held as follows: "The Prevention of Corruption Act, 1947, is not in pari materia with Indian Penal Code. Firstly, the Act is a completely self-contained statute with its own provisions and has created a specific offence of criminal misconduct which is quite different fro:n the offence of bribery as defined in the Penal Code. They do not form one system. Secondly, while the Indian Perna1 Code is essentially 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. In other words, public servants alone fall within the mischief of the Act, i.e., the Prevention of Corruption. Act, and no one else." The Supreme Court has further on laid down in the said decision as follows: "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 supple mental to the Penal Code and that being the position any amendment in the definition of section 21 of the Penal Code would have to be read into section 2 of the Act, because once the definition of section 21 of the Penal Code was incorporated in the Act, it had to be imported into the other Act and considered pari 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. 11. The next argument of Sri Venkataramanaiah is that the resignation tendered by the appellant-accused as per Exhibit P-2 dated 17th November, 1970 was not accepted by the Company, as is clear from its letter Exhibit P-273 dated 18th November, 1970, and, hence, Exhibit P-2 did not survive to be considered any further by the company. The accused having not tendered any resignation there after, the say of the Company that it accepted the resignation of the accused with effect from 18th November, 1970, as is clear from its letter Exhibit P-277 dated 27th November, 1971, cannot be relied upon to hold that the accused had resigned from service. The company could not issue its letter Exhibit P-277 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 Exhibit P-2, the matter came to an end 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 section 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 section 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 prosecute under section 6 of the Act. In regard to Exhibits P-274 dated 18th November, 1970 and P-275 dated 19th November, 1970 which are the letters written by the accused to the Joint General Manager 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 urged that such a unilateral act of severing one’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 thereby abandoned the service of the Company and ceased to be an employee of the Company, 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 Exhibit P1. 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 Exhibit P-1 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 to Standing Order Nos. 17 and 18. 12. 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 termination of service takes effect from the date when he intimates accordingly the authorities of the Company. He referred to Standing Order Nos. 17 and 18. 12. 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 termination 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 the Company by its letter Exhibit P-277 dated 27th November, 1971 accepted the resignation of the accused with effect from 18th November, 1970, 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 section 6 of the Act was necessary and as such the prosecution was in accordance with the provisions of law. 13. In the above context itself, Sri Venkataramaniah argued that even if the reply given by the Company by its letter Exhibit P-273 dated 18thNovember, 1970 refusing to accept the resignation tendered by the accused by his letter Exhibit P-2 dated 17th November, 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 18th November, 1970 but having communicated the same by its letter Exhibit P-277 dated 27th November, 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. 14. Sri K.H.N. Kuranga, the learned Government 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 Exhibit P-2 but also by writing Exhibits P-274 and P-275 dated 18th November, 1970 and 19th November, 1970. He further urged that such voluntary termination of service became effective from the dates of writing of these letters. 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 Company had communicated to the accused by its letter Exhibit P-277 dated 27th November, 1971 that it had accepted his resignation with effect from 18th November, 1970, that letter has no effect in law inasmuch as the accused had voluntarily terminated his service, at the latest by 19th November, 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 section 6 of the Act not necessary in law. 15. In view of the stand taken on behalf of the State in regard to Exhibits P-2,P-274 and P-275, the argument of Sri Venkataramanaiah on the basis of section 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 17th November, 1970 or 18th November, 1970 or 19th November, 1970. 16. 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 Nanjibhai v. Vin (D.M.), Presiding Officer, First Labour Court and others1, wherein 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 choas in the sector of employment, and ualess 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 Exhibit P-1 — the Standing Orders — providing a right to an employee to voluntarily terminate his service. To my mind, his contention does not appear to be sound. He also urged that there is no term in the terms of service contained in Exhibit P-1 — the Standing Orders — providing a right to an employee to voluntarily terminate his service. To my mind, his contention does not appear to be sound. It is to be remembered that the Standing Orders in Exhibit P-1 are the terms of contract of service between the employees 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 of leave granted for more than 15 days,. he shall be considered as having voluntarily left and abandoned the Company’s service and voluntarily terminated his employment with the Company 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 workmen in leave application, shall be deemed good service for this purpose and will not be challenged. A plain reading of this Order shows that an employee can voluntarily terminate his service by remaining absent for fifteen days 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 safeguard 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 achieve this purpose, 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 achieve this purpose, 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 case1, cannot apply bees/use 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 immediately on it being tendered. Therefore, I hold 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 seven 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 employees, 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 Dearness Allowance 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 day’s notice of by payment of basic wages plus Dearness Allowance 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.” Both sides are agreed that according to this clause, the Company has power to terminate the service of its permanent monthly rated employee by giving 30 days’ notice or by paying wages at the basic rate of pay plus Dearness Allowance 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. What is to be, in my opinion, specifically borne in mind is that a specific term 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 Clause-1 only. It reads as follows: “A permanent monthly rated employee desirous of leaving the Company’s service shall give 30 days’ 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 Dearness Allowance 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 Dearness Allowance 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 of-by the employee.‘ 18. 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 Order 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 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 Clause 1 of Standing Order No.17, it is specifically mentioned that ‘the employment of any permanent monthly rated employee may be terminated while in Clause-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, Clause-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 Dearness Allowance in lieu of 30 clays’ notice, and await acceptance of his offer by the Company. 19. 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 18th November, 1970, inasmuch as on 21st November, 1970, he received letter Exhibit P-276 dated 20th November, 1970, issued by the Company informing him that he had been kept under suspension from 21st November, 1970. It is clear therefrom that he could not have attended to his duties in the Company from 21st November, 1970. That means that he was absent only from 18th November, 1970 till 21st November, 1970. 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 time 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 time 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 or 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 a voluntarily terminating his service. This apsect is to be, in my opinion, borne in mind while understanding the intendment of Standing Orders Nos. 17 and 18. 20. It is elementary that a contract has to be read as a whole to get a clear idea of the terms contracted. Exhibit P-1 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 Exhibit P-1, 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 it the basic rate of pay plus Dearness Allowance in lieu of 30 days’ notice in the case of any permanent monthly rated employee. It 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.1. 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 Clause -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 Exhibit P-1. 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 clause 1, then termination of his service takes effect immediately titer the expiry of 30 days. If he forfeits one month’s wages at the basic rate of pay and Dearness Allowance in lieu of notice, as provided in Clause-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 P.V. Gindroniya v. State of Madhya Pradesh and another1. 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 18th November, 1970. In V.P. Gindroniya’s Case1, rule 12 (a) of the Madhya Pradesh Government Servants (Temporary 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. In V.P. Gindroniya’s Case1, rule 12 (a) of the Madhya Pradesh Government Servants (Temporary 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 Government and the temporary Government servant, the service of a temporary Government servant who is not in quasi-permanent service, shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant: Provided that the services of any such Government 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.” The relevant portion of the notice given by the appellant is excerpted by the Supreme Court in paragraph 14 of the judgment, as follows: “Whereas the undersinged holds no charge this day and is not on duty and intends to bring the termination of his employment with the Government of Madhya Pradesh forthwith on receipt of this writing and Whereas as required by the service rules the undersinged 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 of employer and employee now existing; between the Government of Madhya Pradesh and the undersinged shall cease to exist and consequently all rights, duties and obligations arising: from and under the aforesaid relationship shall hereafter absolutely cease.” The Supreme Court disagreed with the Madhya Pradesh High Court and held that by the said notice the appellant intimated to the Government that the amounts due from him to the Government under the provisos 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 eversince 9th June, 1964, the appellant was. On concluding so, the Supreme Court further held that eversince 9th June, 1964, the appellant was. not in the service of the Government because he had given notice dated 6th June, 1964 and that was received by the Government on 9th June, 1964. 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 Exhibits P-2 dated 17th November, 1970, P-274 dated 18th November, 1970 and P-275 dated 19th November, 1970, 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 Exhibit P-2 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 17th November, 1970. He has intimated that he would not be attending the office from 18th November, 1970, and for all practical purposes he is deemed to have left the service of the Company with effect from 17th November, 1970 at 5.00 p.m. He has sent Exhibit P-2 through proper Channel. Exhibit P-274 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 Exhibits P-274 are similar to the contents of Exhibit P-2. Exhibit P-275 has been written by him on receipt of Exhibit P-273 intimating him that his resignation was not accepted as an investigation was pending against him. In Exhibit P-275, he has unequivocally stated that whether the Company accepted his resignation or not, he had severed his connections with the Company with effect from 17th November, 1970, 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 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 ther eafter as they would be unilateral decisions and that in his letter dated 17th November, 1970 he had made it clear that in any case he was not going to attend to his duties from 18th November, 1970. In Exhibit P-2 itself he has intimated the Company 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 part of Exhibit P-2 shows that he forfeited to the Company the amount mentioned in Clause 1 of Standing Order No.18 in lieu of notice provided in that clause.. In V.P. Gindroniya’s Case1. 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 Government, 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 so expressed in the case on hand also. Therefore, I hold that the accused voluntarily left and abandoned the Company’s service with effect from 18th November, 1970 and voluntarily terminated his employment with the Company with effect from 19th November. 1970. 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 section 6 of the Act, was not necessary. 21.The next point argued by Sri Venkataramanaiah is that no offence under section 161 of the Indian Penal Code can be said to have been made out against the accused and as such no offence under section 5 (1) (a) punishable under section 5 (2) of the Act can be said to have been made out. 21.The next point argued by Sri Venkataramanaiah is that no offence under section 161 of the Indian Penal Code can be said to have been made out against the accused and as such no offence under section 5 (1) (a) punishable under section 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 he 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 section 161 of the Indian Penal Code 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 other 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 Government, which he serves, to accept. There can be no offence unless the gratification solicited or accepted is illegal." In Dr. Sir Hari Singh Gour’s Penal Law of India, 9th Edition (at page 1324), it is observed as follows: "There can be, of course, no offence unless the gratification solicited or accepted was illegal. There can be no offence unless the gratification solicited or accepted is illegal." In Dr. Sir Hari Singh Gour’s Penal Law of India, 9th Edition (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 Government. 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 section 161 of the Indian Penal Code. The Explanation runs as follows: "‘Legal remuneratian’.-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 prior to the incorproation of the twelfth clause to section 21 of the Indian Penal Code, it relates only to public servants serving the Government. It is in the light of this Explanation that the two learned Authors have observed as above excerpted in their comments. The accused was not a public servant serving the Government. In fact he was not at all a public servant prior to the year 1958 when clause twelfthly to section 21 of the Indian Penal Code came to be incorporated. He became a public servant because of the amendment to section 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 section 161 of the Indian Penal Code, cannot be understood to mean "that is not" but have to be understood to mean "apart from" That is clear from not only the intendment of section 161 of the Indian Penal Code, 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 illegal one and, therefore, not a legal one and hence must have been prohibited by law. Hence, I do not agreewith this contention of Sri Venkataramanaiah. 22. Before an offence can be held to fall within clause (a) of sub-section 1 of section 5 of the Act, the requirements of section 161 of the Indian Penal Code, have to be satisfied. If an offence does not fall under section 161 of the Indian Penal Code, it cannot fall within section 5 (1) (a) of the Act. That is how the Supreme Court has ruled in the decision in Dalpat Singh and another v. State oj Rajasthan1. In the very same decision, the Supreme Court has held that before an offence is held to fall under section 161 of the Indian Penal Code, 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 someone in the exercise of his official functions; or (c) rendering, or attempting to render any service or dis-service to someone, with the Central or any State Government or Parliament or the Legislature of any State, or with any public servant." Now it is to be seen to what extent the prosecution has, in this case, satisfactorily established the aforementioned ingredients. 23. The learned Special Judge has, as already narrated, acted on the evidence of P. W. 18 and not on the evidence of P. Ws. 16, 17, 19 and 20. The learned Special Judge has held, on the evidence of P. Ws. 23. The learned Special Judge has, as already narrated, acted on the evidence of P. W. 18 and not on the evidence of P. Ws. 16, 17, 19 and 20. The learned Special Judge has held, on the evidence of P. Ws. 18 and 21, that the prosecution has satisfactorily established that the accused had helped P. W. 18 and his firm in the matter of security deposit, 100% inspection, returning of copper, expediting their bills, returning of bank guarantee, issuing of debit notes and sending of G. I A. objection notes, and, therefore, had committed the offence with which he was charged. It is seen from the deposition of P. W. 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 P. W. 18 or his brother, were sought to be produced in evidence, the defence ob|ected on the ground that they are not legally admissible, and the Special Judge has overruled 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 arc admissible. The objection is overruled and the letters are marked." Few more facts necessary to understand the nature of the objection aised and the idea underlying the order passed by the Special Judge, may be narrated as folllows: "On 17th November, 1970, P. W. 22 B.S. Rama Rao, Deputy Superintendent of Police, received credible information about the commission of this offence registered a case as R.C. No. 48 of 1970 under section 5 (1) (a) read with section 5 (2) of the Act and issued First Information Report as per Exhibit P-272. 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 P. W. 2, R. G. Satyanarayana Murthy, went to the house. According to P. Ws. 2 and 22, the accused got down from the Company bus and P. W. 22 accosted him and showed him the warrant. According to P. Ws. 2 and 22, the accused got down from the Company bus and P. W. 22 accosted him and showed him the warrant. The accused voluntarily produced files containing documents 12 files were in an almirah in the drawing room of his house. Those files are Exhibits P-7 (a) to P-7 (n) except (i). Exhibit P-7 is the copy of the search list. The copies sought to be produced were found in these files. The say 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. 24. Though the accused has not admitted having produced these files, it is clear from the evidence of P. Ws. 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 these copies. Exhibit P-171 bears the signature of the accused. The accused has denied that signature, but P. W. 21 R. Nagabhusana Rao has proved the same. The Special Judge has accepted the evidence of P. W. 2J in regard to this aspect of the matter because it is clear from the evidence of P. W. 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. Exhibits P-260,P-261,P-266, P-267, P-268 and P-271 bear either the signature or the initials of the accused, and that fact is sworn to by P. W. 21. The remaining documents out of Exhibits P. 170 to P-212 are only copies which do not bear either the signature or the initials either of the accused or of his wife Smt. Subbalakshmi. The objection raised on behalf of the defence pertains to these copies. The remaining documents out of Exhibits P. 170 to P-212 are only copies which do not bear either the signature or the initials either of the accused or of his wife Smt. Subbalakshmi. 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 P. W. 18. 25. Sri Venkataramanaiah urged that this order of the Special Judge is not sound because it does not satisfy the ingredients of section 65 of the Indian Evidence Act. He placed reliance on the decision of this Court in Maruti Rama Kamate v. Sadashiv Ranappa alias Anna Kamate and others1, 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 and must then either prove its destruction positively or at least presumptively. If he is able to satisfy the Court that a search nad 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 good 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 loss 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." Section 65 of the Indian Evidence Act lays down cases in which secondary evidence relating to documents may be given. Unless a case falls within section 65 of the Indian Evidence Act, a. secondary evidence is not admissible in law. Unless a case falls within section 65 of the Indian Evidence Act, a. secondary evidence is not admissible in law. What is secondary evidence, is provided in section 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 section 63 of the Indian Evidence Act. Thereafter, the question that would arise for consideration is whether a case has been made out by the prosecution to bring into application the provisions of section 65 of the Indian Evidence Act. 25-A. Section 63 of the Indian Evidence Act reads as follows: "63. Secondary evidence means and includes- (1) Certified copies given under the provisions hereinafter contained; (2) Copies made from the original by mechanical processes 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." 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 be passed the order permitting the prosecution to produce the copies in question. If at all section 63 of the Indian Evidence Act has to be applied, it is only Clause 2 of section 63 that can be said to apply, and that is also the contention of Sri. K.H.N. Kuranga, the learned Government Pleader. What is clear from Clause 2 is that the copies made from the original by mechanical 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 originals by such mechanical processes as contemplated in Clause 2 of section 63 of the Indian Evidence Act. The only evidence adduced by the prosecution in this behalf is that of P. W. 18 . That means that the prosecution has to establish in this case that the copies in question had been made from the originals by such mechanical processes as contemplated in Clause 2 of section 63 of the Indian Evidence Act. The only evidence adduced by the prosecution in this behalf is that of P. W. 18 . All that P. W. 18 has stated is that the original letters had been kept in a file and that file had been kept in an almirah under lock and key of which was with him and that he did not make any efforts to trace these 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. 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 not at all established that the copies in question were made from the originals by mechanical processes which in themselves insure the accuracy of the copies. The latter part of Clause 2 of section 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 tor the application of section 65 of the Indian Evidence Act,v does not at all arise. Therefore, I hold That these copies have been admitted in evidence contrary to the provisions of law and no reliance can be placed by the prosecution on these copies. 26. 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 P. Ws. 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 Exhibits P-171, P-260-P-261, P-262, P-266, P-267, P-268 and P-271. 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 Exhibits P-171, P-260-P-261, P-262, P-266, P-267, P-268 and P-271. The prosecution has also proved that the accused had put up notes marked Exhibits P-235, P-236, P-252 P-237, P-237 (6), P-237 (c), 1-246, P-247 and P-256. 27. Exhibits P-260, P-261 P-266 and P-267 are innocuous in nature. Exhibit P-268 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. Exhibits P-171 and P-271 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. Subbalakhmi, the wife of the accused, was the representative. They will be dealt with while considering that question. 28. Exhibit P-236 is the note-sheet written by the accused in regard to waiving of security deposit to be made by M/s. Devidayal Cable Marketing Company, Bombay. It is in pursuance of this note that an order as per Exhibit P-236 (a) to the effect that security deposit need not be insisted upon, was passed under the initials of the Joint General Manager Exhibit P-237 is the note-sheet prepared by the accused. It relates to release of copper in favour of Messrs Devidayal Cable marketing Company. In pursuance of these notes a decision as per Exhibit P-237 (a) to supply two tonnes of copper to the said firm, was taken by the Company. Exhibit P-237 (b) (c) the notes prepared by the accused is on the same topic. Exhibits P-246 and P-247 are the note-sheets prepared by the accused. In view of these note-sheets, decision as per Exhibit P-248 was taken by K.M. Shanghogue, and that relates to release of bank guarantee in favour of the said firm in regard to taking delivery of copper from the Company. Exhibit P-250 is the office notes put up by the accused. In view of these note-sheets, decision as per Exhibit P-248 was taken by K.M. Shanghogue, and that relates to release of bank guarantee in favour of the said firm in regard to taking delivery of copper from the Company. Exhibit P-250 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. Exhibit P-252 is also office notes put up by the accused, but those notes appear to be innocuous. Exhibits P-256 goes along with the item concerned in Exhibit P-237 because it also relates to release of 3 tonnes of copper in favour of the said firm. 29. 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: Messrs Devidayal Cable Marketing Company, Bombay, relate to release of copper and return of bank gurantee 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 depoist, 100 percent, inspection, expediting the bills, issue of debit notes and sending of C.I.A. objection notes. In this view of the matter, even if it is for the sake of arguments assumed that it was actually the accused who was representing Messrs Devidayal Cable Marketing Company, Bombay, and he had accepted gratification other than legal remuneration from them, the findings of the Special Judge that the prosecution 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 percent inspection, expediting the bills of Messrs Devidayal Cable Marketing Company, issuing of debit notes and sending of C.I.A. objection notes, to the said firm, cannot be sustained. 30. Now it would be appropriate to consider whether the prosecution has established that it was the accused who actually was the representative of Messrs Devidayal Cable Marketing Company, Bombay, and not Smt. Subbalakshmi, the wife of the accused. 31. 30. Now it would be appropriate to consider whether the prosecution has established that it was the accused who actually was the representative of Messrs Devidayal Cable Marketing Company, Bombay, and not Smt. Subbalakshmi, the wife of the accused. 31. P. W. 21 has sworn that he had not at all seen Smt. Subbalakshmi, the wife of the accused, and that she had, to his knoweldge, never gone to the office of the Company as a representative of any firm. Exhibit P-78 (a) dated 20th March, 1970, is the agreement entered into between the accused and Messrs Eastern Engineering. Company, Bombay. Exhibits P-12 to P-16 and P-121 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. Exhibit P-122 dated 26th March, 1969, is the agreement entered into between Messrs Ravindra Heraeus Limited, 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 30th November, 1970, i.e., after the accused abandoned his service, an agreement with him as per Exhibit P-170 has come into existence. P.W. 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 Exhibits P-32 to P-35. But, these are drawn in favour of Smt. Subbalakshmi. When these facts appearing in the evidence of P.W. 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 Exhibit P-170 and Exhibit P-78 (a) on behalf of his wife, cannot be accepted. The say of the accused that he was simply a name-lender for his wife and he even signed Exhibit P-170 and Exhibit 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 Exhibit P-171 which, is proved by the evidence of P.Ws. 18 and 21 and is under the signature of the accused. Though Exhibit P-171 has nothing to do with the dealings of Messrs Devidayal Cable Marketing Company, Bombay, with the Company in question, it very clearly depicts that the accused was in fact the representative of Messrs Devidayal Cable Marketing Company, as sworn to by P.W.18. In Exhibit P-171, the accused has written to P.W.18 himself stating that he had met one H.Y. Subramanyam, Purchase Officer, Hindustan Machine Tools, and ascertained what were thier requirements. He has communicated their requirements in this letter. If in fact Smt. Subbalakshmi was the representative of Messrs Devidayal Cable Marketing Company, the accused would not have met H. Y. Subramanyam, Purchase Officer, Hindustan Machine Tools, and ascertained what were the requirements of Hindustan Machine Tools, and taken the trouble of communicating the same to P.W.18. This letter further shows that the say of P.W. 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. Exhibit P-271 also is worth noting in this behalf. P.Ws. 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 P.W.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 any people here which I am sure would definitely be advantageous to you to fight 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. The accused has further on stated as follows: “By that time I shall also give you further tips to convince any people here which I am sure would definitely be advantageous to you to fight 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 (at) my expenses to convince you in 1 he 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 borne 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 (the) entire thing to your good judgment. However I shall expect your immediate comments in the matter.” Smt. Subbalakshmi, the wife of the accused, could not have been in a position to furnish all the details that are contained in Exhibit P-271. The way in which the accused has expressed himself in Exhibit P-271 shows that everything was being done by him as a representative of Messrs 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 Messrs 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. 32. Sri Venkataramanaiah argued that neither P.W.18 nor P.W.21 has stated anything in his evidence that the accused did official acts to favour Messrs Devidayal Cable Marketing Company, Bombay. He further argued that P.W.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 further argued that P.W.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 P.W. 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 section 161 of the Indian Penal Code have not been established. 33. It is true that the evidence of P.W. 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 P.W. 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. 34. 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 P.W. 18 had been adduced on the lines suggested in the preceding paragraphs 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 Messrs Devidayal Cable Marketing Company, Bombay, with the Company. It is satisfactorily established from the same material and the evidence of P.W. 18 that the accused has received gratification other than remuneration that he was receiving from the Company as a representative of Messrs Devidayal Cable Marketing Company, Bombay. 35. Sri. It is satisfactorily established from the same material and the evidence of P.W. 18 that the accused has received gratification other than remuneration that he was receiving from the Company as a representative of Messrs Devidayal Cable Marketing Company, Bombay. 35. 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 nexus is established, the main ingredient in section 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 arm in exercise of his official functions, has been established or not, is a matter of inference. In my opinion, Exhibit P-271 plays 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 Messrs Devidayal Cable Marketing Company, Bombay, the accused would not have written the letter Exhibits P-271 to the brother of P.W.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 section 161 of the Indian Penal Code have been established and, therefore, the offence contemplated under section 5 (1) (a) punishable under section 5 (2) of the Act, has been proved only in regard to the material relating to release of copper and returning of bank guarantee. 36. 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 Company, 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 Company, Bombay, but also the other three firms mentioned in the charge. 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 Company, 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 Administration1. The learned Government Pleader had nothing much to urge as against this submission of Sri Venkataramanaiah 36. In view of the facts and circumstances available in this case and the observations of the Supreme Court in B.C. Goswami’s case1. 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. 37. 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 acccused-appellant, and Sri K.H.N. Kuranga, the learned Government Pleader with the assistance of Sri V.A. Rama Sharma, argued the case ably. 38. For the foregoing reasons, I dismiss this appeal subject to the modification in the sentence as narrated above. S.V.S. ----- Appeal dismissed Sentence modified.