JUDGMENT - A.B. PALKAR, J.:---The appellant has challenged his conviction and sentence for offences punishable under section 161 of the Indian Penal Code and section 5(1)(d) of the Prevention of Corruption Act. The appellant has been sentenced to suffer R.I. for six months and to pay a fine of Rs. 500/- and in default R.I. for (sic) offence under section 161 of the I.P.C. and R.I. for one year and pay a fine of Rs. 500/- and in default R.I. for one month for offence under section 5(1)(d) of the Prevention of Corruption Act. 2. The prosecution case in brief is as under:--- Accused Govardhan Posha Mhatre was working as Head Clerk with the Sub-Divisional Office of Thane Municipal Corporation at Kausa. One Mrs. Memuna Mohsin Thanawala had constructed a house in Survey No. 10/6 at Kausa in the year 1985. She filed an application to the Deputy Municipal Commissioner through her son Yusuf Mohsin Thanawala, complainant and (P.W. 1), for assessing the house for levy of Municipal tax. She was called upon by the concerned office to produce necessary documentary evidence regarding the permission for construction of the house including the ownership of the house, permission for conversion of the land to non-agricultural use etc. On 15-6-1987 she was served with one more notice wherein it was stated that the construction of the house was unauthorised. She was called upon to furnish particulars as stated earlier. Certain particulars were submitted through her son Yusuf. She was not having any permission granted by the Municipal Corporation but it was constructed on the permission granted by the village panchayat and therefore, the said permission along with a copy of the agreement regarding the land were submitted to the said office. The complainant thereafter visited the office of the Sub-Divisional Office of Thane Municipal Corporation at Kausa. He met the accused and requested him to levy Municipal tax on the house standing in the name of his mother. The accused there upon demanded a sum of Rs. 2000/- as illegal gratification for doing that job. The complainant expressed that it was a huge amount and the accused there upon replied that he was helpless because he was required to pay amount to his superiors. 3. The accused there upon demanded a sum of Rs. 2000/- as illegal gratification for doing that job. The complainant expressed that it was a huge amount and the accused there upon replied that he was helpless because he was required to pay amount to his superiors. 3. On 8-7-1987 at about 3.00 p.m. the complainant again met the accused in his office wherein accused repeated the earlier demand and showed his reluctance to reduce the same whereupon the complainant requested him to do the work with Rs. 1000/-. The accused then asked him to bring Rs. 1000/- on the next day and to pay the balance of Rs. 1000/- after the work was done and after the construction was regularised which the complainant agreed. 4. The complainant thereafter went to the office of the Anti-Corruption Bureau and lodged a complaint which is at Exhibit- 10 on 9-7-1987. Thereupon Shri Pawar, Dy. Superintendent of Police, Anti-Corruption Bureau, (P.W. 5) decided to lay a trap and called two panch witnesses, Sunil Trimbak Joshi, (P.W. 2), and Vinayak Narayan Dhongade, by sending necessary requisition letter to the Deputy Commissioner of Sales Tax. The panch witnesses, as usual in the trap cases, were explained about the trap and ten currency notes of Rs. 100/- produced by the complainant were taken and anthracene powder was applied to them. Thereafter panchas were explained about the effect of the anthracene powder and given necessary instructions and a pre-trap panchanama was drawn. Panch Joshi was instructed to accompany the complainant and the other panch Dhongade was requested to accompany the raiding party. The complainant, the witnesses along with the raiding party left for Kausa in a jeep and came to Mumbra. The complainant, panch Sunil Joshi and a constable went in a rickshaw ahead and other members of the raiding party followed in a jeep. 5. On reaching the office of the accused, the complainant showed the accused sitting in the office to the panch and thereafter they entered the office of the accused. They went towards accused and were standing in front of the office. The complainant then enquired about his work and he was told that the work was done, paper were ready and the accused should give him money (numberi) whereupon the rest of the work would be completed. They went towards accused and were standing in front of the office. The complainant then enquired about his work and he was told that the work was done, paper were ready and the accused should give him money (numberi) whereupon the rest of the work would be completed. The complainant, accused and the panch witness entered the office and accused was standing near his table. The complainant and Sunil Joshi (P.W. 1 and 2), came in front of the table. The accused told the complainant to have faith in him and also told that five notes (panch numbari) and two notes (numbari) would be required to be given to his superior officers for obtaining their signature. The complainant then took out smeared currency notes from the left side pocket of his short by his right hand and handed over them to the accused. The accused received the notes by his right hand counted them by both the hands by opening the wad and then folded them and put it in the left side pocket of his shirt. At that time one peon was also present in the office. After the amount was handed over the accused told the complainant that he had to go out for lunch and left the office. The complainant and Joshi followed him. As soon as the complainant came out of his office, he gave signal as agreed to the raiding party, who immediately came forward, caught hold of both the hands of the accused, whereby Deputy Superintendent of Police gave introduction and accused was taken to wait outside. Hands of both the panch witnesses, members of the raiding party were shown to the accused and after getting satisfied that none of the person have any traces of anthracene powder on anybody's hands, the hands and clothes of the accused were examined under the rays of ultra violet lamp and traces of anthracene powder were found on his hands as well as left side pocket of his shirt. The panch witnesses were directed to narrate the incident that had taken place. The marked currency notes of Rs. 100/- each totalling to Rs. 1000/- were recovered from the left side shirt pocket of the accused. Another currency notes of Rs. 10/- found in his pocket was also seized and the particulars were recorded. The panch witnesses were directed to narrate the incident that had taken place. The marked currency notes of Rs. 100/- each totalling to Rs. 1000/- were recovered from the left side shirt pocket of the accused. Another currency notes of Rs. 10/- found in his pocket was also seized and the particulars were recorded. Traces of anthracene powder were found in the hands and shirt pockets of the accused. The post trap panchanama was drawn and thereafter the accused was taken to the office where F.I.R. was lodged and further investigation was taken over by the Deputy Superintendent of Police, during the course of which statement of witnesses were recorded, sanction to prosecute the accused was obtained, and thereafter the accused was sent for trial in the Court of the learned Special Judge. 6. The accused pleaded not guilty to the charges and stated further in his statement under section 313 Cri.P.C. that he never demanded bribe from the complainant. On the fateful date when the complainant came to him and enquired about his work, the accused told him that he had completed his job which are to be done by him and the papers were forwarded. Thereafter the panch accompanying the complainant left the office and the accused was also going out for lunch. At that time, the complainant took napkin of the accused which was lying near his table and planted currency notes therein, and came running behind and handed over the napkin to the accused and in the meantime the accused was caught by the police and his search was taken, when the currency notes were found in his possession. The complainant and panch told that the currency notes were in the napkin, and the same were actually found in the napkin, which were seized and later on panchnama was drawn. 7. The prosecution examined in all five witnesses and after scrutiny of the entire evidence including the Deputy Municipal Commissioner, who has signed the sanction order and the peon was sitting in the office when the raid took place and another employee of the same office P.W. 4 Janardhan. The learned trial Judge after scrutiny of the entire material before him accepted the prosecution case and passed the impugned order of conviction. 8. The learned trial Judge after scrutiny of the entire material before him accepted the prosecution case and passed the impugned order of conviction. 8. In this Court Shri Ramrao Adik, learned Counsel appearing for the accused, challenged the entire prosecution case by pointing out various lacunas in the prosecution evidence, contending that the accused has made out a probable version of the incident which should be sufficient to discharge the burden that is placed on the accused. He also seriously challenged the maintainability of the prosecution for want of proper sanction from the competent authority. Since the point of sanction goes to the root of the matter, I am dealing with the same first. 9. P.W. 3 Shri. S.R. Sawant is the Deputy Municipal Commissioner. He received report of the Anti-Corruption Bureau addressed to the Municipal Commissioner for according sanction for prosecution of the accused. The said letter of the A.C.B. along with the papers of investigation sent by the A.C.B. were placed before the Standing Committee of the Thane Municipal Corporation and the Standing Committee passed resolution on 26-8-1988 and accorded sanction for prosecution of the accused. By letter dated 14-10-1988 the A.C.B. informed the Thane Municipal Corporation that there were certain errors in the resolution and therefore, on that basis again papers were placed before the Standing Committee. The Standing Committee then passed a Resolution on 9-12-1988 and a certified copy of that resolution was produced by the witness. However, a plain reading of the entire examination-in-chief of this witness clearly shows that he is not the sanctioning authority nor had he accorded sanction and in cross-examination he admitted that the Municipal Commissioner was the appointing authority of the accused. The sanction is accorded by the Standing Committee. The A.C.B. had written to the Municipal Commissioner for according sanction and it is clear that the Municipal Commissioner had not accorded any sanction. The witness has admitted that the Municipal Commissioner is the appointing authority in case of Head Clerk. The earlier resolution of the Standing Committee which was returned by A.C.B. for the reason that it was erroneous, is not produced. Therefore, it is clear that neither the prosecution examined the sanctioning authority nor have they produced the original resolution on record, and what is produced is only a certified copy. 10. The earlier resolution of the Standing Committee which was returned by A.C.B. for the reason that it was erroneous, is not produced. Therefore, it is clear that neither the prosecution examined the sanctioning authority nor have they produced the original resolution on record, and what is produced is only a certified copy. 10. Shri Adik, learned Counsel for the appellant, brought to my notice section 53 of the Bombay Provincial Municipal Corporation Act and referring to sub-section (3) thereof, he stated that it is the Municipal Commissioner who is the appointing authority of the appellant/accused. The learned A.P.P. Shri Adsule referred to section 20 and section 53 of the said Act and pointed out that all powers are to be exercised by the Corporation and as such the Standing Committee has all powers of the Corporation and therefore, the Municipal Commissioner cannot be said to be the appointing authority. This argument deserves to be rejected, firstly because section 53(3) of the Act clearly shows that the Municipal Commissioner is the appointing authority and the sanction has to be accorded by the appointing authority. It is for this reason that the A.C.B. has written to the Municipal Commissioner for according sanction but for the reasons best known to him, he placed the matter before the Standing Committee. When Standing Committee is not the appointing authority and the Municipal Commissioner is the appointing authority, then in that case, there was no reason for him to place the matter before the Standing Committee and in any case the Standing Committee could not have accorded the sanction to prosecute the appellant/accused. This apart, the resolution of the Standing Committee is not duly proved. Only a certified copy of the resolution is produced by the Deputy Municipal Commissioner, who has no personal knowledge of the passing of the said resolution, because he does not even claim that he was present in the said meeting. The Chairman who has signed below the resolution as appearing from the certified copy, is not examined and as such the resolution is not even proved. Even otherwise, the sanctioning authority had not been examined and he not having granted the sanction, the prosecution of the appellant is clearly untenable and as such no cognizance could be taken of the offence in the absence of valid sanction. Even otherwise, the sanctioning authority had not been examined and he not having granted the sanction, the prosecution of the appellant is clearly untenable and as such no cognizance could be taken of the offence in the absence of valid sanction. The law on the point of sanction is well developed and it is settled that the sanctioning authority has to apply its mind and come to the conclusion that the offence has taken place, there is evidence to substantiate the charge and that it is in the public interest to prosecute the accused. In this case not a single ingredient is satisfied. The learned Counsel relied on A.I.R. 1996 S.C. 1910, (State of Maharashtra v. K.K. Jagtiani)1. This was a case under the Bombay Municipal Corporation Act wherein also the appointing authority is the Municipal Commissioner. The Supreme Court has pointed out that the previous sanction for prosecution contemplated by section 6(1)(0) of the Prevention of Corruption Act in respect of the employees governed by the Bombay Municipal Corporation Act (3 of 1888) can be granted by the Commissioner acting by himself and the previous sanction is not invalid or ineffective in law on the ground that it was not preceded by the previous approval of the Standing Committee of the Corporation. What is material to be pointed out from this judgment is that according to the Apex Court also it is the Municipal Commissioner under the Bombay Municipal Corporation Act, who is the appointing authority and consequently the sanctioning authority and the sanction has to be granted by the Municipal Commissioner. In the matter of sanction the Standing Committee has no role to play and therefore, it was held that its approval or non-approval will not make any difference. When on the face of it the sanction accorded by the Standing Committee is neither proved and is also not shown to be an order passed by the authority competent to accord sanction to the prosecution. The prosecution must fail on this ground alone. It is well settled that the sanctioning authority must apply its own mind independently to the facts of the case and to the issue regarding desirability of the prosecution in the public interest. The prosecution must fail on this ground alone. It is well settled that the sanctioning authority must apply its own mind independently to the facts of the case and to the issue regarding desirability of the prosecution in the public interest. Nothing of the sort has been done and the sanction accorded in this case is on the face of it invalid and no prosecution can commence on the basis of such sanction order. The learned Special Judge could not have taken cognizance of the offence for want of valid sanction and the prosecution therefore fails on the basis of this ground alone. 11. The learned Counsel also referred to A.I.R. 1978 S.C. page 1745, (Parmanand Dass v. State of Andhra Pradesh)2, where the Supreme Court held thus : "Where the special officer appointed under section 23 of the Hyderabad Municipal Corporations (Amendment) Act 11 of 1970 was empowered to exercise the powers and perform the duties and discharge the functions of the Standing Committee of the Municipality but by a resolution the Standing Committee accorded sanction under section 6(1)(0) of the Prevention of Corruption Act and authorised the special officer to sign the order according sanction and accordingly the special officer issued the sanction order : Held that the sanction order was not valid as the Special Officer who was entitled under the Act has not given the sanction as a Special Officer or by himself exercising the powers of the Standing Committee but issued the sanction order in pursuance of the sanction given by the Standing Committee. The plea that the Standing Committee and the Special Officer are one and the same cannot be accepted in the circumstances. Criminal Revision Case No. 18 of 1976, Dt. 20-1-1976 (Andhra Pradesh) Reversed." However coming to the merits of the matter, it must be held that the arguments of the learned Counsel for the appellant are not convincing. The accused had made a categorical statement in his defence which has been referred to earlier while narrating the facts. The burden to prove that what was received by the accused was not by way of illegal gratification is shifted on the accused in view of the provisions of section 4, when the accused was found to have received amount in the trap incident. The burden to prove that what was received by the accused was not by way of illegal gratification is shifted on the accused in view of the provisions of section 4, when the accused was found to have received amount in the trap incident. If the defence version of the accused is taken into consideration then in that case, there is no question of the left hand side pocket of the accused getting smeared with anthracene powder which evidence categorically disprove the case of the accused that he was handed over the napkin containing the currency notes by the complainant. He even did not state that it was opened by him or he saw what were the contents in the napkin because immediately his hands were caught hold of by the Police party and in that event, there was no occasion for the currency notes reaching his left hand side pocket and the same getting smeared with anthracene powder. If the left hand side pocket of the accused was smeared with anthracene powder along with both the hands of the accused as is deposed to by the prosecution witnesses, then their story that the accused counted the notes and put them in his left hand side pocket is to be accepted. In the light of this evidence, it is difficult to accept the defence story put up by the accused or to hold that he has made out a probable case which could dislodge the prosecution version of the incident. It is true that the napkin would not normally get smeared with anthracene powder but if the complainant's version that the accused was carrying the napkin in his hand is accepted, then if he accepted the currency notes smeared with anthracene powder the anthracene powder would be found on that napkin also. It is true that there are certain discrepancies in the entire dialogue that is stated by P.W. 2 Sunil Joshi which finds place in the panchanama. But I do not think that for such minor contradictory statement made by the witness, the prosecution version otherwise found reliable is required to be discarded altogether. 12. It is true that there are certain discrepancies in the entire dialogue that is stated by P.W. 2 Sunil Joshi which finds place in the panchanama. But I do not think that for such minor contradictory statement made by the witness, the prosecution version otherwise found reliable is required to be discarded altogether. 12. Shri Adik very strenuously contended that the panch witness has admitted that the napkin was ultimately found on the table and therefore, that circumstance remained unexplained and if napkin was on the table, then there was no question of its being smeared with anthracene powder. There are two versions. The complainant had stated that the accused was carrying the napkin in his hands whereas the panch witness states that it was on the table. Merely because some statement has been made by the panch witness in the cross examination, that is not sufficient to discard the version that is proved by cogent evidence. 13. It is true that the complainant in this case was interested in protecting his unauthorised structure but that should not be a reason to discard his evidence which otherwise is reliable. Normally a person who has some work which is legally to be done by an employee, would not approach him in this fashion and if we consider the evidence of the complainant, on such criteria then it would result in injustice, when after scrutiny of the evidence as has been carefully done by the learned trial Judge and after considering the defence version, it was found that the version given by the accused in not only improbable but untrue, then the evidence of the prosecution has to be accepted. There is evidence of the complainant about the demand having been made by the accused for which he was compelled to approach the A.C.B. This is corroborated by the demand in the trap incident and by finding of the currency notes smeared by the anthracene powder in possession of the accused, and thus, the complainant's version stands fully corroborated. The burden shifts on the accused under section 4 of the Prevention of Corruption Act, 1947, which he has failed to discharge and therefore it must be held that the amount that he received from the complainant in that incident was by the way of illegal gratification. The burden shifts on the accused under section 4 of the Prevention of Corruption Act, 1947, which he has failed to discharge and therefore it must be held that the amount that he received from the complainant in that incident was by the way of illegal gratification. However, in view of my earlier finding on the point of sanction, the result of that the appeal will have to be allowed and the conviction of the appellant must be set aside. 14. The appeal succeeds and is allowed. The conviction of the appellant and the sentence passed against him are set aside. The appellant is acquitted of all the charges. Fine, if any, be refunded to the appellant. The bail bond of the appellant shall stand cancelled. Appeal allowed. -----