Judgment: 1. This is an appeal against the convictions and sentences passed in C.C.No.14/80 dated 28.7.1982 on the file of the II Addl. Special Judge, SPE & ACB Cases, Hyderabad. The accused, A-1 and A-2, are the appellants. The accused, A-1, was a U.D. Accountant in the office of the Director of Medical and Health Services at the time of occurrence. A-2 was the Deputy Civil Surgeon, Vayalpad, Government Hospital. Both of them are public servants within the meaning of section 21, I.P.C. It is alleged against A-1 that he procured the transfer orders of A-2 to Kadiri and attempted to obtain Rs.600/- for himself and others as gratification, other than legal remuneration, from A-2, which constitutes an offence under section 161 , I.P.C. that A-2 sent a demand draft for Rs.600/- as gratification, other than legal remuneration, to A-1 and others, and thus attempted to bribe A-1 by offering illegal gratification for procuring his transfer and thereby committed an offence punishable under sections 161 and 165-A, IPC. 2. P.Ws.13 and 14 are inspectors of Police, ACB, who investigated the cases and filed the charge-sheet. During the trial, P.Ws.1 to 14 were examined, and exhibits P-1 to P-18 were marked for the prosecution. On the side of defence, D.Ws.1 to 6 and Exs.D-1 to D-3(a) were marked. On a consideration of the entire evidence, the lower Court found both the accused guilty of the charges that were framed against them and while convicting them thereunder, sentenced each one of them to undergo imprisonment for three years each and also to pay a fine of Rs.5,000/-. Against these convictions and sentences, the two accused filed this appeal. 3. Therefore, the point that arises for consideration in this appeal is whether the prosecution is able to bring home the guilt of the accused-appellants under which they were found guilty, convicted and sentenced? 4. Brief facts of the case that are necessary for our purpose are as follows: The first accused, K.Bhaskar Reddy, was U.D. Accountant, in the Office of the D.M. & M.S., Hyderabad. The second accused, K.Chinnappa Reddy, was a Deputy Civil Surgeon in the Government Hospital, Vayalpad, and both of them are Government servants. A-2 sent up his application dated 23.5.1978 to the Director of Medical and Health Services, Hyderabad, requesting for his transfer to any of the five places mentioned by him, including Kadiri. The second accused, K.Chinnappa Reddy, was a Deputy Civil Surgeon in the Government Hospital, Vayalpad, and both of them are Government servants. A-2 sent up his application dated 23.5.1978 to the Director of Medical and Health Services, Hyderabad, requesting for his transfer to any of the five places mentioned by him, including Kadiri. A-1 was then working as U.D. Accountant is the Office of the Director of Medical and Health Services. The Office of the Director of Medical and Health Services prepares a list of all the doctors seeking transfers and places the same before the Additional Director of Medical and Health Services (P.W.10). Thereupon, P.W.10 passed orders transferring A-2 to Kadiri. The orders are as in Ex.P-4, dated 29.5.1978. The said orders were despatched on 2.6.1978. 5. On the same day, i.e., 2.6.1978, a letter, addressed by A-2 to A-1, in which also a demand draft for Rs.600/- was enclosed, fell into the hands of P.W.10, as in Ex.P-11. The draft is as in Ex.P-12. On reading the contents of the letter, Ex.P-11, P.W.10 thought that there is some misconduct on the part of A-1 and A-2 with regard to the transfer of A-2 from Vayalpad to Kadiri. Thereupon, he cancelled the original transfer orders of A-2 to Kadiri and transferred him to Bhongir. He then placed the letter and the draft, Exs.P-11 and 12, before the Director of Medical and Health Services, who in his turn, passed suspension orders against A-1 and A-2, and reported the matter to the Government. The Government, in their turn, entrusted the matter to ACB. ACB investigated the case and after obtaining the necessary sanction from the Government, filed the charge-sheet against A-1 and A-2. These are the facts with which we are concerned now. 6. It is not in dispute that A-2 out in an application for transfer as in Ex.P-2, indicating his preference for five places, including Kadiri. The Office of the D.M. & H.S. put up a list before the Additional Director, P.W.10, of all the doctors who sought a transfer, including that of A-2 and the Director passed the orders transferring A-2 to Kadiri, P.W.1 Ramachandra Murthy, the concerned clerk in the. The Office of the D.M. & H.S. put up a list before the Additional Director, P.W.10, of all the doctors who sought a transfer, including that of A-2 and the Director passed the orders transferring A-2 to Kadiri, P.W.1 Ramachandra Murthy, the concerned clerk in the. office of the D.M. 8H.S. at the relevant time, deposed that he put up all the applications received from the Deputy Civil Surgeons by 25.S.78, including the application of A-2 dated 23.5.1978, who was then working at Vayalpad. After verifying the record, the witness indicated that Kadiri was vacant. He prepared a statement consolidating the various applications and the places vacant as in Ex.P-3 and submitted the file to the Director through the proper channel. The Additional Director, P.W.10, passed orders indicating the suggestions against the name of the Deputy Civil Surgeons. A-2 was accordingly transferred to Kadiri. The Director approved the orders passed by the Additional Director on 27.5.1978. Ex.P-4 is the copy of the general transfer orders dated 29.5.1978, which were despatched on 2.6.1978. 7. In the cross-examination, he stated that he knows A-1; that A-1 is under the administrative control of the Director of Tresuries; that he has nothing to do with the transfers and postings and other establishment matters pertaining to the doctors; that he did not approach him at any time in connection with the transfer of A-2.. 8. P.W.10, the then Additional Director of Medical and Health Services, stated clearly that by the date Ex.P-11 was received, orders were issued from his office posting A-2 to Kadiri. When he endorsed Ex.P-3(a) on Ex.P-3 indicating that A-2 be transferred to Kadiri, there was no pressure, influence, or any other extraneous considerations for him to post A-2 to Kadiri. The other oral evidence adduced on behalf of the prosecution is not very relevant for our purpose. Therefore, from the above evidence, one thing is certain, i.e. even according to the prosecution, the transfer of A-2 from Vayalpad to Kadiri has been done in the normal course without any influence whatsoever and that was under the orders of transfer dated 29.5.1978 and the same was despatched on 2.6.1978. 9. Then there is the letter as in Ex.P-11 from A-2 addressed to A-1 in which the demand draft, Ex.P-10, is enclosed. 9. Then there is the letter as in Ex.P-11 from A-2 addressed to A-1 in which the demand draft, Ex.P-10, is enclosed. Thus, the incriminating evidence in this case on which the whole case of the prosecution hands on is the letter, Ex.P-11, which reads thus: “Received your letter and noted the contents. As wanted by you I am sending demand draft for Rs.600/-. Please take Rs.100/- for your personal expenses and give Rs.500/- to the concerned. Please send a copy directly to me so that I can know when it has reached our DM & HS (to get relieve orders urgently). Please don’t forget to send a copy to me. Please see that the orders given by DM & HS stand. It there are any pressures from anybody for that place please see that I will not be disturbed from Kadiri.” We see, the above letter contains three paragraphs. We can gather from the first paragraph that A-1 wanted Rs.600/- to be sent by A-2 and, therefore, A-2 sent a draft for Rs.600/-. Out of this amount, as can be seen from this paragraph, A-2 wanted that A-1 should keep Rs.100/- with him towards his own personal expenses and to give Rs.500/- to the concerned. 10. Paragraph 2 is only a request by A-2 asking A-1 to send a copy of his transfer orders to him urgently, so that, he can get relieve orders urgently. Therefore, this paragraph in this letter is innocuous. 11. The third paragraph is only to the effect requesting A-1, if anybody else were trying to get the place of Kadiri by putting pressure on the authorities concerned and to see that his posting to Kadiri is not disturbed. Therefore, this part of the letter cannot be described as anything illegal or undesirable by itself. 12. Therefore, we have to now see for what purpose this draft for Rs.600/- is sent. The prosecution did not place any material, whatsoever, before the court that points out that this amount of Rs.600/- in a draft was sent for any particular purpose. On the other hand, the defence has put in evidence explaining as to why the draft for Rs.600/- was sent by A-2 to A-1. A-2 examined himself as D.W.6. He explained, by saying, that he visited Hyderabad in the last week of April, 1978, and put up with his relation, A-1. On the other hand, the defence has put in evidence explaining as to why the draft for Rs.600/- was sent by A-2 to A-1. A-2 examined himself as D.W.6. He explained, by saying, that he visited Hyderabad in the last week of April, 1978, and put up with his relation, A-1. His trip was for sight-seeing with his family. He borrowed Rs.500/- from A-1 during that trip and A-1 also incurred some expenses during his stay. Thus, he sent the demand draft for Rs.600/- dated 31.5.1978 towards debt due by him to A-1. 13. D.W.1, one B.N.Reddy, a U.D. Accountant in the office of the Director of Medical and Health Services, deposed, that in the last week of April, 1978, A-1 approached him for a loan of Rs.200/-saying that a doctor friend of his needs it and that he gave the said amount. D.W.2, one G.V.Suryanarayana, working as Superintendent in the D.M & H.S. Office, also deposed that in the last week of April, 1978, A-1 asked him for a loan of Rs.150/-, in order to accommodate a doctor friend and he gave it. D.W.3, one Ramachandra Reddy, Superintendent, D.M. & H.S. Office, deposed, that in the last week of April, 1978, A-1 asked for a loan and he gave Rs.200/-. D.W.4, one Gurupandappa, Superintendent in the Accounts Branch of the D.M. & H.S. Office, also deposed that A-1, in April, 1978, took a loan of Rs.150/-, saying that he has to accommodate a person that came from his village. 14. Thus, A-2, by examining himself as D.W.6 and by examining D.Ws.1 to 4, sought to explain that when he visited Hyderabad in the last week of April, 1978, he was put up with A-1, who happened to be his relative, and that he took a loan of Rs.500 which A-1, in his turn, took from various colleagues in his office; and that it is this amount that was asked by A-1. And that in response to the said demand, A-2 sent the demand draft as in Ex.P-10. 15. This explanation may be true, or may not be true. But, there is no whisper from the prosecution evidence as to for what purpose this demand draft for Rs.600/- is sent by A-2 to A-1. And that in response to the said demand, A-2 sent the demand draft as in Ex.P-10. 15. This explanation may be true, or may not be true. But, there is no whisper from the prosecution evidence as to for what purpose this demand draft for Rs.600/- is sent by A-2 to A-1. Perhaps, the prosecution wants the Court to infer that the amount is sent to A-1 by A-2 to bribe persons in the office of D.M. & H.S. in order to obtain his transfer. It is not possible to draw such an inference only from the document, Ex.P-11. The prosecution utterly failed to place any other material before the Court to draw such an inference. 16. As a matter of fact, prosecution itself produced Ex.P-14, a letter written by A-1 to A-2 on 22.5.1978, wherein A-1 asked A-2 to sent the money of Rs.500/-, which he had taken from others in his office when wanted by A-2; and that his friends from whom he took the amounts have been pressing for the same; and that the same may be sent by a demand draft on the Andhra Bank, Sultan Bazar Branch. This letter, taken together with the evidence of D.Ws.1 to 4, go to show that A-2 borrowed some moneys from A-1, and that A-1 in his turn borrowed from his friends in the Accounts Branch; and the demand draft, Ex.P-10, is sent by A-2 to A-1 to repay the amount taken a loan from A-1. 17. This Tetter, Ex.P-14, totally demolishes the case ofthe prosecution. Therefore, having produced Ex.P-14, as evidence on their side, the prosecution took a lot of pains to establish that Ex.P-14 is not a genuine one and that it is a manipulated one. They examined P.W.9, Ch.Krishna Murthy, who worked as Manager of the Postal Stores Department, Hyderabad in the year 1978, who says, that the date stamp ‘Hyderabad Deccan, G.P.O.‘on Ex.P-24 was not in use in the year 1978, and also P.W.11, Kulkarni, who was the Post Master of the GPO, Hyderabad, in the year 1978, who deposed, that the date stamp with the inscription ‘Hyderabad Deccan’ was withdrawn in the year 1952. Thus, it is understandable why the prosecution should file a document as evidence on its side and the adduce evidence to say that the same is not a genuine document. Thus, it is understandable why the prosecution should file a document as evidence on its side and the adduce evidence to say that the same is not a genuine document. If it were to be not a genuine one and when they are not relying on it, the prosecution ought not to have filed the document in the Court at all on its side. The defence, if so wanted, could have summoned for the document and filed on their side, if they want to place reliance on it; and, in that case, the prosecution could have the opportunity of adducing evidence to show that the document filed on behalf of the defence is not genuine one. But, it is strange for the prosecution to file a document on their side, and then, adduce evidence to show that the document is not a genuine one. This sort of practice on the side of the prosecution deserves condemnation. 18. In the charge-sheet, it is alleged, that A-1, who was working as U.D. Accountant in the D.M. & H.S. Office, managed to get a transfer of A-2 to Kadiri, and obtained Rs.600/-, for himself and others as gratification, other than legal remuneration, from A-2. At the same time the prosecution itself examined P.W.1, the concerned clerk in the D.M. & H.S. Office, who deposed that A-1 never approached him in connection with the transfer of A-2 to Kadiri. P.W.10, the then Addl. Director of Medical and Health Services, deposed that there was no influence whatsoever brought on to secure the transfer of A-2 to Kadiri. Therefore, the above allegation in the charge-sheet stand falsified on the very evidence adduced by the prosecution itself. 19. Having stated at one place in the charge-sheet that A-1 obtained Rs.600/-for himself and others as gratification, other than legal remuneration, it immediately says that A-1 attempted to obtain illegal gratification. The allegation that A-1 obtained Rs.600/- is false as he never received the amount of Rs.600/-. The demand draft was taken away by P.W.10 and other authorities. A-1 never knew that such a draft is sent to him till he was suspended. 20. Then, there is the other allegation in the charge-sheet that A-1 attempted to obtain an illegal gratification from A-2. for himself and others. The demand draft was taken away by P.W.10 and other authorities. A-1 never knew that such a draft is sent to him till he was suspended. 20. Then, there is the other allegation in the charge-sheet that A-1 attempted to obtain an illegal gratification from A-2. for himself and others. Put there is no whisper in the evidence of any of the prosecution witnesses that A-1 did anything with regard to the transfer of A-2 from Vayalpadu to Kadiri. There is no whisper also in the prosecution evidence that A-1 demanded any money to work for the transfer of A-2 from Vayalpadu to Kadiri. Except for the fact that A-2 sent a demand draft for Rs.600/-, which never reached A-1, there is no other piece of evidence to show that A-1 wanted this money from A-2 as gratification, other than legal remuneration, for getting the transfer. 21. The charge against A-1 is as follows: “That A-1 attempted to obtain an illegal gratification, other than legal remuneration, in a sum of Rs.600/-, for himself and for others, for procuring transfer orders of A-2.” I have already stated that there is no piece of evidence, not even a whisper from the mouth of any of the prosecution witnesses, that A-1 did anything in the transfer of A-2 from Vayalpadu to Kadiri, and that A-1, at any time, asked for any amount for managing the transfer for A-2 from A-2. Therefore, the entire prosecution case is built on suspicion. 22. Since A-2 sent a demand draft for Rs.600/- which never reached A-1; and since A-1 is working in the Office of the Direction of Medical and Health Services as an Accountant, who has nothing to do with the branch of transfer of doctors; and that since at that juncture A-2 happened to be transferred from Vayalpadu to Kadiri on his application, a grand suspicion is entertained by P.W.10, the then Additional Director of Medical and Health Services, and the Director himself (who is not examined), and without any enquiry, whatsoever, either of A-1 or of A-2 as to for what purpose this draft was sent by one to the other, they took the extreme step of suspending these two officers. If officers of the rank of the Additional Director and the Director of Medical and Health Services were to act on suspicion against their own staff, without any basis whatsoever, even without attempting to know what really the matter is by way of an enquiry, it is very risky for any subordinate staff to work under officers of such a suspicious nature. 23. What is more surprising is, the Government of Andhra Pradesh has given the sanction to prosecute both the officers, A-1 and A-2, without properly examining the material placed before it. As a result, two of the officers of the Government of Andhra Pradesh were prosecuted in a court of law not on insufficient evidence but on no evidence and only on suspicion. That from the date of suspension till today, i.e. for nearly six years, the officers have undergone all humiliation, mental agony, and expense, for nothing. Therefore, it is advisable of the Government of Andhra Pradesh to scrutinise the entire material carefully, and not superficially, before a sanction is accorded for prosecuting public servants. 24. It can be seen from Ex.P-16, sanction order for prosecuting A-1, wherein it is alleged that A-1 attempted to obtain an amount of Rs.100/- for himself and an amount of Rs.500/- for others as gratification, other than legal remuneration, from A-2 from doing some service. And in sanction order, Ex.P-17, for prosecuting A-2, it is stated that A-2 attempted to bribe A-1 by offering as amount of Rs.100/- and Rs.500/- for others. It is not known how these two things will go together. If A-2 only attempted to bribe A-1, that means, A-1 cannot be guilty of attempting to take bribe. If A-1 attempts to obtain a bribe from A-2, that means there cannot be any attempt on the part of A-2 to bribe A-1. Thus, the contents of sanction orders accorded to prosecute A-1 and A-2, separately, cuts the case of the prosecution against both. Thus, the entire machinery of prosecution in this case had acted on mere suspicion and without any material, whatsoever, before it constituting the offence under section 161 , IPC by A-1; and the offence punishable under section 161 read with section 165-A of the IPC against A-2. Thus, the entire machinery of prosecution in this case had acted on mere suspicion and without any material, whatsoever, before it constituting the offence under section 161 , IPC by A-1; and the offence punishable under section 161 read with section 165-A of the IPC against A-2. Again, when the sanction to prosecute A-2 is for the offence of attempting to bribe A-1, the charge framed against A-2 is for abetment of A-1 for committing the offence under section 161, IPC. Thus, when the sanction is for attempting to bribe, the charge is for abetment of the offence. Thus, the sanction for the prosecution of A-1 is for one offence and he is prosecuted for another offence A-2 was prosecuted for the offence of abetment of an offence punishable under section 161, IPC when the sanction is only for attempting to bribe A-1. Attempt is entirely different from abetment. On this account also, the prosecution of A-2 is bad for lack of sanction for the offence for which he was prosecuted. 25. The trial Court has rightly mentioned the ingredients of section 161, IPC follows: “1. That the accused must be a public servant; 2. That he must be shown to have obtained or agreed to obtain from any person any gratification; 3. That the gratification should be other than the legal remuneration, as a motive or reward for doing or forbearing to do, any official act, or showing or forbearing to show, in the exercise of his official functions, favour or disfavour, to the person.” In appreciating evidence whether these ingredients are satisfied in this case, the lower Court gravely erred. In the case before us, only the first ingredient is satisfied i.e. that both the accused are public servants. It is not shown that he has obtained or agreed to obtain any money as gratification from A-2. The third ingredient is also not satisfied because when there is no taking of any money whatsoever, the question of gratification does not arise. Moreover, A-1 is not a position to show, or forbear from showing, in the exercise of his official functions, any favour or disfavour, to A-2. A-1 has nothing to do with the department that deals with A-2's transfer. Therefore, ingredients 2 and 3 have not been satisfied in this case, either in the case of A-1 or in the case of A-2. 26. A-1 has nothing to do with the department that deals with A-2's transfer. Therefore, ingredients 2 and 3 have not been satisfied in this case, either in the case of A-1 or in the case of A-2. 26. Then the learned Counsel for the prosecution referred me to the decision of the Supreme Court in Chaturdas v. State of Gujarat Chaturdas v. State of Gujarat (1976)2 S.C.J. 474: (1976)1 Crl.L.J. 1180: (1976)3 S.C.C. 46 : (1976) S.C.C. (Crl.) 351: (1976) MLJ. (Crl.) 602: (1976)3 S.C.R. 1052 : A.I.R.1976 S.C. 1497 where their Lordships observed as follows: “To constitute an offence under section 161 it is enough if the public servant who accepts the gratification, takes it by inducing a belief or by holding out that he would render assistance to giver “with any other public servant”. and the giver gives the gratification under that belief. It is further immaterial if the public servant receiving the gratification does not intend to do the official act, favour of forbearance which he holds himself out as capable of doing.” Here, in the case before us, there is not an iota of evidence from the prosecution that A-1 ever demanded any gratification, whatsoever, from A-2 and that he did anything in getting the transfer of A-2 from Vayalpadu to Kadiri. On the other hand, the prosecution evidence itself goes to show that there was no influence nor interference by anybody whatsoever, let alone A-1, for the transfer of 2, from Vayalpadu to Kadiri. 27. He also referred to another decision of the Supreme Court in Mahesh Prasad v. State of U.P. Mahesh Prasad v. State of U.P. 1955 S.C.J. 153: (1955)1 S.C.R. 965 : (1955)1 MLJ. (S.C.) 83: A.I.R. 1955 S.C.70 where their Lordships observed: “To constitute an offence under section 161 it is enough if the public servant who received the money takes it by holding out that he will render assistance to the giver “with any other public servant“ and the giver gives the money under that belief. It may be that the receiver of the money is in fact not in a position to render such assistance and is even aware of it. He may not even have intended to do what he holds himself out as capable of doing. He may accordingly be guilty of cheating. It may be that the receiver of the money is in fact not in a position to render such assistance and is even aware of it. He may not even have intended to do what he holds himself out as capable of doing. He may accordingly be guilty of cheating. Nonetheless he is guilty of the offence under section 161.” But, in this case, as I have already stated, there is no whisper, whatsoever, that A-1 ever promised to do anything to A-2; and that A-1 demanded a bribe; and that 2 agreed to give the bribe. 28. The trial court observed that A-1 agreed to receive the bribe in a sum of Rs.600/- by way of Ex.P-10, demand draft, towards gratification, other than legal remuneration. As I have already stated, there is not even on iota of evidence adduced by the prosecution that A-1 ever agreed to receive the sum of Rs.600/- by way of demand draft towards gratification, other than legal remuneration. The same is a tissue of imagination on the part of the lower Court. Thus, right from the stage of P.W.10 and the Director of Medical and Health Services, Mr.Mathur, reported to the Government against A-1 and A-2, for the offence under section 161, IPC no one evinced any interest to know what exactly the facts are, and whether the facts available do constitute the offences for which sanction is accorded to prosecute A-1 and A-2. Because of this gross negligence on the part of the sanctioning authority, a grave injustice has been done to A-1 and A-2. As a matter of fact, this is a fit case where compensation should be awarded to A-1 and A-2 for wrongful prosecution. But, when we are having Judges of the Cadre of a District and Sessions Judge who convict persons on suspicion, substituting surmises and imaginations in the place of evidence, even though there is no evidence constituting the offence as against the accused (as was done in this case) there is no use blaming the sanctioning authorities and the other prosecuting machineries. In this view of the matter only, I restrain myself from awarding any compensation to the victim-appellants in this case. In this view of the matter only, I restrain myself from awarding any compensation to the victim-appellants in this case. It is high time that trial Judges should keep it in mind what the Supreme Court had said often and on, and which is now a well established principle in the branch of Criminal jurisprudence, that suspicion, however strong it may be, cannot take the place of proof. Persons accused of offences can only be punished under our jurisprudence, when the prosecution is able to prove the guilt of the accused, and that too, beyond all reasonable doubt. 29. In view of my above discussion, I hold that the prosecution has miserably failed to bring home the guilt of A-1 for the offence under section 161 , IPC and A-2 for the offence under section 165-A, IPC much less beyond all reasonable doubt. 30. In the result, the appeal is allowed, setting aside the convictions and sentences passed against the appellants. They are acquitted of the charges that were framed against them. Fine, if paid, is ordered to be refunded to them. If they are on bail, their bail bonds are herewith cancelled. Appeal allowed.