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Emperor Vs. Bhimrao Narsimha Hublikar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case Number Criminal Appeal No. 408 of 1924
Judge
Reported in(1925)27BOMLR120
AppellantEmperor
RespondentBhimrao Narsimha Hublikar
DispositionAppeal dismissed
Excerpt:
.....code is made out where a judicial officer goes, in company with a litigant in his court, to a cloth shop and accepts a present of cloth which is paid for by that litigant to gain favours with the judge in his suit.;in the case of bribery, it is not necessary to show that as a matter of fact favour was shown to the person who offered the bribe. it is sufficient if he is led to believe that the decision would go against him if he did not give the judge a present.;in dealing with the evidence of an accomplice the judge is not bound to rely on such statements only as are corroborated by other reliable evidence. once a foundation is established for a belief that such a witness is speaking the truth because he is corroborated by true evidence on material points, the judge is at liberts to..........the cloth was then packed up and placed in the carriage. sarda says that after they had left the shop accused went back again into the shop for two or three minutes but whether he did or did not go back is not very material. the accused was evidently anxious that the cloth should not be debited to himself sarda then drove the accused back to his bungalow where he got out with the parcel of cloth.4. the defence is briefly as follows.5. the accused thought of going to his bungalow before going to shingi's shop to bring some money. to avoid the delay he asked sarda to accommodate him for a short time. when they got back to the bungalow accused went in for the money to pay sarda and found that his wife who had the key of the cash box was out, so he asked sarda to wait for payment and he.....
Judgment:

Norman Macleod, Kt., C.J.

1. The accused was charged before the Additional Sessions Judge at Sholapur with having accepted from one Shri Kisan Sarda cloth to the value of Rs. 95-7-6 as a motive for showing favour to the said Sarda in Suit No. 570 of 1922 on his file, the accused at that time holding the appointment of joint Subordinate Judge at Sholapur and thus having committed an offence under Section 161 of the Indian Penal Code, The Judge disagreeing with the assessors found him guilty and sentenced him to one year's simple imprisonment and a fine of 1,000,

2. The accused has appealed.

3. Sarda, a wealthy merchant of Sholapur, owned a house which he has leased to the Municipality to be used as a school building. In April 1922 he was told that if he would open windows on the ground-floor and add a second storey he would he paid an increased rent. With the consent of the Municipality he commenced the alterations and additions. His neighbours on either side objected. One of them, Tandulwadikar, Emperor filed suit No. 570 of 1922 on the Subordinate judges Court on June 1 and obtained next day an interim injunction parte. The notice of the injunction was served on Sarda on June 9. Exhibit 2B is the Roznama of that suit. Sarda put in a written statement and the suit was adjourned for production of documentary evidence. On the 29th the Judge appointed the following day a Sunday for an inspection of the premises. It may be necessary to mention, though it is not of much importance, that the owner of the premises on the other side of Sarda's building also tiled a suit against him, and in July 1922 Sarda himself had three or four suits pending in the Court of the accused. On the 29th, Sarda and his pleader Phadke went in Sarda's carriage to drive the Judge to the premises. After viewing some other premises the Judge came to Sarda's building. Mehendale, the plaintiff's pleader, joined the party at the first premises. Sarda alleges that accused said to him in Canarese 'You have built this unjustly. I shall have it demolished,' In the Magistrate's Court Sarda said that accused told him he would have to buy plaintiff's land. When the inspection was finished the Judge went to Phadke's house for tea. Sarda alleges that after tea the accused said to Phadke in Marathi 'Speak to your client and get him to buy the land' From Phadke's house the Judge went on with Sarda and Mehendale to the latter's house where he got out. Sarda then deposed as follows : 'When we started accused asked me in Marathi whether I knew of a good cloth-shop. 1 said there were two or three good cloth shops, and mentioned Shingi's Ganeshram's and Nikte's. He asked me to drive to Shingi's. He then said 'You have built the wall unjustly and I shall have to have it pulled down.' I said 'It is in your hands, do as you wish.' He said 'Nothing comes out of merely lending a carriage. Recognise that fact and I shall have your business done/ I suspected that he was asking for a bribe He meant that the loan of a carriage was not enough, I had been often lending him my carriage.' The account given of this conversation by Sarda in the Magistrate's Court was practically for the same effect, though he did not mention that the Judge said 'I shall have your business done I Sarda said 'Accused said to me 'you have illegally opened windows, I will have to order them to be blocked up/ I said 'It is in your hands, do what you like/ Accused replied 'Nothing cornea of lending a horse and carriage for drives, you think this over.' As to what happened at Shingi's shop have very little doubt that the prosecution evidence correctly describes it. Shingi showed some cloth to the accused and he chose various pieces asking Shingi to debit the price to Sarda'a account. Shingi looked at Sarda who said 'enter it.' Samsuddin, a servant in the shop, made an entry. Accused had said do not enter my Gujarat, enter Sarda's Haste.' The cloth was then packed up and placed in the carriage. Sarda says that after they had left the shop accused went back again into the shop for two or three minutes but whether he did or did not go back is not very material. The accused was evidently anxious that the cloth should not be debited to himself Sarda then drove the accused back to his bungalow where he got out with the parcel of cloth.

4. The defence is briefly as follows.

5. The accused thought of going to his bungalow before going to Shingi's shop to bring some money. To avoid the delay he asked Sarda to accommodate him for a short time. When they got back to the bungalow accused went in for the money to pay Sarda and found that his wife who had the key of the cash box was out, so he asked Sarda to wait for payment and he sent the money the next day by the hand of his son. Yasin, the driver of Sarda's carriage, deposed that the accused on arrival at his bungalow went straight in with the cloth and witness drove oft'. There is no evidence whatever that the accused sent the money next day to Sarda, Sarda denies he received the money, no receipt has been produced, though, when the accused's house at Dharwar was searched, receipts on account of small purchases for household necessaries were found, Accused's son was not called to say that he took the money to Barda. Then there was no reason whatever why the accused should not have asked Shingi to open an account of the cloth purchased. A day or two later the accused did make some small purchases on credit at Shingi's shop. A suit was afterwards filed by Shingi against Sarda to recover the balance of account which was paid after a decree had been passed. The evidence, therefore, is conclusive that the accused went in company with a litigant in his Court to Shingi's shop and accepted a present of cloth which was to be paid for by that litigant, and undoubtedly Sarda consented to be responsible for the payment, for the cloth to gain favours with the Judge in his suit. It is hardly necessary for the prosecution to rely on Sarda's account of what took place at the inspection of the premises and while he was driving with the accused to the shop. There is ample corroboration of the rest of Sarda'a evidence. But I gather from certain remarks in the judgment that the Sessions Judge has fallen into the error of thinking that when weighing the value of the evidence of an accomplice it requires corroboration not only in material particulars but in all material particulars. Although the Judge thought that Sarda came through the ordeal of a severe cross-examination very creditably, he could not accept Sarda's evidence of what the accused said on the two abovementioned occasions because there was no corroboration, which, as I understand the judgment, meant that there was no other evidence with regard to those conversations, and, therefore, the Judge did not feel himself entitled even to consider whether that evidence is true. I may be wrong in my surmise, but at any rate, I think this is an occasion for pointing out that in dealing with the evidence of an accomplice the Judge is not bound to rely on such statements only as are corroborated by other reliable evidence. Once a foundation is established for a belief that such a witness is speaking the truth because he is corroborated by true evidence on material points, the Judge is at liberty to come to a conclusion as to the truth or falsehood of other statements not corroborated. Adopting this test I think there are good reasons for thinking that Sarda's evidence regarding the two conversations with accused are substantially correct. That the accused said something to Sarda at the inspection of the premises is deposed to by Mehendale, the plaintiff's pleader, and judging by what admittedly happened afterwards it ie not improbable that the accused said something to Sarda to induce him to think his position in the suit was rather doubtful. At any rate a suggestion was made thereafter by the Court that Sarda should buy the plaintiff's land and a Panch was appointed to fix the value. I don't, however, attach very much importance to this incident as the accused might merely have been advising Sarda that in order to get rid of the plaintiff's claim to obstruct his building it would be cheaper to buy his land. The alleged conversation in the carriage was more direct and I have come to the conclusion that the accused must have said something to Sarda which resulted on their arrival at the shop in Sarda at once consenting to have the cloth purchased by the accused debited to his account.

6. As would only be natural the prosecution case was most strenuously resisted before the Sessions Judge and I shall now deal with the various points raised before the Sessions Judge and by appellant's counsel before us.

7. It was seriously contended before the Sessions Judge that there was a conspiracy amongst the members of the Sholapur Bar with whom the accused was undoubtedly unpopular owing to his demeanour towards them in Court, and his inveterate desire to get cases settled, to get the accused into trouble. It is regrettable that such an accusation should have been made by an advocate of this Court who contended that this was a bar prosecution and that the exertions of the C. I. D. were supported by Mehendale and other pleaders. The Sessions Judge has dealt with this allegation quite correctly. When Mehendale headed the deputation of pleaders to the District Judge in August 1923 he stated that ho had heard of the purchase of cloth, That purchase was an undisputed fact about which Mehendale was entitled to give information to the District Judge. Thereafter neither Mehendale nor any other pleader did anything except to give evidence as they were bound to do, and there is nothing in the evidence of Mehendale or Phadke which shows any signs on their part of giving false evidence with the malicious intent of assisting the prosecution. It was also contended that no favour was shown to Sarda in his suit. But that is notnecessary. It would be sufficient if Sarda was led to believe that the case would go against him if he did not give the Judge a present and the evidence tends to show that this is what happened. It was useless for counsel to urge that the prosecution case was absurd, that there was nothing loft of it when the record was closed, that it rested entirely on Sarda's evidence and that the Court was bound to accept the explanation of the accused that he had paid for the cloth. Very little endeavour was made to explain why the accused should have asked Sarda to give him credit instead of asking Shingi to open an account. It was suggested that was an usual occurrence between friends, but if a man goes with a friend to a shop where he can get credit he does not usually ask his friend to be responsible for goods purchased. Then it was obviously necessary to blacken Sarda's character in every possible way. But granting that he was a wealthy young voluptuary, who had been tried for murder and acquitted, that was no reason why he should persist in saying that the accused had never paid him for the cloth. He certainly was not anxious to give information to the police, but the shortest way out of his trouble would have been to say that he had been paid on the following day. We are asked to believe that although he knew all the time that he had been paid, he persisted in his denial at the instigation of the Police in order to curry favour with them. The appeal was argued before us a move temperate and serious manner, but on a full consideration of the record, and of the arguments addressed to by Sir Chimanlal I can come to no other conclusion than that the conviction was right. I would dismiss the appeal and confirm the conviction and sentence.

Crump, J.

8. The appellant in this case was, on July 30, 1922, a Second Class Subordinate Judge on a salary of Rs. 550 per mensem. He had served for over seventeen years as a Judge and held the appointment of Joint Subordinate Judge at Sholapur. The charge on which he has been convicted was that on the date in question he accepted from Shrikissan Laxminarayan Sarda certain cloth valued at Sections 95-7-6 as a motive for showing favour in the discharge of his functions as a Judge to the said Shrikissan Laxminarayan Sarda.

9. I have carefully considered the arguments urged before uh, and I have examined the record of the case and the conclusion to which I have come is that the case is in its nature extremely simple. When the salient facts are grasped it is at once apparent that there is no room for any elaborate discussion. It may be premised that there is, in my opinion, no ground for the suggestion that there has been any conspiracy against the appellant. Nor is the history of the events subsequent to July 30, 1922, such as to give rise to any cogent argument for or against the appellant. In order to appreciate the events of that crucial date a few introductory facts are necessary.

10. The person who is said to have given the gratification, whom for brevity I shall call Sarda, is a well-to-do Marwadi of Sholapur. There is nothing in the man's antecedents which seriously detracts from the value of his testimony. On the other hands he is not a man in whom implicit confidence can be reposed. Some time in May 1922 he made certain additions to a house which was leased to the Municipality as a school, and on June 1, 1922, one of his neighbours named Tandulwadikar filed a suit against him (Suit No 570 of 1922) in the appellant's Court. Tandulwadikar in that suit prayed that a portion of the new building should be demolished. I have examined the record of suit and I find nothing in it to indicate any conduct of the appellant inconsistent with the conduct of an honest Judge The charge against the appellant rests upon oral evidence.

11. On July 30, 1922, the appellant decided to examine the premises. On the afternoon of that day he drove to the place in Sarda's carriage The defendant Sarda'a pleader Mr. Mehendale and the plaintiff Tandulwadikar's pleader Mr. Phadke were present, as also the parties themselves. After the inspection, the appellant, the two pleaders, the appellant's Shirestedar Jushi and the defendant Sarda drove to Phadke's house and had tea. From that house, the appellant, Mehendale and Sarda drove as far as Mehendale's house where Mehendale left them. From that house the appellant and Sarda drove to the shop of Gopinath Shingi, a cloth merchant. At that shop in the presence of Gopinath and his clerk Shamsuddin the appellant selected the cloth in question. The purchase was entered in Sarda's name. Thence the appellant and Sarda drove to the appellant's house. The appellant took the cloth into his house and Sarda drove away in his carriage

12. The facts set out above are admitted The controversy turns upon three points : (a) what took place at the inspection, (b) what took place at the shop, and (c) what took place in the carriage. As to the first point there are five witnesses, via., the two pleaders, Tandulwadikar, Sarda, and the clerk Joshi. As to the second point there are three witnesses, via., Sarda, Shingi and Shamsuddin. Sarda alone speaks of the incident in the carriage. Before dealing with the oral evidence it is necessary to consider the admitted facts. F should be very willing to place an innocent construction on those facts but I find myself unable to do so. The appellant is an experienced judicial officer. He goes to inspect premises in a suit where very valuable interests of the defendant are at stake. From that inspection he goes almost directly with the defendant to a cloth merchant and permits the defendant to purchase on his behalf cloth of a not inconsiderable value. That cloth he takers away to his house. Such conduct in a Judge is extraordinary. Two explanations are possible and two only: (1) indiscretion. (2) dishonesty.

13. I find it hard to believe that an experienced Judge would be so indiscreet. He must have known that Shingi would have given him credit. Indeed he admits that he obtained goods on credit from Shingi two days later (August 1). The explanation that he allowed Sarda to purchase the goods because he had no money with him is difficult to accept. It is hard to believe that he did not know that Shingi would have given him the goods on credit. That a merchant in Sholapur would in fact have readily given credit to a Subordinate Judge is so probable in the light of ordinary human experience that there could be little doubt on the point even if Shingi had not so stated in his evidence. The appellant alleges that he paid Sarda next day. No attempt has been made to prove this, Ordinarily there would have been a receipt No receipt is produced. The conclusion (I reach it with reluctance) is that the admitted facts point to the second alternative, that is, dishonesty.

14. It will be convenient here to deal with the question as to how far it is safe to rely upon Sarda He is an accomplice. I accept the test laid down by Batchelor J. in Emperor v. Govind Balvant Laghate (1916) 18 Bom. L. R. 266: 'In so far as [the witness] is an accomplice the law, as laid down in Sections 193 and 114, ill. (b), of the Indian Evidence Act, declares that while the Courts should ordinarily make a presumption against the credit of an accomplice that presumption may be displaced by other circumstances, notably by sufficient corroboration of the accomplice on material points...It seems to me that when all legal precautions have been taken and all relevant considerations duly weighed, there remains the plain question whether the Judge or Magistrate does or does not believe the particular accomplice ' The question then which I put to myself is this: 'Bearing in mind the caution necessary in dealing with the evidence of the witness do I believe Sarda's evidence ?' In the light of the admitted facts 1 should find it difficult to answer that question in the negative. In other words the admitted facts themselves furnish material corroboration. It is, however, unnecessary to rest the decision on that view for there is other evidence which furnishes a more secure ground for a conclusion.

15. First, I will deal with what took place at the inspection. The witness Joshi is colourless and his evidence may be discarded. Tandulwadikar says that the appellant told him to compromise the matter by selling the land to Sarda. Mehendale's evidence contains little that can be said to go against the appellant so far as this part of the case is concerned. There is, however, one statement of his which has given rise to some controversy, viz., that the appellant spoke to Sarda in Canarese. The significance of this lies in the fact that Sarda says appellant said to him in Canarese 'you have built this unjustly. I shall have it demolished.' Phadke says that appellant said in English that the house had been newly built and if the wall was joint it would have to be pulled down. As to the words used the 1924 discrepancy is immaterial considering the time that has elapsed As to the language used Mehendale does not know Canarese while Phadke does. Assuming that the witnesses are honest, Bhimrao Mehendale would be more likely to recollect the use of an unknown language. But little turns on this. Even if it be supposed that the appellant expressed an opinion adverse to Sarda, it would be unfair to lay much stress on that No doubt, it would have been more judicial not to hazard any opinion. But the remark might have been innocent enough, though indiscreet. I do not think, therefore, that much arises from this incident. Nor can T see that the bona fides of any of these witnesses can fairly be questioned, or that any conclusion adverse to any of them on any such ground would assist the determination of the case

16. The second incident at the shop is more serious. Shingi's evidence is as follows:-

Accused chose some cloth and asked the price. Shamsuddin made out a rough memo, before he made up the parcel. Then accused said 'Do not enter it in my name. Enter it in the name of Sarda.' I asked, ' Is that all right V He said, 'All right enter it.' Sol told Shamsuddin to enter the goods. When accused was leaving the shop he said, 'Do not enter the goods in my name. Do not enter my 'Gujarat'.

17. Shamsuddin's story is substantially to the same effect. I can find no sufficient reason for suspecting this evidence. I do not think that Shingi would give false evidence merely because the appellant as a Judge decided another suit against him. If this evidence is true, as it appears to be, then read with the admitted facts, which I have already summarised, it is most difficult to believe that the transaction was innocent.

18. The third incident rests, as I have said, on Sarda's evidence alone. His story is that, while he and the appellant were alone in the carriage, the appellant said to him, 'You have built the wall unjustly and 1 shall have it pulled down.' The witness replied. 'It is in your hands, do as you wish'. The appellant said, 'Nothing cornea out of merely lending a carriage. Recognise that fact and I shall have your business done.'

19. I return to the test which I have laid down as to the evidence of an accomplice. Sarda is corroborated most materially by the admitted facts. He is corroborated also by Shamauddin and Gopinath in particulars no less material. Is there any reason for rejecting his evidence on this point where he stands uncorroborated That question can only be answered by asking another question. 'Do I believe Sarda on this point. The learned Sessions Judge has, in portions of his judgment used language which suggests that he regarded corroboration as essential on each and every particular to which the witness Sarda deposes. I doubt if he really meant to go to that length. Of course no rule of that kind can be laid down. Indeed no general rule is possible. Each case depends upon its own facts. In this case, after giving full weight to all the facts and circumstances, my conclusion is that Sarda on this point has told the truth. The significance of this conversation is too plain to need comment.

20. I have not omitted to consider the argument that the transaction was too open to be dishonest. Many answers are possible. The point is sufficiently dealt with in para 36 of the judgment, of the learned Sessions Judge. Nor is there much force in the argument that the subsequent history of the suit does not show that any special favour was shown by the appellant to Sarda, Such considerations as these are of little value in the face of the positive evidence in the case.

21. That the whole story, if believed, discloses an offence punishable under Section 161 of the Indian Penal Code needs no demonstration. I am of opinion, therefore, that the conviction is correct and should be upheld. The sentence is not unduly severe. I would confirm the conviction and sentence and dismiss the appeal.


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