B. K. BEHERA, J.

( 1 ) CHARGED of dishonest misappropriation in respect of an amount of Rs. 28. 83 paise between April, 1974 and May 16, 1974 and an amount of Rs. 1160. 99 paise between. September 25, 1975 and July 16, 1976, out of the amounts collected by the appellant towards the octroi tax in his capacity as an Assistant Tax Moharir in the Kantabanji Notified Area Council, he stands convicted by the judgment and order dated June 26, 1980, passed by Mr. V. V. R. Sarma, Special Judge (Vigilance), Sambalpur, under section 5 (2) read with Section 5 (1){c) of the Prevention of Corruption Act, 1947 and Section 409 of the Indian Penal Code for dishonest misappropriation in respect of a total amount of Rs. 688. 44 paise excluding some sums stated to have been collected beyond the periods covered by the charges and has been sentenced under the first mentioned section to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 700. 00 and in default of payment thereof, to undergo rigorous imprisonment for a further period of one month and under the latter section to undergo rigorous imprisonment for a period of one year, with a direction that the terms of imprisonment would run concurrently.

( 2 ) TO bring home the charge, the prosecution had examined six witnesses of whom P. Ws. 1, 2, 4 and 5 were of the concerned Notified Area Council. P. W. 3, a Senior Auditor of the Finance Department, had conducted the audit into the accounts of the Notified Area Council for the relevant period and P. W. 6, an Inspector of Vigilance, had lodged the first information report (Ext. 11) before the Superintendent of Police (Vigilance) and had, under his orders, taken up investigation of the case and had submitted a charge-sheet on its completion. The appellant had denied the accusations and according to him, he had not collected the amounts and had not misappropriated any amount. He had not examined any witness in his defence.

( 3 ) THE learned Special Judge found that the charges had been brought home to the appellant for a lesser amount than mentioned in the charges as indicated above and recorded the order of conviction.

( 4 ) MR. C. V. Murty, appearing on behalf of the appellant, has challenged the order of conviction as factually unwarranted and legally unsustainable. According to him, in the absence of independent evidence with regard to entrustment of any of the amounts alleged to have been collected by the appellant, no conviction could be based merely on the basis of the entries in some books and registers to which reliance had been made by the Auditor (P. W. 3) and the Octroi Superintendent of the Notified Area Council (P. W. 4 ). Initially, a ground was taken that the prosecution under the Prevention of Corruption Act was bad for want of sanction, but this contention was given a go-by because by the time cognizance of the offence was taken by the learned Special Judge, the appellant was no more in the employment of the Notified Area Council, his resignation having been accepted by the Chairman on January 19, 1976. The relevant date for the purpose of sanction is the date of taking cognizance and no sanction is necessary if the accused has ceased to be a public servant by that date. (See R S. Nayak v. Abdul Rehman Antulay and another)1. Mr. A. Rath, the learned Additional Standing Counsel, has fairly submitted that although some entries in the daily collection register and receipt books had been exhibited and admitted in evidence/showing collection of some amounts and there was some evidence that these deposits were misappropriated by not showing the collections in the Cashiers cash book and the Accountants cash book, there was no independent evidence regarding the collection of the amounts alleged to have been misappropriated by the appellant.

( 5 ) IN a case of dishonest misappropriation of this nature, the prosecution must prove two essential facts: (1) the factum of entrustment and (2) the factum of misapprop