JUDGMENT : 1. This appeal is preferred against the judgment of conviction and sentence imposed by Special Judge at Puducherry in Spl.Calendar Case No.5 of 2008 dated 18.09.2014. 2. Brief facts of the prosecution case is that One Muthukrishnan in the month of January, 1998, when he went to Puducherry Municipality for knitting wire chairs, he came to understand about issuing of application for allotment of stalls by the Municipality and therefore, he went to Puducherry Municipality to buy the application. There he met the accused herein. He got three applications from the accused. The accused gave his address to him and asked to meet him in that address. 3. On returning to his home, PW-2[Muthukrishnan] informed the matter and handed over the application forms to his brothers. Since he and his brothers do not know as to how to fill up the application, he along with his brothers went to the accused house and the accused filled up the application. PW-2[Muthukrishnan] then went to Municipality to hand over his application where he met the accused. Since the accused assured to hand over his application, PW-2[Muthukrishnan] handed over the application and returned to his home. Thereupon, the Municipality sent communication to PW-2[Muthukrishnan] and his brother Sittrasan directing them to produce their original certificates for selection by bidding. Then, he went to Municipality and produced his certificate for verification. 4. Later, he and his brother received letter from the Municipality to participate in the bid. He participated in the bid under the handicap quota, whereas his brother participated in general category. No allotment was made either to him or his brother. In the first week of April, PW-2[Muthukrishnan] met the accused and at that time, he informed the accused about the non-allotment of stall to him. At that time, the accused informed him that his brother-in-law namely Selvam got a stall at Mudaliarpet Market, since Selvam is not able to run the stall, he can arrange to get the stall for Rs.25,000/-. 5. On 11.04.1998, PW-2[Muthukrishnan] and his brothers went to the accused and expressed about their willingness of taking the stall but expressed their inability to pay Rs.25,000/- for which the accused asked them to part with Rs.23,000/-. At that time, PW.2 had a sum of Rs.5,000/- and gave it to the accused. The accused executed a stamped receipt to PW2's uncle Mahalingam for allotment of his stall. At that time, PW.2 had a sum of Rs.5,000/- and gave it to the accused. The accused executed a stamped receipt to PW2's uncle Mahalingam for allotment of his stall. The accused also insisted to pay the remaining amount by 20.05.1998. But PW-2 was not able to pay the agreed balance amount by that day. The accused came to his house and insisted for immediate payment. Also that if he fails to pay the balance amount immediately, he would give the stall to any body else. 6. On 14.08.1998, PW2 [Muthukrishnan] arranged Rs.10,000/- and handed over it to the accused. After receipt of the amount, the accused asked PW1 to get the key of stall No.5 from one Jayavel. Two days later, PW2 went there and received the key of the shop No.5. He paid Rs.8,000/- to the accused on 21.08.1998 and asked for the allotment, the accused said that Selvam was not available in station and once Selvam returns, the accused assured to execute the document. 7. To run a kerosene shop, PW2 approached the Civil Supplies Department for granting licence where he was asked to produce the sale deed executed by Selvam (allottee) to Mahalingam and also the document executed by the Government. 8. When PW-2 [Muthukrishnan] insisted the accused to hand over the original document, the accused did not hand over the original documents but was dragging the matter. Then, PW2 went to see the alleged Selvam at Ariyankuppam at No. 172, Mariamman Kovil Street. Whereas the said Selvam was not found there in that address and more over no such door number and house is in existence. Thereafter when PW2 went and asked the accused for the documents, the accused threatened him. 9. Narrating the above events, the defacto complainant had given two complaints one dated 01.03.2000 and another dated 18.12.2001 to the Commissioner of Puducherry Municipality. A complaint was also given to Vigilance and Anti-Corruption which was marked as Ex.P15. Based on that, investigation was conducted and final report was filed before the Chief Judge, Puducherry who is also Special Judge to try cases under Prevention of Corruption Act, 1988. 10. A complaint was also given to Vigilance and Anti-Corruption which was marked as Ex.P15. Based on that, investigation was conducted and final report was filed before the Chief Judge, Puducherry who is also Special Judge to try cases under Prevention of Corruption Act, 1988. 10. The trial Court has framed charges against the accused/appellant under Section 420 IPC for dishonestly preparing and producing forged document (i.e.) auction application in the name of fictitious person Selvam and managed to take shop No.5 situated at Mudaliarpet Market, Puducherry; on auction for lease held on 21.08.1997 in the name of Selvam by giving false address and thereafter, cheated PW-2 [Muthukrishnan] and his brothers by dishonestly inducing them to part a sum of Rs.23,000/-under the pretext of handing over the said shop No.5 and entered into an agreement with Mahalingam on 11.04.1998 to lease out the shop No.5 and also received Rs.5,000/- as advance. Further, he forged another agreement dated 21.08.1998 in the name of the fictitious person Selvam in favour of Mahalingam for handing over the shop. Thus, committed, offence under Section 468IPC (3 counts). Being a public servant by abusing his official position has misconduct himself and obtained pecuniary advantage for a sum of Rs.23,000/- and thereby committed offence under Sections 420, 468 and Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988. 11. To prove the charges, the prosecution has examined 14 witnesses and marked 22 exhibits. On behalf of the accused, no evidence was let in. The trial Court found the accused guilty of all charges and sentenced to undergo RI for a period of 5 years and fine of Rs.7,500/- in default to undergo 3 months SI for the offence under Section 420 IPC; sentenced to undergo 5 years RI and fine of Rs.7,500/-in default of 3 months SI for offence under Section 468 IPC; and sentenced to undergo RI for a period of seven years and fine of Rs.10,000/- in default to undergo 6 months SI for offence under Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988. The substantive sentences of imprisonments was directed to run concurrently. The period of sentence already undergone if any was directed to be set off under Section 428 Cr.P.C. 12. The appellant herein challenges the trial Court judgment on the ground that the trial Court failed to appreciate the evidence placed before it properly. The substantive sentences of imprisonments was directed to run concurrently. The period of sentence already undergone if any was directed to be set off under Section 428 Cr.P.C. 12. The appellant herein challenges the trial Court judgment on the ground that the trial Court failed to appreciate the evidence placed before it properly. On a wrong presumption that the appellant has abused his position and had fabricated the records and documents so as to cheat the Puducherry Municipality in which he was working as Lower Division Clerk and to cheat the third party in respect of the shop owned by Puducherry Municipality, the trial Court has arrived at an erroneous finding. 13. The fact that the Municipality shops are leased out in auction by Revenue Officer and not by Lower Division Clerk like the appellant, though was accepted by PW-1, the trial Court has failed to appreciate the same. The sanction to prosecute does not contain the resolution of the Municipality. Without resolution of the Municipality, the appellant cannot be removed from service. While so, the sanction order which is defective, goes to the root of the prosecution and vitiates all the proceedings. 14. The learned Judge, who delivered the judgment was not notified by the Government as a Special Judge as per Section 3 of the Prevention of Corruption Act, 1988. While Section 4 of the Prevention of Corruption Act confers exclusive power on the Special Judge to try the offence specified in Sub Section 1 of Section 3. Without notification for the appointment as Special Judge, the trial was conducted by the Presiding Officer. Therefore, the judgment rendered by the Presiding Officer is non est in law. 15. It is further contended by the learned counsel appearing for the appellant that to prove the charge under Section 468 IPC, the essential ingredient of forgery and intention of cheating has to be made out. The prosecution has failed to produce and prove the documents, which were the responsible for allotting shop No.5 to Selvam. The documents, which alleged to have been executed by the appellant with PW-2 and the documents, which alleged to have been fraudulently created by the appellant in the name of fictitious person Selvam, have never been tested in the manner known to law to establish that these documents are forged documents. The documents, which alleged to have been executed by the appellant with PW-2 and the documents, which alleged to have been fraudulently created by the appellant in the name of fictitious person Selvam, have never been tested in the manner known to law to establish that these documents are forged documents. While so, the trial Court ought not to have held the appellant guilty of offence for forgery. 16. As far as the offence under the Prevention of Corruption Act is concerned, the learned counsel would contend that the charge under Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 is very vague. It is not specifically mentioned under which one of three category mentioned under Section 13(1)(d) falls the alleged misconduct of the appellant. 17. Per contra, the learned Public Prosecutor (Pondy) appearing for the respondent would submit that the appellant herein was working as Octori Bearier Officer in the Revenue Section of Puducherry Municipality. When public auction for shop No.5 at Mudaliarpet Market was conducted during the month of August 1997, the appellant managed to get the allotment of the shop in the name of a fictitious person Selvam and got the possession of the shop. Later, he tried to lease it out to the defacto complainant Muthukrishnan and received Rs.23,000/- on the following dates: 1. 11.04.1998 Rs.5,000/- 2. 14.08.1998 Rs.10,000/- 3. 21.08.1998 Rs.8,000/- 18. He executed two agreements one in his name and another in the name of fictitious person Selvam. Ex.P3 is the agreement executed by the appellant/accused to Mahalingam acknowledging the receipt of Rs.5,000/- for handing over the shop No.5 owned by Selvam, Ex.P4 the agreement is executed by the accused in the name of Selvam to Mahalingam. The auction notice is marked as Ex.P22. Ex.P14 is the allotment of the shop in the name of Selvam through the auction held on 21.08.1997. The agreements are marked as Ex.P3 and Ex.P4. The complaint of Muthukrishnan to the Commissioner which is marked as Ex.P2 along with the evidence of PW-2 Muthukrishnan proves the fact that the shop of the Municipality was fraudulently taken possession by the appellant and with an intention to cheat Muthukrishnan and Mahalingam, he has entered into the agreement dishonestly and collected Rs.23,000/- from them under the pretext of handing over the possession of shop No.5 allotted by the Municipality to Selvam. 19. 19. The learned Public Prosecutor (Pondy) would also rely upon the evidence of PW-10, who has spoken about the fact that how the shop No.5 was not subjected to public auction and how the accused without the knowledge of Sales Officer and Municipality had created the records as if the shop No.5 was allotted to the successful bidder in the public auction. 20. Point for consideration: Whether the finding of the trial Court is in consonance with the rule of evidence? 21. The first attack on the judgment is regarding the competency of the Court below to try the case under Prevention of Corruption Act. In support of his contention, the learned counsel would submit that the Government of Puducherry has published the notification in its gazette dated 05.11.2014 appointing the Chief Judge, Puducherry as Special Judge for the Prevention of Corruption Act, in exercise of the powers conferred by Sub Section 1 of Section 3 of Prevention of Corruption Act. Whereas the judgment under appeal was delivered by the Chief Judge on 18.09.2014 much prior to the notification. To buttress to his submission, the learned Public Prosecutor would refer to Sections 3 and 4 of Prevention of Corruption Act, 1988. 22. It is no doubt that the offence under Prevention of Corruption Act should be tried by the Special Judge appointed by the Government through gazette notification. So far as the Presiding Officer who has decided the present case on 18.09.2014, though the notification is dated 05.11.2014, it clearly states that the notification shall be deemed to have come into force with effect from 24.06.2014. While so, the judgment which has been passed on 18.09.2014 is perfectly in order and the Presiding Officer is undoubtedly the Special Judge competent to try the case under Prevention of Corruption Act, the date on which the judgment was pre-delivered. 23. The second contention of the learned counsel appearing for the appellant is that, the sanction order is a defective one without the copy of the resolution alleged to have been passed by the Municipal Council. On perusal of the records and evidence placed before this Court, this Court finds that the appellant herein, immediately after registration of the complaint and pending investigation, was placed under suspension and later departmental enquiry has been initiated against him for grave misconduct and major penalty of dismissal from service was passed against him on 06.02.2004. On perusal of the records and evidence placed before this Court, this Court finds that the appellant herein, immediately after registration of the complaint and pending investigation, was placed under suspension and later departmental enquiry has been initiated against him for grave misconduct and major penalty of dismissal from service was passed against him on 06.02.2004. On the date of filing the charge sheet and taking cognizance, he was not a public servant. Under Section 19 of Prevention of Corruption Act, sanction to prosecute is a mandatory requirement if only the person is in employment in connection with the affair of the state. Sanction to prosecute is not at all required for the person, who is dismissed from service and if at all, any sanction accorded is only a superfluous order. 24. Even otherwise in the sanction order marked as Ex.P9, the sanctioning authority-PW1 has indicated in his order that Puducherry Municipality Council being the authority competent to remove the appellant/Ravi Kumar from office had after careful examination of the materials has accorded sanction under Section 19(1) of Prevention of Corruption Act, 1988. Therefore, this Court finds no force in the submission of the learned counsel appearing for the appellant regarding the competency of the Presiding Officer, who rendered judgment and the sanction for prosecution. 25. On factual matrix, the case of the prosecution centres around the complaint taken up for investigation and the evidence of the complainant. The First Information Report Ex.P15 has been registered at the instance of one Alphonse, Commissioner, Puducherry Municipality addressed to Superintendent of Police, Vigilance and Anti-Corruption, Puducherry. The said Thiru. Alphonse is examined as PW-1. He in his evidence had stated that he received the complaint from Muthukrishnan alleging Ravikumar/appellant had cheated him a sum of Rs.23,000/- promising to give shop No.5 at Muthailapet Market and when he demanded the money, the said Ravikumar is threatening him. 26. On receipt of this complaint from Muthukrishnan, which is marked as Ex.P2, PW-1 Commissioner of Municipality has conducted internal enquiry and placed Ravikumar under suspension and thereafter, forwarded the complaint of Muthukrishnan dated 01.03.2000 along with additional some information vide letter dated 18.12.2001 which is marked as Ex.P1. In the cross examination of PW-1, he admits that shop No.5 was allotted in favour of Selvam and the allotment order dated 24.10.2007 was issued by the Revenue Officer. In the cross examination of PW-1, he admits that shop No.5 was allotted in favour of Selvam and the allotment order dated 24.10.2007 was issued by the Revenue Officer. The two agreements, which are marked as Exs.P3 and P4 are admittedly handed over by PW-1 to the Police. In his deposition, PW-1 admits that these two exhibits were given to him by Muthukrishnan along with complaint dated 01.03.2000. To prove cheating and forgery and to attract Section 468 IPC, the ingredient of dishonest intention to cheat from the inception and making false document with intention to commit fraud or forgery has to be established. 27. From the evidence, we find that PW-2 [Muthukrishnan] has given complaint to PW-1 that the accused cheated him Rs.23,000/- and when he demanded the money back, he was threatened. The money was received by the accused in respect of the shop No.5 which was allotted in the auction to one Selvam. The prosecution exhibits no way indicate that the accused/appellant had participated in the public auction in the name of Selvam. There is no evidence to infer that the appellant had role in the allotment of the shop No.5. 28. As far as Exs.P3 and P4 agreements are concerned, in Ex.P3, it is between Ravikumar and Mahalingam dated 11.04.1998 in which Sittrasan has signed as witness. As far as Ex.P4 is concerned, it is between Selvam and Mahalingam in which Ravikumar the accused has signed as first witness and Sittrasan has signed as second witness. In the said document at Page No.2, Selvam has signed as first party and Mahalingan has signed as 2nd party. When the prosecution allegation is that there is no such person by name Selvam and it was the accused, who impersonated himself as Selvam and executed the agreement Ex.P4, then the prime duty of the prosecution is to send the subject document to scientific expert opinion and compare the signature found in Ex.P4 signed as Selvam and that of the accused person. In both the documents Sittrasan brother of the Muthukrishnan has signed as witness. The said Sittrasan is examined as PW-3 by the prosecution. In both the documents Sittrasan brother of the Muthukrishnan has signed as witness. The said Sittrasan is examined as PW-3 by the prosecution. In his evidence, PW-3 has stated that in the public auction, he and his brother applied, but they were not successful and no shop was allotted to them and thereafter, his brother Muthukrishnan negotiated with the appellant and tried to get the shop No.5 in his name to run kerosene distribution. 29. The case of the prosecution is that PW-2[Muthukrishnan] being visually impeded person, his brother PW-3 [Sittrasan] and his cousin PW-4 [Mahalingam] have assisted him in negotiating with the appellant to get the shop No.5 and paid Rs.23,000/- in three instalments. The trial Court has rejected the contention of the accused/appellant that A2 to A4 are related to each other and interested witnesses and therefore, their evidence should be treated with suspicious and they have not proved the source of paying Rs.23,000/-. 30. This Court, on cumulative reading of the evidence of PW-2, PW-3 and PW-4, finds no suspicion or reason to disbelieve their version. Their disparate attempt to get the Municipality shop to eke their livelihood had been exploited by the appellant taking advantage of his position in the Municipality. The failure of the prosecution to send the agreement Exs.P3 and P4 to the Lab to establish the forgery may be advantages to the accused so far as the offence under Section 468 IPC, but not for 420 IPC, which is cheating simplicitor. 31. Ex.P3 is the document executed by the appellant on behalf of one Selvam. PW-6[Viswanathan], Revenue Inspector and PW-7 [Sundaramurthy], Bill Collector have deposed that the shop No.5 was allotted to Selvam but he did not occupy the shop and pay the rent. When they enquired Selvam in the given address, they found that he is not residing there. Therefore, a demand notice Ex.P6 was affixed. 32. The role of the appellant in cheating PW-2 promising him to give the shop No.5 and collecting Rs.23,000/- dishonestly could be seen from the deposition of PW-5[Jayapal] who has spoken that he know the appellant Ravikumar for a long time and during the year 1998, he was maintaining pay and use toilet of Puducherry Municipality. During the 2nd week of August 1998, the appellant gave key for shop No.5 and instructed him that the shop has been let out in auction. During the 2nd week of August 1998, the appellant gave key for shop No.5 and instructed him that the shop has been let out in auction. The successful bidder will come and ask for the key, then he should give the key. After one week, three persons came and told him that they are the successful bidder for the shop No.5 and asked for shop No.5 key. As per the instruction of the accused, he gave the key to those persons and also informed the same to the appellant, when he met him in person. 33. Surprisingly there is no cross examination of this witness by the accused. Whereas this witness is the sheet anchor of the prosecution case to establish the accused had the control of shop No.5 with him and the instruction of the accused/appellant to hand over the key to those 3 persons, who are none else than PW-2 to PW-4. This could be easily inferred from the evidence of PW-3 who has narrated the facts. 34. Thus, the appellant had made them to believe that the shop No.5 is allotted to his brother-in-law Selvam and executed the agreements in his name and handover the key, after receiving Rs.23,000/-. The possession of shop No.5 was with the appellant due to his official position as Octroi Barrier Officer in Revenue Section of Puducherry Municipality. Instead of informing his authority that the allottee has neither occupied the premises nor paid the rent, the appellant had taken advantage of the situation and by abusing his official position in order to gain pecuniary advantage, he had induced PW-2 to part away the money, knowing fully well that he cannot have personal control over the shop No.5 and he cannot unofficially hand over the possession of Shop No.5 Muthaialpet Market to any third party without following the public auction procedure. 35. Even assuming that the prosecution has failed to prove Section 468 IPC by subjecting the documents for handwriting expert opinion, the charge of cheating both the Municipality as well as private individual is well proved. The said act is a misconduct of a public servant done by abusing his official position liable for offence under Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988. The said act is a misconduct of a public servant done by abusing his official position liable for offence under Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988. Though the charge has not been specified under what head the misconduct falls, the narration of the facts as proved by the prosecution indicates that it falls under all the three categories viz., corrupt or illegal means, abusing his position as public servant for obtaining pecuniary advantage without any public interest. 36. Therefore, while reversing the judgment of the trial Court, in sofar as the offence under Section 468 IPC, which is the third charge framed by the trial Court, the other three charges namely, Section 420IPC cheating the Municipality; Section 420 cheating the individual and Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1998 misconduct of a public servant by obtaining pecuniary advantage of Rs.23,000/-, this Court confirms the finding of the trial Court. 37. The learned counsel appearing for the appellant, apart from his submission on legal issues, also submitted that in any event the sentence imposed on the appellant is excessive, considering the gravity of the offence. 38. Taking note of this submission, this Court modifies the sentence imposed by the trial Court as under: Name of the accused Charges framed under Section by the trial Court Sentence imposed by the trial Court Modified sentence Ravikumar /appellant Under Section 420 IPC To undergo 5 years RI and to pay a fine of Rs.7,500/- in default to undergo SI for 3 months. To undergo 1 year RI. Fine amount imposed by the trial Court remains unaltered. Ravikumar /appellant Under Section 468 of IPC To undergo 5 years RI and to pay a fine of Rs.7,500/- in default to undergo SI for 3 months. Acquitted Ravikumar /appellant Under Section 13(2) r/w 13(1)(d) of PC Act To undergo 7 years RI and to pay a fine of Rs.10,000/- in default to undergo SI for 6 months. To undergo 1 year RI. Fine amount imposed by the trial Court remains unaltered. The sentence of imprisonment is ordered to run concurrently. Acquitted Ravikumar /appellant Under Section 13(2) r/w 13(1)(d) of PC Act To undergo 7 years RI and to pay a fine of Rs.10,000/- in default to undergo SI for 6 months. To undergo 1 year RI. Fine amount imposed by the trial Court remains unaltered. The sentence of imprisonment is ordered to run concurrently. The period of detention already undergone, if any, is directed to be set off under Section 428 Cr.P.C. The appellant/accused is directed to surrender before the trial Court within a period of 30 days failing which the trial court is directed to secure the accused for the remaining period of sentence. So far as the offence under Section 468 is concerned, the fine amount paid by the appellant shall be refunded to him. 39. In the result, this Criminal Appeal is partly allowed by reversing the conviction of the accused for the offence under Section 468 IPC and confirming the conviction under Section 420 IPC and Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 with sentence modification.