JUDGMENT : G.B. Patnaik, J. - The two Appellants have been convicted u/s 5(1)(d) read with Section 5(2) of the Prevention of Corruption and Section 109 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for three months and to pay a fine of rupees five hundred, in default, to undergo rigorous imprisonment for fifteen days. 2. These two Appellants alongwith one Trinath Hota, stood their trial before the learned Special Judge, but Trinath has been acquitted by the Trial Judge, Trinath was the Block Development Officer of Narayanpatna Block. Appellant Murarinath Sharma was the Sub-Assistant Engineer and Appellant Raghunath Subudhi was the contractor, According to the prosecution case, a project for construction of Cross bundhs and minor irrigation canals in the Narayanpatna Block was taken up and accused Murarinath Sharma prepared estimate of the work at 7,500/-. The acquitted accused who was B.D.O. accorded administrative approval and thereafter the work was entrusted to Appellant Raghunath on 24-2-1973. After completion of the work, the B.D.O. got the measurement checked and final bill was passed for Rs. 7,170/-. Ext. 13 is the work order; Ext. 14 is the certificate of completion and Ext. 12 is the pass order. The Executive Engineer (Vigilance) (P.W. 2) made a verification of the work, inspected the site on 6-7-1974 and gave an estimate that the work done would be worth Rs. 754/- and the excess amount to the tune of Rs. 6,416/- was paid to the contractor. On receipt of the report from the Executive Engineer, the Superintendent of Police, Vigilance, directed for initiation of a case and after registering the same Vigilance authorities investigated into the matter, seized several documents and then the papers were submitted for obtaining sanction. The State Government accorded the sanction for the B.D.O. vide sanction order (Ext. 24) and the Chief Engineer, Roads & Buildings, sanctioned the prosecution against the Sub-Assistant Engineer Murarinath Sharma vide sanction order (Ext. 25). On receiving the sanction orders charge sheet was submitted. 3. During the trial, the accused B.D.O. as well as the Sub-Assistant Engineer took the plea that the work was done according to the specification, but the Executive Engineer whose report forms the basis of the charge inspected the project in rainy season and therefore, could not have possibly measured the exact quantum of work done. They also took a plea that there was no valid sanction. They also took a plea that there was no valid sanction. So far as accused Raghunath Subudhi is concerned, he denied the charge that he had caused pecuniary loss to the Government by getting the amount on inflation of the bills. 4. On behalf of the prosecution 10 P.Ws. Are examined and a large number of documents were exhibited. The learned Special Judge on consideration of the evidence came to the conclusion, that the prosecution had been able to establish that accused Sub-Assistant Engineer Murarinath Sharma abused his official position and with intent to defraud made false entries in, the measurement book and obtained pecuniary advantage for himself and for the contractor Raghunath Subudhi who accepted the money knowing fully well that the project was not constructed with the requisite cement mortar. So far as accused B.D.O. Trinath Hota is concerned, the learned Special Judge accepted his explanation that he' is an expert in the line and, therefore, when he found that works were done, he checked the measurements and ordered for payment of the bill and accordingly exonerated him from the liability. 5. Mrs. Padhi appearing for the two Appellants submits that on the findings of the learned Special Judge, the Appellants are entitled to be acquitted. Mrs. Padhi also further urges that the sanction order passed sanctioning prosecution of the Sub-Assistant Engineer is invalid and inoperative and, therefore, the conviction cannot be sustained. So far as the contention regarding sanction is concerned, I do not find any substance in the contention of Mrs. Padhi. The sanction order (Ext. 25) clearly indicates that relevant materials were placed before the sanctioning authority on perusal of which and after applying the mind fully, the Chief Engineer accorded the sanction. In this view of the matter, the order of sanction (Ext. 25) cannot be said to be invalid. P.W. 9 in his evidence also has stated that he placed all records and documents before the Chief Engineer who after consideration of the same issued the sanction order. It was elicited from his cross-examination that the documents which were placed, before the Chief Engineer are the measurement books, case records of the project and the estimate. The oral evidence of P.W. 9 and Ext. 25 unequivocally indicate that all materials were produced before the sanctioning authority who accorded sanction after applying his mind to the same. It was elicited from his cross-examination that the documents which were placed, before the Chief Engineer are the measurement books, case records of the project and the estimate. The oral evidence of P.W. 9 and Ext. 25 unequivocally indicate that all materials were produced before the sanctioning authority who accorded sanction after applying his mind to the same. I would, therefore, reject the submission of Mrs. Padhi on this score as being devoid of force. 6. The next question which crops up for consideration is whether the prosecution evidence is sufficient to establish that the two Appellants by abusing their position obtained pecuniary advantage for themselves and caused pecuniary loss to the Government so as to attract the provisions of Section 5 of the Prevention of Corruption Act. The most relevant evidence on which the prosecution relies is that of P.W. 2 who is the Executive Engineer, Vigilance, From the evidence of the Executive Engineer, it appears that he took the measurement at the spot and noted down the measurement on a piece of paper and after returning from the spot, he prepared the report in the Inspection Bungalow and the calculation sheets were prepared by the Building Inspector in his office at Cuttack. In cross-examination, it has been brought out from him that while measuring he did not use any levelling instrument to check the level. He did not take the signature of the persons present on the piece of paper on which he recorded the measurement. Even that piece of paper was not available. He did not mention in his report that the persons present compared the notes prepared at the spot with the report prepared at the Inspection Bungalow. He admitted that the cross-bundhs were existing to the full length and he only broke portions of the bundhs to find out whether they were constructed with cement mortar. It has further been elicited from him in his cross-examination that out of the total length he took into account only 17 ft. as the other 13 ft. was not in a measurable condition. He did not take the width of the left strain of the bundhs into consideration. He was constrained to admit that the accused persons might have executed the cross bundhs to the required length and height as per the measurement book and this might have disturbed due to the natural calamity. was not in a measurable condition. He did not take the width of the left strain of the bundhs into consideration. He was constrained to admit that the accused persons might have executed the cross bundhs to the required length and height as per the measurement book and this might have disturbed due to the natural calamity. He further stated that he took into account the items executed relating to the project but did not enter the same in the measurement book. In the measurement book he found that cement mortar was shown to have been used in foundation and in the plinth. The visit by this Executive Engineer to the site was in July, 1974 though the work in question was executed in February, 1973. In view of the aforesaid inconsistencies in the statement of this Engineer, it is difficult to rely on his statement and to hold that the Sub-Assistant Engineer abused his official position to give a pecuniary advantage to the contractor. Even the basic materials, namely the dates collected on the piece of paper at the site of measurement are not available. The said Executive Engineer further stated that the apron and revetment may be washed away depending Upon the intensity of Hood and he did not assess the damage on account of Hood or rain. P.W. 4 and P.W. 5 who were engaged as labourers categorically stated that cement mortar had been used for construction of the bundhs. Their statement got corroboration from the statement of the Executive Engineer that without cement mortar if bundhs are constructed with stones only, wates would not be retained, but the evidence is that water was stored and irrigated the fields through the canals from the stored quantiy of water. The learned Special Judge has entered into surmises and conjectures instead of appreciating the evidence on record and for no justifiable reason discarded the evidence of P.Ws. 4 and 5. In view of the positive prosecution evidence coming from the mouth of P.Ws. 4 and 5 that cement mortar was used for construction of the bundhs, it is difficult to sustain the conclusion of the Special Judge that the cross bundhs were constructed without any cement mortar. The said conclusion of the learned Special Judge must, therefore, be set aside. In view of the positive prosecution evidence coming from the mouth of P.Ws. 4 and 5 that cement mortar was used for construction of the bundhs, it is difficult to sustain the conclusion of the Special Judge that the cross bundhs were constructed without any cement mortar. The said conclusion of the learned Special Judge must, therefore, be set aside. The learned Special Judge himself has observed in paragraph 15 of the judgment that the Executive Engineer did not find any other discrepancy in quality or in quantity excepting that no cement mortar was used in the work. He has also found that prosecution did not lead any evidence to prove that the stones used were not brought from the approved quarry situated at a distance of three kilometers from the site nor any stone was sent to laboratory for chemical test. Even the prosecution case as unfolded through the evidence of the Executive Engineer that the quantity of work executed is less, has not been accepted by the learned Special Judge who has come to the conclusion that the explanation of the accused persons was probable and reasonable and must be accepted. Even in respect of item No. 5 of the work, the Special Judge accepted the explanation of the accused to be plausible. 7. Having thus entirely accepted the explanation of the accused, the only ground on which the learned Special Judge convicted the accused persons is that the work was executed without cement mortar, though the contractor charged for the same and the Sub-Assistant Engineer recorded the measurement showing that the work has been constructed with cement mortar and allowed payment on that score. Since I have already set aside the conclusion of the learned Special Judge on the question of non-user of cement mortar and the Special Judge himself has accepted the explanation of the accused in respect of all other items of work, it must be held that the prosecution has failed to establish the charge against the Appellants. Consequently, the conviction and sentence passed against the two Appellants are set aside and this Criminal Appeal is accordingly allowed. The bail bonds furnished by the Appellants stand cancelled. Final Result : Allowed