The Public Prosecutor vs T.M. Natarajan

Somasundaram, J.—This is an appeal by the State against the acquittal of the Respondent by the Additional First-Class Magistrate,

Tirurellore in Calendar Case No. 20 of 1958, on his file.

The Respondent was the President of the Panchayat Board of Tirumullaivayal. He auctioned the right to collect the fees from the stalls to be put

up in Avadi during Congress Session in 1955. P.W. 1 took it for Rs. 4,090. But the auction in favour of P.W. 1 was set aside and the accused

was, therefore, under an obligation to return the amount. The collection of the amount is not disputed by the accused. He had deposited some

amount in the sub-treasury and some amount in the post office savings bank. The amount that he had deposited in the Treasury was withdrawn on

29th December 1954 and that was about Rs. 2,145 and Rs. 1,000 was withdrawn from the post office savings bank on 28th December 1954.

This fact is also not disputed. The balance of Rs. 945 was withdrawn later. The withdrawal of these sums, therefore, from the sub-treasury and the

post office savings bank is admitted by the accused.

The case for the prosecution is that the accused did not pay a single pie to P.W. 1. The case of the accused is that on 28th December 1954, he

paid Rs. 3,145 to P.W. 1 and reserved Rs. 945 towards the loan which P.W. 1 is said to have promised to advance to the accused on a

mortgage. The loan that was promised was to the tune of Rs. 3,000. Towards this loan, according to the accused, he reserved Rs. 945. He,

therefore, pleads payment of Rs. 3,145 and admits retention of Rs. 945 for the reasons mentioned by him.

If these two circumstances are established, certainly it cannot be said that the guilt of the accused has been established beyond all reasonable

doubt. But the difficulty arises with regard to the payment of Rs. 3,145 to P.W. 1. Admittedly no receipt was obtained by the accused from P.W.

According to the accused, he asked P.W. 1 to pass a receipt but P.W. 1 is said to have told him whether he cannot be trusted for this sum and

P.W. 1 is further said to have told that on payment of the balance, he will pass a final receipt. This payment of Rs. 3,145 is said to have been made

in the presence of D. Ws. 1 and 2. It was suggested to P.W. 1 in the course of cross-examination that this sum was paid in the presence of D.W.

1 and one Kadirvelu Mudaliar. Kadirvelu Mudaliar has not been examined but instead, one Krishnaswami Naidu has been examined. It was not

suggested to P.W. 1 that Krishnaswami Naidu was present at the time when the accused paid the money. According to the suggestion made to

P.W. 1, there were only two persons present at the time of the payment, Ponnambala Mudaliar, D.W. 1 and Kadirvelu Mudaliar who is not

examined. There was no suggestion that another person was present. Nevertheless D.W. 2 has been called as a witness said to have been present

at the time of payment of Rs. 3,145. This by itself is sufficient to reject the evidence of D.W. 2.

So far as D.W. 1 is concerned, he is a distant relative of the accused and the learned Additional First-Class Magistrate very rightly rejected the

evidence of these two witnesses. When the evidence of the two witnesses has been rejected, then there is no proof that the accused paid a sum of

Rs. 3,145 on 28th December 1954. One circumstance which improbabilises the statement and which confirms the finding of the lower Court that

the evidence of the defence witnesses cannot be accepted is this. On 24th December 1955, P.W. 1 issues notice to the accused calling upon him

to pay the amount due to him. He has, no doubt, mentioned that in addition to the sum paid, he has also paid another Rs. 100. To this notice the

accused did not send reply at all till about July 1955. The reply notice is dated 4th July 1955. For about five months, the accused has not sent a

reply notice. Instead he has caused exhibits D-2 and D-3, encumbrance certificates, to be sent on 7th and 12th March 1955 to P.W. 1. There can

be no doubt that exhibits D-2 and D-3 were received by P.W. 1 on the respective dates. But on the averments in exhibit P-4 that the sum of Rs.

4,025 is due to him and that he has not paid in spite of repeated demands, if really the accused has paid Rs. 3,145 on 28th December 1954, then

certainly the accused would not have kept quiet. He would have immediately rushed to him in person or through a lawyer who would have given

immediate reply to the notice, asserting that he has paid on such and such a date the sum and in the presence of two persons. He did nothing of the

kind. After arranging to send the two encumbrance certificates, he keeps quiet for about four or five months and leisurely sends his reply notice in

July 1955 mentioning therein that the sum was paid. The lower Court, very rightly, disbelieved the accused and from his conduct he found that this

sum of Rs. 3,145 could not have been paid to P.W. 1.

Mr. Raghunathachari, appearing for the Respondent, points out that P.W. 1 admits that he returned the amount which he borrowed from

Multani. That shows that he must have paid only from the money paid by the accused. No question is suggested as to how he returned the amount

to Multani. According to his evidence, he is earning about Rs. 2,000 a month. He is worth about a lakh of rupees. These answers have been

elicited in the course of cross-examination. There is nothing improbable, therefore, in P.W. 1 returning this Rs. 3,145 from his own moneys. In the

absence of a suggestion put to him or ascertainment from him as to how he paid the amount to the Multani, this argument that he must have paid

from the own amount paid is not of much force.

It is true that in the enquiry which was started by the District Panchayat Officer some time in December 1955, the accused set up the theory of

payment of Rs. 3,145 to P.W. 1 and he produced witnesses before the District Panchayat Officer. But it must be remembered that this is about ten

months after the notice was received. There is nothing improbable that by this time he was procuring witnesses to support his case, as undoubtedly

he will have to face a criminal prosecution. The fact that these witnesses have made statement before the District Panchayat Officer does not, in my

opinion, carry the case much further. The evidence has been rejected by the lower Court and I agree entirely with the lower Court in regard to the

appreciation of the evidence of D. Ws. 1 and 2.

On the evidence, therefore, it is clearly established that the accused did not pay the amount to P.W. 1 though he withdrew it from the treasury

and from the savings bank. He is, therefore, clearly guilty of the offence with which he has been charged.

The lower Court found that the accused had not paid the amount, but acquitted him on the ground that no sanction had been obtained to

prosecute the Respondent. u/s 106 of the Village Panchayat Act, when the president, executive authority or any member is accused of any offence

alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such

offence except with the previous sanction of the Government. Since sanction was not obtained, the lower Court acquitted the accused. The

question is whether it is necessary to obtain sanction to prosecute the accused.

At the time when the prosecution was launched, the Respondent was not a president or executive authority of the Panchayat,, For a person

who was a president, and in that Capacity he withdrew the money and misappropriated the same and when he subsequently ceased to be the

president when prosecution is launched against the president after he ceased to be the president, the question is whether Section 106 applies to

him.

In Muniswami Chetti, In re (1958) M.L.J. 80, KRISHNA RAO J., of the Andhra Pradesh High Court has pointed out referring to this Section

106 itself that there are two conditions precedent to the prohibition thereunder: namely, (i) that the accused is a president, executive authority, etc.,

of a panchayat; and (ii) the offence is alleged to have been committed by him while acting or purporting to act in the exercise of his duty. It takes

cognizance of offences where these conditions exist. Therefore, both these conditions must be satisfied at the time when a criminal Court takes

cognizance of the offences in the exercise of its original jurisdiction u/s 190, Criminal Procedure Code. The point of time is when the complaint, or

police report or information is received by the Magistrate. It must be at that time that the accused has to hold the status of a president, etc., of a

panchayat in order to satisfy the first condition. The language of the section does not support the view that the prohibition relates only to the

character of the offences complained of which would require an official status for the accused only at the time of the commission of the offence.

He, therefore, held in that case that at the time when the prosecution was launched, he did not possess the status. Undoubtedly when he committed

the offence he held the status. Therefore, KRISHNA RAO J., held that no sanction was necessary. In one of the cases which came up before him

along with these cases which he decided, one was a member at the time when prosecution was launched and, therefore, he upheld that sanction

was necessary.

The Supreme Court in S.A. Venkataraman v. The State (1958) S.C.R. 1037 considered the question under Act II of 1947. They have also

held to the same effect. But it is contended that Section 6 of Act II of 1947 is different in its wording from Section 106 of the Village Panchayats

Act or Section 197, Criminal Procedure Code. In my opinion, though there is a slight difference in the wording, that difference does not affect the

construction to be placed upon this section. Their Lordships of the Supreme Court have pointed out in considering the words of Section 6 of Act

II of 1947 that at the time a Court is asked to take cognizance, not only the offence must have been committed by a public servant but the person

accused is still a public servant removable from his office by a competent authority.

Applying the principles laid down by their Lordships of the Supreme Court in the above decision and following the decision of KRISHNA

RAO J., in Muniswami Chetti In re. (1958) M.L.J. 80, I hold that no sanction is necessary in this case. The acquittal is, therefore, not justified on

this ground and it is set aside.

The only question next to be considered is the sentence to be awarded. As the amount paid by P.W. 1 was not repaid, I gave an opportunity

to the Respondent herein to pay the amount, so that I can deal with him leniently. But in spite of opportunity being given for sufficiently a long time

he has not availed himself of it and he has not paid a single pie. In the circumstances I have no other alternative but to award a fairly severe

sentence. I find the accused guilty of the offence with which he has been charged and sentence him to two years'' rigorous imprisonment and a fine

of Rs. 2,000 in default six months rigorous imprisonment. Out of the fine collected a sum of Rs. 1,000 will be paid to P.W. 1 as compensation for

the losses. This amount of Rs. 1,000, when paid, will be given due credit when the decree is sought to be executed. This appeal is, therefore,

allowed.