1. This is an appeal against the order passed by the Special Judge for Greater Bombay convicting the appellant of two offences, under Section 161, Penal Code and under Section 161 or alternatively under Section 165 of the Code respectively, and sentencing him to rigorous imprisonment for one year and to pay a flue of Rs. 300/- in default rigorous imprisonment for three months for the first offence and to rigorous imprisonment for three months for the second offence. The two substantive sentences were ordered to run concurrently.
2. The case against the accused was that during the period of August to October 1954 he was an overseer in the Engineering Department of the Central Railway and as such a public servant. According to the prosecution case, in the month of October 1954 the accused attempted to obtain a sum of Rs. 200/- and did in fact accept a sum of Rs. 160/- from Dhondu Daji Mayekar as an illegal gratification and thereby he committed an offence punishable under Section 161, Penal Code.
It was also alleged that on 28-10-1954 in the course of the same transaction he attempted to obtain and accepted from the said Mayekar Rs. 40/- by way of illegal gratification and thereby he committed an offence either under Section 161 or alternatively under Section 165, Penal Code. The accused denied that he had committed either of the two offences. The learned Judge who tried the case was satisfied that both the charges had been proved against the accused and so the trial of the accused ended in the order of conviction and sentence.
3. The material facts giving rise to this case are very few. It appears that the Central Railway had given a contract to the Nav Yug Construction Company for the construction of type I and II staff quarters at Vasi. This contract was given to the Company in June 1954. The construction work however could not commence immediately, since Bombay had heavy rains in that year.
The Company had its Bombay office at Parel but had also constructed a provisional office at Vasl. Mayekar and Bhosle did the supervision work at Vasi on behalf of the Company. Mayekar dealt with cash transactions and did outside work in addition to the supervision work at the sits, whereas Bhosle was the official representative. The accused as the overseer in the Engineering Department of the Central Railway had to attend to and supervise this construction work.
In August-September 1954, the Company was found to be in arrears of this work and it was apprehended that the Company would not be able to complete the work of construction within the stipulated time. Besides, the work done by the Company was not always sanctioned by the supervisory staff including the accused and on some occasions they had to demolish the structures and make fresh constructions.
The prosecution case is that Mayekar was approached by the accused 10 or 12 days after the month of October commenced and he was told plainly that if the company wanted to complete the work satisfactorily without obstruction from the accused the Company would have to pay the accused Rs. 200/- per month. Mayekar then told the accused that he was merely an employee of the Company and he could do nothing m the matter unless he consulted his superior officers.
Accordingly Mayekar Informed Maganlal, a partner of Nav Yug Company, but Maganlal was not amenable to satisfy the illegal demand of the accused. On the contrary, Mayekar was advised by Maganlal to contact the Anti-Corruption Branch and to make arrangements for the levy of a trap against the accused.
Pursuant to these instructions, Mayekar reported the matter to the Anti-Corruption Branch on 25-10-1954. Sub-Inspector Desai recorded the statement, of Mayekar. On 28-10-1954 the accused again approached Mayekar. Mayekar told the accused that his master had not given him any money to be paid to the accused. The accused then pressed Mayekar to pay him some money as Diwali Bakshis.
The accused had seen some money with Mayekar and so, according to the prosecution, Mayekar had to part with Rs. 40/- in favour of the accused. When Rs. 40/- were thus paid to the accused, the accused again insisted that Rs. 200/- would have to be paid to him. On the 30th of October the accused again inquired from Mayekar as to what had happened about his proposal and an appointment was fixed between them for the payment of the amount the next day at the place where the works were being carried out.
Mayekar then rang up the Anti-Corruption Branch and the trap machinery went into action the next day. Marked currency notes of Rs. 200/-were given to Mayekar whose person had been searched in the presence of panchas. The party consisted of three panchas, Mayekar, Sub-Inspector Desai and they also took the assistance of a photographer who was asked to take a movie picture of the material incidents.
4. This case is sought to be supported by the evidence of Mayekar himself and the panch Tendolkar. Sub-Inspector Desai and the photographer Raje have also given evidence to corroborate the account of Mayekar. The learned Judge has made inspection notes of the material portions of the movie after the movie was seen by the learned Judge and the lawyers on both the sides.
The accused on the other hand has led evidence to show that the trap has been maliciously laid against him. He admitted that he received Rs. 160/- from Mayekar, but his case was that one Suresh Sawant had borrowed Rs. 160/- from him and at his instance Mayekar had reminded Suresh that the loan had still remained unrepaid.
It was this amount of Rs. 160/-, which Mayekar purported to give to the accused and which the accused accepted as such. In support of this plea the accused led evidence. He examined one Dashrath for proving the loan to Suresh and he examined Suresh himself. As I have already indicated, the learned Judge was not impressed by the defence evidence. He disbelieved the defence story and accepted the evidence led by the prosecution.
5. It would thus be noticed that the point for decision in the present appeal lies within a very narrow compass. Many facts are admitted. That the accused was a public servant is not disputed. That he met Mayekar is also a matter of common ground, and what is more important is that the receipt of Rs. 160/- also is a matter of common ground.
The very narrow question which we have to consider is whether Rs. 160/- were demanded and received by the accused by way of illegal gratification from Mayekar, as the prosecution suggests, or whether it was given by Mayekar and received by the accused towards the repayment of the loan of a similar amount to Suresh Sawant.
6. Mr. Nagrani has contended that in dealing with this narrow point the learned Judge seems to have been more concerned with the question as to whether the defence had been established than with the question as to whether the prosecution had proved its case.
To some extent this criticism must be regarded as valid because it does appear that the learned Judge has more elaborately and carefully from his point of view considered the merits of the defence theory and it was in the light of his decision as to the merits of the defence theory that he appears to have approached the prosecution evidence. If that be the real position in regard to the approach of the learned Judge, the criticism made against the approach that it is contrary to the well settled principles of criminal administration cannot be rejected as wholly unjustified.
After all, it is for the prosecution to prove its case in a criminal trial and it is only while considering whether the prosecution has proved its case that incidentally and where necessary a criminal Court would have to consider the case made for the defence. It would not be right for a Criminal Court to convict an accused person not so much because the prosecution case is established beyond a reasonable doubt by the prosecution evidence but because the defence theory appears to the Court to be unreasonable or does not appear to the Court to have been established.
In the present case it would be for the prosecution to prove that Mayekar was asked by the accused to pay a bribe and that Mayekar paid the accused Rs. 160/- on 31-10-1954 by way of illegal gratification.
7. Since we have come to the conclusion that the prosecution has failed to establish its case beyond a reasonable doubt against the appellant, we do not propose to deal with some of the points of law which Mr. Nagrani has raised before us. Mr. Nagrani contends that the evidence given by Tendolkar, a panch, should be regarded as evidence of a partisan witness, and in support of this argument he has Invited our attention to a decision of the Supreme Court in -- 'Shiv Bahadur Singh v. State of Vindh Pra' : 1954CriLJ910 .
It is perfectly true that Bhagwati J. who delivered the judgment of the Supreme Court has expressed disapproval of the conduct of the Additional District Magistrate who acted as a panch in the said case and the evidence given by the said Additional District Magistrate has been regarded as tainted on the ground that the witness was a partisan witness.
Mr. Nagrani argues that the criticism which has been made by Bhagwati J. against the evidence of Shanti Lal Ahuja, the Additional District Magistrate, would apply to the evidence of] every panch witness who takes part in the laying of a trap in cases of this kind. We are not impressed by this argument. We do not think that the observations on which Mr. Nagrani relies were really Intended to lay down such a general and sweeping proposition of law.
Whether or not a panch witness in a criminal case is a partisan witness would, in our opinion, always depend upon the circumstances of each case. If a panch witness occupying a respectable and disinterested position voluntarily helps the investigation by acting as a panch and his evidence appears to the Court to be wholly satisfactory, it may not perhaps be open for the accused to contend that the said evidence must necessarily and as a matter of law be regarded as that of a partisan witness.
8. Now, on behalf of the prosecution it has been urged that the motive suggested by the accused for the laying of this false trap is wholly inadequate. It may be that the accused made reports against the works carried out by Mayekar's company and in consequence of the defects noticed the Company would have had to pull down some of the constructions and make them afresh.
But, that, says the learned Government Pleader, cannot be said to constitute a sufficient motive for Mayekar to make a false charge against the accused. Perhaps there may be some force in this contention. The story deposed to by Mayekar is in terms of the prosecution case which I have already set out. There are however some points in the account given by Mayekar which call for comment.
If Mayekar had made his complaint to the Anti-Corruption Branch on 25-10-1954, it is not very easy to understand why he succumbed to the pressure or entreaty of the accused and paid Rs. 40/- to him on the 28th of October. He had made a formal complaint against the accused and in the ordinary course one would have expected Mayekar to tell the accused that he would consult his master and pray for time with a view to fix an engagement and pay the amount of bribe as under a trap.
The fact that Mayekar in a sense unauthoris-edly and without Justification is alleged to have pay Rs. 40/- to the accused lends support to the contention raised before us by Mr. Nagrani that Mayekar knew that Rs. 180/- were due to the accused from Suresh Savant and he and Suresh had already decided upon using this circumstance to the prejudice of the accused while laying the trap against him.
It is not usual in cases of this kind where a public officer is pressing for the payment of illegal gratification and the victim of the pressure has approached the Anti-Corruption Branch that payment would be made in an interim or provisional manner, as Mayekar claims to have done on the 28th of October in the present case.
9. There is another point in Mayekar's evidence on which Mr. Nagrani has commented. Mayekar says that he had with him currency notes of Rs. 200/- and at the material time when the bribe had to be paid to the accused he took out the whole bundle of the said notes. From the bundle he detached notes of Rs. 40/- put them in the pocket of his bush-coat and gave Rs. 160/- to the accused.
According to the prosecution case, which, in our opinion, is proved, panch Tendolkar was standing nearby and could have seen what was happening between Mayekar and the accused. Tendolkar does not refer to the detachment of the notes of Rs. 40/- as stated by Mayekar. It may be that the argument urged before us by Mr. Nagrani that this detachment procedure is not shown in the movie is not of much force.
Raje's evidence shows that he put the movie in action as soon as he found that money was being offered and accepted, so that even it the movie does not record the process of detachment of the notes of Rs. 40/- that may not necessarily be decisive of the matter. But the failure of Tendolkar and perhaps of Raje to refer to this part of the conduct of Mayekar cannot be ignored when we are deciding the Question as to whether the prosecution case is established beyond a reasonable doubt or not.
10. There is yet another point on which Mr. Nagrani relies. According to the prosecution case, when Mayekar went on the scene he first contacted the accused in what is called the office, and if Mayekar's evidence is to be believed the accused inquired about the amount at the cilice itself. Tendolkar was at a distance of 7 or 8 feet at this time, i.e. about the same distance at which he stood when Rs. 160/- were paid by Mayekar to the accused.
Now, if Tendolkar heard the talk between Mayekar and the accused on the latter occasion, it is not clear why he did not hear the earlier talk between Mayekar and the accused. Tendolkar is clear that the first time that this amount was mentioned was just before the payment of the amount, and that is inconsistent with Mayekar's evidence.
Besides, the story in which Tendolkar refers to the talk ot Mayekar with the accused just before the amount was paid would, if it is literally considered, be inconsistent with Mayekar's case. Mayekar had already told the accused in the office that money was ready and so it would be unlikely that the accused would make the same inquiry with Mayekar later on. That is another infirmity in the evidence on which Mr. Nagrani is entitled to rely.
11. Mr. Nagrani also contends that if Rs. 160/-were intended to be accented by the accused as a bribe, he would not do that so openly as the prosecution case would seem to suggest. We are not much impressed by this argument.
12. The position of the prosecution evldenc' therefore is that the evidence given by Mayekar does not appear to be corroborated by the evidence of Tendolkar as much as it should have been if all the material statement of Mayekar were true.
Whether or not absence of such corroboration would justify our interference with the order of conviction would therefore depend upon the view that we take as to the theory set up by the defence about the loan due to the accused from Suresh Sawant, and it is in connection with this part of the case that we are unable to accept the conclusion of the learned trial Judge.
13. Even as to this loan, there is some common ground between the prosecution and the defence. Suresh Sawant admittedly had borrowed a loan from the accused. The prosecution and the defence differ as to the date of the loan and the amount. Whereas the Prosecution contends that the loan was taken on 1-10-1954, according to the defence the loan was taken on 23-10-1954.
In respect of this loan, Suresh wrote a chit to the accused, but as to the date of the chit there is a dispute between the parties. According to Suresh, he wrote the chit on the 7th October and the prosecution relies upon this date as the rent date of the chit, whereas according to the defence the chit was written on the 28th of October.
The learned Judge was disposed to take the view that originally the letter bore the date 7th of October and that '7' has been overwritten by '8' and '2' has been prefixed to the overwritten '8', and this according to the learned Judge must be the work of the accused. Prima facie, there appears to be considerable force in this view. Mr. Nagrani made no secret of the fact that according to him Suresh was as much in this conspiracy as Mayakar and that immediately raises the difficulty in the way of Mr. Nagrani, created by the chit itself.
It Suresh was a party to the conspiracy, it is very difficuit to imagine that he would write any chit to the accused which would supply the main basis for the defence in a criminal trial. But this aspect of the matter is not the only important point connected with it. Even if we were not able to differ definitely from the view taken by the learned Judge as to the alteration in the date of the chit, we cannot accept his conclusion that Suresh is a witness whose evidence can be accepted without any difficulty.
14. In dealing with the evidence of Suresh there are some material points to which the learned Judge has not referred in his judgment. Suresh Was examined as a witness for the defence, and on an application made by Mr. Nagrani the learned Judge allowed Mr. Nagrani to cross-examine Suresh. The date fixed for the examination of Suresh was 21-9-1955.
Before Suresh stepped into the witness-box, Mr. Nagrani applied to the learned Judge stating that on the 20th of September at about 4 p.m. the investigating officer Desai and Inspector Sawant had contacted Suresh. In fact this iact appears to have weighed in the mind of the learned judge When he allowed Mr. Nagrani to cross-examine Suresh.
Thereafter the learned Judge rightly asked the Public Prosecutor to explain the conduct of the police officers and on the 22nd of September the Public Prosecutor filed a note in which it was stated that Inspector Sawant and Sub-Inspector Desai had gone to the residence of Mayekar as they wanted to know if he knew anything about the antecedents of the witnesses cited for the defence. They did not find Mayekar at his place and so they went to the offices of the Bharat Glass Works because they expected that Mayekar would be there. They went to the Bharat Glass Works also because they wanted to inquire if Suresh Sawant was in a position to produce certain documents, if necessary, so that the necessary notice could not have been given.
This visit by the police officers to Suresh came to the knowledge of the defence because by accident the son of the accused was then closetted with Suresh himself. When Inspector Sawant saw that the son of the accused was talking to the witness he called him outside and he inquired about the documents and left the place.
Mr. Nagrani contends that the conduct of the police officers in contacting a defence witness a day before the witness was going to step into the witness box is highly irregular. Besides, Mr. Nagrani points out that the explanation given by the Public Prosecutor, on instructions, does not correspond with the evidence of Suresh himself.
Whereas the explanation refers to documents in respect of which an inquiry was intended to be made, according to the evidence of Suresh only one document was mentioned and that is the authority given by Nav Yug Company in favour of Suresh to act as their agent and representative. The public prosecutor admitted that both the officers had gone to see the witness, whereas the witness says that he saw only Inspector Sawant.
Besides, the fact that the police officers wanted to make an inquiry with the witness about certain documents, amongst them the authority in question is hardly satisfactory. This document had already been called for by Mr. Nagrani from the railway officer and in tact it appears to have been produced in Court by witness Shrivastav.
If the file containing this document had already been produced by shrivastav and a relerence was made to this document in his examination-in-chief Out the document was not exhicted until Suresh himself stepped into the witness-box, it seems futue to suggest that the police officers wanted to inquire from Suresh whether the document could be produced.
The document in the ordinary course was bound to be with the railway officers and not with witness Suresh in any case, it was not open to the police officers to contact the witness for such a purpose. The procedure to adopt in calling for documents should have been known to the police officers themselves.
The learned Government pleader has very fairly not attempted to support or justify this conduct of the police offcers. It investigating police officers attempt to contact defence witnesses, it is likely to attect the quality of the administration of justice itself.
We have rarely come across such irregular and improper contact on the part or investigating officers. Unfortunately though this fact appears to have been mentioned to the learned judge, its effect on the evidence of Suresh has not been considered by him. Suresh was obviously in a defensive mood as soon as he entered the witness-box. He has given evasive answers and he appears to have studiously refrained from admitting facts which could not make any difficulty for him at all.
If the evidence of Suresh is hesitant and evasive on some points, Mr. Nugrani would be undoubtedly justified in commenting on this part of his evidence and in suggesting that the evasiveness and the tone of hesitation in the, evidence of the witness may be the result of his contact with the police officers on the 20th of September. That is one aspect of the matter which cannot be ignored.
15. There is another point to which reference may be made. Suresh admits that he borrowed Rs 15/- from the accused. His explanation is that he was suddenly met by a demand from his lorry driver and other employees for Rs. 35/- and he was short of Rs. 15/- cash. At his request the accused paid him Rs. 15/-.
According to Suresh, he forgot all about this loan and the accused had to remind him for the repayment of this loan by sending his subordinate. Suresh did not recognise this subordinate and so sent, a note and this happened on the 7th October. I have already mentioned what the defence version is about this note and about the existence of the loan. Suresh was naturally asked by Mr. Nagrani as to whether the loan had been repaid, and when he said 'yes' Mr. Nagrani asked him when it was repaid.
The answers given by Suresh in respect of the repayment of this loan are typically evasive and unsatisfactory. He stated that it may be 2 or 3 weeks after the loan was borrowed that it was repaid. He added that he made the repayment 011 the premises of the Glass works and he did not remember if the repayment was made in the presence of anybody else.
The learned Judge was considerably Impressed by his view that Suresh was so well placed financially that he could not be a borrower from the accused. Even if the statements made by Suresh in answer to the questions cut to him by the learned Judge are accepted as true, that really is irrelevant in the present case. Suresh admittedly borrowed Rs. 15/- from the accused. If his need had required, he might have borrowed Rs. 130/-from the accused.
The loan in question does not affect the financial status of Suresh at all. Even a very wealthy person may find himself sometimes in need to borrow some amount or ask for accommodation from a friend. Therefore the fact that Suresh was not financially involved has nothing to do with the question as to whether he borrowed Rs. 15/- or Rs. 160/-.
If Suresh borrowed Rs. 15/- and he alleges that he forgot all about it and if he gives unsatisfactory explanation as to when he repaid the amount, that is a factor which introduces an infirmity in the whole of his evidence. He attempted to say that on the 28th of October he could not have written the chit because on that day he had left for Baroda to visit his sister.
That no doubt is a plausible plea. It is customary in his community for brothers to visit their sisters on the Bhaubij day. But the difficulty is that the evidence given by Suresh on the whole does not create a feeling in our minds which would justify the acceptance of every one of the statements made by him as true. The letter itself prima facie appears to be more consistent with the theory of a loan of Rs. 160/- than with a petty borrowing of Rs. 15/-.
'I am sorry', says Suresh in his letter, 'for the delay in returning your amount. I was too busy to meet you for all these days. However I shall see you on the site within a couple of days and return the money. In case I don't meet you, I shall try to send through somebody definitely. Excuse for the delay and inconvenience.' If Suresh wrote such a formal letter of apology and regret to the accused for the delay made by him in repaying the loan, it is rather surprising that he should not be able to tell the Court when exactly and where he repaid the loan.
There has been some controversy between the parties as to the position of Suresh in the Company which had undertaken the work of construction. Whether or not Suresh was officially connected with this Company before the 5th of November seems to be a matter of not much consequence in this case. Suresh was visiting the scene off and on and he was actually appointed as agent on the 5th of November 1954.
Incidentally at the time when the case was tried before the learned Judge and long before that period Mayekar had left the services of Nav Yug Company, and that gives Mr. Nagrani another argument against the conduct of the police officers. If the police officers did not find Mayekar at his place of residence, it was really futile for them to search for him in the office of the Bharat Glass Works, when he had already left the services of Nav Yug Company in January 1955.
Therefore, in our opinion, the theory set up by the defence that the accused had advanced Rs. 160/- to Suresh has not been destroyed by the evidence of Suresh. As I have just indicated, Suresh has not struck us as a witness who has given a straightforward and reliable account.
That is why though we are conscious that on some points the prosecution has a case to argue, taking a complete view of all the circumstances and having regard particularly to the facts relevant for the purpose of dealing with the evidence of Suresh, we are not satisfied that we could hold that the charge against the accused has been proved beyond a reasonable doubt.
If the evidence of Suresh and the conduct of the police officers have resulted in introducing an Infirmity in the prosecution case, the prosecution must thank itself.
16. In the result, the appeal must be allowed, the order of conviction and sentence passed against the appellant must be set aside and the appellant ordered to be acquitted and discharged forthwith. Pine if paid should be refunded.
17. Appeal allowed.