JUDGMENT : (Marli Vankung, J.) Heard Mr. Lalfakawma, learned counsel for the appellant. Also heard Mrs. Linda L. Fambawl, learned Public Prosecutor for the State respondents and Mr. J.C. Lalnunsanga, learned Special Public Prosecutor for Mizoram Lokayukta. 2. This is an appeal filed against the Judgment Order dated 04.09.2023,passed by the Court of Special Judge, Prevention of Corruption Act, Aizawl, Mizoram in ACB PS Case No. 001 of 2022 dated 28.02.2022, convicting the appellant under Section 13 (2) r/w 13 (1) (a) and (b) of Prevention of Corruption Act, 1988 (2018 Amendment) and u/s Section 409 of the Indian Penal Code, 1860 against the sentence order dated 05.09.2023, sentencing him to undergo two (2) years imprisonment with a fine of Rs. 1,00,000/- (Rupees One Lakh only) in default another imprisonment of six (6) months under Section 409 of Indian Penal Code, 1860 and imprisonment for four (4) years with a fine of Rs. 1,00,000/- (Rupees One Lakh only) in default another imprisonment of six (6) months under Section 13 (2) r/w 13 (1) (a) of Prevention of Corruption Act, 1988 (2018 Amendment). Both of the terms sentence, except fine, are to run concurrently. 3. Brief facts of the case is that on dated 20.05.2020, Sh. H. Thanga Zate, Deputy Secretary, Public Works Department, Mizoram submitted First Information Report (herein after referred to as “FIR”) to the Chairperson, Mizoram Lokayukta to investigate an alleged illegal money taken by the Accused/ Appellant from Contractors while he was posted at Khawzawl Division, Mizoram. The Chairperson, Mizoram Lokayukta thereafter directed the Anti-Corruption Bureau (hereinafter referred to as “ACB”) to conduct preliminary enquiry vide letter dated 02.06.2020 bearing No. C.13017/16/2020-ML. On receipt of the Lokayukta Order, the Superintendent of Police, ACB, registered preliminary enquiry No. P.E (LOK) No. 3 of 2020 dated 19.06.2020 after obtaining approval from the Chief Vigilance Officer, Aizawl, Mizoram. The Superintendent of Police, ACB thereafter entrusted the present Respondent No. 2 for investigation. During preliminary enquiry, the Respondent No. 2 found that one Sh. Lalroenga, R/o Republic Veng, Aizawl was appointed to construct Rabung to Aizawl Road, MZ02 104 (0.00 - 2.96 KMP) and routing maintenance for five (5) years after completion of construction under PMGSY. In this connection, Agreement No. 10/MIRRDA/2018-19 dt. 05.09.2018 vide letter No. B.15028/240/2019/PRX/13/PMGSY/EC/PWD dated 20.09.2018 was also executed. During preliminary enquiry, the Respondent No. 2 found that one Sh. Lalroenga, R/o Republic Veng, Aizawl was appointed to construct Rabung to Aizawl Road, MZ02 104 (0.00 - 2.96 KMP) and routing maintenance for five (5) years after completion of construction under PMGSY. In this connection, Agreement No. 10/MIRRDA/2018-19 dt. 05.09.2018 vide letter No. B.15028/240/2019/PRX/13/PMGSY/EC/PWD dated 20.09.2018 was also executed. The said preliminary enquiry also allegedly revealed that the accused/appellant while holding the post of JE, PWD at Khawzawl Division had allegedly demanded illegal money from the abovementioned appointed Contractor namely Sh. Lalroenga amounting to Rs. 17,00,000/(Rupees Seventeen Lakhs only) and Rs. 3,00,000/(Rupees Three Lakhs only) from one Sh. Vanhmingthanga, S/o Zothankunga (L), R/o Khawzawl Vengthar who was working under Contractor Sh. Lalroenga as a Sub —Contractor. That as the allegations were deemed to be substantiated, the Respondent No. 2 submitted FIR to the Superintendent of Police, ACB with a request to register a case against the accused/appellant. Accordingly, ACB PS Case No. 01 of 2022 dated 28.02.2022 under Section 409 of Indian Penal Code, 1860 r/w 13 (1) (a) (b) and 13 (2) of the Prevention of Corruption Act, 1988 (2018 Amendment) was registered against the accused/appellant. 4. That pursuant to registering ACB PS Case No. 01 of 2022 dated 28.02.2022 against the accused/appellant, prosecution sanction under Section 19 of the Prevention of Corruption Act, 1988 (2018 Amendment) (hereinafter referred to as “PC Act”) was accorded by the Secretary to the Government of Mizoram, PWD vide Order dated 04.11.2022 bearing memo No. C.14016/1/2020-PWD(E). 5. The Special Judge, Prevention of Corruption Act upon receipt of the case took cognizance of offence against the accused/appellant. Charges were framed against the accused/appellant under Section 409 of the Indian Penal Code, 1860 and under Section 13 (1)(a)(b) r/w Section 13 (2) of the PC Act on dated 30.05.2023 and to which the accused/appellant pleaded not guilty and claimed to be tried. 6. That during the trial, the prosecution in support of their case, examined as many as twenty (20) witnesses. That out of the prosecution witnesses, the prosecution witness Nos. 3 and No. 4 at the request of the Public Prosecutor were declared as hostile witnesses. 7. The learned Trial Court below also recorded the statement of the accused/appellant under Section 313 of the Code of Criminal Procedure, 1973 and the plea of defence was of total denial. That out of the prosecution witnesses, the prosecution witness Nos. 3 and No. 4 at the request of the Public Prosecutor were declared as hostile witnesses. 7. The learned Trial Court below also recorded the statement of the accused/appellant under Section 313 of the Code of Criminal Procedure, 1973 and the plea of defence was of total denial. Thereafter, the learned Trial Court, on hearing both the parties found the accused/appellant guilty of the offence of the charge u/s 409 IPC and sentence him to undergo 2 (two) years imprisonment with a fine of Rs. 1,00,000/- (Rupees One Lakh only), in default, another imprisonment of 6 months. The accused/appellant was also sentenced u/s 3(2) r/w 13(1)(a) of PC Act, and sentenced to undergo 4 years imprisonment with a fine of Rs. 1,00,000/(Rupees One Lakh only) in default another imprisonment of 6 months, both the terms of sentence except the fine were to run concurrently. 8. Being highly aggrieved and dissatisfied with the Judgment & Order dated 04.09.2023 and the sentence order dated 05.09.2023, the instant appeal has been filed by the accused/appellant. 9. Mr. C. Lalfakawma, learned counsel for the accused/appellant submitted that the evidence on record does not warrant conviction and sentence of the Accused/ Appellant under Section 409 of the Indian Penal Code, 1860 and Under Section 19 (2) r/w 13 (1)(a) of the PC Act. As such, both the conviction Judgement & Order dated 04.09.2023 and Sentence Order dated 05.09.2023 are not sustainable in the eye of law and the same are therefore liable to be set and quashed, since the learned Trial Court has failed to appreciate the evidence on record in its proper perspective both in its law and facts and that there are absolutely no legally acceptable evidence to connect the accused/appellant with the alleged offence and committed the appellant only on the basis of conjecture surmises. 10. The learned counsel submitted that no opportunity of being heard was given to the appellant as per Section 19 of the PC Act in the event of prosecution sanction. He further submitted that on perusal of the charge sheet the accused/appellant has been charged for allegedly demanding money from a contractor namely Sh. Lalroenga (PW-3) amounting to Rs. 17,00,000/- (Rupees Seventeen Lakhs only) and another amount of Rs. 3,00,000/- (Rupees Three Lakhs only) from one Sh. Vanhmingthanga (PW-4). He further submitted that on perusal of the charge sheet the accused/appellant has been charged for allegedly demanding money from a contractor namely Sh. Lalroenga (PW-3) amounting to Rs. 17,00,000/- (Rupees Seventeen Lakhs only) and another amount of Rs. 3,00,000/- (Rupees Three Lakhs only) from one Sh. Vanhmingthanga (PW-4). However, during the course of the trial, it was clearly established that the two said witnesses had stated under oath that the accused/appellant never demanded money from them but rather the PW-3 stated that the said Rs. 17,00,000/- (Rupees Seventeen Lakhs only) was money lent to the accused/appellant and that the same has also been duly repaid to PW-3. Alternately, PW-4 has also clearly stated under oath that the amount of Rs. 3,00,000/- (Rupees Three Lakhs only) was money that he had owed to the accused/appellant. As such, it is crystal clear from the evidence of the PW-3 and PW-4 that the dealings between the accused/appellant and the PW-3 and PW-4 relates to the personal property of the aforementioned parties out of written and verbal agreement respectively. It was purely a dealing between private parties in respect of their respective private properties. The said properties have also been duly returned as agreed between the parties. Further, the Ld. Trial Court itself has held in the Sentence Order dated 05.09.2023 at page 34 as follows: “54. (3) No prove of corrupted money and pocketed by the convicted accused.” 11. Mr. C. Lalfakawma, learned counsel for the accused/appellant further submitted that it was never the case of the prosecution that there has been violation of the provisions of the Central Public Works Department Manual, 2014 and the prosecution has also failed to lead single evidence towards violation of the provision of the Central Public Works Department Manual, 2014. Further, the Central Public Works Department Manual, 2014 was also never exhibited during the entire course of the Trial. The Trial Court while passing its conviction Judgment & Order dated 04.09.2023 has all of a sudden relied upon the provision of the Central Public Works Department Manual, 2014 for the first time thereby denying any opportunity of being heard to the accused/appellant on the said issue and thus the learned Trial Court has held that the accused/appellant is liable to be convicted under section 409 of IPC for violation of clause 33.13 of the Central Public Work Department Manual, 2014. 12. 12. The learned counsel submitted that it is clear and apparent that the prosecution has fail to prove beyond reasonable doubt that the ingredients necessary to satisfied in order to convict the accused/appellant for allegedly committing criminal misconduct and the question of attracting the provision of section 13(1) (a) of the PC Act, cannot absolutely arise due to the very fact that the learned Trial Court at para 54(3) of the Sentence Order dated 05.09.2023 has itself held that there is no proof of corrupted money and pocketed by the convicted accused. 13. The learned counsel for the accused/appellant also submitted that the learned Trial Court has held that the accused/appellant is guilty of committing criminal misconduct by allowing PW-4 Sh. Vanhmingthanga to work as a Sub-Contractor thereby violating the provision of Central Public Works Department Manual, 2014. The learned Trial Court has come to the said conclusion by relying on the statement of the accused/appellant under Section 313 of CrPC, wherein there are catenae of Judgment of the Apex Court which had clearly held that statement under Section 313 of CrPC cannot be made a sole criterion for conviction. 14. The learned counsel also submitted that the learned Trial Court had observed at para 43 of the Judgment & Order that:- “This has also reveals that profit of the said sub-contract work if @ Rs 10 lakhs which is very exorbitant rates/amount detrimental to public interest.” However, whatever amount was paid by PW-3 to PW-4 were all calculated as per the rates prescribed by the Public Works Department and there is no evidence being led on this issue, the learned Trial Court had arbitrarily and illegally arrived at its own conclusion. 15. The learned counsel for the petitioner further submitted that the ingredients for conviction u/s 409 IPC is not proved in the instant case. He has submitted that the intention/state of mind or mensrea to commit the offence is not proved and there is no misappropriation of property entrusted to the Government whereas u/s 409 IPC the property should relate to public property. In the instant case it is the money of the Prosecution witnesses No. 3 & 4, who are a private persons, from whom the accused/appellant had borrowed money and the same was duly returned later as stated by the prosecution witnesses themselves. In the instant case it is the money of the Prosecution witnesses No. 3 & 4, who are a private persons, from whom the accused/appellant had borrowed money and the same was duly returned later as stated by the prosecution witnesses themselves. In support of his submission the learned counsel has cited the decision of the Apex Court in the case of N. Raghavender Vs. State of Andhra Pradesh, reported in (2021) 18 SCC 70 (para 45-49). 16. The learned counsel further submitted that from the evidence adduced, wherein, the accused/appellant is alleged to have committed an offence u/s 13(1)(a) the act of the accused/appellant does not contain any of the ingredients for committing an offence u/s 13(1)(a) of the PC Act, wherein criminal misconduct has to be proved by the prosecution to be in possession of pecuniary resources or property disproportionate to his known sources of income, at any time during the period of his office. In support of his submission, he has cited Vasant Rao Guhe Vs. State of Madhya Pradesh, reported in (2017) 14 SCC 442 (para 20 – 21). 17. The learned counsel further submitted that even though violation of the PWD manual has been wrongly considered by the learned Trial Court, since this was not the case of the prosecution and not taken into consideration at the time of consideration of charge. However, any violation of the PWD manual is not an offence which warranted a conviction u/s 409 IPC r/w u/s 13(1)(a) PC Act without there being any dishonest intention. In support of the submission he has cited the judgment of the Kerala High Court in C. Surendranath & Anr. Vs. State of Kerala, (supra) where it was opined stated that That dishonest intention is the gist of the offence under Section 13(1)(d) is implicit in the words used i.e. corrupt or illegal means and abuse of position as a public servant.” 18. Per contra, Mrs. Linda L. Fambawl, learned Public Prosecutor submitted that the matter was initially placed before the Lok Ayukta, wherein, the Lok Ayukta found sufficient reasons to investigate into the matter and thereafter, investigations on the allegation of misappropriation of huge sums of money by the accused/appellant was taken up. Per contra, Mrs. Linda L. Fambawl, learned Public Prosecutor submitted that the matter was initially placed before the Lok Ayukta, wherein, the Lok Ayukta found sufficient reasons to investigate into the matter and thereafter, investigations on the allegation of misappropriation of huge sums of money by the accused/appellant was taken up. The statements of the witnesses were taken and based on the statements and documents available, charge sheet was duly submitted during the said investigation, there was no plea taken by the accused/appellant or the prosecution witnesses No.3 &4 that the money was borrowed by the accused/appellant and it was only during trial that prosecution witnesses No.3 & 4mentioned that the money was borrowed by the accused/appellant. This shows that the statements of prosecution witnesses No.3 &4was made as an afterthought and cannot be relied upon. Accordingly, they were declared hostile witnesses. The learned Public Prosecutor submits that it is clear from the documents that the accused/appellant had misappropriate the sum o fRs. 3,00,000/(Rupees three Lakh only) by not repaying the full amount of 11lakhs alleged to have been by him from prosecution witnesses No.3 & 4 since there is no record of him returning the remaining said Rs. 3,00,000/(Rupees three Lakh only) to the said prosecution witnesses. It is clearly proved that the accused petitioner had taken undue gratification and misappropriates the sum of Rs. 3,00,000/(Rupees three Lakh only)for recommending PW No.4 as a sub contractor in the construction works. 19. Mr. JC. Lalnunsanga, learned Special PP for Lok Ayukta submitted that the instant appeal is not maintainable since Lok Ayukta was not made a party in the present criminal appeal. He further submitted that PW No.4 have been declared as hostile witness and therefore the plea or the stand taken by the accused/appellant that he had borrowed the money from prosecution witnesses No.3 & 4 and had duly returned the said amount cannot be accepted. He submits that this plea or evidence of prosecution witnesses No.3 & 4 is an afterthought and even though the learned Trial Court has acquitted the appellant regarding the 17 lakhs said to be borrowed by the accused/appellant and duly returned however, there is no explanation and the amount of Rs. 3,00,000/- (Rupees three Lakh only) which appear to be returned by the accused/appellant. 3,00,000/- (Rupees three Lakh only) which appear to be returned by the accused/appellant. The learned Special PP further submits that the accused/appellant had previously applied for anticipatory bail before the learned Trial Court on 11.041.2023 wherein, there was no mention about the borrowed money and the anticipatory bail application. During the consideration of the anticipatory bail application before the learned Trial Court there was no mention about the money the money being borrowed. 20. The learned Special P.P with regards to the non-reliability of witnesses turning hostile has relied on the judgment of the Court Neeraj Dutta Vs. State (NCT in Delhi), reported in (2019) 14 SCC 311 (para 15 & 17). 21. He has also cited the judgment of the Apex Court in Neeraj Dutta Vs. State (NCT in Delhi), reported in (2023) 4 SCC 731 (para87 – 95). Wherein it was opined that even if a witness is treated as “hostile” and is cross-examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon “32. It is difficult to accept the prayer of the respondent that a lenient view be taken in this case. The corruption by public servants has become a gigantic problem. It has spread everywhere. No facet of public activity has been left unaffected by the stink of corruption. It has deep and pervasive impact on the functioning of the entire country. Large-scale corruption retards the nation-building activities and everyone has to suffer on that count.” 22. The learned Special P.P further submitted that the requirement for the prosecution to prove their case, from the circumstantial evidence, beyond reasonable doubt is not required in such cases. The learned Special P.P further submitted that the complaint against the accused/appellant was made on 20.05.2020 and based on the complaint, evidence was recorded though no mention by the witnesses while the investigation was being done regarding the borrowed money as it was only on 14.06.2023 after the lapse of 3 (three) years that PW- 3 & 4 mentioned that the money was borrowed. Therefore, there was no evidence that the said money which was admitted to be taken by the accused/appellant was borrowed and therefore the accused/appellant has been rightly convicted u/s 409 IPC r/w 13(1)(a). Deposition of the prosecution witnesses. Therefore, there was no evidence that the said money which was admitted to be taken by the accused/appellant was borrowed and therefore the accused/appellant has been rightly convicted u/s 409 IPC r/w 13(1)(a). Deposition of the prosecution witnesses. In order to fully appreciate the submissions of the learned counsels this court finds it appropriate to hight light the evidence adduced before the learned Special Court, PC Act. 23. PW-1, Mr. H. Thanga Zate, stated to the effect that he was serving as Joint Secretary, Finance Establishment since 01.04.2023. While he was serving as DeMr.ty Secretary, PWD, Engineer-in-Chief, PWD forwarded a letter to DeMr.ty Secretary, PWD regarding symphony of Mr.blic money by the accused who was serving as Junior Engineer, Western Circle, PWD along with the statement of imputation against the accused. The said letter was received by him on 11.05.2020 and the same was processed in File on 14.05.2020 for obtaining approval for investigation from the competent authority. On 15.05.2020, approval for investigation was granted by the Chief Minister in respect of the criminal conduct by the accused. On 20.05.2020, he submitted complaint to Chairman, Mizoram Lokayukta, requesting to investigate embezzlement of Government money by the accused. The complaint was accompanied with statement of imMr.tation against the accused who served as Junior Engineer, in the Office of Western Circle, PWD. The statement of imputation was forwarded to him from the Office of Engineer-in-Chief, PWD which was authenticated by him. Ext. P-1 is the complaint submitted by him to the Lokayukta. Exhibit P-2 is the statement of imputation against the accused. Exhibit P-3 is the statement recorded by Mr. B. Lalnghakliana, DSP, ACB. Ext. P-4 is his statement on 08.07.2020. During his cross examination, he stated that statement of imputation against the accused was already enclosed in the forwarded letter which he received from Engineer-in-Chief, PWD on date 11.05.2020 that he did not interrogate the accused when the concerned file was dealt in his aegis. He stated that he did not interrogate the Contractor Mr. F. Lalroenga and sub-Contractor Mr. Vanhmingthanga, who were also named in the statement_of imputation against the accused and that he came to know the instant cause only on the basis of the letter forwarded by the Engineer-in-Chief, PWD. He stated that the bank statement of Mr. F. Lalroenga and Mr. He stated that he did not interrogate the Contractor Mr. F. Lalroenga and sub-Contractor Mr. Vanhmingthanga, who were also named in the statement_of imputation against the accused and that he came to know the instant cause only on the basis of the letter forwarded by the Engineer-in-Chief, PWD. He stated that the bank statement of Mr. F. Lalroenga and Mr. Rosiamliana were also the enclosed copy which he received from the Office of Engineer-in-Chief, PWD but not connected/recovered by him. He admitted that complaint lodged against the accused in the instant case was not on the basis of his direct knowledge/evidence but on the basis of other sources/documentary evidence. 24. PW-2/Mr. Jerry Lalrinsanga, stated to the effect that the Chairman, Mizoram Lokayukta directed ACB Mizoram to conduct Preliminary Enquiry vide order Dt.2.6.2020. Hence, ACB PE No.5(LOK) 2020 Dt.19.6.2020 was registered by OC/SSP, ACB, Mizoram and he was appointed to conduct Preliminary Enquiry vide order No.ACB/CON-22/2020/77 Dt.19.6.2020. According, the matter was enquired into. During the course of enquiry, all efforts were given to find out whether the accused person Mr. C. Lalfakawma, JE, PWD demanded and received money from Contractors who were the implementing agency for road construction of PMGSY under his supervision. It was found well established that Mr. C. Lalfakawma, JE, PWD demanded and received Rs. 17,00,000/- from Mr. Lalroenga Contractor of the work-construction and maintenance of Rabung-Aiduzawl Road and in his statement Mr. Lalroenga stated that the accused demanded him Rs. 17,00,000/- (Rupees seventeen lakhs only). In that regard account transaction detail of Contractor Mr. Lalroenga ICICI Account No. 425301000045 and Mr. C. Lalfakawma, JE, PWD SBI Account No. 10665685176 were obtained and it was found that Mr.Lalroenga had transferred Rs. 17,00,000/- (Rupees seventeen lakhs only) in the SBI Account of Mr. C. Lalfakawma, JE, PWD on 04.01.2020. Mr. Lalroenga s/o Mr. Sawichhuma (L) of Repulic Veng, Aizawl, Contractor of the work-construction and maintenance of Rabung-Aiduzawl Road, PMGSY was examined and which revealed that Mr. C. Lalfakawma, JE, PWD who was immediate supervisor of his contract works had demanded and he had transferred Rs. 17,00,000/- (Rupees seventeen lakhs only) on 04.01.2020 in the SBI Account of the accused Mr. C. Lalfakawma, JE, PWD vide cheque No. 00141 on 04.01.2020. It was also found that Mr. C. Lalfakawma, JE, PWD who was immediate supervisor of his contract works had demanded and he had transferred Rs. 17,00,000/- (Rupees seventeen lakhs only) on 04.01.2020 in the SBI Account of the accused Mr. C. Lalfakawma, JE, PWD vide cheque No. 00141 on 04.01.2020. It was also found that Mr. Vanhmingthanga sub-Contractor s/o Zoliankunga (L) of Khawzawl that in the mid 2019, executed construction of retaining wall in the work Rabung-Aiduzawl Road under contract work of Mr. Lalroenga. Mr. Vanhmingthanga (sub-Contractor) received his bill amounting to Rs. 21,00,000/-(Rupees twenty-one lakhs only) from the Contractor Mr. Lalroenga in his SBI Account No. 20087192588 on 15.11.2019. Mr. Vanhmingthanga further stated that he had given Rs. 11,00,000/- (Rupees eleven lakhs only) to Mr. C. Lalfakawma, JE, PWD. Account transaction detail of Mr. Vanhmingthanga showed that he had actually given Rs 11,00,000/- (Rupees eleven lakhs only) to Mr. C. Lalfakawma, JE, PWD on 19.11.2019. On enquiring as to why Mr. Vanhmingthanga had credited such amount of money, Mr. Vanhmingthanga stated that during execution of sub-contract work, he borrowed Rs. 8,00,000/-(Rupees eight lakhs only) from the accused. On receipt of his bill amounting to Rs. 21,00,000/- (Rupees twenty-one lakhs only) he had given Rs. 11,00,000/-(Rupees eleven lakhs only) to Mr. C. Lalfakawma, JE, PWD. Thus, it was found that Mr. C. Lalfakawma, JE, PWD received illegal gratification amounting to Rs. 11,00,000.00 - Rs. 8,00,000.00 = 3,00,000.00 (Rupees three lakhs only) from the sub-Contractor Mr. Vanhmingthanga of Khawzawl. There was a prima facie case that the accused had demanded and taken a sum of 17,00,000/- (Rupees seventeen lakhs only) from Mr. Lalroenga, Contractor of Rabung to Aiduzawl Road PMGSY and had taken illegal gratification amounting to Rs. 3,00,000/-from sub-Contractor Mr. Vanhmingthanga. Thus, it was found out and well-established that the accused had taken and received illegal gratification amounting to Rs. 17,00,000/- + Rs. 3,00,000/- = Rs. 20,00,000/- (Rupees twenty lakhs only). Accordingly, he submitted his enquiry report to the Chairman, Lokayukta, Mizoram and he submitted FIR to OC, ACB, Police Station on 28.02.2022 for registration of criminal case against the accused Mr. B. Lalnghakliana, Dy.SP, ACB was endorsed to investigate the case. Exp.5 is the FIR submitted by him. During cross examination, he stated that the Contractor Mr. Lalroenga told him that the accused demanded the said amount of money. B. Lalnghakliana, Dy.SP, ACB was endorsed to investigate the case. Exp.5 is the FIR submitted by him. During cross examination, he stated that the Contractor Mr. Lalroenga told him that the accused demanded the said amount of money. However, on interrogation the accused stated before that he had borrowed the said amount of money from the Contractor Mr. Lalroenga. He stated that he had not verified whether the reported received money of the accused was borrowed from the Contractor Mr. Lalroenga or taking gratification from the said Contractor. He stated that the sub- Contractor Mr. Vanhmingthanga on interrogation told him that he had borrowed Rs. 8,00,000/- (Rupees eight lakhs only) from the accused for execution of his sub contract works under Mr. Lalroenga Contractor. But he further stated that they had not Mr.t their deal of borrowing in black and white and he did not know the transaction between the accused and Mr. Vanhmingthanga. He stated that as there was sufficient documentary proof such as copies of account transaction details and copies of cheque leaves from the complainant Mr. H. Thanga Zate, examination of the complainant alone was found quite satisfactory and therefore, he had not examined the E-in-C, PWD, Mizoram. He admitted that he do not know whether the accused C. Lalfakawma repaid Rs. 17,00,000/- (Rupees seventeen lakhs only) to the Contractor Mr. Lalroenga or not. 25. PW-3/Mr. Lalroenga was declared hostile as prayed for by the Public Prosecutor for LokAyukta. He deposed to the effect that he received work order for construction of Rabung to Aiduzawl Road MZ02 104(0.00-2.96kmp) under the Executive Engineer Mizoram Rural Road Development Agency. That their work comprises a lot of raw materials and other accessories, they used to let sub-contract initiate the work of taking stones, formation cutting, granular sub base, collecting sand granules leveling it and placing them thoroughly on the roads with a thickness of 4 inch, retaining wall and culvert. It was impossible for them to undertake all the works by themselves due to shortage of time and man-power. They usually employed a lot of people to carry out the works for them. Their main work was to look after the employees, supply construction materials and machines. He, along with Mr. K. Lalnghinglova of Republic Veng carried out this work. It was impossible for them to undertake all the works by themselves due to shortage of time and man-power. They usually employed a lot of people to carry out the works for them. Their main work was to look after the employees, supply construction materials and machines. He, along with Mr. K. Lalnghinglova of Republic Veng carried out this work. He undertook the work of making appointments in offices at Aizawl, ordering construction materials from outside the State and transferring of money. There was a lot of paperwork and book keeping. He was not always physically present at the construction site, as far as his knowledge the accused C. Lalfakawma, JE, PWD was the supervisor of the construction site and as per his knowledge Mr. Zosanga Zote, JE, PWD once visited the site. The accused Mr. C. Lalfakawma did not work as sub- Contractor with them, he was seeking retaining wall construction work for Mr. Vanhmingthanga who was his close friend at Khawzawl. They engaged Mr. Vanhmingthanga just like they engaged everyone else at the request of the accused. He did not know that the accused Mr. C. Lalfakawma, JE, PWD gave special preference to Mr. Vanhmingthanga, Mr. Vanhmingthanga carried out retaining wall construction at three sites. They did not make terms and conditions of how much he will earn, after completion of his works bill was out. After deduction of tax and Contractor share from the bill, he credited Rs. 21,00,000/- lakhs (Rupees twenty-one lakhs only) into the account of Mr. Vanhmingthanga. On cross examination he admitted that they put in a written form for lending and borrowing Rs. 17,00,000/- (Rupees seventeen lakhs only) in between himself and the accused and that on date 04.01.2020, he transferred Rs. 17,00,000/- (Rupees seventeen lakhs only) into the SBI Bank Account of the accused from his Bank Account ICICI, Bawngkawn and it was the day for executing agreement in between himself and the accused for lending and borrowing Rs. 17,00,000/- (Rupees seventeen lakhs only). He admitted that they did not have witnesses for executing agreement in between him and the accused for lending and borrowing Rs. 17,00,000/- (Rupees seventeen lakhs only) and that there was no stamp duty as well as other legal provisions compliance for executing agreement in between him and the accused for lending and borrowing Rs. 17,00,000/- (Rupees seventeen lakhs only). He admitted that they did not have witnesses for executing agreement in between him and the accused for lending and borrowing Rs. 17,00,000/- (Rupees seventeen lakhs only) and that there was no stamp duty as well as other legal provisions compliance for executing agreement in between him and the accused for lending and borrowing Rs. 17,00,000/- (Rupees seventeen lakhs only). He stated that there was no agreed interest for lending Rs. 17,00,000/- (Rupees seventeen lakhs only) to the accused and the accused already liquidated his borrowed amount to him in 2021 due to outbreak of Covid-19, he liquidated the same lately. He stated that the accused transferred his borrowed amount to him from SBI, Main Branch, Aizawl for twice at the rate of Rs. 9,00,000/-(Rupees nine lakhs only) and Rs. 8,00,000/- (Rupees eight lakhs only) to his bank account in ICICI, Bawngkawn Branch and that the accused liquidated his borrowed amount to him after the instant cause was registered in Mizoram Lokayukta i.e. date 20.05.2020. He stated that he did not produce and show ‘Pawisa Inpukna’ between the accused and himself to the case IO and Enquiry Officer and that though, he stated to the case IO and Enquiry Officer that the alleged corrupted money @ Rs. 17,00,000/- (Rupees seventeen lakhs only) was a borrowed money, they did not demand him to produce a deed for ‘Pawisa Inpukna’. He denied the suggestion that he did not disclose the alleged involved amount was borrowed money before institution of the instant case. On cross examination he further stated that that the accused never insisted and obtained an amount from them during execution of contract work under his supervision and stated that borrowing Rs. 17 lakhs and repayment of the same in between the accused and himself was cashless i.e. bank transaction. As prayed by learned Special PP, PW-4 was declared as hostile. 26. PW-4/Mr. Vanhmingthanga stated to the effect that he was born and brought up at Champhai Zote, he along with his families moved to Khawzawl in the year 1975 because of his father’s work, he, with his family members were residing at Khawzawl till date. In mid 2019 contract work for construction of Rabung to Aiduzawl Road under the supervision of PWD accused Mr. C. Lalfakawma, J.E., Mr. Lalnghinglova, Manager of Contractor Mr. In mid 2019 contract work for construction of Rabung to Aiduzawl Road under the supervision of PWD accused Mr. C. Lalfakawma, J.E., Mr. Lalnghinglova, Manager of Contractor Mr. F. Lalroenga he sought for sub contract work and he carried out sub contract work for construction of retaining wall at three (3) different places. The bills for the construction work amounting to Rs. 21,00,000/- (Rupees twenty-one lakhs only) was transferred by Contractor Mr. F. Lalroenga to his SBI account no. 20087192588 on 15.11.2019. He did not submit any application for sub contract work at PWD. He requested Mr. Lalnghinglova, Manager of Mr. F. Lalroenga to let himself and the accused Mr. C. Lalfakawma to carry out the sub contract work. After he received permission, he along with the accused went to inspect the site for construction and thereafter he initiated the construction of retaining wall at three different sites. While he was working as a Sub-contractor under Mr. F. Lalroenga the work Supervisor was Mr. Lalnghinglova, Republic Vengthlang, Aizawl. Under Mr. F. Lalroenga the sub contract work which he undertook was construction of three retaining walls. The bill amounting Rs. 21,00,000/-(Rupees twenty-one lakhs only) was transferred in his account by Mr. Lalroenga on 15.11.2019. After this, he worked as material supply recorder for about one month and a week, he earned Rs. 30,000/- (Rupees thirty thousand only) for this particular work. When the accused Mr. C. Lalfakawma was posted there at Khawzawl, he befriended him and they became close friends. He was able to carry out the construction of three retaining walls because the accused also requested Mr. F. Lalroenga to give the work to him. In order to carry out the construction work, he was not having the capital, so he used/borrowed the accused money amounting to Rs. 8,00,000/-(Rupees eight lakhs only) for completion of the work. On 15.11.2019 Contractor Mr. Lalroenga transferred Rs. 21,00,000/- (Rupees twenty-one lakhs only) in his account for completion of the work. Thereafter, he transferred Rs. 11,00,000/- (Rupees eleven lakhs only) to the accused Mr. C. Lalfakawma’s account from his account no. 20087192588 SBI, Khawzawl Branch on 19.11.2019. In this connection, in addition to Rs. 8 lakhs (Rupees eight lakhs only) which he borrowed from the accused, he later borrowed Rs. 3,00,000/- (Rupees three lakhs only) from the accused as his construction work was expensive that he expected. Ext. C. Lalfakawma’s account from his account no. 20087192588 SBI, Khawzawl Branch on 19.11.2019. In this connection, in addition to Rs. 8 lakhs (Rupees eight lakhs only) which he borrowed from the accused, he later borrowed Rs. 3,00,000/- (Rupees three lakhs only) from the accused as his construction work was expensive that he expected. Ext. MO-9 is his statement of SBI account no. 20087192588. On cross examination, he admitted the suggestionsthat there was no a written deed for borrowing Rs. 3,00,000/- (Rupees three lakhs only) from the accused apart from the previous borrowed amount of Rs. 8,00,000/- (Rupees eight lakhs only), that he did not know the date for borrowing Rs. 3,00,000/-(Rupees three lakhs only) from the accused apart from the previous borrowed amount of Rs. 8,00,000/- (Rupees eight lakhs only). He stated that during the beginning of 2019, he borrowed Rs. 8,00,000/- (Rupees eight lakhs only) from the accused and for borrowing Rs. 3,00,000/- (Rupees three lakhs only) from the accused, he was handed over in cash by the accused in his residential house at Khawzawl. However, no other persons were available at the time of the said transaction.He also stated that he also informed to the police officer who interrogated him about borrowing of Rs. 3,00,000/- (Rupees three lakhs only)from the accused apart from the previous borrowed amount of Rs. 8,00,000/- (Rupees eight lakhs only). That being a close friend, even after receiving summons to witness, he was also contacted by the accused. That the accused also informed him that his statement recorded by the police was like bribe/corrupted money of Rs. 3,00,000/- (Rupees three lakhs only) not mentioned that it was borrowed money.That he also asked the accused the date for borrowing Rs. 3,00,000/- (Rupees three lakhs only) from him, but they were not ascertained. That he did not know the money which he repaid to the accused was before or after registration of a case in the Lokayukta. That the ACB personnel also brought to the place of work which they executed, but he did not know other ACB personnel except Mr. Jerry. That he firstly borrowed Rs. 8,00,000/- (Rupees eight lakhs only) from the accused for execution of his sub-contract work, as it was insufficient to complete the work, he again borrowed another sum of Rs. 3,00,000/- (Rupees three lakhs only) from the accused for the same purpose. 27. PW– 5/Mr. Jerry. That he firstly borrowed Rs. 8,00,000/- (Rupees eight lakhs only) from the accused for execution of his sub-contract work, as it was insufficient to complete the work, he again borrowed another sum of Rs. 3,00,000/- (Rupees three lakhs only) from the accused for the same purpose. 27. PW– 5/Mr. LaLnunmawia stated to the effect that on 07.03.2022,he was at the ACB Office, Dy. SP, ACB Mr. B. Lalnghakliana seized 2 (two) old/obsolete Passbooks bearing A/c No. 10665685176, SBI Pass Book from the accused Mr. C. Lalfakawma on being produced by the said Mr. C. Lalfakawma, he was therefore stood as seizure witness and he put his signature in seizure memo. He personally witnessed the seizure of 2 (two) old Passbooks bearing A/c No. 10665685176, SBI Pass Book from the accused Mr. C. Lalfakawma. Ext. P-6 is the seizure memo dated 07.03.2022 in respect of the 2 (two) old Passbooks bearing A/c No. 10665685176, SBI Pass Book from the accused Mr. C. Lalfakawma. Ext. MO-1 and Ext. MO-2 are the accused State Bank of India Bank Account Bearing No. 10665685176. On cross examination, he stated that he only knew name of accused i.e. Mr. C. Lalfakawma, but he did not have any personal knowledge.That he was not an independent/civilian witness in the instant case. That at the time when he was giving signature in seizure memo, case IO, the other witness and the accused were also present. He put his signature in seizure memo which was already prepared. That just after giving his signature in seizure memo, his statement was recorded by the case IO. He stated that at the time of making seizure, availability of civilian/independent witnesses can also be obtained. That though seizure of 2 obsolete bank passbooks of the accused was made in his presence, he did not know the amount remained in the said passbooks. 28. PW-6 to PW-17 are the other seizure witnesses to the seizure of the passbooks belonging to the accused/appellant exhibited as MO-1 and exhibit MO-2. The documents showing notice to proceed with the contract work exhibited as Exhibit MO-3 and Exhibit MO-4, the bank account of PW-3 exhibited as MO-5 and the account of Mr. 28. PW-6 to PW-17 are the other seizure witnesses to the seizure of the passbooks belonging to the accused/appellant exhibited as MO-1 and exhibit MO-2. The documents showing notice to proceed with the contract work exhibited as Exhibit MO-3 and Exhibit MO-4, the bank account of PW-3 exhibited as MO-5 and the account of Mr. Vanhmingthanga exhibited as MO-9 along with the seizure memos exhibited as exhibit P-6, exhibit P-8, exhibit P-9 & exhibit P-12 and the bank transaction details exhibited as exhibit MO-5, exhibit MO-6, exhibit MO-9 and the connected checks exhibited as exhibit MO-8 respectively. 29. PW – 18/Mr. K. Lalthawmmawia stated to the effect that he belonged to 1991 batch of MCS, he was posted as Secretary to the Government of Mizoram, Public Works Department (PWD) since June, 2022 till date. During his tenure, there was an allegation against Mr. C. Lalfakawma, Junior Engineer (JE), PWD, Western Circle to have committed criminal breach of trust and also misconduct by misuse of his official capacity and power. In this regards, Criminal Case Vide ACB PS Case No. 1 /2022 dated 28.02.2022 u/s 13 (1) (a) (b) & 13 (2) of PC Act 1988.R/w 409 IPC was registered against Mr. C. Lalfakawma. Thereafter, the Government received an application for prosecution sanction for prosecuting Mr. C. Lalfakawma before court of competent Jurisdiction and under the aforesaid section of law. After careful scrutiny of the application along with the documents supplied with the petition, in his opinion, the case is genuine and there was prima facie case against Mr. C. Lalfakawma S/o Mr. C. Thangkhuma (L) of Khatla South, Aizawl to be prosecuted. Accordingly prosecution sanction was accorded as provided under section 197 of Cr. P.C. and section 19 of the Prevention of Corruption on Act, 1988 and issued Prosecution Sanction Order Memo C. 14016/1/2020-PWD(E) Dated Aizawi, the 4th November, 2022. Since the accused is Group ‘B’ (Non-Gazetted), appointing authority was Secretary of the Department concerned, he was therefore competent to accord prosecution sanction. Ext. P-11 is Prosecution Sanction Order. During cross examination, he admitted that he received the concerned File for prosecution sanction on date 01.11.2022 put up from Joint Secretary, PWD. He also knew that the said File was put up to the Desk of Joint Secretary from Deputy Secretary, PWD. Ext. P-11 is Prosecution Sanction Order. During cross examination, he admitted that he received the concerned File for prosecution sanction on date 01.11.2022 put up from Joint Secretary, PWD. He also knew that the said File was put up to the Desk of Joint Secretary from Deputy Secretary, PWD. That name of Contractor and sub-Contractor pertaining to the instant cause were not mentioned in the prosecution sanction letter. Prosecution sanction letter further did not disclose the amount of alleged corrupted amount. That before according prosecution sanction, he did not interrogate the Contractor and sub-Contractor concerned. He stated that from the case history that the accused used to insist bribe money from the Contractors and also used to prepare exorbitant bills/estimates in the contract work. That his prosecution sanction also did not disclose name of the contract work as well as place of contractual work. Further, it also did not disclose the PWD Division concerned. That PWD, Western Circle which he mentioned before was meant the posting place of the accused at the time of according prosecution sanction. That material circumstances which he perused before issuing prosecution sanction were ACB papers, previous complaint letter submitted to Mizoram Lokayukta against the accused processed in the relevant File etc. For that, he had gone through such papers/documents for one time only. He, therefore, find prima facie case against the accused. That complaint against the accused in connection with the instant cause was lodged to Mizoram Lokayukta before he held the post of Secretary, PWD. That he himself did not give opportunity of being heard upon the accused. As it was not a matter of disciplinary proceeding and as other authorities concerned already heard the accused, he did not give opportunity of being heard to the accused. That he did not give opportunity of being heard to the accused in terms of Second Proviso under Clause (c), Sub-section (1) of Section 19 of PC Act.He stated that for quoting Section 197 Cr.P.C and Section 19 of PC Act in the last paragraphs of prosecution sanction against the accused, he also perused the relevant provision of law. 30. PW – 19/Mr. B. Lalnghakliana stated to the effect that on 20/5/2020, Mr. H. Thanga Zate, Deputy Secretary, PWD, Mizoram submitted complaint to the Chairperson, Mizoram Lokayukta to investigate the alleged illegal money: taken by accused Mr. 30. PW – 19/Mr. B. Lalnghakliana stated to the effect that on 20/5/2020, Mr. H. Thanga Zate, Deputy Secretary, PWD, Mizoram submitted complaint to the Chairperson, Mizoram Lokayukta to investigate the alleged illegal money: taken by accused Mr. C. Lalfakawma, J.E, PWD from Contractors, while he was posted at Khawzawl Sub-Division. The Chairperson, Mizoram Lokayukta directed ACB to conduct Preliminary Enquiry, vide letter No.C13017/16/2020-ML. Dt.2/6/2020. On receipt of Lokayukta order No. cited above, S.P, ACB registered Preliminary Enquiry No. P.E (LOK) No.3/2020 Dt.19/6/2020 after getting Govt. approval from Chief Vigilance Officer, Mizoram, Aizawl. SP ACB, entrusted Inspr. Jerry Lalrinsanga, ACB to enquire into the report. During Preliminary Enquiry. Inspr. Jerry Lalrinsanga substantiated the allegation with the following points: One, Mr. Lalroenga Republic Veng, Aizawl was appointed to construct Rabung to Aiduzawl road MZO2 104(0.00-2.96KMP) and routing maintenance for five years after completion of construction under PMGSY. Agreement No.10/MIRRDA/2018-19 Dt.05/09/2018 vide letter No.B.15028 /240/2018/ PhX/13/PMGSY/EC/PWD Dt. 20th Sept., 2018. The enquiry revealed that the said accused Mr. C. Lalfakawma, JE, PWD, Khawzawl Division demanded illegal money from appointed Contractor Mr. Lalroenga amounting to Rs. Rs. 17,00,000/- (Rupees seventeen lakhs only) and Rs. 3,00,000/- (Rupees three lakhs only) from Mr. Vanhmingthanga S/o Mr. Zothankunga (L) of Khawzawl Vengthar, who was working under Mr. Lalroenga Contractor, as subContractor. The allegation was substantiated and Inspr. Jerry Lalrinsanga submitted FIR to the SP, ACB with a request to register a case against accused Mr. C.Lalfakawma, J.E PWD. Hence, SP ACB registered ACBPS Case No.1/2022 Dt.28/2/2022 u/s 409 IPC R/W 13(1)(a)(b) & 13(2) of P.C Act (Amended 2018) and entrusted Mr. B. Lalnghakliana, Dy S.P. ACB to investigate the case. Since Mr. B. Lainghakliana, Dy S.P. ACB was repatriated to Home Department vide Memo No.A.22011/2/2022-VIG dated 16.11.2022, he was entrusted to continue the investigation vide Order No. ACB/CON35/2021/208 dt 29.03. 2023. Hence, he investigated the case. During investigation of the case, he examined and recorded statement of the prosecution witnesses and the accused. On 07-03-2022 @21:30 PM he seized two numbers of pass books bearing A/c No. 10665685176 of SBI at the Office of ACB on being produced by accused Mr. Lalfakawma, JE, MPWD in presence of Mr. Lalnunmawia and Ramhmunsanga. Ext. P-6 is seizure memo. Ext. MO-1 and Ext. MO-2 are seized Bank Account. On 07-03-2022 @21:30 PM he seized two numbers of pass books bearing A/c No. 10665685176 of SBI at the Office of ACB on being produced by accused Mr. Lalfakawma, JE, MPWD in presence of Mr. Lalnunmawia and Ramhmunsanga. Ext. P-6 is seizure memo. Ext. MO-1 and Ext. MO-2 are seized Bank Account. On 29-04-2022 @ 3:40 PM, he seized the following documents on being produced by Lalroenga in presence of Smt. A. Lalnunkimi H/o Sawichhuma, Republic Veng, Aizawl and Robert MS. Tluanga S/o J. Sawmvela (L), Durtlang Kawnveng. Ext. P-7 is seizure memo. On 04-05-2022 @ 2:45 PM, he seized transaction detailed of A/c No. 20087192588 belonging to Mr. Vanhmingthanga, Khawzawl Vengthar from State Bank of India (SBI), Khawzawl Branch w.e.f. 14-11-2019 to 0102-2020 in presence of Mr. Lalthakima Chhangte S/o Biakhuma Chhangte (L) and Mr. Jerry Lalrinsanga S/o Lalsiama (L). From this account statement, it can be seen that Rs. 11 lakh (Rupees eleven. lakh only) was transferred to A/c No. 10665685176 belonging to accused Mr. C. Lalfakawma on 19.11.2019. Ext. P-12 is seizure memo, Ext. P-12/1 is his signature and Ext, MO-9 is transaction detailed of A/c No. 20087192588 belonging to Mr. Vanhmingthanga, Khawzawl Vengthar from State Bank of India (SBI), Khawzawl Branch. On 03-11-2022 @ 3:00 PM he seized original Cheque No. 000141 of A/c No. 425301000045 amounting to Rs. 17,00,000/- (Rupees seventeen lakhs only) from ICICI Bank, Bawngkawn Branch, which belonging to Mr. Lalroenga, Republic Veng, Contractor, in presence of Lalnunpuii D/o Mr. Ramdinliana and Mr. Logos Dengthangdula. Ext. P-10 (Already exhibited) was seizure memo, and Ext. MO-8 (Already exhibited) is Original cheque. On 11-08-2022 @ 12:15 PM he seized statement of A/C No.10665685176 (Ext. MO-6 (Already exhibited) from SBI Mission Veng Branch which was belonging to accused C. Lalfakawma, J.E., in presence of Mr. K. Zoliansanga S/o Mr. K. Zoramthanga and Mr. Zoliana S/o Mr. Lalpuithanga (L). Ext. P-8 (Already exhibited) is seizure memo. From this bank account it was proved that Rs. 17,00,000/- (Rupees seventeen lakhs only)and Rs. 11,00,000/- (Rupees eleven lakhs only) was credited on 4.1.2020 and 19.11.2019 by Mr. Lalroenga Contractor and Mr. Vanhmingthanga Sub-Contractor respectively. Mr. Vanhmingthanga Khawzawl, who was working under Mr. Lalroenga as sub-Contractor stated that he borrowed Rs. 8,00,000/- (Rupees eight lakhs only) from accused Mr. C. Lalfakawma, and he returned the money amounting to Rs. 8,00,000/- (Rupees eight lakhs only) and he added Rs. Lalroenga Contractor and Mr. Vanhmingthanga Sub-Contractor respectively. Mr. Vanhmingthanga Khawzawl, who was working under Mr. Lalroenga as sub-Contractor stated that he borrowed Rs. 8,00,000/- (Rupees eight lakhs only) from accused Mr. C. Lalfakawma, and he returned the money amounting to Rs. 8,00,000/- (Rupees eight lakhs only) and he added Rs. 3,00,000/- (Rupees three lakhs only) for gratification, totaling Rs. 11,00,000/- (Rupees eleven lakhs only) and credited to SBI Bank A/C No. 10665685176 belonging to accused Mr. C. Lalfakawma, JE, PWD. On 18-08-2022 @ 3:30 PM he seized Transaction detailed of A/c No. 425301000045 (Ext. MO-5) w.e.f. 30-11-2019 to 17-04-2020 from ICICI Bank, Bawngkawn Branch, which belonging to Mr. Lalroenga, Republic Veng, Contractor, in presence of Ms. C. Lalhlimpuii D/o Mr. Vanhlimpuia and Mr. Zoliana S/o Lalpuithanga (L). Ext. P-7 is seizure memo. From this account statement it could be seen that Rs. 17,00,000/- (Rupees seventeen lakhs only) was transferred to the account belonging to accused Mr. C. Lalfakawma, J.E, PWD on 4.1.2020. His investigation revealed that accused Mr. C. Lalfakawma was transferred and posted to Khawzawl Sub-Division from Kawlkulh Sub-Division to look after the works of Construction and Maintenance of Rabung Aiduzawl Road. Ext. P-13 is Transfer Order vide No.D-31011/1/09PWD (KZ)74 Dt. 28.11.2017. During his tenure at Khawzawl Sub-Division, accused Mr. C. Lalfakawma, J.E PWD was assigned to supervise and look after the following works of PMGSY under Khawzawil Division and Khawzawl Sub-Division. In regard to Construction and Maintenance of Rabung-Aiduzawl Road, the Contractor was Mr. Lalroenga, Republic Veng, Aizawl. The investigation reveals that in this contract work, accused Mr. C. Lalfakawma, JE, PWD asked the Contractor Mr. Lalroenga to give money, the Contractor Mr. Lalroenga gave him Rs. 17,00,000/- (Rupees seventeen lakhs only) from his total bill and he transferred Rs. 17,00,000/-(Rupees seventeen lakhs only) from his ICICI A/C No. 425301000045 (Ext. MO- 5) to the account of accused Mr. C. Lalfakawma, JE, PWD SBI A/C No. 10665685176 (Ext. MO-6) on 4.1.2020. On 19thNovember, 2020 accused Mr. C. Lalfakawma, JE, PWD took another bribe money from sub-Contractor Mr. Vanhmingthanga s/o Mr. Zoliankunga (L) of Khawzawl, Vengthar near Presbyterian Church. The said subContractor was working under Mr. Lalroenga Contractor. Mr. Vanhmingthanga stated that he borrowed money amounting to Rs. 8,00,000/- lakhs (Rupees eight lakhs only) from accused Mr. C. Lalfakawma, JE, PWD as working capital for construction of retaining wall, under Mr. Lalroenga (Contractor), however, he returned Rs. Vanhmingthanga s/o Mr. Zoliankunga (L) of Khawzawl, Vengthar near Presbyterian Church. The said subContractor was working under Mr. Lalroenga Contractor. Mr. Vanhmingthanga stated that he borrowed money amounting to Rs. 8,00,000/- lakhs (Rupees eight lakhs only) from accused Mr. C. Lalfakawma, JE, PWD as working capital for construction of retaining wall, under Mr. Lalroenga (Contractor), however, he returned Rs. 11,00,000/- lakhs (Rupees eleven lakh only) on 19.11.2019 from his A/C. No.20087192588 (Ext. MO-9) of SBI Khawzawl branch and transferred to accused Mr. C. Lalfakawma, JE, PWD A/C No. 10665685176 (Ext. MO-6) of SBI Mission Veng branch. That during interrogation, he thoroughly examined the Contractor Mr. Lalroenga, but he did not produce or inform him any deed or instrument regarding borrowing and lending of money in between himself and the accused in the course of investigation of the case. 31. From the above fact and evidences a prima facie case U/S 409 IPC R/W 13(1)(a)(b) & 13(2) of PC Act, 1988 had been well established against accused Mr. C. Lalfakawma, Junior Engineer, PWD S/o Mr. C. Thangkhuma(L), Khatla South H/No. L-8, now posted at Western Circle. Ext. P-14 is Transfer Order No. A.22014/1/18/ECPWD/E-VI/10 Dt. 25.02.2020, for taking bribe from Contractor Mr. Lalroenga, Republic Veng, Aizawl and Sub-contractor Mr. Vanhmingthanga, Khawzawl Vengthar, amounting to Rs. 17,00,000/- (Rupees seventeen lakh only) and Rs. 3,00,000/- (Rupees three lakhs only) respectively totaling Rs. 20,00,000/- Lakh (Rupees twenty lakhs only). 32. The prayer for Prosecution sanction was submitted and the Secretary to the Government of Mizoram, PWD issued Prosecution Sanction order against Mr. C. Lalfakawma, Junior Engineer, PWD, Western Circle, Vide No.C.14016/1/2020-PWD(E) Dt. 4.11.2022 (Ext. P11 (Already exhibited), to prosecute Mr. C. Lalfakawma, Junior Engineer, PWD, Western Circle. Before he submitted Charge sheet, he was transferred to 3 Battalion MAP and the case was continued and charge sheeted by Mr. R. Lalnunmawia, DSP, ACB. During cross examination, he stated that as instructed by his superior officer, the complainant namely Mr. H. Thanga Zate, Deputy Secretary, PWD submitted a complaint but she could not specify his superior officer who instructed to do the same. That as per interrogation with the complainant, he merely stated that he submitted a complaint on the basis of receiving instruction from his superior authority. He received prosecution sanction against the accused from Mr. K. Lalthawmmawia, Secretary to Government of Mizoram, PWD. That as per interrogation with the complainant, he merely stated that he submitted a complaint on the basis of receiving instruction from his superior authority. He received prosecution sanction against the accused from Mr. K. Lalthawmmawia, Secretary to Government of Mizoram, PWD. That documents collected and docketed in the Charge sheet but not made under seizure memo were also collected by him. As they were public documents and authenticate, no separate seizure memo were prepared. That after they left Khawzawl and after arrival at Aizawl, he prepared and typed out statement of Mr. Vanhmingthanga. In this connection, the said Mr. Vanhmingthanga did not state that he borrowed additional amount of Rs. 3,00,000/- (Rupees three lakhs only) apart from his borrowed Rs. 8,00,000/- (Rupees eight lakhs only) from the accused. 33. PW–20/Mr R. Lalnunmawia stated to the effect that Mr. H. Thanga Zate, Deputy Secretary, PWD, Mizoram submitted complaint to the Chairperson, Mizoram Lokayukta to investigate the alleged illegal money taken by accused Mr. C. Lalfakawma, J.E, PWD from Contractors, while he was posted at Khawzawl Sub-Division. The Chairperson, Mizoram Lokayukta directed ACB to conduct Preliminary Enquiry, vide letter No.C13017/16/2020-ML. Dt.2/6/2020. On receipt of Lokayukta order No. cited above, S.P, ACB registered Preliminary Enquiry No. P.E (LOK) No.3/2020 .Dt.19/6/2020 after getting Govt. approval from Chief Vigilance Officer, Mizoram, Aizawl. Thereafter, SP ACB, entrusted Inspr. Jerry Lalrinsanga, ACB to enquire into the allegation. The allegation was substantiated and as such Inspr. Jerry Lalrinsanga submitted FIR to the SP, ACB with a request to register a case against accused Mr. C. Lalfakawma J.E PWD. Hence, SP ACB registered ACBPS Case No.1/2022 Dt.28/2/2022 u/s 409 IPC R/W 13(1)(a)(b) & 13(2) of P.C Act (Amended 2018) and entrusted Mr. B. Lalnghakliana, Dy. S.P. ACB to investigate the case. During investigation of the case, Mr. B. Lalnghakliana seized several documents and also, he examined witness and recorded their statements. However, before he submits charge-sheet, he was transferred to 3rd Battalion MAP and he was entrusted to continue the investigation vide Order No. ACB/CON-35/2021/208 dated 29.03.2023. He went through all the documents seized by the previous IO and also perused statement of witnesses as well as result of the investigation. However, before he submits charge-sheet, he was transferred to 3rd Battalion MAP and he was entrusted to continue the investigation vide Order No. ACB/CON-35/2021/208 dated 29.03.2023. He went through all the documents seized by the previous IO and also perused statement of witnesses as well as result of the investigation. He therefore, concluded that the finding of the previous IO is reliable as it based on documentary as well as verbal evidence of witnesses and then he submitted charge-sheet u/s 409 IPC R/W 13(1)(a)(b) & 13(2) of P.C Act (Amended 2018) against Mr. C. Lalfakawma, JE, PWD. Ext. P-15 is Charge sheet submitted by him.Ext: P-16 is Order of SP vide No. ACB/CON-35/2021/34 dated 28.02.2022.Ext. P-17 is a prayer for registration of criminal case submitted by Inspector Jerry Lalrinsanga, ACB. Ext. P-18 is registration of FIR u/s 154 Cr.P.C. Ext. P-19 is Order of Lokayukta vide Memo No. C. 13017/16/2020-ML date 2nd June, 2020. Ext. P-20 is Order passed by SP, ACB for conducting Preliminary Enquiry and endorsement of case to Inspector Jerry Lalrinsanga. Ext. P-21 is a prayer to Superintending Engineer, Western Circle, PWD to furnish documents. Ext. P-22 is forwarding letter for submission of documents to Enquiry Officer, ACB. Ext. P-23 is a prayer to Engineer-in-Chief, PWD to furnish documents.Ext. P-24 is notice to proceed with the work made by Mr. R. Vanlaltluanga, Chief Executive Officer (CEO), Mizoram Rural Roads Development Agency (MRRDC) vide No. B. 15028/240/2018/Ph-X/13/PMGSY/EC/PWD date 26.09.2018. Ext. P-25 is notice given to Colleen Lalsangpuii, Lower Zarkawt, Aizawl, to proceed with the work. Ext. P-26 is notice given to Lalthanthuami, Chawnpui, Aizawl, to proceed with the work. Ext. P-27 is a forwarding letter for submission of documents for construction and maintenance of Rabung to Aizawl Road vide No. C/13016/6/CON/2020/PWD(KZ)/2 date 10.07.2020. Ext. P-28 is Government approval to register criminal case vide No. C. 31016/109/2021-VIG date 02.02.2022. Ext. P-29 is Order passed by SP, ACB for conducting investigation to Mr. B. Lalnghakliana, DSP, ACB. Ext. P-30 is Charge sheet order dated 24.03.2023 of Case No. MLC/16/2020. Ext. P-31 is Order in his favour for re-endorsement to conduct investigation and submit Charge sheet. During cross examination, he admitted that in his knowledge the case was initiated by the Government but he was unable to specify the particular authority concerned who initiated the case. Ext. P-30 is Charge sheet order dated 24.03.2023 of Case No. MLC/16/2020. Ext. P-31 is Order in his favour for re-endorsement to conduct investigation and submit Charge sheet. During cross examination, he admitted that in his knowledge the case was initiated by the Government but he was unable to specify the particular authority concerned who initiated the case. That he took up the case as case IO w.e.f. 29.03.2023 and therefore submitted Charge sheet on dated 10.04.2023. He therefore took up the case as case IO only during 12 days. As the case was initially registered by Mizoram Lokayukta and submitted Charge sheet through Mizoram Lokayukta, in the front page of Charge sheet he put ‘Special Judge, PC Act (For Mizoram Lokayukta)’, it was done as per instruction which they received from their superior authorities. That he knew points/grounds of allegation against the accused. That he did not visit the place of road construction pertinent to the instant case. That they obtained prosecution sanction under PC Act and Cr.P.C. against the accused. That at the stage of his investigation at the case, no new seized documents and also no record of statements of witnesses including the accused. That except material evidence already collected by the previous case IO, he did not have any direct evidence against the accused. That he did not obtain his assistance as case IO in the instant case, but he did not know that the previous case IO obtain the same or not. That the previous case IO already authored/prepared charge sheet and submitted to Mizoram Lokayukta for their consideration, after returned the same to ACB, he was re-endorsed to take up the case as Case IO, before he finalise charge sheet, he meticulously examined the contents and circumstances and make necessary changes. After that he finalized the instant charge sheet papers. 34. On the examination of the accused/appellant under section 313 Cr.P.C he denied the allegation that he had demanded money as bribe from the contactor Roenga and stated he had lend Rs.17,00,000/- to him which was later repaid. He did not deny the evidence that Rs.11,00,000/- was transferred to his bank account by Mr. Vanhmingthanga but, he explained that it was in return of the money borrowed by Vanhmingthanga. He denied all the evidence stating that he had demanded money by abusing his official position as JE, PWD Findings and decision thereof 35. He did not deny the evidence that Rs.11,00,000/- was transferred to his bank account by Mr. Vanhmingthanga but, he explained that it was in return of the money borrowed by Vanhmingthanga. He denied all the evidence stating that he had demanded money by abusing his official position as JE, PWD Findings and decision thereof 35. On analysis of the evidence adduced by the prosecution witnesses and on considering the submissions made by the learned counsels for both the parties, this Court had perused the impugned Judgment and Order dated 04.09.2023, passed by the Court of Special Judge. It is seen that the learned Special Court found that the prosecution failed to prove the criminal act of the accused/appellant beyond reasonable doubt regarding the allegation made against the accused/appellant for illegally receiving Rs. 17,00,000/- (Rupees seventeen lakh only) from the contractor Mr. Lalroenga. However, the Trial Court held that the accused/appellant had committed criminal breach of trust and criminal misconduct by dishonesty demanding and receiving a sum of Rs. 3,00,000/- (Rupees three lakh only) out of Rs. Rs. 11,00,000/- (Rupees eleven lakh only) from the Sub-contractor, Mr. Vanhmingthanga, working under him, which was transferred from his SBI Bank account to the SBI Bank account of the accused/appellant on 19.11.2019 and therefore guilty u/s 409 IPC and u/s 13(2) r/w 13(1)(a)&(b) of PC Act, 1988. 36. Thus, this Court while considering the prosecution evidence adduced before the Court, find it fit to examine the evidence adduced relating to the allegation of criminal misconduct by dishonesty demanding and receiving a sum of Rs. Rs. 3,00,000/- (Rupees three lakh only) out of Rs. 11,00,000/- (Rupees eleven lakh only) from the Sub-contractor, Mr. Vanhmingthanga. 37. The evidence of PW-1/Mr. H. ThangaZate, serving as Joint Secretary, Finance Establishment relating to the information received regarding symphony of public money by the accused/appellant in a letter received by him on 11.05.2020 and his submitting the complaint on 20.05.2020 to the Chairman, Mizoram Lokayukta, requesting for the investigation of embezzlement of Govt. money by the accused/appellant are undisputed facts and need no elaborate discussion. 38. PW-2, Mr. Jerry Lalrinsanga was the officer who on direction of the Chairman, Mizoram Lokayukta had conducted the preliminary inquiry. During inquiry, he found it well established that the accused/appellant had received Rs. 17,00,000/- (Rupees seventeen lakh only) from the Contractor, Mr. Lalroenga. money by the accused/appellant are undisputed facts and need no elaborate discussion. 38. PW-2, Mr. Jerry Lalrinsanga was the officer who on direction of the Chairman, Mizoram Lokayukta had conducted the preliminary inquiry. During inquiry, he found it well established that the accused/appellant had received Rs. 17,00,000/- (Rupees seventeen lakh only) from the Contractor, Mr. Lalroenga. However, since the Trial Court had acquitted the accused/appellant with regards to the receipt of Rs. 17,00,000/- (Rupees seventeen lakh only) from the Contractor, Mr. Lalroenga, steps taken with regards to the receipt of Rs. 17,00,000/- (Rupees seventeen lakh only) did not be further discussed. PW-2 also deposed that with regards to the money taken from the Sub-contractor, Mr. Vanhmingthanga, the account transaction detail of Mr. Vanhmingthanga was obtained where it was found that Rs. Rs. 21,00,000/- (Rupees twenty-one lakh only) was credited in his account, wherein, Mr. Vanhmingthangaha stated that he had given Rs. 11,00,000/- (Rupees eleven lakh only) to the accused/appellant. His account transaction details proved the same was done on 19.11.2019. On further inquiry, Mr. Vanhmingthanga stated that during the execution of the sub-contract work, he had borrowed Rs. 8,00,000/- (Rupees eight lakh only) from the accused/appellant and thus, on receipt of his bill amounting to Rs. 21,00,000/- (Rupees twenty-one lakh only), he had given Rs. 11,00,000/- (Rupees eleven lakh only) to the accused/appellant. PW-2 thus deposed that he found that the accused/appellant had received illegal gratification amounting to Rs. Rs. 11,00,000/- (Rupees eleven lakh only) minus Rs. 8,00,000/- (Rupees eight lakh only) = Rs. 3,00,000/- (Rupees three lakh only) from the Sub-contractor, Mr. Vanhmingthanga. Accordingly, he submitted his inquiry report to the Chairman, Mizoram Lokayukta and also submitted the FIR to OC, ACB, Police Station on 20.02.2022. During his cross-examination, he admitted that he has no personal knowledge except what was stated to him by Mr. Vanhmingthanga on interrogation. 39. PW-3, Mr. Lalroenga who was declared as a hostile witness is the contractor who had received the work Order for construction of Rabung to Aizawl Road, and that he had engaged Mr. Vanhmingthangawho was a close friend of the accused /appellant, for retaining wall construction work and Khawzawl. His further evidence of the accused/appellant borrowing his Rs. 17,00,000/- (Rupees seventeen lakh only) which the accused/appellant already liquidated the borrowed amount during 2021 needs no further discussion. 40. PW- 4 Mr. Vanhmingthanga was also declared a hostile witness. Vanhmingthangawho was a close friend of the accused /appellant, for retaining wall construction work and Khawzawl. His further evidence of the accused/appellant borrowing his Rs. 17,00,000/- (Rupees seventeen lakh only) which the accused/appellant already liquidated the borrowed amount during 2021 needs no further discussion. 40. PW- 4 Mr. Vanhmingthanga was also declared a hostile witness. He stated that the amount of Rs. 21,00,000/- (Rupees twenty-one lakh only) was transferred by the Contractor, Mr. Lalroenga to his SBI account on 15.11.2019. That he was given the work to carry out the construction of 3 (three) retaining walls and that in order to carry out the construction work, since he was not having the capital, he used the borrow money from the accused/appellant which amounted to Rs. 8,00,000/- (Rupees eight lakh only). When Rs. 21,00,000/-(Rupees twenty-one lakh only) was transferred to his account for the completion of the work assigned to him he transferred Rs. 11,00,000/- (Rupees eleven lakh only) to the account of the accused/appellant on 19.11.2019. He explained that in addition to the Rs. 8,00,000/- (Rupees eight lakh only) which he borrowed from the accused/appellant he had later borrowed Rs. 3,00,000/- (Rupees three lakh only) as his construction work proved to be more expensive than his initial estimate and therefore, he had transferred a total of Rs. 11,00,000/- (Rupees eleven lakh only) to the account of the accused/appellant. During his cross-examination he stated that he had borrowed Rs. 8,00,000/- (Rupees eight lakh only) in the beginning of 2019 and that he had also informed the Police Officer who interrogated him about his borrowing Rs. 3,00,000/- (Rupees three lakh only) from the accused/appellant apart from the previously borrowed amount of Rs. 8,00,000/- (Rupees eight lakh only). 41. PW-5 to PW-17, are the seizure witnesses to the seizure of the passbooks belonging to the accused/appellant exhibited as MO-1 and exhibit MO-2, the documents showing notice to proceed with the contract work exhibited as Exhibit MO-3 and Exhibit MO-4, the bank account of PW-3 exhibited as MO-5 and the account of Mr. Vanhmingthanga exhibited as MO-9 along with the seizure memos exhibited as exhibit 12 and the bank transaction exhibited as Exhibits 6, 7 & 8 respectively and the connected checks exhibited as Exhibit 10 respectively. 42. PW-18, Mr. K. Lalthawmmawia who was posted as Secretary to Govt. of Mizoram, Public Works Department stated that the Govt. Vanhmingthanga exhibited as MO-9 along with the seizure memos exhibited as exhibit 12 and the bank transaction exhibited as Exhibits 6, 7 & 8 respectively and the connected checks exhibited as Exhibit 10 respectively. 42. PW-18, Mr. K. Lalthawmmawia who was posted as Secretary to Govt. of Mizoram, Public Works Department stated that the Govt. had received an application for prosecution sanction for prosecuting the accused/appellant before the competent Court on an allegation that the accused/appellant had committed criminal breach of trust and misconduct by misusing his official capacity and power in regards to criminal case vide ACB PS case 1/2022 dated 28.02.2022 u/s 13(1)(a)(b) and 13(2) of the PC Act r/w Section 409 IPC. On finding the application along with the documents submitted to be genuine, prosecution sanction was accorded as provided u/s 197 of CrPC and Section 19 of the Prevention of Corruption Act, 1988 vide Order dated 04.11.2022. 43. PW-19, Mr. B. Lalnghakliana is the case IO . His evidence regarding the evidence of the more borrowed by Mr. Vanhmingthanga, is that during his investigation he examined the prosecution witnesses and also seized the checks/passbooks and the other documents connected with the case. It was proved during his investigation the Sub-contractor, Mr. Vanhmingthanga, had stated that he was working under Mr. Lalroenga and that he had borrowed Rs. 8,00,000/- (Rupees eight lakh only) from the accused/appellant as working capital for construction of the Retaining Wall. However, on 19.11.2019, he returned Rs. 11,00,000/- (Rupees eleven lakh only) to the accused/appellant. The documents exhibited also proved the same and therefore, he found that the accused/appellant had taken bribe from the Sub-contractor amounting to Rs. 3,00,000/- (Rupees three lakh only). Thereafter, the charge sheet was submitted for the accused/appellant to face trial before the Special Court under PC Act. Thereafter, before he could submit that charge sheet he was transferred and the matter was taken up by the PW-20/Mr. Lalnunmawia. 44. PW-20,Mr. 3,00,000/- (Rupees three lakh only). Thereafter, the charge sheet was submitted for the accused/appellant to face trial before the Special Court under PC Act. Thereafter, before he could submit that charge sheet he was transferred and the matter was taken up by the PW-20/Mr. Lalnunmawia. 44. PW-20,Mr. Lalnunmawia, submitted that he had filed the chargesheet after the investigation and after going through the documents seized by the previous IO filing that there is prima facie case against the accused/appellant u/s Section 409 IPC r/w 13(1)(a)(b) & 13(2) of the P.C Act, he exhibited the charge sheet and during the cross-examination he admitted that he mainly depend on the investigation done by the previous case IO submitted the charge sheet finding prima facie evidence against the accused /appellant u/s 409 IPC R/W 13(1)(a) (b) & 13(2) of P.C Act (Amended 2018). 45. Thus, it is seen from the evidence adduce that Mr. Vanhmingthanga had received Rs. 21,00,000/- for his works out of which he had transferred Rs. 11,00,000/- to the account of the accused /appellant. The evidence of the prosecution witness and documents seized proved that the Rs.8,00,000/- was borrowed by Mr. Vanhmingthanga and duly returned. The evidence of PW4(declare hostile) is that he had later on borrowed an additional RS.3,00,000/-(Rupees three lakh only) from accused/appellant which was also repaid and hence explaining the transfer of a total of Rs. 11,00,000/-(Rupees eleven lakh only) into the account of the accused appellant. 46. Thereafter the learned Special Judge, P.C Act convicted the accused u/s 409 IPC R/W 13(1)(a)(b) & 13(2) of P.C Act for the transfer for Rs. 3,00,000/-(Rupees three lakh only) to his account with was held unaccounted for by the trial court and also for subletting of some contract work allotted to Mr. Lalroenga to Mr. Vanhmingthanga, who was the close friend of the accused/appellant, which is found to be in violation of the Central PWD Manual,2014. 47. In light of the above, this court finds it appropriate to first examine whether the offence under section 409 IPC is proved from the evidence projected above. It is seen that the Apex court has laid out the ingredients necessary to prove a charge under section 409 IPC in N. Raghavender Vs. State of Andhra Pradesh (supra) wherein it observed that: “45. It is seen that the Apex court has laid out the ingredients necessary to prove a charge under section 409 IPC in N. Raghavender Vs. State of Andhra Pradesh (supra) wherein it observed that: “45. Section 409 IPC pertains to criminal breach of trust by a public servant or a banker, in respect of the property entrusted to him. The onus is on the prosecution to prove that the accused, a public servant or a banker was entrusted with the property which he is duly bound to account for and that he has committed criminal breach of trust. 46. The entrustment of public property and dishonest misappropriation or use thereof in the manner illustrated under Section 405 are a sine qua non for making an offence punishable under Section 409IPC. The expression “criminal breach of trust” is defined under Section 405IPC which provides, inter alia, that whoever being in any manner entrusted with property or with any dominion over a property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property contrary to law, or in violation of any law prescribing the mode in which such trust is to be discharged, or contravenes any legal contract, express or implied, etc. shall be held to have committed criminal breach of trust. Hence, to attract Section 405IPC, the following ingredients must be satisfied: 46.1. Entrusting any person with property or with any dominion over property. 46.2. That person has dishonestly misappropriated or converted that property to his own use. 46.3. Or that person is dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation of any direction of law or a legal contract. 47. It ought to be noted that the crucial word used in Section 405IPC is “dishonestly” and therefore, it pre-supposes the existence of mensrea. In other words, mere retention of property entrusted to a person without any misappropriation cannot fall within the ambit of criminal breach of trust. Unless there is some actual use by the accused in violation of law or contract, coupled with dishonest intention, there is no criminal breach of trust. The second significant expression is “misappropriates” which means improperly setting apart for ones use and to the exclusion of the owner. 48. Unless there is some actual use by the accused in violation of law or contract, coupled with dishonest intention, there is no criminal breach of trust. The second significant expression is “misappropriates” which means improperly setting apart for ones use and to the exclusion of the owner. 48. No sooner are the two fundamental ingredients of “criminal breach of trust” within the meaning of Section 405IPC proved, and if such criminal breach is caused by a public servant or a banker, merchant or agent, the said offence of criminal breach of trust is punishable under Section 409IPC, for which it is essential to prove that: (i) The accused must be a public servant or a banker, merchant or agent; (ii) He/She must have been entrusted, in such capacity, with property; and (iii) He/She must have committed breach of trust in respect of such property. 48. In Vasant Rao Guhe Vs. State of Madhya Pradesh, (supra) the apex court also as follows : “49. Accordingly, unless it is proved that the accused, a public servant or a banker, etc. was “entrusted” with the property which he is duty-bound to account for and that such a person has committed criminal breach of trust, Section 409IPC may not be attracted. “Entrustment of property” is a wide and generic expression. While the initial onus lies on the prosecution to show that the property in question was “entrusted” to the accused, it is not necessary to prove further, the actual mode of entrustment of the property or misappropriation thereof. Where the “entrustment” is admitted by the accused or has been established by the prosecution, the burden then shifts on the accused to prove that the obligation vis-à-vis the entrusted property was carried out in a legally and contractually acceptable manner.” 49. This court thus finds that the amount of Rs. 3,00,000/- money which said to be excessively transferred into the account of the accused/appellant by Mr. Vanhmingthanga cannot be termed as public money since the said amount belonged to Mr. Vanhmingthaga. This court also finds that there is no evidence adduce by the prosecution indicating that the said Rs.3,00,000/-, deposited into the bank account of the accused /appellant, was ‘entrusted’ to the accused /appellant in his capacity as a Government servant, nor is there any evidence that the accused/appellant had committed breach of trust in respect of the said Rs.3,00,000/-. Instead the evidence of Mr. Instead the evidence of Mr. Vanhmingthanga/PW No.4 is that the money was for the repayment of the money borrowed by him from the accused/appellant. 50. It is seen that the Apex court in Neeraj Dutta Vs. State (NCT in Delhi) (Supra) has held that “Therefore, this Court cautioned that even if a witness is treated as “hostile” and is cross-examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. It is for the Judge as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared “hostile” does not result in an automatic rejection of his evidence. Even, the evidence of a “hostile witness” if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a “hostile witness” testimony if corroborated by other reliable evidence.” 51. For the above reasons this court finds that the evidence of Mr. Vanhminthanga cannot be simply discarded on him being declared hostile. Thus on finding that the ingredients required for conviction under section 409 IPC are missing in the instant case, this court is of the considered view that the conviction of the accused appellant under section 409 IPC cannot be sustained. 52. The next point for consideration is whether the conviction of the accused/appellant under sections u/s 3(2) r/w 13(1)(a) of PC Act can be upheld. 53. The Apex court in C. Surendranath & Anr. Vs. State of Kerala, reported in (2024) SCC Ker 210 (para 27-30) has observed as under: “27. Dishonest intention is sine qua non to attract the offence punishable under Section 13(1)(d) of the Act. Mere conduct and action of the accused contrary to rules and departmental norms would not amount to criminal misconduct by a public servant. 28. A fundamental principle of criminal jurisprudence with regard to the liability of an accused is the element of mensrea. On the principles of actusreus and mensrea, the learned author Sri. Glanville Williams in the ‘Textbook of Criminal Law’ [Third Edition, Dennis. 28. A fundamental principle of criminal jurisprudence with regard to the liability of an accused is the element of mensrea. On the principles of actusreus and mensrea, the learned author Sri. Glanville Williams in the ‘Textbook of Criminal Law’ [Third Edition, Dennis. J. Baker, page 95] comments thus: “The mere commission of a criminal act (or bringing about the state of affairs that the law provides against) is not enough to constitute a crime, at any rate in the case of the more serious crimes. These generally require, in addition, some element of wrongful intent or other fault. Increasing insistence upon this fault element was the mark of advancing civilization.” 29. On the principles of Criminal Liability, the learned author Sri. K.D. Gaur in his book Criminal Law [Lexis Nexis, Butterworths, page 37] explains thus: “Criminal guilt would attach to a man for violations of criminal law. However, the rule is not absolute and is subject to limitations indicated in the Latin maxim, actus non facitreum, nisi mens sit rea. It signifies that there can be no crime without a guilty mind. To make a person criminally accountable, it must be proved that an act, which is forbidden by law, has been caused by his conduct, and that the conduct was accompanied by a legally blameworthy attitude of mind. Thus, there are two components of every crime, a physical element and a mental element, usually called actusreus and mensrea respectively.” 30. Dishonest intention is the crux of the offence under Section 13(1)(d) of the PC Act. The question of whether violation of the rules and departmental norms would amount to the offence under Section 13(1)(d) of the PC Act was considered by the Apex Court in C.K. Jaffer-Sharief v. State [ (2013) 1 SCC 205 ]. The Apex Court held thus: “If in the process, the rules or norms applicable were violated or the decision taken shows an extravagant display of redundance it is the conduct and action of the appellant which may have been improper or contrary to departmental norms. But to say that the same was actuated by a dishonest intention to obtain an undue pecuniary advantage will not be correct. That dishonest intention is the gist of the offence under Section 13(1)(d) is implicit in the words used i.e. corrupt or illegal means and abuse of position as a public servant.” 54. But to say that the same was actuated by a dishonest intention to obtain an undue pecuniary advantage will not be correct. That dishonest intention is the gist of the offence under Section 13(1)(d) is implicit in the words used i.e. corrupt or illegal means and abuse of position as a public servant.” 54. On the perusal of the Judgment & order 04.09.2023,passed by the Court of Special Judge it is seen that the learned Trial Court has also referred to the statement made by the accused/appellant under section 313 Cr.P.C wherein, the learned trial court observed that his statement revealed that profit of the said sub contract work is @ Rs. 10 lakhs is very exorbitant rates/ amount detrimental to public interest. That the dishonest and fraudulent act of the accused for subletting the said contract work in contravention of the in force Central PWD Manual, 2014 to his close friend Vanhmingthanga also amounts to offence u/s 13 (1)(a) r/w 13(2) PC Act,1988. 55. However a perusal of the prosecution evidence shows there is no evidence towards violation of the provision of the Central Public Works Department Manual, 2014. Further, the Central Public Works Department Manual, 2014 was also not exhibited nor marked as an exhibit in the trial court. It is also seen that there is no mention of violation of the CPWD manual during the Consideration of Charge to indicate that there was a criminal intent in the actions of the accused/appellant for the alleged violation of the CPWD. Thus this court finds that the learned trial court had erred in relying upon the provision of the Central Public Works Department Manual, 2014 for the conviction of the accused/appellant since this aspect was not considered at the time of the framing of charge. 56. For the above reasons as discussed above this court find that the prosecution have failed to prove the guilt of the accused appellant under section under section 13 (2) r/w 13 (1) (a) of Prevention of Corruption Act, 1988 (2018 Amendment) and u/s section 409 of the Indian Penal Code, 1860 and accordingly set aside and quash the Judgment Order dated 04.09.2023, passed by the Court of Special Judge, Prevention of Corruption Act, Aizawl, Mizoram in ACB PS Case No. 001 of 2022 dated 28.02.2022,in convicting the appellant and sentencing him to undergo two (2) years imprisonment with a fine of Rs. 1,00,000/(Rupees One Lakh only) in default, another imprisonment of six (6) months under Section 409 of Indian Penal Code, 1860 and imprisonment for four (4) years with a fine of Rs, 1,00,000/(Rupees One Lakh only) in default another imprisonment of six (6) months under Section 13 (2) r/w 13 (1) (a) of Prevention of Corruption Act, 1988 (2018 Amendment). 57. The accused/appellant currently released on bail is thus acquitted of the charge under Section 13 (2) & 13 (1) (a) of Prevention of Corruption Act, 1988 (2018 Amendment) R/W section409 IPC and set at liberty. His bail bond so executed also stands dispensed with. 58. Crl.A No. 34 of 2023 is thus allowed and disposed of.