Vyas, J.

1. This is an appeal in which the judgment of the learned Second Additional Sessions Judge, Poona has been challenged. Appelllant 1 has been convicted under a. 168, Penal Code, and Section 6, Sub-section (2), Prevention of Corruption Act (II [2] of 1947) read with Section 5, Sub-section (1), Clause (d) of the said Act. Appellant 2 has been convicted of the abovementioned offences read with Section 109, Penal Code. On the first count appellant 1 has been sentenced to pay a fine of RS. 1,000 or in default to suffer 3 months simple imprisonment; and on the aecond count he has been sentenced to suffer 1 years simple imprisonment and to pay a fine of Rs. 2,000 or in default to suffer 1 years further simple imprisonment. Appellant 2 has been sentenced on the first count to pay a fine of Rs. 200 or in default to suffer 1 months simple imprisonment; and he has been sentenced on the second count to pay a fine of Rs. 300 or in default to suffer 3 monthss simple imprisonment. This is an appeal by the appellants against this order of convictions and sentences. The matter has come up to ua also in review on this Court issuing a notice suo motu to the appellants for the enhancement of the sentences passed on them.

2. It is the case of the prosecution that appellant 1, being a public servant, was prohibited from trading under Rule 21 Bombay Civil Services, Conduct, Discipline and Appeal Rules framed by the Government of Bombay under Clause (2) of Rules 48 and Rule 54, Civil Services (Classification, Control and Appeal) Rules, and that yet he epgaged himself in trade under the name, of Vinod Co." and thereby committed an offence punishable under Section 168, Penal Code. It is also the contention of the prosecution that appellant 1 by abusing his position as a public servant, obtained for himself and also for his son, appellant 2, valuable consideration and thereby committed an offence under Section 6 (2) read with Section Section (1) (d) of India Act No. (11) [2] of 1947.

3. Rule 21, Bombay Civil Services Conduct, Discipline and Appeal Rules is in the following terms :

"21. A Government servant shall not without the previous sanction of Government, engage in any trade or undertake any employment while on duty or on leave, other than his public duties;....."

4. Section 168, Penal Code, lays down as follows:

"Whoever, being a public servant, and being legally bound as such public servant not to engage in trade, engages in trade shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both." The expression "legally bound to do" is defined in Section 43 of the Code, which says:

"The word illegal is applicable to everything which la an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be legally bound to do whatever it is illegal in him to omit."

As Rule 21, Bombay Civil Services Conduct, Discipline and Appeal Rules, prohibits a public servant from engaging in any trade, without the previous santcion of Government, and as no such previous sanction of Government was obtained in this case by appellant 1, the case of the prosecution is that he committed an offence under Section 168, Penal Code, by engaging in trade under the name of Vinod Co.

5. Section 5, Sub-section (1), Clause (d), Prevention of Corruption Act, 1947, is in the following terms:

"5. (1) A. public servant is said to commit the offence of criminal misconduct in the discharge of his duty , . .

(d) if he, by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage."

Sub-section (2) of Section 6 of the said Act lays down as follows:

"(2) Any public servant who commits criminal misconduct in the discharge of his duty shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both."

6. The first charge againa