K. P. MOHAPATRA, J. ( 1 ) IN this appeal the order of conviction and sentence of the appellant under section 5 (2) read with section 5 (1) (d) of the Prevention of Corruption Act (TAct for short) and under section 161 of the Indian Penal Code (TI. P. C. T for short) has been challenged. ( 2 ) THE prosecution case in brief is stated below. P. W. 2 Mohamad Usman is an employee of the Rourkela Steel Plant. In the evening of 24-9-1978, the appellant, who was serving as the Officer-in-Charge of the Government Railway Police Station, Rourkela (TG. R. P. S. for short) called him and when he came told him that he was involved in a case of wagon breaking and was likely to be arrested and sent up to court for trial, in which case, he would lose his service. P. W. 2 became anxious to escape from such a situation and requested the appellant to find him a way out. The appellant asked for a bribe of Rs. 1500/- so as to save P. W. 2.- P. W. 2, however, expressed his inability to pay such a huge amount and ultimately the bribe amount was settled at Rs. 500/ -. P. W. 2 requested for time for a couple of days for making the payment. In the same evening, P. W. 5 Baishnab Charan Samal, a local journalist, purporting to be a bail or for P. W. 2, signed a piece of paper. P. W. 2 could not arrange the promised amount immediately. Therefore, he obtained a letter (Ext. A) from P. W. 5 addressed to the appellant asking for some more time for making the payment. P. W. 2 also felt outranged by the illegal demand of the appellant, went to the local vigilance police office and lodged F. I. R. (Ext. 1) making allegations against the appellant for illegal demand of bribe from him. On the strength of Ext. 1 a trap was arranged and all arrangements in pursuance thereof were made. P. W. 2 secured a loan of Rs. 400/- from P. W. 6 Mohamad Yakub and added a sum of Rs. 100/- from his own pocket. On 27-9-1978 the trap was laid. P. W. 2 paid the sum of Rs. 500/- in currency notes to the appellant while he was in the police station in the evening. P. W. 2 secured a loan of Rs. 400/- from P. W. 6 Mohamad Yakub and added a sum of Rs. 100/- from his own pocket. On 27-9-1978 the trap was laid. P. W. 2 paid the sum of Rs. 500/- in currency notes to the appellant while he was in the police station in the evening. The appellant accepted the currency notes by his left hand from P. W. 2. P. W. 3 Sadhu Charan Biswal was the overhearing witness. When he saw the payment and overheard the conversation between P. W. 2 and the appellant, he gave the signal, whereupon, the officers of the vigilance department, including P. W. 8, the Investigating Officer, Inspector B. Das and P. W. 4 Shri Jaganmohan Pani, an Executive Magistrate entered inside the office and caught the appellant red-handed in the act of accepting bribe. When P. W. 8 asked the appellant about the currency notes, the appellant prayed for permission to go to the bath room to urinate. After he returned within a few minutes, he gave out that he hap asked for a loan of Rs. 500/- from P. W. 5 Baishnab Charan Sarnal to meet the ensuing Dassera expenses and that P. W. 5 had sent the loan amount of Rs. 500/- to him through P. W. 2 Patently, the explanation offered by the appellant did not satisfy P. W. 8, who, carried on investigation and after obtaining sanction for the prosecution (Ext. 14) from the Inspector General of Police, Orissa, he submitted charge-sheet against the appellant for having committed offences under section 5 (2) read with section 5 (1) (d) of the Act and section 161, I. P. C. ( 3 ) THE defence of the appellant was that he did not know P. W. 2 Mohamad Usman nor was there any case against him, suggesting thereby, that there was no necessity to call him to the police station. At that time a large gang under the leadership of one Karunakar Naik was operating and engaged in theft of valuable property by breaking Railway Wagons. Being an honest and efficient police officer he was specially deputed and posted as Officer-in-Charge of the Government Railway Police Station, Rourkela so as to prevent the crimes. He subsequently checked the crimes and submitted charge-sheet against Karunakar Naik and 71 others. Being an honest and efficient police officer he was specially deputed and posted as Officer-in-Charge of the Government Railway Police Station, Rourkela so as to prevent the crimes. He subsequently checked the crimes and submitted charge-sheet against Karunakar Naik and 71 others. During this period P. W. 5 Baishnab Charan Samal was working as his contact-man, although he subsequently came to know that both P. W. 2 Mohamad Usman and P. W. 5 Baishnab Charan Samal were also associates of Karunakar Naik. On 24-9-1978 he met P. W. 5 Baishnab Charan Samal and requested him to arrange for a loan of Rs. 500/- so as to meet the Dassera expenses. P. W. 5 promised to arrange the loan. As he could not arrange the same immediately he wrote a letter (Ext. A) to the appellant and promised to pay or send the loan soon. On 27. 9-1978 P. W. 5 sent the loan amount of Rs. 500/- to him through P. W. 2. ( 4 ) THE learned Special Judge believed the prosecution case and disbelieved the appellant's version. He therefore, convicted the appellant for both the offences he was charged with and sentenced him to undergo rigorous imprisonment for one year each with a further direction that the sentences shall run concurrently. ( 5 ) LEARNED counsel appearing for the appellant raised the following contentions: - 1. The appellant was in need of money to meet the ensuing Dassera expenses and so accepted the sum of Rs. 500/- as loan from P. W. 5 Baishnab Charan Samal; and 2. The order of sanction of prosecution under section 6 of the Act was not in accordance with law. ( 6 ) P. W. 2 Mohamad Usman paid the sum of Rs. 500/- to the appellant in the G. R. P. S. This was seen by the overhearing witness, P. W. 3 Sadhu Charan Biswal. On getting signal from P. W. 3, P. W. 4 Jaganmohan Pani, Executive Magistrate and P. W. 8 Investigating Officer, Inspector B. Das appeared at the scene and found that the appellant had accepted the sum of Rs. 500/- which he was holding in his left hand. The appellant in his statement under section 313 of the Code admitted that he accepted the sum of Rs. 500/ -. The aforesaid evidence and facts clearly prove that the appellant accepted a sum of Rs. 500/- which he was holding in his left hand. The appellant in his statement under section 313 of the Code admitted that he accepted the sum of Rs. 500/ -. The aforesaid evidence and facts clearly prove that the appellant accepted a sum of Rs. 500/- from P. W. 2 otherwise than legal remuneration. It is now for consideration if in view of the aforesaid fact, both proved and admitted, presumption can be drawn in accordance with section 4 (1) of the Act. In this connection, it is necessary to refer to two decisions reported in Mahesh Prasad Gupta v. State of Rajasthan and Tilok Chand Jam v. State of Delhi. In the case of Mahesh Prasad Gupta, Chandrachud. J. (as his Lordshii then was) sioke for the Court and interpreted section 4 (1) of the Act as follows: - Under Section 4 (1) of the Act, the burden of proving the contrary must rest on the appellant. But learned counsel appearing on his behalf urges that the presumption under Section 4 (1) can be raised only if the prosecution establishes in the first instance that the amount was paid otherwise than as legal remuneration. This contention is contrary to the clear terms of Sec. 4 (1) and would render illusory the presumption arising under the section. To cast on the prosecution the burden of proving that the amount was accepted by the accused otherwise than by way of legal remuneration is to ask the prosecution to prove that the amount was paid and accepted by way of bribe. I f this be the true nature of the burden resting on the prosecution no presumption at all need be raised because apart from the presumption the prosecution would have to prove that the money was accepted by the accused and that it was accepted as a bribe. It is plain that if the prosecution proves the acceptance of the amount by the accused and the amount does not represent legal remuneration in any form or of any kind, the accused must establish that the amount was not accepted by him as a motive or reward such as is mentioned in Sec. 161 Penal Code. As held in VD. Uhingan v. State of Uttarpradesh, A. I. R. 1966 S. C. 1762 (1966 Cri. As held in VD. Uhingan v. State of Uttarpradesh, A. I. R. 1966 S. C. 1762 (1966 Cri. L. J. 1357) the accused can establish his case by preponderance of probabilities that is to say, he need not prove his case beyond a reasonable doubt. (emphasis supplied) Relying upon the aforesaid decision, in the case of Tilok Chand Jam (supra) Sarkaria, J. speaking for the Court held thus: Another aspect of the matter which has to be borne in mind is that the sole purpose of the presumption under Section 4 (1) is to relieve the prosecution of the burden of proving a fact which is an essential ingredient of the offences under Section 5 (1) (2) of the Prevention of Corruption Act and Section 161, Penal Code. The presumption therefore, can be used in furtherance of the prosecution case and not in derogation of it. If the story set up by the prosecution inherently militates against or is inconsistent with the fact presumed, the presumption will be rendered sterile from its very inception, if out of judicial courtesy it cannot be rejected out of hand as still-born. ( 7 ) BESIDES these two decisions, the principle of law relating to raising of presumption under section 4 (1) of the Act has been settled by a catena of other decisions reported in State of Madras v A. Vaidyanatha Iyer,3 CI. Emden v. State of Uttar Pradesh, VD. Jhingan v; State of Uttar Pradesh, and Chaturdas Bhagwandas Patel v. The State of Gujarat, to cite a few. These decisions have clearly laid down the extent to which presumption under section 4 (1) of the Act can be drawn in aid and in furtherance of the prosecution case. If this principle is applied to the facts of the present case, it would appear that the appellant received the sum of Rs. 500/- otherwise than his legal remuneration. Therefore, it has to be presumed that he received the aforesaid amount as Illegal gratification. In order to rebut the presumption arising out of law, the appellant adduced evidence in support of his defence that he had received the sum of Rs. 500/- from P. W. 2 not as bribe, but as loan. It is, therefore, necessary to look into the evidence to find out if the appellant has been able to rebut the presumption and establish his defence. 500/- from P. W. 2 not as bribe, but as loan. It is, therefore, necessary to look into the evidence to find out if the appellant has been able to rebut the presumption and establish his defence. ( 8 ) BEFORE embarking upon a discussion as to the appellants defence it is to be pointed out that he can prove his case by preponderance of probabilities, that is to say, he need not prove his case beyond reasonable doubt. It he is able to establish with reasonable probability that the money was accepted by him otherwise than a motive or reward, the statutory presumption under section 4 (1) of the Act shall stand discharged. The decisions in support of the above propositions are A. I. R. 1974 S. C. 773. A. I. R. 1976 S. C. 1497 and A. I. R. 1977 S. C. 666 (supra ). According to the evidence of P. Ws. 2, 3, 4 and 8, the appellant did not immediately speak out that he bad accepted the sum of Rs. 500/- as loan which was sent by P. W. 5 through P. W. 2. He went to the bathroom and took a few minutes after which he stated before the aforesaid witnesses that the money had been accepted by him as loan. If his defence was true, he would have boldly stated immediately after appearance of P. Ws. 4 and 8 at the scene that he had asked for a loan from P. W. 5 who had sent the same through P. W. 2. P. W. 5 Bishnu Charan Samal has clearly stated in his evidence that he did not advance any loan to the appellant and did not send the sum of Rs. 500/- through P. W. 2. As a matter of fact if his entire evidence is considered, it will appear therefrom that he is a small time journalist haying no fixed source of income and so seemed financially incapable to advance a cash loan of Rs. 500/- to the appellant, a police officer who was working as the officer-in-charge of the G. R. P. S. of an industrial city like Rourkela. His evidence has been fully supported by P. W. 2, according to whom, the amount was not paid as loan but as a bribe. 500/- to the appellant, a police officer who was working as the officer-in-charge of the G. R. P. S. of an industrial city like Rourkela. His evidence has been fully supported by P. W. 2, according to whom, the amount was not paid as loan but as a bribe. ( 9 ) IF, according to the appellant, as revealed in his statement under section 313 of the Code, P. W. 5 was a police informer and was getting small amounts from him from the discretionary fund, it was rather surprising that he was chosen as the person either to arrange or pay a loan of Rs. 500/- to the appellant. If P. W. 5 had either arranged a loan or had paid the loan of Rs 500/- to the appellant, he would have been bold enough to support the appellants defence. But he has wholeheartedly supported the prosecution case. Reference was made to Ext. A, the letter admittedly written by P. W. 5 to the appellant stating therein that it was not possible for him to arrange money immediately and requesting for some more time for payment thereof. This document does not militate against the prosecution case nor does it support the appellants defence. It is in the evidence of P. Ws. 2 and 5 that money was to be paid immediately, but as P. W. 2 could not arrange the same it was necessary for P. W. 5, who was the alleged bail or of P. W. 2, to write the letter to the appellant asking for some more time. If Ext. A related to a loan, at least there would have been some reference of loan in it. But there was no such reference. Therefore, the appellant can hardly relay on Ext. A in aid of his defence. The appellant examined three witnesses in support of his defence. They were D. W. 1 Dasarathi Panda, who at the relevant time was the Junior S. I. of G. R. P. S. , Rourkela, D. W. 2 Birakishore Dhal, who at the relevant time was the A. S. I. of G. R. P. S. , Rourkela and D. W. 3 one Jayanta Kumar Naik who described himself as a business executive. D. W. 1 stated that on 27-9-1978 P. W. 2 met him and told that Samal (P. W. 5) had sent Rs. 500/- towards loan. D. W. 1 stated that on 27-9-1978 P. W. 2 met him and told that Samal (P. W. 5) had sent Rs. 500/- towards loan. He thought that the loan had been secured for the appellant and so introduced P. W. 2 to the appellant. He was present when the raiding party headed by P. W. 8 Investigating Officer, Inspector B. Das arrived at the scene of the occurrence and the appellant gave out that the money had been sent by P. W. 5 as loan. Although this witness, according to his own evidence, had known that the sum of Rs. 500/- was sent by P. W. 5 through P. W. 2 as a loan to the appellant, he did not boldly assert at the scene of the occurrence that what the appellant was giving out was true. According to the evidence of D. Ws. 2 and 3 they were present at the platform when the appellant asked P. W. 5 for a loan of Rs. 500/ -. D. Ws. 1 and 2 were serving under the appellant at the time of the occurrence and so it was not unlikely that they came forward to support the defence case. D. W. 3 was a non-entity and persons like him could be easily, procured to give evidence in court. The above apart, in view of the evidence of P. W. 5 Baishnab Charan Samal to the effect that he did not either arrange or pay a loan of Rs. 500/- to the appellant, it is impossible to believe the evidence of the defence witnesses. It is incredible that an officer of the status of the appellant would go about asking for a loan of Rs. 500/- for meeting the ensuing Dassera expenses publicly on the platform of the Rourkela Railway Station in the presence of his subordinate and a third person from it small time Journalist, who is himself financially unsound having no fixed source of income and who, according to the appellant himself, was being paid money as a police informer. Such a defence in view of the evidence on record, as well as, the probabilities appear not only unbelievable but also remotely not even probable. Therefore, I totally reject the appellants defence. ( 10 ) EXT. Such a defence in view of the evidence on record, as well as, the probabilities appear not only unbelievable but also remotely not even probable. Therefore, I totally reject the appellants defence. ( 10 ) EXT. 14 is the order of sanction for prosecution of the appellant passed by the appointing authority namely, the Inspector General of Police, Orissa, Cuttack. An analysis of the sanction order will show that the bare facts of the prosecution case, as brief as possible, making reference to P. Ws. 2, 5 and 8 have been stated. The materials which the sanctioning authority considered before according sanction for the prosecution have not at all been referred to. It is not possible to know from the sanction order as to which materials weighed with the sanctioning authority to satisfy him that the appellant should be prosecuted in the court of law. It does not disclose that he perused the statements of the witnesses and the documents either seized or prepared in connection with the case. The sanctioning authority was not examined as a prosecution witness in court to state that he considered all the materials on record and then arrived at the satisfaction after due application of mind that there was a prima facie case against the appellant and so he should be prosecuted in the court of law. No other officer was also examined for the prosecution to speak about the above facts. In the absence of a valid sanction under section 6 of the Act, the entire proceeding is null and void, as a consequence of which, the appellant is entitled to an acquittal. Indisputedly section 6 of the Act is of mandatory character (see Republic Of India v. Khagendranath Jha ). Trial of an offence under section 5 (2) of the Act is no trial at all due to want of valid sanction under section 6 of the Act (see Rajib Lochan Pradhan v. State ). In Major Somnath v. Union of India and another, the Supreme Court held as follows: - For a sanction to be valid it must be established that the sanction was given in respect of the facts constituting the offence with which the accused is proposed to be charged. In Major Somnath v. Union of India and another, the Supreme Court held as follows: - For a sanction to be valid it must be established that the sanction was given in respect of the facts constituting the offence with which the accused is proposed to be charged. Though it is desirable that the facts should be referred to in the sanction itself, non-the-less if they do not appear on the face of it the prosecution must establish aliunde by evidence that those facts were placed before the sanctioning authorities. In Mohd. Iqbalahmed v. State of Andhra Pradesh the law with regard to sanction under section 6 of Act has been succinctly and lucidly laid down. It was held as follows: It is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of sanction and (2) by adducing evidence aliunde to show that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab init because what the court bas to see is whether or not the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same and any subsequent fact which may come into existence after the resolution granting sanction has been passed, is wholly irrelevant. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned. TI (also see 56 (1983) CLT 288, Md. Sabir Hussain v. State of Orissa ). TI (also see 56 (1983) CLT 288, Md. Sabir Hussain v. State of Orissa ). It is thus clear that the order of sanction of the prosecution was not in accordance with law, for the reasons that the original sanction order did not contain the full facts and the grounds of satisfaction of the sanctioning authority and no other evidence was adduced to prove these facts. This being the position, the conclusion is irresistible that the mandatory provision of section 6 of the Act was violated and the order of sanction being invalid, the prosecution and trial of the appellant under section 5 (2) of the Act are void ab initio. ( 11 ) THE last point for consideration is whether the charge framed against the appellant under section 161 I. P. C. for the same cause of action can be sustained. Since the prosecution and trial of the appellant for the offence under section 5 (2) read with section 5 (1) (d) of the Act are null and void, the trial of the offence under section 161 I. P. C. was without jurisdiction. Therefore, the identical charge of section 161 I. P. C. against the appellant cannot be sustained according to law. This view is supported by a decision of this Court reported in Baikunthanath Mohanty v. The State of Orissa. ( 12 ) IN the ultimate analysis, the defence of the appellant that he had accepted the sum of Rs. 500/- as loan cannot be accepted. The order of sanction for the prosecution being not in accordance with law, the trial of the appellant for the charge-under section 5 (2) read with section 5 (1) (d) of the Act was void ab initio and his trial for the charge under section 161 I. P. C. was without jurisdiction. Therefore, on this ground alone the appellant is entitled to an acquittal. ( 13 ) IN the result, the appeal is allowed. The order of conviction and sentence passed against the appellant is set aside. He is acquitted of the charges. The bail bond is discharged. Appeal allowed