K.G.Balakrishnan, J.:-
(1) the appellant has been found guilty by the court of enquiry commissioner and special judge, Trichur for the offences punishable under section 5 (2) read with section 5 (1) (d) of the prevention of corruption act, 1947 and section 161 of the indian penal code. For the offence under the provisions of the prevention of corruption act he has been sentenced to undergo rigorous imprisonment for a period of 2 years and to pay a fine of rs. 500/ - in default of payment of fine to undergo simple imprisonment for a further period of one month, And for the offence under section 161 of the indian penal code he is sentenced to undergo r. I. For a period of one year. The sentences of imprisonment are ordered to run concurrently.
(2) the accused was working as an assistant engineer in the electrical major section, Kottakkal in 1984. P. W. 1 abdulla had applied for an electric connection to his remodelled house. He submitted the application in august 1984. He waited for about 8 months to get the electric connection. In march 1985 he went to the office of the accused and he came to know that the former overseer was transferred from that office and the new overseer stated that the application submitted by p. W. 1 was not traced out. P. W. 1 met the accused. The accused asked p. W. 1 to submit a fresh application. P. W. 1 then met the former overseer named vasukuttan and enquired about his application. Then vasukuttan told that he had entrusted the application to one muthu, A clerk working in that office. On 28 - 3 - 1985 p. W. 1 met the assistant executive engineer and appraised him of these facts. The assistant executive engineer directed the cleric to trace out the application. Ultimately the new overseer srinivasan traced out ext. P. 1 file. The assistant executive engineer directed srinivasan to prepare an estimate. Srinivasan prepared the estimate and the file was entrusted to the accused, Assistant engineer. P. W. 1 met the accused at about 12 a. M. The accused asked him to wait for some time. After about half an hour the accused told p. W. 1 that a sum of rs. 200/ - would be necessary as the usual amount payable under such circumstances. P. W. 1 replied that he would bring the money on the next day. Along with p. W. 1 there was p. W. 7, Abdul rahiman. On the next day at about 12 a. M. P. W. 1 went to the vigilance police station, Malappuram and met the circle inspector. P. W. 12 recorded the statement of p. W. 1 and a crime was registered and p. W. 12 organised a trap. P. W. 1 entrusted a hundred rupee note and two fifty ruppes notes to p. W. 12. Two witness; were summoned from the nearby office: the currency notes were marked and these notes were handed over to p. W. 1 with the direction that if the accused demanded the amount, The same should be given to him. P. W. 1 proceeded to the office of the accused p. W. 12 and other witnesses followed p. W. 1 entered the room of the accused the accused asked p. W. 1 whether he had brought the amount. M. O. 1 series of currency notes were given to the accused the accused received the currency notes with his right hand and counted the same using both hands and put the same in the shirt pocket. He took ext. P. 1 file and made certain endorsements. Then he asked p. W. 1 that he should deposit a sum of rs. 600/ -. As soon as p. W. 1 paid the amount the witnesses showed signals. P. W. 12 and others entered the room and arrested the accused and recovered the currency notes.
(3) p. W. 12 conducted the phenolphthalein test. P. W. 12 after conducting further investigation filed the charge sheet. Ext. P. 1 file and other relevant documents were seized from the office of the assistant executive engineer. The shirt used by the accused was also recovered under ext. P. S mahazar.
(4) on the side of the prosecution 13 witnesses were examined. The accused when questioned under section 313 of the criminal procedure code denied having gone to the office on 28 - 3 - 85. According to him he was not present in the office till 2 p. M. On 28 - 3 - 1985 and that p. W. 1 did not come to his office on that day. According to him m. O. 1 currency notes recovered from his pocket belonged to him. He denied having conducted the phenolphthalein test. The court below accepted the case of the prosecution and held that the accused has committed the offence as alleged by the prosecution.
(5) p. W. 1 is the person from whom the accused received illegal gratification. He has narrated the whole incident leading to the payment of illegal gratification and recovery of currency notes from the pocket of the accuseds shirt. At the time of giving of ext. P. 2 statement before the police p. W. 1 deposed that it was on 27 - 3 - 1985 that he met the accused. At the time of the evidence he has corrected this date and p. W. 12 also stated that at the time of writing it so happened that 28 - 3 - 1985 was written. In view of the definite statement of p. W. 1 it could only be stated that p. W. 1 met the accused on 28 - 3 - 1985. The learned counsel for the accused vehemently contended that there was no demand on 28 - 3 - 1985 as the accused was not in the office. According to the accused he went out of the office for a field work and returned to the office only at 2 p. M. The entry in ext. P. 10 movement register is also pressed into service to prove this fact. P. W. 6 srinivasan was examined to prove that the accused had gone to formula in the morning of 28 - 3 - 1985. The evidence of p. W. 6 and the entrees in the movement register kept in the office of the accused are not sufficient to show that accused was not present in the office on 28 - 3 - 1985. P. Ws. 1 and 7 are definite that they met the accused on 28 - 3 - 85. The case of the accused that he had gone to some other place is only a later invention.
(6) the learned counsel for the accused seriously challenged the evidence of p. W. 7. It was contended that p. W. 7 was not present with p. W. 1 and even if he was in the office he would not have heard what the accused told p. W. 1. Some photographs have also been produced by the accused to show that the window of the room, Where the accused was sitting, Was permanently closed and if one stands outside the room he would not hear the sound emanating from inside the room. According to p. W. 7 he was standing very close to the window and he heard the accused demanding the amount from p. W. 1, I find no reason to discard the evidence of p. W. 7.
(7) as regards the recovery of m. O. 1 currency notes there is the evidence of p. Ws. 2 and 3. They are independent witnesses. P. W. 2 was additional deputy collector who was working as land tribunal (tahsildar) during march 1985. He deposed that as per the direction of the additional district magistrate, Malappuram he accompanied p. W. 1 and on 29 - 3 - 1985 he went to the office of p. W. 12 and saw p. W. 1 handing over currency notes to p. W. 12. Later he accompanied p. W. 12 and p. W. 1 to the office of the accused he saw p. W. 1 handing over notes to the accused p. W. 2 waited outside and he was also present when p. W. 2 and the circle inspector entered the room of the accused on seeing the signal shown by p. W. 3. P. W. 3 was an assistant labour officer during the year 1985. He accompanied p. W. 1 to the office of the accused. He waited outside in the verandah near a window. P. W. 1 entered the room of the accused. The accused asked p. W. 1 whether he had brought the amount. Then p. W. 1 gave m. O. 1 series of currency notes to the accused p. W. 3 saw the accused receiving the amount and counting them by both hands and putting the same in the shirt pocket. On seeing this p. W. 3 showed signal to p. W. 12. P. W. 12 and other policemen entered the office of the accused and the notes were recovered from the shirt pocket of the accused.
(8) the evidence of p. Ws. 1 to 3 proves beyond all reasonable doubt that the accused received the amount from p. W. 1 and the next question that would arise for consideration is whether the accused has committed the offence punishable under sections 5 (2) and 5 (1) (d) of the prevention of corruption act and section 161 of indian penal code. The learned public prosecutor contended that if the recovery of the currency notes is proved, The court is to draw the presumption as per section 4 of the prevention of corruption act, Whereas the learned counsel for the accused contended that the demand of illegal cratification is not proved in this case and therefore, Even if the money is recovered from the accused, No inference could be drawn.
(9) the presumption under section 4 (1) of the penal code act is a presumption of law and it is obligatory on the part of the court to draw the presumption. The words used in clause 4 (1) is that the court shall presumet and therefore the court has to give importance to the words used in that section. When once the prosecution proves that the accused person has received certain sum of money, Which was not his legal remuneration, The condition prescribed by the section is satisfied to draw the presumption. It is not necessary that the passing of money should be proved by direct evidence. It may also be proved by circumstantial evidence. When once the court arrives at the conclusion that the accused persons has received money other than legal remuneration the presumption under section 4 (1) of the prevention of corruption act is immediately attracted. This presumption is rebuttable and the burden of proof is on the accused person to prove that he is not guilty. The accused person can establish his case by conference of probability. However, The burden resting on the accused is not as light as that placed on him under section 114 of the evidence act and the same cannot be held to be discharged merely for the reason that the explanation given by the accused person was reasonable or probable. He must prove that his explanation was true one. The presumption is to be rebutted by proof and not by bare explanation which is plausible. See state of madras v. Vaidyanatha iyer (a. I. R 1958 s. C. 61), C. I. Emden v. State of u. P. (a. I. R. 1960 s. C. 548), V d. Jhingan v. State of up. (a. I. R. 1966 s. C. 1762) sailendranath v. State of bihar (a. I. R. 1968 s. C. 1292), State of assam v. Krishna rao (1973 (2) s. C. R. 239) and hasarilal v. State of delhi admn. (1980 s. C. C. (cr1.) 458).
(10) it is proved beyond all reasonable doubt that the appellant accepted the tainted currency notes from p. W. 1. The appellant could not adduce any satisfactory explanation to rebut the presumption under section 4 (1) of prevention of corruption act. Therefore, The finding of the court below is only to be confirmed.
(11) another contention raised by the learned counsel for the appellant is that there is no proper sanction to prosecute the appellant. Ext. P. 13 is the sanction order issued by the then chairman of the k. S. E. B. P. W. 11 was examined to prove ext. P. 13. The main contention urged by the appellants counsel is that the appellant was an assistant engineer and his appointing authority was the chief engineer and the chairman had no authority to issue the sanction order. It was further contended that the chairman is not a higher authority than the chief engineer or the superintending engineer, Even though he may have other important functions to be performed with respect to the k. S. E. B. The kerala state electricity board was constituted by virtue of section 5 of the electricity supply act, 1948. The board shall consist of not less than 3 and not more than 7 members appointed by the state government and the chainnan is appointed as per section 5 (5) of the said act. It is pointed out that the chainnan is not given any additional power under the electricity supply act, 1948 and all powers rests with the electricity board section 13 of the electricity supply act states that all orders and decision of the board shall be authenticated by the signature of the chairman or any other member authorised by the board in this behalf. The learned public prosecutor repelled the contention of the appellant's counsel and submitted that by virtue of a notification issued on 19 - 9 - 70 the electricity board was pleased to declare that its chairman is the appointing authority in respect of categories of posts of and below the rank of superintending engineer and the deputy chief accounts officer. P. W. 14 was examined to prove ext. P. 16 notification. The relevant portion of the notification reads as follows: in exercise of the powers conferred by regulation 9 of the kerala state electricity board employees (classification, Control and appeal) regulations, 1969, The board is pleased to declare its chairman as the appointing authority in respect of the categories of posts of and below the ranks of superintending engineer and deputy chief accounts officer. The above notification shows that the chairman has been given power to appoint in respect of assistant engineers and other officers. The learned counsel for the appellant further contended that exts. D. 7 and d. 8 booklets issued by the board would show that ext. P. 16 notification was not in force. Exts. D. 7 and q. 8 notifications are delegation of powers to chief engineers and other officers of the board. On a perusal of exts. D. 7 and d. 8 it would appear that these notifications have been issued as regards the administrative functions of the board. Exts. D. 7 and d. 8 do not show that ext. P. 16 notification was repealed, Set aside or altered therefore, It is to be presumed, Unless otherwise proved, That ext. P. 16 is still in force and when ext. P. 13 sanction order was in force, The then chairman had the authority to give such a sanction.
(12) lbe learned counsel for the appellant further contended that in this case p. W. 14 was examined at the appellate stage to prove ext. P. 16 notification and till his examination, There was no proper sanction order and the whole proceedings in the case were done without jurisdiction as the judge himself had no power to take cognizance of the offence without a sanction order. This plea also is without any merit. By the examination of p. W. 14 it was only proved that ext. P. 13 sanction order was validly issued by p. W. Ii. Ibe examination of p. W. 14 was necessitated because of the defence contention that ext. P. 13 was not valid the cloud of suspicion surrounding ext. P. 13 had vanished and it is now proved that p. W. 11 was competent to issue the same. Therefore, I hold that the chairman of the kerala state electricity board was a competent authority to issue sanction in this case.
(13) i find no reason to interfere with the conviction and sentence entered against the appellant. The criminal appeal fails and the same is dismissed. Appeal dismissed