ORDER
L. Narasimha Reddy, J.
1. This appeal is preferred against the judgment of the Special Judge for CBI cases, City Civil Court, Hyderabad in C.C. No. 11 of 1994, dated 29-4-195. The respondent (accused) was tried for offences under Sections 409 and 477-A, I.P.C. and Section 13(2) read with Section 13(1)(c) and (d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the Act'). The trial Court discharged the accused on the sole ground that there was no valid sanction to prosecute him.
2. The case of the prosecution was that the accused was working as Accountant in the State Bank of Mysore at Kalasiguda Branch of Secunderabad, between November, 1987 and March, 1992. He was incharge of the Accounts Department and Cash Section of the Bank. It is alleged that, taking advantage of his official position, the accused had obtained amounts from various savings bank account holders of the branch towards hand loans, promising that he would remit the borrowed amounts into the respective accounts. It is the case of the prosecution that having so obtained the loans, the accused had made fraudulent entries in the S.B. account ledger sheets depicting payment of various amounts, without in fact, making such payments. It was alleged that he had defrauded the Bank to the tune of about Rs. 49,800/-.
3. Necessary sanction from the sanctioning authority as required under the provisions of the Act was obtained from the Chief General Manager of the Bank and charges were framed. To substantiate its case, the prosecution has examined PWs-1 to 14 and marked documents Exs. P-1 to P-69. Having recorded a finding that there did not exist any sanction as required under the Act, the trial Court did not address itself to the merits of the matter.
4. Sri Sada Siva Reddy, learned Standing Counsel for CBI submits that the trial Court erred in coming to the conclusion that there did not exist any valid sanction. According to him, the Chief General Manager of State Bank of Mysore, has accorded sanction, through Exs. P-68, and the same was proved by examining PW-12, who is acquainted with the signature of the sanctioning authority and was also the Branch Manager. He submits that, a reading of Ex. P-68 discloses that the sanctioning authority has taken all the aspects into account and it was only on being satisfied that there exists a case against the accused, that he accorded sanction.
5. Sri C. Padmanabha Reddy, learned Senior Counsel appearing for the accused has raised a preliminary objection. According to him, the trial Court had discharged the accused and the appeal was not maintainable against such an order. On merits of the matter, he submits that Ex. P-68 does not disclose that there was any application of mind to the facts of the case, and as such, it cannot be treated as a valid sanction. It is his further contention that neither the authority who accorded the sanction was examined nor PW-12 can be said to be a person acquainted with the signature of the sanctioning authority. On the basis of these submissions, learned counsel urges that the trial Court had rightly found that there did not exist any valid sanction.
6. In view of the rival contentions of the learned counsel for the parties, the following questions arise for consideration :
1) Whether an appeal is maintainable against the order of discharge, and, if not, whether it is competent for this Court to treat the same as revision?
2) Whether there existed a valid sanction to prosecute the accused?
7. After discussing the matter at length, may be, on the question as to whether there exists any valid sanction, the trial Court ultimately held, as under :
'In the result, the entire trial conducted against the accused has become void ab initio and the accused is discharged.'
Challenging the same, this appeal is preferred.
8. The learned Standing Counsel for the appellant submits that though the trial Court has employed the term 'discharged', in effect, it amounts to acquittal. The question as to whether a discharge can be equated with acquittal, should not detain this Court much. Discharge stands on a footing, totally different from acquittal. On being acquitted, an accused gets relieved of all the accusations against him. Section 300, Cr. P.C. ensures immunity from being tried for the same offence, once an accused is acquitted. It is not the case with discharge. Even after discharge, the accusation against an accused cannot be said to have been wiped out completely. In many a case, even after being discharged, an accused can be proceeded against in accordance with law, and if, ultimately, the accusation against him comes to be established, he can be convicted.
9. The functional and doctrinal difference between discharge, on one hand, and acquittal, on the other, has been aptly explained in 'Smith's Synonyms Discriminated' as under :
'The discharge is a judgment upon on accused person, because, the law is not exactly provided for the offence. The acquittal recognises his innocence. In the former case, the law is powerless to punish; in the latter, powerful to absolve.'
10. Irrespective of the stage at which a Court discharges on accused, the same signifies the dis-inclination on the part of the Court to proceed against the accused. The reasons for discharge may vary. For example, the basis for discharging on accused under Section 245(1) is that even if the allegation against the accused is unrebutted, it would not warrant his conviction. For discharing on accused under Section 245(2), however, the Magistrate has to find that the charge is groundless. Such differences can be discerned as regards the various kinds of discharges provided for under the Code. The term 'discharge' was aptly defined by the Supreme Court in Sohanlal v. State of Rajasthan, : 1990CriLJ2302 as under :
'Refusing to proceed further, after issue of process is discharge.'
11. As to permissibility of prosecution of an accused, as regards the same accusation, even after discharge, a Division Bench of Calcutta High Court in Superintendent & Remembrancer, Legal Affairs, West Bengal v. Tarapada Sinha, 1977 Cri LJ 1820, observed as under :
'The said order of discharge was made under Section 253(2) of the Cr. P.C., 1898 without entering into the merits of the case. Such being the position there was no bar in law for the complainant to file a fresh complaint and it would be within the competence of the learned Judge to entertain such fresh complaint, and to proceed thereafter in accordance with the provisions of law.'
12. It is useful to refer to the judgment of the Allahabad High Court in Sudershan Prasad v. Nemchandra, 1984 Cri LJ 673, which had discussed the case law on the subject. The following passage is relevant :
'It is urged that the earlier order of the Magistrate dated 19-7-1982 on earlier complaint, discharging the accused persons amounts to an acquittal, so a subsequent complaint does not lie. It was, further, submitted that discharge in a warrant case, the concerned case being a warrant case, amounted to an acquittal. Reliance in support of such contention was placed upon the pronouncement in the case of Smt. Kitaben v. State of U.P., 1983 (UP) Cri R 95 : (1985 All LJ 782). That is a pronouncement of a single Judge, namely, Hon'ble N. N, Sharma, J. With greatest respect to the learned brother Judge, I may mention that the following pronouncements were not noticed in that case, nor considered :
(i) AIR 1950 All 669, State v. Bansu;
(ii) 1968 All WR (HC) 703, Laxmi Narain v. Abdul Karim (single Judge);
(iii) 1979 Cri LJ 41 : (AIR 1979 SC 94), Ratilal Bhanji v. State of Maharashtra;
(iv) AIR 1948 All 135, 49 Cri LJ 101, Swaroop Singh v. Emperor (single Judge).
2. In all these cases discharge in a warrant case has not been treated as acquittal. In the case of Swaroop Singh (supra) it was held that fresh complaint is not barred. In the case of Laxmi Narain v. Abdul Karim (supra) also it was held that the discharge did not amount to acquittal and fresh complaint is maintainable. In the case of State v. Bansu (supra), it was held that in a warrant case discharge does not amount to acquittal. In this case rather charge was also framed, but the case was later transferred to another Court and it was held that the succeeding Court will be deemed to have proceeded de novo and all earlier proceedings, including framing of charge stood wiped off and thereafter it was further observed that subsequent discharge does not amount to acquittal in a warrant case.'
Therefore, the discharge of the accused in this case cannot be treated as acquittal.
13. The present appeal is filed under Section 378 of Cr. P.C. The very heading of this section indicates that the appeal referred to therein is against the order of acquittal. Therefore, the contention of the learned counsel for the accused that the present appeal was not maintainable, deserves to be accepted. This, however, does not resolve the controversy.
14. Conversion of one category of proceedings into the other is not unknown to law. While in some cases specific provisions are made, in other cases the same is inferred. The underlying principle is that the Court should not refuse adjudication simply on the ground that a wrong provision has been invoked. Sub-section (5) of Section 401 of Cr. P.C. permits a revision, which was otherwise impermissible to be treated as an appeal and to be dealt with as such. A corresponding provision, however, dealing with reverse situation does not find place in the Cr. P.C.
15. The Supreme Court in Eknath v. State of Maharashtra, : 1977CriLJ964 , after discussing the corresponding provisions of the Cr. P.C., 1898 and Cr. P.C. of 1974, took the view that even the bar in Sub-section (4) of Section 401, Cr. P.C., 1974, does not stand in the way of High Court's exercise of power of revision suo motu. The Orissa High Court in Sudhakar v. Dayanidhi held that where it is found that an appeal is not competent, the High Court can still invoke its revisional jurisdiction treating as the memorandum of appeal as the necessary substratum and treat the same as revision and proceed to decide the matter. Similar view was taken by the Calcutta High Court in Monmathanath v. Niranjan.
16. One relevant aspect needs to be noted here. In the field of adjudication, an important and vital difference exists between the remedy of Appeal, on the one hand, and Revision, on the other. While an appellate authority is free to re-appreciate the evidence and substitute its conclusions on facts as well as law for that of the original authority, the scope of interference is limited to certain aspects in revisions. Revisions provided for under Cr. P.C., are however, are almost on par with appeals except for the absence of power to convert an acquittal into conviction. A reading of Section 401 would reveal that in a revision, the Court can exercise all the powers of appellate Court.
17. Therefore, the objection raised by the learned counsel for the accused is sustained and it is held that the appeal was not maintainable. However, following the judgment of the Supreme Court as well as of those of the Orissa and Calcutta High Courts, referred to above, it is directed that the appeal be treated as revision.
18. Now remains the question as to whether there existed a valid sanction. The prosecution has placed before the trial Court Ex. P-68. The sanction was accorded by the Chief General Manager of State Bank of Mysore, by name, S. Rajagopal. He was not examined. PW-12, who is the Manager of the Branch, where the accused had been working, deposed that he is acquainted with the signature of the Chief General Manager and Ex, P-68 was marked through him. Two objections were raised to the acceptability of Ex. P-68. The first was that it was not proved as required under law, and the second was that there was non-application of mind by the sanctioning authority while according the sanction.
19. Admittedly, the Chief General Manager, who accorded the sanction, was not examined before the trial Court. It was marked only through PW-12. The mode of proving a document is provided for under Sections 45 and 47 of the Indian Evidence Act, 1872. Though examination of the author of the document is the best way of proving a document. Sections 45 and 47 permit the proof of the documents by examining persons other than the authors or signatories of the same. Section 45 deals with the opinion of experts. We are not concerned with the same in this case. Under Section 47, opinion of a person, who is acquainted with the handwriting of the person by whom the documents in question are supposed to be written or sanctioned, is relevant. It is availing the facility under this provision that PW-12 was examined. He claims that he was acquainted with the handwriting of Sri S. Rajagopal, the Chief General Manager. An objection is raised as to the acceptability of the evidence of PW-12 on the ground that he does not fall into the category of witnesses, referred to in Explanation to Section 47. Section 47 of the Indian Evidence Act reads as under :
'Opinion as to handwriting, when relevant :-- When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.
Explanation :-- A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.'
20. From a reading of the explanation, it can be discerned that three situations are contemplated under it. The first is, when the person has seen the author of the document writing or signing it. The second is, when he has received documents purporting to be by the author of the document in answer to the documents written by such witness, and the third is when the witness has received the documents purporting to be written by the author in the ordinary course of business.
21. Sri Sada Siva Reddy, learned Standing Counsel for C.B.I. submits that the Investigating Officer who has been examined as PW-14 has deposed to the effect that he addressed the Chief General Manager for according sanction and since he received it, it constitutes sufficient proof. Having regard to the fact that the evidence of PW-14 is treated as sufficient proof, this Court does not go into this aspect. Learned Senior Counsel Sri C. Padmanabha Reddy, submits that PW-12 has neither seen the Chief General Manager signing Ex. P-68; he did not receive the same in response to the correspondence undertaken by him, nor did he receive in the ordinary course of business.
22. The first two contingencies do not arise in this case. However, being the Branch Manager of the Bank, PW-12 can certainly be said to have received Ex. P-68 or other similar documents signed by the Chief General Manager in the ordinary course of business. Even otherwise, it has been held by the Courts through catena of decisions that the instances provided for in the explanation to Section 47 are not exhaustive. It was held in Mobarik Ali Ahmed v. State of Bombay, 0043/1957 : 1957CriLJ1346 , that even a person, who receives a correspondence in the form of letters pr telegrams from the author of any document, can be said to have been acquainted with the writing and signature of the alleged, sender though it may be for limited purpose and that the same can be treated as circumstantial evidence. In Gulzar Ali v. State of H.P., 1997 (2) Andh LD (Cri) 680 : (1998 (4) JT (SC) 342), the Supreme Court held as under :
'...... Among the permitted opinions those mentioned in Sections 45 and 47 are also included. So it cannot be said that identity of handwriting of a document can be established only by resorting to one of those two sections. There can be other modes through which identity of the handwriting can be established....'
23. Therefore, even if for any reason PW-12 cannot be said to have been acquainted with the writing or signature of the Chief General Manager within the categories referred to in explanation, in view of the fact that he is the Branch Manager of the same, bank, expected to receive voluminous correspondence during the ordinary course of business, it can safely be said that he was acquainted with the signature of the Chief General Manager. The judgment of this Court in C.B.I./SPE, Hyderabad v. P. Muthuraman (1996 Cri LJ 3638), which has discussed the relevant case law, would also support this conclusion.
24. The next limb of the argument is that there did not exist proper application of mind and in that view of the matter even if Ex. P-68 can be said to have been proved; it is vitiated for non-application of mind.
25. A reading of Ex. P-68 discloses that the circumstances leading to initiation of proceedings have been copiously referred to. The instances of the false credits said to have been made to the account of the accused were referred to. The actual financial implications which have resulted on account of the alleged activities of the accused were mentioned in one after the other paragraphs. The sanctioning authority has not only referred to each and every transaction said to have been undertaken by the accused, but also has annexed the list of instances providing the particulars such as, the name of the account holder, number of his account, the amount borrowed by the accused, the false entries of remittances and the dates on which such remittances have been made. Short of adjudicating the matter, he has discussed all facets of the accusation against the accused.
26. In Indu Bhusan v. State of West Bengal, : 1958CriLJ279 , the Supreme Court held that it would be sufficient compliance with the provisions of the Act, if the sanctioning authority had referred to the facts leading to the initiation of prosecution. In C.B.I./SPE, Hyderabad v. P. Muthuraman (1996 Cri LJ 3638) (SC) (supra), this Court held that if the sanctioning order is a speaking one, then the provisions of the Act stand complied with and there does not exist any standard pattern of according sanctions. Hence, this Court finds it difficult to subscribe to the view taken by the trial Court on the validity and legality of the sanction accorded by the Chief General Manager.
27. Another aspect of the matter is that the accused was alleged of offences those under the Act as well as certain provisions of I.P.C. Sanction was required only for the offences under the Act. No such sanction is necessary to try the offences under the provisions of the I.P.C. The trial Court was not justified in discharging the accused of the other offences also on the sole ground that the sanction accorded to prosecute the accused was not valid. Even if the finding of the trial Court on the sanction is sustained, the other offences were to have been tried, may be, by a different Court. Viewed from any angle, the judgment of the trial Court cannot be sustained. The same is accordingly set aside.
28. The trial Court had not at all adverted to the other aspects of the matter on merits. Even if there was evidence or discussion on the merits, this Court cannot convert the order of discharge into one of any punishment. The analogy of the restriction placed under Sub-section (3) of Section 401 needs to be adopted to the cases of this type. Once this Court notices certain illegality or infirmity in the trial proceedings, the only course open to it is to order re-trial of the case.
29. Accordingly, the Criminal Appeal which is converted as Revision is allowed and the matter is remanded to the trial Court for de novo trial. Both the parties shall be afforded an opportunity to put forward their respective cases.