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2018 DIGILAW 519 (GAU)

State of Mizoram v. N. Pallai

2018-03-23

PRASANTA KUMAR DEKA

body2018
JUDGMENT : Prasanta Kumar Deka, J. 1. Heard Mr. A.K. Rokhum, learned Public Prosecutor, Mizoram. Also heard Ms. Dinari T. Azyu, learned counsel appearing on behalf of the respondent No. 1 and Mr. Lalfakawma, learned counsel appearing on behalf of the respondent No. 2. This is an appeal under Section 378 of the Code of Criminal Procedure (for short Cr.P.C.) against the impugned judgment and order of acquittal dated 19.03.2015 passed by the learned Special Judge, Prevention of Corruption Act, 1988 (for short, PC Act, 1988) Mizoram at Aizawl in criminal trial No. 1172/2010 arising out of ACB Case No. 1/2010 under Sections 120B/409 read with Section 11/13(1)(d)/13(2) of the PC Act, 1988. 2. The prosecution story in brief is that Pu. Malsawma, Under Secretary to the Government of Mizoram, Vigilance Department conveyed approval of the Chief Vigilance Officer, Government of Mizoram vide letter No. C31016/14/2010-VIG dated 24.02.2010 to conduct discreet enquiry on corruption charges against two officers working under the Health Department and the Ex-Health Minister. The SP, ACB registered ACB Enquiry No. 5/2010 dated 03.03.2010 and the Deputy SP, ACB conducted discreet enquiry into the matter and submitted his findings on 17.03.2010. The Enquiry Officer found that the original fund for AYUSH building amounting Rs. 53,68,000/- was not sufficient as per the plan and estimate prepared by the Assistant Engineer (Engineering Cell, DHS). The engineering cell prepared plan and estimate for around Rs. 55,00,000/- for construction of the said building at the Civil Hospital complex. In the mean time, Rs. 18,84,000/- was deposited to AYUSH accounts by the Directorate of Health and Medical Education (DHME) for the fund released by the PWD for OPD building. The said two funds were clubbed together amounting Rs. 72,52,000/- for the construction of the AYUSH building. The motive behind the clubbing together of the two funds is to cover up the deficiency of the AYUSH funds for the construction of the building by utilizing only Rs. 1,84,000/- from DHME fund and divert Rs. 17,00,000/- from the total amount for their pecuniary benefits. 3. The enquiry report was forwarded to the Chief Vigilance Officer, Mizoram vide office letter dated 18.03.2010 with a suggestion for registration of a criminal case against Dr. N. Pallai, Director, Health Services (respondent No. 1), Er. Lalsangliana Chhak-chhuak, Executive Engineer (EE) and others. 1,84,000/- from DHME fund and divert Rs. 17,00,000/- from the total amount for their pecuniary benefits. 3. The enquiry report was forwarded to the Chief Vigilance Officer, Mizoram vide office letter dated 18.03.2010 with a suggestion for registration of a criminal case against Dr. N. Pallai, Director, Health Services (respondent No. 1), Er. Lalsangliana Chhak-chhuak, Executive Engineer (EE) and others. The same was approved by the Vigilance Department vide letter No. C31066/14/2010-VIG dated 16.04.2010 against the defaulters. The Deputy SP, ACB submitted a written FIR to the SP, ACB against the said respondent No. 1, the said Executive Engineer and others. During the investigation, the said Executive Engineer of the Directorate of Health and Services, submitted a prayer for Tender of Pardon to accomplice under Section 306 of the Cr.P.C. The said petition was forwarded to the court for approval and the competent court approved his prayer and he was turned from accused person to 'Approver' in the case. However, prosecution sanction order to prosecute the said Executive Engineer was obtained from the competent authority. 4. The respondent No. 2 is the Ex-Health Minister, Mizoram and after the investigation a prima facie case under Section 13(1)(d)/13(2)/11 of the PC Act, 1988 read with Sections 409/120B of the IPC was found well established against the said respondents No. 1 and 2 and thereafter they were sent to face the trial under the aforesaid sections of law by way of the charge-sheet submitted by the investigation officer. 5. The learned court below framed charges under Section 13(1)(d)/13(2) and 7 of the PC Act, 1988 against the accused persons and on being explained to them, they pleaded not guilty and claimed to be tried. 6. The learned court below after the trial acquitted the said respondents vide judgment and order dated 19.03.2015 by holding as follows:- "34. ... From the evidences adduced above it is seen that there is no corroboration of the statement of the witness/approver by any of the other witnesses. Sec. 114 of the Indian Evidence Act provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular issue. Sec. 114 of the Indian Evidence Act provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular issue. The Court may presume - (b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars. 35. In light of the above discussions, and in appreciating the evidences adduced, this Court is of the considered view that the charges leveled against the accused persons (i) Dr. N. Palai & (ii) Tlanghmingthanga have not been proved beyond reasonable doubt and therefore are acquitted of charges u/s. 13(1)(d)/13(2) & 7 of P.C. Act, 1988." 7. Being aggrieved, the appellant State has preferred this appeal on the following grounds:- (a) that the court below failed to appreciate the material piece of evidence submitted by the Case I/O and in spite of a prima facie case being established against the accused failed to apply its judicial mind inasmuch as there exists an economic offence/misappropriation of public money as per the charge sheet submitted by the Case I/O; (b) that the findings of the learned court below is perverse inasmuch as the prosecution proved the case beyond reasonable doubt and the court below failed to consider the gravity and seriousness of the offence committed by the respondents; and (c) that the court below failed to discuss the reasons leading to the acquittal of the respondents and failed to appreciate the material piece of evidence on record in the proper perspective. 8. The learned Public Prosecutor submits that almost all the prosecution witnesses supported the case of the prosecution to the fact that a sum of Rs. 17,00,000/- was handed over to the respondent No. 1 by the approver Executive Engineer and on the other hand, the respondent No. 1 in his evidence as D.W. 1 has admitted acceptance of Rs. 7,00,000/- from the contractor, P.W. 4, Selkhuma. However, as the enquiry started, the respondent No. 1 took the plea that the said amount of Rs. 7,00,000/- was taken as a loan from the said P.W. 4, contractor and to that effect, manufactured the acknowledgment of the receipt of Rs. 7,00,000/- from the contractor, P.W. 4 in presence of witnesses. 7,00,000/- from the contractor, P.W. 4, Selkhuma. However, as the enquiry started, the respondent No. 1 took the plea that the said amount of Rs. 7,00,000/- was taken as a loan from the said P.W. 4, contractor and to that effect, manufactured the acknowledgment of the receipt of Rs. 7,00,000/- from the contractor, P.W. 4 in presence of witnesses. The approver deposed that the Assistant Engineer, P.W. 3 accepted the amount of Rs. 17,00,000/- from the P.W. 4, Contractor after withdrawal of the same from the SBI, Main Branch, Aizawl which was handed over to the approver Executive Engineer which in turn was handed over to the respondent No. 1 on the same date on which the said amount was handed over to him by the Assistant Engineer, P.W. 3. Not only that the said respondent No. 1 also admitted the fact of accepting the sum of Rs. 7,00,000/- in his statement of defense and deposition as D.W. 1. The said sum of Rs. 17,00,000/- which the approver handed over to the respondent No. 1 can very much be presumed that after keeping Rs. 7,00,000/-, the rest amount of Rs. 10,00,000/- was paid to the respondent No. 2 who was the Health Minister then which is very much supported by the chit which the respondent No. 2 sent to the respondent No. 1 for allotting the work order for the said AYUSH building and later on allotted to the said contractor, P.W. 4 without calling any tender. The presumption is well founded and the same amounts to acceptance of gratification by the respondent No. 1 being a public official and the act of allotment of the work to the contractor, P.W. 4 without calling tender goes to show that there was misappropriation of the fund for the building. Further, the learned Public Prosecutor submits that the amount of Rs. 17,00,000/- was released in the name of the contractor, P.W. 4 as the first running bill and the work value of the running bill is not at all commensurate to the works completed at the relevant time of drawal of the said amount. The same was preplanned and connived by the respondents and the modus operandi to misappropriate the public money. The same was preplanned and connived by the respondents and the modus operandi to misappropriate the public money. Under such circumstances, the charges framed against the respondents were proved beyond any reasonable doubt inasmuch as the act of acceptance of the amount admitted by the respondent No. 1 as D.W. 1 in his evidence itself is sufficient to prove the required ingredients under Sections 7 and 13(1)(d) of the PC Act, 1988. 9. The materials on record itself goes to show that the prosecution has proved the charges against the respondents but even then the learned court below failed to appreciate the same in the proper perspective and as such, considering the offence which is serious in nature involving public money, the judgment and order of acquittal passed by the learned court below be set aside and the same be remanded back for de novo trial. In order to support that the act of the respondents amounts to gratification, the learned Public Prosecutor relies on the case law of Madhukar Bhaskarrao Joshi Vs. State of Maharashtra reported in (2000) 8 SCC 571 . 10. Countering the submission of the learned Public Prosecutor, Ms. Azyu, learned counsel for the respondent No. 1, submits that the learned Public Prosecutor has relied heavily on the charge-sheet submitted by the Case I/O, P.W. 15. The materials in the charge-sheet cannot be considered by the learned court below until and unless the same are proved beyond any reasonable doubt. With respect to the point of perversity raised by the learned Public Prosecutor, the learned counsel for the respondent No. 1 submits that it is the duty of the learned Public Prosecutor to point out specifically the findings which the learned court below has considered beyond the material piece of evidence available on record or the materials left out by the learned court below while discussing the reasons for acquittal of the respondents. It is the contention of the learned counsel that the money involved in the whole enquiry is amounting to Rs. 17,00,000/-. The said amount was disbursed to the P.W. 4, contractor against the work completed in the form of running bills. Once the said amount is deposited by way of a cheque in the account of P.W. 4, contractor, the said money belongs to the contractor and after drawal by the contractor, if the respondent No. 1 has taken Rs. 17,00,000/-. The said amount was disbursed to the P.W. 4, contractor against the work completed in the form of running bills. Once the said amount is deposited by way of a cheque in the account of P.W. 4, contractor, the said money belongs to the contractor and after drawal by the contractor, if the respondent No. 1 has taken Rs. 7,00,000/- as loan out of the said money which, admittedly, has been refunded back to the contractor, the question of gratification does not come at all. An amount borrowed as a loan by a public official from a person who is known to him that itself does not amount to acceptance of gratification more so, the work allotted to the said contractor was duly completed to the full satisfaction of all including the approver Executive Engineer, the P.W. 3, Assistant Engineer and other officials who deposed as prosecution witnesses including P.W. 5, Dr. Baruah, the Director of DHME subsequently holding the post of the respondent No. 1. 11. Ms. Azyu further submits that the submission of the learned Public Prosecutor that a presumption could have been drawn by the learned court below on the admission of the fact of acceptance of the said sum of Rs. 7,00,000/- by the respondent No. 1 cannot be accepted inasmuch as the respondent No. 1 while deposing as D.W. 1 rebutted that the said amount of Rs. 7,00,000/- was part and parcel of the sum of Rs. 17,00,000/- so delivered to him by the approver Executive Engineer. The Executive Engineer approver as the P.W. 2 failed to prove that the respondent No. 1 accepted the sum of Rs. 17,00,000/- nor is there any corroboration of the allegation leveled by the P.W. 2, approver to that effect. The court has rightly come to the finding that the evidence of the accomplice cannot be accepted until and unless the same is corroborated by other witnesses in the trial. In fact, the prosecution side failed to discharge its burden in order to push the onus towards the respondents in order to prove charges beyond any reasonable doubt. Coming to the ingredients of Section 13(1)(d), the learned counsel for the respondent No. 1 submits that the prosecution has failed to prove that the respondent No. 1 by corrupt or illegal means, had obtained any valuable thing or pecuniary advantage from the contractor or from any other person. Coming to the ingredients of Section 13(1)(d), the learned counsel for the respondent No. 1 submits that the prosecution has failed to prove that the respondent No. 1 by corrupt or illegal means, had obtained any valuable thing or pecuniary advantage from the contractor or from any other person. Rather, the learned counsel submits that the building was completed within the period stipulated and there is no complain against non-completion of the building owing to misappropriation of the fund or for showing any favour to the contractor while allotting the said work. In order to buttress her submission, the learned counsel relies on the case laws of Kali Ram Vs. State of Himachal Pradesh reported in (1973) 2 SCC 808 , Ranjit Vs. Basavaraj & Ors. reported in (2012) 1 SCC 414 and M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr. reported in (2006) 6 SCC 39 and further submits that the appeal has no merit and the same is liable to be dismissed. 12. Mr. Lalfakawma, learned counsel for the respondent No. 2, supporting the arguments placed by the learned counsel for the respondent No. 1, submits that the evidence of an accomplice cannot be accepted until and unless the same is corroborated nor mere suspicion cannot be the basis for conviction of an accused. He submits further that there is no iota of evidence in order to show that the respondent No. 2 accepted any money, not to speak of the alleged Rs. 10,00,000/- out of Rs. 17,00,000/- withdrawn by the contractor. The alleged chit, purportedly issued by the respondent No. 2, was not proved at all by comparing the handwriting of the respondent No. 2 with the one alleged to be seized by the Case I/O. Failure on the part of the prosecution witnesses to prove the case of the prosecution cannot subsequently be remanded for de novo trial. In order to support his submission, the learned counsel relies on the case laws of Prithipal Singh & Ors. Vs. State of Punjab & Anr. reported in (2012) 1 SCC 10 and Rajiv Singh Vs. State of Bihar & Anr. reported in (2015) 16 SCC 369 . Thus, the learned counsel submits that the appeal is liable to be dismissed. 13. Considered the submissions of the learned counsels for the parties. This appeal is against the judgment and order of acquittal. reported in (2012) 1 SCC 10 and Rajiv Singh Vs. State of Bihar & Anr. reported in (2015) 16 SCC 369 . Thus, the learned counsel submits that the appeal is liable to be dismissed. 13. Considered the submissions of the learned counsels for the parties. This appeal is against the judgment and order of acquittal. In (2012) 1 SCC 414 (supra), the Hon'ble Apex Court dealt with the manner as to how an appeal against acquittal is to be dealt with which is reproduced hereinbelow:- "15. We are dealing with an appeal against acquittal. We are mindful of the principles laid down by this Court through a long line of judgments which guide a court dealing with an appeal against an order of acquittal. Unless it appears to us that the impugned judgment is perverse, we cannot interfere with it. If the view taken by the court acquitting the accused is a reasonably possible view, we cannot disturb it because the presumption of innocence of the accused is strengthened by the order of acquittal. If two views are possible on appreciating the evidence and if the view taken by the acquitting court is a reasonably possible view we cannot substitute it by the other view just because it appears to us to be a possible view. Keeping these well-established principles in mind we shall approach this case." 14. Keeping the said ratio in view, let me examine the materials available on record. Charges were framed against the present respondents under Sections 13(1)(d)/13(2) and 7 of the PC Act, 1988. The case of the prosecution needs no further elaboration. The P.W. 2 is the "approver" engineer. In his deposition in chief, he deposed that the respondent No. 1 informed him about the availability of fund of Rs. 53,68,000/- for construction of the AYUSH building and accordingly asked him to prepare the plan and estimate of the said construction. As per the direction of the P.W. 2, the P.W. 3 Assistant Engineer prepared the plan and the estimate exceeded from Rs. 53,68,000/- to Rs. 55,00,000/-. The respondent No. 1 told the P.W. 2 that there was an additional fund of Rs. 18,84,000/-. Thereafter, the P.W. 2 instructed the P.W. 3 to prepare the plan and estimate for the construction of four storeyed building by clubbing together the two funds amounting Rs. 72,52,000/-. 53,68,000/- to Rs. 55,00,000/-. The respondent No. 1 told the P.W. 2 that there was an additional fund of Rs. 18,84,000/-. Thereafter, the P.W. 2 instructed the P.W. 3 to prepare the plan and estimate for the construction of four storeyed building by clubbing together the two funds amounting Rs. 72,52,000/-. The respondent No. 1 handed over a chit to him issued by the respondent No. 2, the then Health Minister to issue work order to the P.W. 4, a Class-I contractor. The work order was accordingly allotted to the said contractor and as per his knowledge, the contractor finished the construction work of AYUSH building satisfactorily. The respondent No. 1 told him to instruct the contractor to hand over Rs. 17,00,000/- from the first running bill and the contractor, after withdrawing the amount of the first running bill handed over Rs. 17,00,000/- to the P.W. 3, the Assistant Engineer who handed over the same to the P.W. 2. Thereafter, he later on handed over the said sum to the respondent No. 1. He also deposed that after the case was registered against him, later on he submitted a prayer to turn himself as an approver which was granted by the court. He knew the contractor before as he was the contractor/supervisor of the Regional Cancer Centre at Zemabawk. He ascertained that the chit which he mentioned is contained in the file seized by the ACB. In his cross examination, he deposed that all the bills were counter-signed by him during his stay in the Health Department. However, he was not in the department when the final bill was released to the contractor. The condition of contract executed by the contractor was drafted by the engineering cell as per the PWD conditions of contract. Initially, as per the funds available from the Director of Health Services i.e. Rs. 53,68,000/-, the estimate for the building was kept within that limit. However, the ground floor of the said building was constructed from the fund of DHME. He did not find any mention of any money to be handed over to the respondent No. 1 after perusal of file No. D12019/2/2006-DHS/AYUSH construction. He admitted the acceptance of Rs. 1,00,000/- and Rs. 3,00,000/- on 11.11.08 and on 2.4.09 respectively from the contractor. However, he denied the suggestion that the said amount was not taken as a loan. He did not find any mention of any money to be handed over to the respondent No. 1 after perusal of file No. D12019/2/2006-DHS/AYUSH construction. He admitted the acceptance of Rs. 1,00,000/- and Rs. 3,00,000/- on 11.11.08 and on 2.4.09 respectively from the contractor. However, he denied the suggestion that the said amount was not taken as a loan. He admitted in his cross that he had no documents or chit to show that he handed over Rs. 17,00,000/- to the respondent No. 1. He further deposed in his cross examination that he was never called by the ACB to make a statement in respect of the present case after being made an approver. He admitted that the money amounting to Rs. 17,00,000/- which was put in his office by the P.W. 3, Assistant Engineer was not the government money and it was the contractor's money as the money had been taken out from the bank by the contractor from his account. He denied the fact published in the press regarding payment of money by the contractor and he deposed that he does not know if the chit as stated by him was written by the Minister, the respondent No. 2 and there was no authentication of the said chit. 15. From the evidence of the approver it is seen that on being told by the respondent No. 1 to the approver, a sum of Rs. 17,00,000/- from the first running bill of the contractor was handed over to the respondent No. 1. The bills were counter-signed by the approver. However, the said approver had no document or chit to show that he handed over Rs. 17,00,000/- to the respondent No. 1 nor he could establish that the chit for allotment of the work to the contractor was written by the Minister, respondent No. 2. 16. The P.W. 3 the Assistant Engineer, in his chief deposed that before finalizing the plan and estimate the approver, Executive Engineer, told him to contact the contractor and after calling him in his office chamber, he told him that Rs. 17,00,000/- would be deducted from the available fund and handed over the copy of two estimates whereafter 2/3 days the said contractor came to meet the said P.W. 3 and agreed to the plan and estimate. On 06.11.2008, he along with the contractor went to the SBI Main Branch and the contractor withdrew Rs. 17,00,000/- would be deducted from the available fund and handed over the copy of two estimates whereafter 2/3 days the said contractor came to meet the said P.W. 3 and agreed to the plan and estimate. On 06.11.2008, he along with the contractor went to the SBI Main Branch and the contractor withdrew Rs. 17,00,000/- and handed over the same to the P.W. 3. He brought it to the office and handed over the same to the approver, Executive Engineer on the same date but in absence of any other persons. The approver told him that the said sum of Rs. 17,00,000/- was to be handed over to the higher authority. He was aware that the respondent No. 1 repaid Rs. 7,00,000/- which he took as a loan from the contractor and he put his signature as one of the witnesses in the acknowledgment receipt issued by the contractor in presence of the son-in-law of the contractor. He also supported the feet that the approver also took a loan of Rs. 4,00,000/- from the contractor which he had repaid. But he was not a witness during the process of repayment. In his cross examination, he deposed that whatever he knew in connection with the construction of the AYUSH building, the same were derived from the approver. He further deposed that he did not get any instruction either from the respondent No. 1 or respondent No. 2 regarding collection of Rs. 17,00,000/- from the contractor. He did not count the amount but he presumed that the amount contained in the bag was Rs. 17,00,000/-. He does not know as to how the approver utilized the money which he handed over to him. However, in his re-examination he clarified that as per his thought, the amount would be Rs. 17,00,000/- as the approver instructed to bring Rs. 17,00,000/- from the said contractor. In his cross examination, further he deposed that he prepared the running bills in respect of the AYUSH building only under the instruction of the approver. He did not get any communication or instruction from the respondents. 17. From the evidence of the said P.W. 3, he as per the instruction of the approver informed the contractor that Rs. 17,00,000/- out of the total fund would be deducted. Rs. He did not get any communication or instruction from the respondents. 17. From the evidence of the said P.W. 3, he as per the instruction of the approver informed the contractor that Rs. 17,00,000/- out of the total fund would be deducted. Rs. 17,00,000/- was handed over to the approver but he had not seen the subsequent transmission of the amount to the Director rather, the approver told him that the deducted amount would be handed over to the higher authority. He specifically mentioned that there was no direction or instruction from the respondents to collect the sum of Rs. 17,00,000/- and he prepared the running bill as per the instruction of the approver only. He admitted the fact that a sum of Rs. 7,00,000/- was taken by the respondent No. 1 as loan from the contractor which was repaid accordingly. 18. The P.W. 4, Pu. Selkhuma, is the contractor who in his chief deposed that he approached the respondent No. 2 in order to allot the said work of construction of AYUSH building to him and the respondent No. 2 refused to allot the said work to anybody as the same was a proposal. He came in contact with the approver, P.W. 2 and the P.W. 3, the Assistant Engineer, while he was constructing the Cancer Centre at Zemabawk. The approver called him to his office and on his visit the approver Engineer told him that he would allot the work of construction of the AYUSH building and would take share of Rs. 17,00,000/-. Though initially he refused, however, later on he accepted the said offer and was ready to construct the said building. Thereafter, work order was issued for the said construction. The first running bill amounting Rs. 17,00,000/- was disbursed and issued a cheque which he encashed and on 6.11.2008, he withdrew the said amount of Rs. 17,00,000/-. The said amount was handed over to the approver through the P.W. 3, Assistant Engineer. He lend a sum of Rs. 4,00,000/- to the approver during the construction period of the AYUSH building. The said amount was repaid to the contractor and he acknowledged the receipt of the same. He was unaware with respect to any chit from the respondent No. 2 recommending his name for allotment of the construction work of the building. He lend a sum of Rs. 4,00,000/- to the approver during the construction period of the AYUSH building. The said amount was repaid to the contractor and he acknowledged the receipt of the same. He was unaware with respect to any chit from the respondent No. 2 recommending his name for allotment of the construction work of the building. The respondent No. 1 who was the Director of the Health Services then, requested to lend him some money amounting Rs. 7,00,000/- which he needed for his farm. The respondent No. 1 told him that he used Rs. 7,00,000/- from the said first running bill but the P.W. 4 was unaware from whom he took the said amount of Rs. 7,00,000/-. The said amount of Rs. 7,00,000/- was repaid in presence of witnesses against which he issued an acknowledgment receipt. In his cross examination, he stated that the respondent No. 2 never wrote a chit recommending his name for construction of the building. He denied about the press report to the effect that Rs. 21,00,000/- had been distributed amongst the approver and the respondents. Further, he deposed that before he was categorized as Class-I Contractor by the Mizoram PWD, he carried out construction works under the PWD under the capacity of Class-III and Class-II Contractor. The amount of Rs. 17,00,000/- against the running bill was disbursed to him against the work he completed. When the respondent No. 1 requested to lend him a sum of Rs. 7,00,000/-, the P.W. 4 told him to collect it from the money he handed over to the P.W. 3, Assistant Engineer. He knew that as per his instruction Rs. 7,00,000/- was taken by the respondent No. 1 as loan but he did not know regarding the left over amount of Rs. 10,00,000/- remained with the approver and the P.W. 3. 19. From the evidence of the contractor, P.W. 4, it is seen that he was aware that Rs. 17,00,000/- would be deducted from the first running bill prior to his allotment of the work order and as per demand made by the approver he handed over the sum of Rs. 17,00,000/- which was disbursed against his first running bill. The respondent No. 1 requested for Rs. 7,00,000/- and on the advice of the P.W. 4, the respondent No. 1 took the said amount from the said Rs. 17,00,000/- which was disbursed against his first running bill. The respondent No. 1 requested for Rs. 7,00,000/- and on the advice of the P.W. 4, the respondent No. 1 took the said amount from the said Rs. 17,00,000/- but from whom he took the said sum of Rs. 7,00,000/-, he could not say. The said amount was repaid as the said Rs. 7,00,000/- was borrowed by the respondent No. 1 as loan. He denied in his cross examination about any chit being issued by the respondent No. 2 as the then Health Minister. The amount of Rs. 17,00,000/- in the first running bill was due as he had done quite a lot of works. It is admitted in his cross that the sum of Rs. 17,00,000/- was handed over to the P.W. 3 for handing it over to the approver out of which Rs. 7,00,000/- was taken by the respondent No. 1 as loan. 20. The P.W. 5 is Dr. Debajit Baruah, the Director of DMHE. In his chief, he deposed that on 10.07.2008 he received certain instruction (chit) from the respondent No. 2 to allot the construction work to the P.W. 4, contractor. On that particular date he received estimate for construction of AYUSH OPD building from approver, the Executive Engineer. He prepared supplementary work order for construction of existing OPD, AYUSH building and the work order amounting Rs. 18,84,000/- was issued to the said contractor. Exhibit P9 is the said chit which he received from the respondent No. 2. In his cross examination, he deposed that he did not know if any money was given by the contractor to the respondent No. 2. He deposed that he used to receive written instruction (chits) from the present Chief Minister and acted only after consulting the present Health Minister. He also received chits from the present Health Minister to give departmental works to persons and to do certain works like appointment to the post of 4th Grade. He denied to the suggestion that the Exhibit P9 to be a fabricated one. He further deposed in his cross that the ground floor of the AYUSH building was used for extension of the OPD building and funds were released as and when the contractor finished the work by way of running bills. The work was completed successfully by the contractor, the P.W. 4. 21. He further deposed in his cross that the ground floor of the AYUSH building was used for extension of the OPD building and funds were released as and when the contractor finished the work by way of running bills. The work was completed successfully by the contractor, the P.W. 4. 21. From the evidence of P.W. 5, except the chit, purportedly issued by the respondent No. 2, the fact of giving any money to the respondents No. 1 and 2 has not come out. 22. P.W. 6 is Dr. C. Lallunghnema who was holding the post of Deputy Director, Directorate of Health Services since January, 2011. In his deposition in chief, he deposed that he knew the contractor, P.W. 4 and his bills were paid in 3 (three) installments. In his cross, he deposed that he did not authenticate the signature given in the chit as that of the respondent No. 2. He further deposed that as per his knowledge, there was no misappropriation of any fund which was provided by the Government of India, Department of AYUSH throughout the construction of the AYUSH building. 23. From the said evidence of P.W. 6, nothing relevant has come out except that the signature in the chit, purportedly issued by the respondent No. 2, was not authenticated. 24. The rest of the witnesses, namely, P.Ws. 7, 8, 9, 12, 13 and 14 are the seizure witnesses except P.W. 11 who is the son-in-law of the contractor, P.W. 4. The said P.W. 11 identified both the respondents and deposed that on 16.03.2010, the respondent No. 1 repaid the borrowed money amounting Rs. 7,00,000/- to his father-in-law, the P.W. 4. In the repayment receipt, Exhibit P4(A) was made in writing and the said P.W. 11 and P.W. 3 witnessed the said repayment of loan and they put their signatures thereon. 25. The P.W. 15 is the Case Investigation Officer, Mr. J Rokima. In his chief, he deposed that during the course of his investigation he visited the two offices of the Directorate of Health Medical and Education and the Directorate of Health Services and seized all connected documents from the two offices. During his investigation, the approver Engineer prayed for Tender of Pardon to accomplice under Section 306 of the Cr.P.C. and his prayer was allowed by the learned CJM, Aizawl. During his investigation, the approver Engineer prayed for Tender of Pardon to accomplice under Section 306 of the Cr.P.C. and his prayer was allowed by the learned CJM, Aizawl. He also examined the contractor, P.W. 4 who constructed the AYUSH building without calling of tender and seized two receipts from his possession showing thereby repayment of Rs. 7,00,000/- to him by the respondent No. 1 dated 16.03.2010 and repayment of Rs. 4,00,000/- by the approver, the Executive Engineer. The P.W. 4 was paid Rs. 17,03,442/- as the first running bill and after withdrawing the same, he handed over Rs. 17,00,000/- to P.W. 3, the Assistant Engineer and the said P.W. 3 told him that he in turn handed over the said amount of Rs. 17,00,000/- to the approver. The approver on being examined, told him that he received Rs. 17,00,000/- from the P.W. 3 and he on the same date, handed it over to the respondent No. 1. On examination of respondent No. 1 he told that he received the amount of Rs. 17,00,000/- from the approver and after retaining Rs. 7,00,000/-, sent back the remaining Rs. 10,00,000/- to the respondent No. 1. Accordingly, during the course of his investigation, it was ascertained that government money amounting Rs. 17,00,000/- was misappropriated by the respondents and utilized the money sanctioned for the construction of AYUSH building for their personal gain. Thereafter, finding a prima facie case under Section 13(1)(d)/13(2)/11 of the PC Act, 1988 read with Section 409/120B of the IPC, he completed his investigation, prepared the charge-sheet which is exhibited as Exhibit P1. 26. In his cross examination, he deposed that the application for pardoning the approver was submitted by the P.W. 2, approver himself and he forwarded the same to the court of learned CJM, Aizawl. He admitted that the amount against the first running bill was issued by way of cheque and as soon as this amount was drawn by the contractor, P.W. 4, the said amount ceased to be government money. He denied the fact that the approver told him that he had utilized Rs. 10,00,000/- and in order to save himself he offered himself as an approver to falsely implicate the respondents. He admitted the fact that the respondent No. 1 received only Rs. 7,00,000/- and the same was repaid by him to the contractor. He denied the fact that the approver told him that he had utilized Rs. 10,00,000/- and in order to save himself he offered himself as an approver to falsely implicate the respondents. He admitted the fact that the respondent No. 1 received only Rs. 7,00,000/- and the same was repaid by him to the contractor. In his cross, he further deposed that he had no evidence against the respondent No. 2 in respect of receipt of Rs. 10,00,000/- except the alleged statement made by the respondent No. 1. There is no signed statement of the respondent No. 1 in the case record. The whole case against the present respondents is based upon the statements made by the approver and the P.W. 4, Contractor. The P.W. 3, Assistant Engineer took Rs. 17,00,000/- from the P.W. 4 and even then he was not made an accused as his only act was to give Rs. 17,00,000/- to the approver and the case pertains to misappropriation of only Rs. 17,00,000/-. He did not believe that the approver gave only Rs. 7,00,000/- to the respondent No. 1 though he did not have any proof or evidence. He has no evidence against the respondent No. 2 except the alleged statement made by the respondent No. 1. The FIR was submitted in respect of loss of Rs. 17,00,000/- which was government money. He admitted that whenever a contractor takes some money from the bank, the money becomes the property of the contractor. He admitted that if the alleged statement made by the respondent No. 1 with regard to the involvement of the respondent No. 2 is false, then there is absolutely no case against the respondent No. 2. He did not make any recovery from the accused persons. He denied the political influence in the investigation of the case. He also admitted that there is no witness to the incident. The case was lodged on the basis of the letter written by the Under Secretary to the Government of Mizoram, Vigilance Department on 24.2.10 and the same does not form a part of the record. The investigation against the respondents was due to newspaper reports and he read the contents of the letter dated 24.2.2010 written by the said Under Secretary. He further affirmed in his cross that the P.W. 2, approver was the accused in the case and as per his statement, Rs. The investigation against the respondents was due to newspaper reports and he read the contents of the letter dated 24.2.2010 written by the said Under Secretary. He further affirmed in his cross that the P.W. 2, approver was the accused in the case and as per his statement, Rs. 17,00,000/- was alleged to have been handed over to the respondent No. 1. He could not produce any file noting or receipt to prove that Rs. 17,00,000/- was handed over to the respondent No. 1 by the approver. 27. From the evidence of the P.W. 15, the Case Investigation Officer (I/O), it is clear and apparent that the whole case against the respondents is based on the statements made by the approver, P.W. 2 who was the Executive Engineer and who was delivered an amount of Rs. 17,00,000/- by the P.W. 4, contractor. It is also apparent that the respondent No. 1 received only Rs. 7,00,000/- and the same was repaid by him to the P.W. 4, contractor. There is no proof at all as per the deposition of the I/O about the receipt of sum of Rs. 10,00,000/- by the respondent No. 2 except the alleged statement made by the respondent No. 1 to the I/O. However, on a specific question put to him, the I/O failed to produce any signed statement of the respondent No. 1. In addition to that, the investigation/enquiry was conducted only on the basis of the news published in the press. The line of investigation as per the Investigation Officer is with respect to misappropriation of a sum of Rs. 17,00,000/- which was withdrawn by the contractor from his own bank account against the amount disbursed for the first running bill. 28. From the aforesaid evidence it is apparently clear that the fact of handing over the amount of Rs. 17,00,000/- by the approver to the respondent No. 1, Director is not proved inasmuch as there are versions which are contradictory in nature. The P.W. 2, the approver stated that the P.W. 3, Assistant Engineer after withdrawing the money by the P.W. 4, contractor, was handed over to him who on that very day handed over the same to the approver. The amount as delivered by the P.W. 3 to the P.W. 2, approver is admittedly from the source of income of the contractor, P.W. 4. The amount as delivered by the P.W. 3 to the P.W. 2, approver is admittedly from the source of income of the contractor, P.W. 4. The P.W. 4, contractor stated that the P.W. 2, approver called him and informed that Rs. 17,00,000/- of the total fund would be deducted and the same amount is to be handed over to him from the first running bill. The approver, P.W. 2 deposed that he countersigned the bills passed for payment and as such the amount of Rs. 17,00,000/- must definitely be commensurate to the value of works completed. The fact of proposing the deduction of said amount of Rs. 17,00,000/- was stated to the P.W. 4, contractor by the approver and the same is supported by the deposition of P.W. 4 himself. The respondent No. 1 requested the P.W. 4 to lend an amount of Rs. 7,00,000/- and as per his version, the respondent No. 1 accepted Rs. 7,00,000/- from the said Rs. 17,00,000/- which was subsequently repaid to the contractor. It is assumption on the part of the prosecution that as the approver has deposed that the sum of Rs. 17,00,000/- was handed over to the respondent No. 1, as such, the rest of the amount of Rs. 10,00,000/- had proceeded to the respondent No. 2, the Ex-Health Minister. The respondent No. 1 in his statement under Section 313 of the Cr.P.C. stated that he borrowed Rs. 7,00,000/- from the contractor and denied having paid any amount to respondent No. 2 by him. He failed to recollect of handing over the chit to the approver. He denied receipt of Rs. 17,00,000/- from the approver. Rather, he stated that he was given a sum of Rs. 7,00,000/- by the approver which he took as loan. He denied having given any instruction to the approver to instruct the contractor to hand over Rs. 17,00,000/- from the first running bill. He admitted that during the construction of the AYUSH building, he requested the contractor to lend him Rs. 7,00,000/-. 29. The respondent No. 2 in his statement under Section 313 of the Cr.P.C. failed to recollect as to whether he wrote a chit in favour of the contractor. He could not recollect as to whether the contractor approached him or not. 30. 7,00,000/-. 29. The respondent No. 2 in his statement under Section 313 of the Cr.P.C. failed to recollect as to whether he wrote a chit in favour of the contractor. He could not recollect as to whether the contractor approached him or not. 30. The respondent No. 1 while deposing as D.W. 1 deposed that after the bill is prepared by the Engineers looking after the construction, it was placed for sanction. Once the bill amount is sanctioned, the cheque is normally prepared by the billing assistant of the office of the Director whereafter the cheques are signed by him and the Secretary. Once the cheque is handed over to the contractor, the money belongs to the contractor. As he required some funds for construction of his farm, he requested the contractor to loan a sum of Rs. 7,00,000/-. When the contractor paid money, he requested him to collect the same from the approver. He returned back the loan and the contractor acknowledged the receipt of the said amount. In his cross examination, he denied the fact that he received Rs. 17,00,000/- from the contractor from his running bill. He also denied to have handed over a sum of Rs. 10,00,000/- to the respondent No. 2. However, he admitted receipt of Rs. 7,00,000/- from the approver as a loan as per instruction and consent of the contractor. He denied to have told the police or gave statement to the effect that he handed over Rs. 10,00,000/- to the respondent No. 2. He deposed that he does not know the amount given by the contractor to the approver through the P.W. 3. From the evidence of the respondent No. 1 it is far clearer that the defence he took, remained unshattered by the prosecution at the time of his cross examination. 31. In (1973) 2 SCC 808 (supra), the Hon'ble Apex Court discussed the principles for appreciation of evidence in criminal cases and the onus which is reproduced herein below:- "23. Observations in a recent decision of this Court, Shivaji Sahabrao Bobade and Another v. State of Maharashtra to which reference has been made during arguments were not intended to make a departure from the rule of the presumption of innocence of the accused and his entitlement to the benefit of reasonable doubt in criminal cases. Observations in a recent decision of this Court, Shivaji Sahabrao Bobade and Another v. State of Maharashtra to which reference has been made during arguments were not intended to make a departure from the rule of the presumption of innocence of the accused and his entitlement to the benefit of reasonable doubt in criminal cases. One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the Courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the Court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal. 24. Leaving aside the cases of statutory presumptions, the onus is upon the prosecution to prove the different ingredients of the offence and unless it discharges that onus, the prosecution cannot succeed. The Court may, of course, presume, as mentioned in Section 114 of the Indian Evidence Act, the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The illustrations mentioned in that Section, though taken from different spheres of human activity, are not exhaustive. The illustrations mentioned in that Section, though taken from different spheres of human activity, are not exhaustive. They are based upon human experience and have to be applied in the context of the facts of each case. The illustrations are merely examples of circumstances in which certain presumptions may be made. Other presumptions of a similar kind in similar circumstances can be made under the provisions of the Section itself. Whether or not a presumption can be drawn under the Section in a particular case depends ultimately upon the facts and circumstances of each case. No hard and fast rule can be laid down. Human behavior is so complex that room must be left for play in the joints. It is not possible to formulate a series of exact propositions and confine human behavior within straitjackets. The raw material here is far too complex to be susceptible of precise and exact propositions for exactness here is a fake." 32. The same view was accepted by the Hon'ble Apex Court in (2006) 6 SCC 39 (supra). From the aforesaid principle it can be inferred that the burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. Even if there are statutory presumptions regarding the guilt of the accused, even then the burden upon the prosecution remains in order to prove the existence of facts which have to be present before the presumption can be drawn. In addition to that, the onus is upon the prosecution to prove the different ingredients of the offence and unless it discharges that onus, the prosecution cannot succeed. 33. In the present case in hand, the Case I/O has specifically mentioned that he investigated with regard to misappropriation of Rs. 17,00,000/- of government money. While doing so, the Executive Engineer, P.W. 2 who was pivotal in the whole process right from planning to disbursement of the bills against the completed works turned approver and his prayer was accepted by the learned CJM, Aizawl. Thereafter, he stated in his evidence that as per the advice of the respondent No. 1, he informed the contractor, P.W. 4 about the deduction of a sum of Rs. 17,00,000/- from the first running bill. He also stated that on receipt of the said amount of Rs. Thereafter, he stated in his evidence that as per the advice of the respondent No. 1, he informed the contractor, P.W. 4 about the deduction of a sum of Rs. 17,00,000/- from the first running bill. He also stated that on receipt of the said amount of Rs. 17,00,000/-, the same was handed over to the Director, respondent No. 1. The work order was given to the contractor as per the written instruction (chit) of the respondent No. 2 who was the then Health Minister. 34. In (2012) 1 SCC 10 (supra) with regard to the evidence of an accomplice not put on trial, the Hon'ble Apex Court held as follows:- "39. An accomplice is a competent witness and conviction can lawfully rest upon his uncorroborated testimony, yet the court is entitled to presume and may indeed, be justified in presuming in the generality of cases that no reliance can be placed on the evidence of an accomplice unless the evidence is corroborated in material particulars, which means that there has to be some independent witness tending to incriminate the particular accused in the commission of the crime. (Vide Rameshwar v. State of Rajasthan and Sarwan Singh Rattan Singh v. State of Punjab)." From the aforesaid principle it appears that an accomplice is a competent witness and conviction can lawfully rest upon his uncorroborated testimony. But even then, in general, no reliance can be placed on the evidence of an accomplice unless the evidence is corroborated in material particulars. 35. The evidence of the approver is the sole basis as per the Case I/O on the basis of which he investigated and filed the charge-sheet against the respondents. If the evidence of other witnesses examined by the prosecution is considered, it is clear and apparent that none of the witnesses other than the approver supported the fact that the approver handed over the sum of Rs. 17,00,000/- to the respondent No. 1, Director. If the said vital fact is not corroborated by any of the witnesses of the prosecution side, the fact of acceptance of any money by the respondent No. 2, the Ex-Health Minister, does not arise at all. It is admitted by the respondent No. 1 that out of the said amount of Rs. 17,00,000/- as per instruction and consent of the contractor he borrowed an amount of Rs. It is admitted by the respondent No. 1 that out of the said amount of Rs. 17,00,000/- as per instruction and consent of the contractor he borrowed an amount of Rs. 7,00,000/- which he accordingly repaid the said amount to the contractor. The said piece of evidence of the respondent No. 1 has not been shattered by the prosecution at all. 36. The learned Public Prosecutor submitted that there is ample evidence of acceptance of gratification by the respondents and in support of his contention he relied on (2000) 8 SCC 571 (supra) wherein the Hon'ble Apex Court expressed the true intent and meaning of the word 'gratification' in the following manner:- "11. In Black's Law Dictionary, "gratification" is defined as "a recompense or reward for services or benefits, given voluntarily, without solicitation or promise". But in Oxford Advance Learner's Dictionary of Current English the said word is given the meaning "to give pleasure or satisfaction to". Among the above two descriptions for the word "gratification" with slightly differing nuances as between the two, what is more appropriate for the context has to be found out. The context in which the word is used in Section 4(1) of the Act of 1947 is, hence, important. As the wording on the relevant portion employed in the corresponding provision in the PC Act 1988 [Section 20(1)] is identical we would reproduce that sub-section herein: "20. (1) Where, in any trial or an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate." 37. On the basis of the said definition, the learned Public Prosecutor submits that the manner in which the amount of Rs. On the basis of the said definition, the learned Public Prosecutor submits that the manner in which the amount of Rs. 17,00,000/- was taken from the contractor through the approver by the respondents clearly arose a suspicion that their intent was to misappropriate the said government fund by clubbing the aforesaid two funds thereby making their intent clear to misappropriate the government fund. Against this submission, I am of the opinion that the same cannot be accepted in the present case in hand. In (2015) 16 SCC 369 , the Hon'ble Apex Court discussed the burden on the prosecution side and the role of the word 'suspicion' by reproducing another decision of the Hon'ble Apex Court in the following manner:- "67. The above enunciations resonated umpteen times to be reiterated in Raj Kumar Singh v. State of Rajasthan as succinctly summarized in para 21 as hereunder: (SCC pp. 731-32) "21. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that 'may be' proved and 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between 'may be' and 'must be' is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between 'may be' true and 'must be' true, the court must maintain the vital distance between conjecture and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense." Keeping the said ratio in view of the Hon'ble Apex Court again in the said decision itself came to the conclusion as follows:- "66. It is well-entrenched principle of criminal jurisprudence that a charge can be said to be proved only when there is certain and explicit evidence to warrant legal conviction and that no person can be held guilty on pure moral conviction. Howsoever grave the alleged offence may be, otherwise stirring the conscience of any court, suspicion alone cannot take the place of legal proof. The well-established canon of criminal justice is "fouler the crime higher the proof. In unmistakable terms, it is the mandate of law that the prosecution in order to succeed in a criminal trial, has to prove the charge(s) beyond all reasonable doubt." 38. In order to draw the statutory presumption under Section 7 of the PC Act, 1988 against the respondents whether prosecution side has been able to prove the existence of facts which are required to arrive at the presumption as per Section 7 of the PC Act, 1988. In the present case in hand, as already stated, the investigation was carried out with respect to misappropriation of Rs. 17,00,000/- which purportedly was alleged to be handed over to the respondent No. 1 by the approver. The acceptance of the said amount from the approver has not been proved at all as held hereinabove. The amount of Rs. 7,00,000/- has been accepted by the respondent No. 1 as a loan with consent from the contractor. If that be so, a duty was cast upon the prosecution side to prove that certain acts supposed to be done by the respondents were not done in order to accommodate the contractor in the construction work. The learned Public Prosecutor submitted that no tender was called for against the said construction work. If that be so, a duty was cast upon the prosecution side to prove that certain acts supposed to be done by the respondents were not done in order to accommodate the contractor in the construction work. The learned Public Prosecutor submitted that no tender was called for against the said construction work. There is not even a single statement by the prosecution witnesses in that aspect of the matter nor has the Case I/O been able to bring on record such fact nor there is any question asked to the respondent No. 1 while deposing as D.W. 1. Under such circumstances, there are no proved facts on record in order to draw the presumption as required under Section 7 of the PC Act, 1988 in order to form the basis of the presumption beyond any reasonable doubt. Moreover, the P.W. 15, the Case I/O in deposition has clearly deposed that his investigation was confined with misappropriation of Rs. 17,00,000/- only. 39. Section 13(1)(d) of the PC Act, 1988 is reproduced hereinbelow:- "13. Criminal misconduct by a public servant.- (1) A public servant is said to commit the offence of criminal misconduct,- (a)... (b)... (c)... (d) if he,- (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or (e)..." 40. In order to convict a person under Section 13(1)(d), it is required to prove by the prosecution that the public servant by illegal or corrupt means obtained for himself any valuable thing or pecuniary advantage. In the present case the respondent No. 1 on his own admitted of having received a sum of Rs. 7,00,000/- as loan from the P.W. 4, contractor which he returned back from the amount which the contractor received against his first running bill. The said amount was repaid by the respondent No. 1 to the contractor which fact is admitted by the P.W. 4, contractor himself. 7,00,000/- as loan from the P.W. 4, contractor which he returned back from the amount which the contractor received against his first running bill. The said amount was repaid by the respondent No. 1 to the contractor which fact is admitted by the P.W. 4, contractor himself. The amount paid to the contractor against the work completed is the consideration as per the contract agreement entered by the contractor and the approver, Executive Engineer as per the PWD norms which the approver himself deposed in his deposition as P.W. 2. Once the consideration is paid to the contractor as per agreed terms the said amount ceased to be public money. Without there being any material piece of evidence to show that the amount of Rs. 17,00,000/-, released against the first running bill, was not commensurate against the work value completed by the contractor, it cannot be concluded that the said amount released against the first running bill was the amount so demanded by the approver, Executive Engineer, for onward transmission to the respondents. The act of taking loan by a public servant, in my opinion, cannot fall within the ambit and scope of Section 13(1)(d) of the PC Act, 1988 until and unless the dishonest intention of the respondents can be proved. The AYUSH building as per the evidence on record was constructed as per the plan to the full satisfaction of the prosecution witnesses and under such circumstances, the dishonest intention of the respondents cannot be presumed. 41. The reliance of Section 114 of the Indian Evidence Act by the learned court below coupled with the material piece of evidence and there being no corroboration of the evidence of the accomplice/approver, in my opinion, the appreciation of the evidence by the learned court below is proper there being no requirement for further interference by this court inasmuch as no perversity can be attributed to the discussions of the learned trial court. This appeal is accordingly dismissed. Send back the LCRs.