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M.M. Gandhi Vs. State of Mysore - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Appeal Nos. 331 and 332 of 1957 with Criminal Revn. Petn. Nos. 444 and 445 of 1957
Judge
Reported inAIR1960Kant111; AIR1960Mys111
ActsPrevention of Corruption Act - Sections 4(1), 5, 5(2), 5(3), 5-A and 8(2); Indian Evidance Act - Sections 133 and 145 ; General Clauses Act - Sections 26; Interpretation Act, 1889 - Sections 33; ;Indian Penal Code (IPC), 1860 - Sections 120-B, 129-B and 161; Code of Criminal Procedure (CrPC) , 1898 - Sections 162, 164 and 342; Constitution of India - Article 20
AppellantM.M. Gandhi
RespondentState of Mysore
Excerpt:
- land acquisition act, 1894.[c.a. no. 1/1894]. section 6 (1): [n.k. patil, j] final notification under petitioner sought for acquisition of land for the development educational activities failure of the petitioner to deposit the acquisition cost as required under the relevant statute non-compliance of the mandatory requirement held, the final notification shall be issued on or before the expiry of one year from the date of issuance of preliminary notification and the cost of acquisition is to be deposited before issuance of final notification. as the petitioner could not deposit the cost of the acquisition proceedings within the prescribed time, the proceedings has been delayed and notification under section 6(1) could not be issued before the expiry of one year from the date of.....sadasivayya, j. (1) the appellant in both these appeals is the same person; he has been holding the position of executive engineer, p.w. d., belgaum division. in special case no. 8 of 1956 on the file of the special; judge at belgaum, the appellant was convicted of an offence punishable under section 161 of the i.p.c. for having accepted a bribe of rs. 250/- from p.w. 1 britto on 7-4-1955 and has been sentenced to rigorous imprisonment for one year and to pay a fine of rs. 5,000/- and in default, suffer further rigorous imprisonment for six months.the appeal in criminal appeal no. 331 of 1957 is directed against this conviction and sentence. in special case no. 9 of 1956 on the file of the same judge, the appellant was tried for the offence of criminal misconduct as defined in section 5.....
Judgment:

Sadasivayya, J.

(1) The appellant in both these appeals is the same person; he has been holding the position of Executive Engineer, P.W. D., Belgaum division. In Special Case No. 8 of 1956 on the file of the Special; Judge at Belgaum, the appellant was convicted of an offence punishable under Section 161 of the I.P.C. for having accepted a bribe of Rs. 250/- from P.W. 1 Britto on 7-4-1955 and has been sentenced to rigorous imprisonment for one year and to pay a fine of Rs. 5,000/- and in default, suffer further rigorous imprisonment for six months.

The appeal in Criminal Appeal No. 331 of 1957 is directed against this conviction and sentence. In Special Case No. 9 of 1956 on the file of the same Judge, the appellant was tried for the offence of criminal misconduct as defined in Section 5 of the Prevention of Corruption Act and he has been convicted under Section 5(2) of the said Act and has year and to pay a fine of Rs. 75,000/- and in default to suffer further rigorous imprisonment for six months. (The learned Judge has ordered that the sentence of substantive imprisonment in Special Case No. 9 of 1956 should run concurrently with that awarded in Special Case No. 8 of 1956).

It is against this conviction and sentence, that the appeal in Criminal Appeal No. 332 of 1957 has been directed. The State has preferred the Criminal Revision Petition No. 444 of 1957 praying for enhancement of the sentence awarded in Special Case No. 8 of 1956. Another Petition has been filed by the State in Criminal Revision Petition No. 445 of 1957; this purports to be under Section 520 of the Cr.P.C. And the prayer is that the sum of Rs. 24,000/- and odd which had been found in the house of the accused at the time of the search on 7-4-1955, be ordered to be forfeited to Government.

In both these appeals, the appellant has been represented by Sri Ghaswala, Advocate, assisted by Sri Murudkar and Sri Datar. The Advocate-General and the Additional Assistant Advocate-General and the Additional Assistant Advocate-General have appeared for the State.

(2) P.W. 1 Britto was the agent at Belgaum for the sale of certain tiles known as Pinto Tiles. These tiles were being manufactured at Bangalore by a firm which owned about 3 or 6 Tile Factories. There were a number of partners in that firm, but it is sufficient for the purpose of this case to state that P.W. 5 Edward Pinto and his brother--Denis Pinto P.W. 9 were two of the partners. Denis used to be residing at Bangalore, while Edward Pinto was at Bombay in charge of the sales there.

On the morning of the 7th of April 1955, P.W. J went to the office of P.W. 22 Sri P. P. Naik who was the Inspector of Police, Anti-Corruption Branch, Belgaum, and made allegations of corruption against the Executive Engineer (i.e., the present appellant). P.W. 22 recorded as per Ex. 23, the complaint of P.W. 1. The complainant P.W. 1 also produced at that time before P.W. 22 certain documents which are Exhibits 11, 12, 15, 16, 21, 24, 25 and 26).

In this complaint as per Ex. 23, P.W. 1 had alleged that on the morning of 4-4-1956 when he had visited the Executive Engineer for requesting him to expedite the passing and payment of a bill which P.W. 1 had preferred on account of his having applied 5000 tiles in connection with the construction of a Rest House at Chikodi, the Executive Engineer told P.W. 1 that he would pass that Bill and also that he would place an order for 15,000 more tiles, but wanted that P.W. 1 should pay him Rs. 400/-. It was alleged that after protracted discussion, the Executive Engineer agreed to accept Rs. 250/- and had asked P.W. 1 to bring that amount.

The complainant stated, as per Ex. 23 that he was going to give that amount of Rs. 250/- that day (7-4-1955) to the accused. P.W. 1 also stated in some detail, in his complaint, the circumstances under which he had come to know the Executive Engineer and also about the Executive Engineer having demanded a bribe of Rs. 1,000/- when P.W. 1 and Denis Pinto had gone to see the Executive engineer on 12-1-1955; this demand was stated to have been met by the payment of Rs. 500/- on 12-1-1955 and another sum of Rs. 500/- on 31-13-1955.

The complainant had stated that he had no desire to bribe but that as the Executive Engineer was unnecessarily giving trouble, the bribes were given with a view to get him caught. He also alleged that he had heard people talking that Shri Gandhi (the Executive Engineer) was accepting bribes from the Public Works Department Contractors and had acquired property more than reasonable and he prayed that enquiry be made about the same. Thereafter, P.W. 22 went and produced before the Judicial Magistrate, First Class, Belgaum, the complaint Ex. 23 and certain other documents Exs. 11, 12, 15, 16, 21, 24, 25, 26 and got them initialled by the Magistrate.

He also made an application praying for permission under Section 5-A of the Prevention of Corruption Act for investigating into the offences. That application and the permission accorded by the Magistrate and the permission accorded by the Magistrate are marked as Ex. 99. Then, currency notes of the value of Rs. 250/- which were produced by P.W. 1 were shown to the panchas and a panchanama as per Ex. 37 was made mentioning the numbers of the currency notes. Thereafter, the currency notes were returned to P.W. 1 with instruction that in case the Executive Engineer demanded the amount, those notes may be handed over to him; P.W. 1 was also informed that in case the Executive Engineer received the currency notes, P.W. 1 should come and give information of the same.

The complainant was asked to proceed to the bungalow of the Executive Engineer. P.W. 22. Head Constable Bilgi (P.W. 17) and the panchas followed him, in such a way as to be keeping him within sight; on the way they also picked up Sri Mulla, Deputy Superintendent of Police, Anti-Corruption Branch. This was at about 2 P.M. P.W.1 went inside the bungalow of the Executive Engineer while P.W. 17 was standing near the bungalow and the rest of the party waited near the Superintending Engineers' residence nearby. Within about five minutes the complainant returned; Head Constable Bilgi came and told P.W. 22 that the complainant had informed that the Executive Engineer had received the bribe.

Then,they all together with the complainant went to the bungalow of the Executive Engineer. They went inside following peon Rahusane (P.W. 7) who went inside to inform the Executive Engineer. They found that the Engineer was sitting with his children at the dining table in the dining hall. P.W. 22 disclosed his identity, informed about the allegation that Sri Gandhi had received the bribe and demanded that the bribe money be produced. After sometime, the accused Sri Gandhi produced currency notes of the value of Rs. 250/- from the left hand pocket of his pyjama.

By the time the accused produced the currency notes, the Superintending Engineer Sri Pandit P.W. 2 had also come there and was present. In the meanwhile, P.W. 10 Sri Ranade the Collector of Belgaum who had been informed by phone by Sri Mulla, arrived there. Sri Pandit, Sri Ranade and the panchas verified the numbers of the currency notes produced by the accused with those previously mentioned in the panchanama Ex. 37 and found that the numbers were the same.

After having a talk between themselves Sri Ranade and Sri Pandit thought that as the accused was a District Officer and the matter was gave one, the accused should be given an opportunity to offer any explanation he may have. Then, they took him to a separate room and asked the accused whether he had any explanation to offer. The accused stated that the matter was a frame-up. Then he stated that the money was thrust upon him; he also said that he had withdrawn money from the bank and that it was that money that was in his pocket.

It should be mentioned that in regard to what exactly the accused stated there in the presence of Sri Pandit and Sri Ranade, there is difference between the prosecution and the defence; as to whether it was of his own accord or whether it was after a suggestion was made by Sri Ranade that the accused stated that he had got the money from the bank, is a matter of dispute. Thereafter, all the three persons came out of the drawing room and Sri Ranade told P.W. 22 about the accused's statement that he had got the money from the bank. As the peon Rahusane had been mentioned as the person who had withdrawn the money on behalf of the accused from the State Bank, P.W. 22 called Rahusane and recorded his statement. Thereafter, is the presence of the accused a search of the house was conducted for the purpose of the investigation into the alleged offence under S. 5(2) of the Prevention of Corruption Act. A sum of Rs. 24,000/- and odd, mostly in currency notes of Rs. 100/- each, was found in envelopes in a trunk in the bath room. In a cupboard a sum of Rs. 500/- and odd was found.

Both the cupboard and the trunk had been locked and they were unlocked at the instance of the accused by his daughter. The amount of Rs. 500/- and odd found in the cupboard was not attached. But the sum of Rs. 24,000/- and odd which had been found in the trunk and some other documents including certain account books, were attached as per the panchanama Ex. 38. After investigation and obtaining necessary orders of sanction as per Exs. 100 and 110, charge-sheets were placed before the Special Judge in Special Case No. 8 of 1956 for the offence under S. 161 of the I.P.C. was only in respect of the sum of Rs. 250/- alleged to have been taken as bribe, by the accused on 7-4-1955.

The charge framed in Special Case No. 9 of 1956 was for the accused having committed an offence of misconduct as defined in S. 5 of the Prevention of Corruption Act. It has been alleged in the charge that the accused had habitually accepted gratification other than legal remuneration as a motive or reward for doing official acts and showing favours to P.W.D. contractors and others, in the exercise of his official functions. It had also been alleged that he had, by corrupt or by illegal means or otherwise by abusing his position as a public servant obtained pecuniary advantages and had amassed wealth of more than two lakhs of rupees, which was quite disproportionate to his known source of income.

By way of instances of his having committed the offence of misconduct, it had been mentioned that he had accepted as illegal gratification a sum of Rs. 500/- on or about 11-1-1955, a similar sum on 31-3-1955 and a sum of Rs. 250/- on 7-4-1955 from Britto. It had also been further alleged in the charge that the sum of Rs. 24,974/- found in his house on 7-4-1955, was by itself disproportionate to his known sources of income and that the had thus committed an offence punishable under S. 8(2) of the Prevention of Corruption Act. The accused had pleaded not guilty, in both these cases. He denied having received any bribe on 12-1-1955 or 31-3-1955 or on 7-4-1955.

While he admitted having produced from his pyjamma pocket the currency notes of the value of Rs. 250/- and the search of his house on 7-4-1955 and the seizure of cash of Rs. 24,000/- and odd, he offered certain explanations. In regard to the currency notes of the value of Rs. 250/- which he produced from his pyjamma pocket, his explanation, briefly stated, was as follows : It was his habit, every month to withdraw a sum of Rs. 250/- from the Bank, in the beginning of the month, to meet certain house-hold expenses. In the month of April 1955 also, he had withdrawn a sum of Rs. 250/- on the 4th he had withdrawn a sum of Rs. 250/- on the 4th from the State Banki at Belgaum. One Surve (a P.W.D. official), used to be receiving the money every month for making disbursements in connection with the house-hold expenses.

But Surve had not come either on the 5th or on the 6th of April 1955; on the 7th of April, when the accused returned to his residence at about 2 P.M. after having gone out in the morning, he was informed by his children that Surve had come that morning and would again be coming in the afternoon. The accused then looked up as to where he had put the sum of Rs. 250/- which he had withdrawn from the Bank, as he could not find the same with him. While he was changing his cloths in the bed room and was searching his clothes in notes of Rs. 250/- his peon Rahusane came and informed him that Britto had come.

He told the peon to have Britto seated in the office room. Then, after changing his clothes, the accused went and disposed of Britto within about two minutes. Thereafter, when he looked up the files lying on his table to see whether there was anything urgent, he found a bundle of currency notes under them and thinking it was his own money which he had withdrawn from the Bank had misplaced, he took the same and went into the dining room. The learned Special Judge found that the alleged payments of Rs. 500/- on 12-1-1955, and a similar sum on 31-3-1955 had not been proved. So far as the payment of Rs. 250/- on 7-4-1955 was concerned he rejected the explanation of the accused and held that the payment of the said sum as bribe had been proved.

In Special Case No. 9 of 1956, the prosecution seems to have produced on the basis that it was only the wealth which was earned or amassed by the accused between 4-12-1958(the date on which the accused became a public servant in Bombay State) and the date of his suspension in April 1955, that could be challenged by the prosecutions as having been earned by corrupt or illegal means, In the charge framed in that case it was clearly stated in para 2 that it in the discharge of his duties as Executive Engineer in the State of Bombay, from 4-12-1948 the accused habitually accepted illegal gratification, in the exercise of his official duties.

Prior to that date, the accused had been in service in Gondal and Mourvi States and the provisions of the Prevention of Corruption Act were not applicable to him prior to 4-12-1948.

2. (a). Though he found that the alleged bribe taking of Rs. 250/- on 7-4-1955 had been proved, the learned Judge observed that one instance does not establish any habit, and also that although technically it would amount to criminal misconduct within the meaning of S. 5(1)(d), a person cannot be punished twice for the same offence.

2. (b). The learned Special Judge found, after a consideration of the materials placed by the prosecution and the defence, that the assets of the accused on 7-4-1955 were of the value of Rs. 2,14,049. He also found that the entered service in Bombay State, were worth Rs. 1,66,342/-. He found that between 4-12-1948 and 7-4-1955 there was an addition of Rs. 47,807/- to the assets of the accused. After making deductions towards the rent of the bungalow, income-tax, etc., the learned Judge found that the aggregate income of the accused from all known sources, namely, his salary, dearness allowance interest and dividends from share certificates, was Rs. 65,447/- during the period between 4-12-1948 and 7-4-1955.

Putting the monthly living expenses of the accused an his family at Rs. 400/-, the Special Judge calculated that the accused would have incurred an expenditure or Rs. 30,400/- during this period. Accepting the figure given by the accused in his written statement, the Special Judge found that a sum of Rs. 10,000/- has been, in addition, spent for education of the accused's children. The accused had also admitted in his statement that he had paid a sum of Rs. 4,291/- as premia towards his insurance policies. The total expenditure during this period was thus brought up to a sum of Rs. 44,691/-.

After deducting this amount from Rs. 66,447, which were the earnings of the accused from all known sources of income, a balance of only Rs. 20,756/- ought to have been left. But actually the addition to his assets during this period was a sum of Rs. 47,807/-. The learned Judge found that the accused was it possession of property disproportionate to known sources of income for which the accused could not satisfactorily account and that the presumption under sub-s.(3) of S. 5 of the Prevention of Corruption Act should be drawn against him. The Special Judge viewed the possession by the accused in his house of the cash of Rs. 24,524/- as an unusual circumstance and that this amount was in itself disproportionate to the accused's known sources of income.

He considered that the explanation given by the accused did not displace the presumption of criminal misconduct arising against the accused. He found that this was a fit case in which the accused should be held to be guilty of criminal misconduct on the presumption raised under S. 5(3) of the Prevention of Corruption Act. Accordingly, he found the accused guilty under S. 5(2) of the Prevention of Corruption Act and convicted him for that offence.

(3) It is not disputed that the accused was a public servant on 7-4-1955, holding the post of Executive Engineer, P.W.D., at Belgaum. As can be seen from the judgments of the trial Court, the legality of the order authorising P.W. 22 to investigate and the orders sanctioning the prosecution of the accused, had not been questioned by the accused. Before us also, the legality or the correctness of these orders has not been disputed. As desired by the learned Advocate for the appellant, the arguments in Criminal Appeal No. 332 of 1957 were heard after the arguments in Criminal Appeal No. 331 of 1957 had been completed. Towards the close of the arguments, when we asked as to whether it would not be convenient to dispose of both the appeals by one judgment, no objection was stated to such a course being followed. We will first deal with the subject-matter of Criminal Appeal No. 331 of 1957 and then proceed to deal with the subject-matter of Criminal Appeal No. 332 of 1957.

(4) The charge framed in Special Case, No. 8 of 1956 in respect of the offence under S. 161 of the I.P.C. has been confined only to the bribe of Rs. 250/- received by the accused on 7-4-1955 from Britto, as a motive or reward for expediting the payment of Britto's bill for having supplied 5000 titles and for showing favour to britto by placing a further order with him for the supply of 15,000 tiles. According to the allegation in britto's complaint Ex. 23, it was when he met the accused on 4-4-1955 for requesting him to expedite the passing and the payment of his bill (which has been marked as Ex. 28) that the accused had demanded the bribe; he demanded a sum of Rs. 400/- for passing the bill and placing an order with Britto for the supply of 15,000 more tiles; according to the allegations in Ex. 23, the accused agreed after some discussion, to accept a sum of Rs. 250/-.

It was this sum of Rs. 250/- that Britto had to pay on 7-4-1955. Even from the allegations in Ex. 23, it was clear that the previous demand for the payment of Rs. 1,000/- by way of bribe, had been completely met by the payment of Rs. 500/- on 31-3-1955. That incident had thus become closed and the demand alleged to have been made by the accused on 4-4-1955 for the payment of another bribe, was really a fresh demand which did not have anything to do with the previous demand for Rs. 1,000/-. But a very considerable portion of the voluminous evidence in Special Case No. 8 of 1956 is in regard to incidents pertaining to the previous bribe of Rs. 1,000/- half of which is stated to have been paid on 12-1-1955 and the remaining half on 31-3-1955.

At least in regard to a part of such evidence, the defence counsel had objected (though unsuccessfully) as can be seen from the note made by the Special Judge prior to the commencement of the examination of P.W. 9 Denis. When we asked as to how the evidence in regard to the incidents pertaining to the previous bribes would be relevant pertaining to the previous bribes would be relevant in Special Case No. 8 of 1956, Sri Ghaswala stated that these incidents are linked up with one another and formed the foundation for the alleged incident of 7-4-1955, while it was sought to be explained on behalf of the State that it was only in the nature of introductory evidence and formed a sort of a background to the later incident of 7-4-1955 which alone was the subject-matter of the charge. The learned Special Judge, at para 21 of his judgment, has stated that these previous incidents are not of much importance in Special Case No. 8 of 1956, except in so far as they are intended to show how the incident of the taking of the bribe on 7-4-1955 developed through various stages.

Having regard to the fact that the demand for a fresh bribe was made for the first time only on 4-4-1955 and that it was in consequence of that demand alone that Britto agreed to pay Rs. 250/-, we are of the view that it would not be correct to say that the evidence relating to the previous incidents either formed the foundation for the subsequent incident of 7-4-1955 or would be relevant for showing that the taking of the bribe on 7-4-1955 had developed through various stages. In the case of Om Prakash v. State of U.P., (S) : 1957CriLJ575 , the Supreme Court while pointing out the distinction between Ss. 5(1)(b) of the Prevention of Corruption Act on the one hand, and Ss. 161 and 162 of the Penal Code on the other, has stated at page 464, that while a course of conduct can be proved when a person is arraigned under Ss. 5(1)(a) and 5(1)(b), such a course of conduct under Ss. 161 and 162 is being enquired into or tried.

Nor would it be correct to take the view that the evidence in regard to the previous bribes is in the nature of introductory evidence forming a background to the later incident which alone is the subject-matter of the charge. In somewhat similar circumstances, the Bombay High Court refrained from referring to the previous events which formed the background for the later incident to which formed the background for the later incident to which alone the charge related. (Vide para 6 of Ramchand Tolaram v. The State, : AIR1956Bom287 ). Evidence is regard to previous incidents not mentioned in the charge, has the danger of creating prejudice against the accused, while it is no proof of the particular offence which is the subject-matter of the charge.

The prosecution case in regard to the charge about the accused having accepted the bribe of Rs. 250/- is not essentially or vitally dependent on the truth or otherwise of the previous incident on the truth or otherwise of the previous incidents, and the evidence in regard to such previous incidents would ordinarily be not relevant. (Vide also the observations of the Supreme Court in State of Bihar v. Basawan Singh at para 3 of page 504 of (S) AIR 1956 SC 500). Under these circumstances, it appears to us, that the evidence in Special Case No. 8 of 1956 should have been properly confined only to the transactions on 4-4-1955 when the accused is stated to have demanded this afresh bribe and to the incidents of 7-4-1955 which related to the laying of the trap and the accused being caught.

In respectful agreement with the attitude taken by the High Court of Bombay in : AIR1956Bom287 , we also would have been inclined to refrain from referring to the evidence pertaining to the incidents prior to 4-4-1955. But Sri Shaswala has strenuously contended before us that he evidence in regard to these previous incidents should be considered by the Court for the purpose of finding out whether Britto was a truthful witness. It has been argued by him that a scrutiny of the evidence regarding these previous incidents, would establish that every one of those incidents is false and that Britto is a throughly untruthful and unreliable witness.

In this situation, we are of the view that the evidence pertaining to the incidents prior to 4-4-1955 requires to be considered in Special Case No. 8 of 1956, only for the limited purpose of appreciating and evaluating Sri Ghaswala's contention that a such a thoroughly untruthful and unreliable witness that the Court should refuse to accept any portion of his evidence. Practically every one of the acts forming these prior incidents having been attacked as being false, a fairly detailed scrutiny is necessitated.

(5) The evidence adduced by the prosecution in regard to the said previous incidents, briefly stated is to the following effect; Britto had been appointed somewhere between August and October 1954. As somewhere between August and October 1954, as the Agent for Pinto tiles. Towards the end of 1954 or the beginning of 1955, Britto approached two contractors Doddanavar and Dalvi Brothers quested them to use Pinto tiles for the construction works of the Public Works Department which they had undertaken. Doddanavar had taken the contract of Police Line Words and Dalvi Brothers had taken the contract of Industrial School construction. (Sri Dalvi is P.W. 13 and Sri Doddanavar is P.W. 14). The contractors stated that they had no objection to purchase Pinto tiles provided the Executive Engineer approved the sue of those tiles; Britto was asked to get a certificate of fitness in respect of his tiles, from the Executive Engineer.

Britto then wrote the letter Ex. 10 to P.W. 9 Denis and on 2-1-1955 he saw the accused. He told the accused that many institutions had been using Pinto tiles and he also showed the accused various Government orders which had been placed for those tiles. But the accused told Britto that unless a test certificate from the Government Laboratory at Alipor was produced, he could not take the tiles, in left for Bombay and on 3-1-1955 he met P.W. 5 Edward Pinto at Bombay. Britto explained to Edward all the difficulties which were arising on account of the P.W. D. office.

That afternoon, P.W. 5 gave him Ex. X which was a copy of a certificate given by the Presidency Executive Engineer, Bombay, in respect of Pinto tiles, P.W. 5 also told Britto that he would send the original of Ex. X. together with other testimonials to the Executive Engineer, belgaum, and he advised Britto to approach the accused with the copy of the presidency Executive Engineer's certificate. Britto returned to Belgaum and went and saw the accused on the morning of 4-1-1955. He showed the accused the copy of the certificate given by the Bombay presidency Executive Engineer. But the accused did not consent to the use of the tiles and said that he wanted to see Britto's principals.

Britto then wrote to P.W. 5. In reply, P.W. 5 Edward wrote the two letters Exts. 11 and 12 expressing his inability, on account of medical advice, to leave Bombay and stating that he had requested Denis to fly over to belgaum and help britto in the matter. Thereafter, Britto sent a telegram as per Ex. 13 to P.W. 9 Denis; he also wrote to P.W. 9 the letter Ex. 14, P.W. Sent a telegram as per Ex. 15 on 10-1-1955 stating that he would be arriving at belgaum the next day by plane. Accordingly, he arrived at belgaum on 11-1-1955 and stayed with Britto. On the morning of 12-1-1955, P.W. 9 accompanied by britto went and saw the accused. On Denis questioning the accused as to why he was objecting to Pinto tiles being used, the accused replied that he had no objection to the use of those tiles and he suggested that he should be remunerated.

On Denis asking him what remuneration he wanted, the accused asked for at least Rs. 1,000/-. Denis said that business was slack and that the amount of Rs.1,000/- was too much. But, he finally said the britto would see to those things and then both Britto and P.W. 9 left the place. On their way back to britto's house, Denis told britto that the accused appeared to be a corrupt person and that Britto should find a way to trap the accused. Denis left of Hubli. Later, by about midday Britto went to the accused's bungalow and paid him Rs. 500/- and the accused promised to issue a circular to his Deputy Engineers that Pinto tiles had been approved for use in the Belgaum Division. That evening Denis returned from Hubli and on the 13th or 14th of January he went away to Mangalore. Exhibit 16 is a letter dated 14-1-1955 written by P.W. 9 to Britto.

Some days after Britto received this letter, the accused sent for Britto and asked him about the remaining amount of Rs. 500/- ; the accused also threatened that if that amount was not paid, he would ask Britto to remove the forty three thousand tiles which, in the meanwhile, had been supplied by Britto to Doddanavar in connection with the construction of the Police Lines. On the same day, Britto wrote the letter Ex. 17 to P.W. 9; Ex. 17 is dated 4-2-1955. Britto also made an application as per Ex. 18, addressed to the Executive Engineer asking for a copy of the circular issued to the effect that Pinto tiles had been approved for use in the Belgaum Division; he had also requested therein for the issue of a certificate to the effect that Pinto tiles are satisfactory for use in the P.W. D. Works. Ex. 18 is dated 4-2-1955.

On the 20th of February, Britto met at the aerodrome, Denis who was on his way to Bombay and informed him that the accused had been demanding Rs. 500/-. Denis said that it was too much of harassment and that Britto should find a way to trap the accused. Thereafter, Britto met the accused on 31-3-1955 and gave him Rs. 500/-. the accused was happy over it and he asked Britto to submit a quotation for 5,000 tiles which were required for the P.W. D. Rest House at Chikodi. The accused informed Britto that other contractors had submitted tenders and he suggested that Britto should put in a tender at the rate of Rs. 255/- per 1,000 tiles. According to supply tiles at Chikodi at the rate of Rs. 255/- per 1,000 tiles. (Ex. 20 is dated 31-3-1955). On the same day the accused accepted Britto's quotation and ordered as per Exhibit 21, the supply of 5,000 tiles to the Overseer of the P.W. D. Store at Chikodi. Britto instructed as per Exhibit 22(dated 31-3-1955) his Sub-Agent at Chikodi to supply 5,000 tiles.

(5a) It was not merely the alleged payments of the bribe on 12-1-1955 and 31-3-1955 that were denied on behalf of the accused. But, the truth of each one of the above-mentioned incidents had been challenged by the defence counsel. It had been contended that Britto might have been appointed as the agent for Pinto tiles much earlier than he had alleged. It had been denied that Britto had approached Doddanavar or Dalvi by about the end of 1954 and that it was from them that he learnt that the approval of the Executive Engineer was necessary for the use of his tiles in the P.W.D. works. The alleged meeting of Britto and the accused on 2-1-1995 and Britto and the accused on 2-1-1955 and Britto having gone to Bombay and met Edward on 3-1-1955 had been denied.

The alleged meeting of Britto and the accused on 4-1-1955 and the subsequent meeting on 12-1-1955 at which the accused is stated to have demanded a bribe of Rs. 1,000/-, had been denied. The subsequent meeting of accused by Britto on 4-2-1955 and the alleged threat by the accused in regard to the removal of forty three thousand tiles and the subsequent meeting of Denis by Britto at the Aerodrome on 20-2-1955,,have also been denied. The alleged meeting of the accused by Britto on 31-3-1955 has also been denied. In regard to the letters which had been produced by the prosecution as being part of the correspondence that had taken place between Britto, Denis and Edward, it had been contended that the entire correspondence had not been produced, that a part of the correspondence had been suppressed and that the letters produced before the Court were not genuine.

Though the learned Special Judge took the view that Britto and Denis stood in the position of accomplices in respect of the bribes alleged to have been paid on 12-1-1955 and 31-3-1955, he was satisfied that the letters which were exhibited as part of the correspondence that had taken place between Britto, Denis and Edward, were all genuine. He was satisfied that Edward did not stand in the position of an accomplice. From consideration of the correspondence that had passed between Britto, Edward and Denis and from their oral evidence, the learned Judge was satisfied that the accused had made a demand on 12-1-1955 for the payment of a bribe of Rs. 1,000/-.

He did not accept the defence contentions above stated, except the extent of holding that the alleged payments of Rs. 500/- on 12-1-1955 and Rs. 500/- on 31-3-1955 had not been established beyond reasonable doubt. It has been contended before us by Sri Ghaswala that the learned Special Judge ought to have held that the entire evidence of Britto is a tissue of lies and that the trial Judge ought not to have placed any reliance either on the evidence of Britto and Denis or on the letters forming part of the correspondence between them. On the other hand, it has been argued on behalf of the State that a careful consideration of the entire evidence as a whole, in regard to the incidents ending with 31-3-1955, will show that Britto is really not an untruthful witness.

It is also stated that such of the letters as were available from the relevant correspondence between Britto Denis and Edward have been produced and that there was really no motive for any one of these witnesses to go to the extent of fabricating or forging any of these letters. We have been taken through the entire evidence in the case and arguments at length have been addressed in respect of each of the contentions raised in the appeal.

(6) In para 22 of his judgment, the learned trial Judge has stated that Britto appears to have been appointed somewhere between August and October 1954 as agent for Pinto tiles, at Belgaum. The correctness of this finding has been disputed by the learned Advocate for the appellant. No documentary evidence has been produced to show as to when exactly Britto was appointed as the agent for Pinto tiles; it is admitted by Britto, in the course of his cross-examination, that he has nothing in writing to show when exactly his agency started. But, there is some material in the evidence to show, at least approximately, as to when he became the agent for Pinto tiles.

In this complaint Ex. 23, he has stated that it was in last Diwali, that is, in October 1954, that he got the monopoly of the agency of Pinto tiles for Belgaum District. In his examination-in-chief, he has stated that the has been agent for Pinto tiles, since he states that he took up the tiles agency for the first time in 1954, he does not appear to have been quite time in 1954, he does not appear to have been quite certain as to whether it was in the month of August 1954 or whether it was in the month of October 1954 that he took this agency.

Edward who was examined as P.W. 5 in April 1957, has stated in the course of his cross-examination that Britto was appointed about three years previously, though he is unable to give the date on which Britto was appointed. P.W. 9 Denis has stated in the course of his cross-examination that prior to 1954, there were no selling agents for Pinto tiles at Belgaum; he has also stated that he remembers to have appointed Britto, as agent, in August 1954. From this evidence, it is clear that Britto could have been the agent for Pinto tiles only from August 1954 and not from any time earlier than that. If so, there is nothing unlikely in his having become aware only subsequently, about the necessary for the Executive Engineer's approval before the tiles could be made use of for the P.W. D. Works.

He has stated in Ex. 23 that it was towards the beginning of January that he had approached Doddanavar and Dalvi for requesting them to use Pinto tiles in the P.W. D. constructions. In the course of his examination-in-chief, Britto has stated that it was towards the end of 1954 or in the beginning of the year 1955 that he learnt that P.W.D. constrictions of Police Lines and Industrial Schools were going on in Belgaum and that he approached the contractors Doddanavar and Dalvi with a request for the use of his tiles and that they wanted a certificate of fitness of the tiles, from the Executive Engineer. In the course of his cross-examination, he has started that it was 4 or 5 days before 2-1-1995 he came to know that Doddanavar and Dalvi had taken the contracts from the Public Works Department; he also stated that he was positive that he got this information at the end of December 1954 and that he had a talk with Doddanavar, in December 1954.

He has also stated that it was after he learnt about the need for a certificate of fitness of the tiles, that he wrote the letter Ex. 10 to Denis. Ex. 10 is dated 31-12-1954. P.W. 13 Dalvi and P.W. 14 Doddanavar corroborated the evidence of Britto, by saying that they had been approached by Britto, by saying that they had been approached by Britto and that they informed him that his tiles could not be used unless there was the approval of the Executive Engineer for the use of these tiles. P.W. 14 Doddanavar had stated that Britto had seen him, most probably, in December 1954; but, he also admitted that when Britto met him the work of the Police Lines was in progress; he also admitted that the work of the Police Lines. The work order in respect of the Police Lines is Ex. 39 and it is dated 24-1-1955.

The contention is that if the construction work was started only after the receipt of the work order on 24-1-1955, the evidence of Britto to the effect that he had approached these constructors towards the end of December 1954, before he wrote Ex. 10 the end of December 1954, before he wrote Ex. 10 could not be true and that, therefore, Ex. 10 itself is open to considerable suspicion. The learned trial Judge while dealing with this question at para 24 of his judgment, found that there was corroboration by the evidence of Dalvi and Doddanavar; he also made use of the evidence of P.W. 21 the Divisional P.W.D. Accountant to the effect that under the instructions of the Superintending Engineer, construction works could be started even though a work order had not been issued and the learned Judge took the view that the concerned works by Doddanavar and Dalvi might have been started under the oral instructions of the Superintending Engineer.

In support of this view, he also sought to make use of Ex. 91 which is a letter addressed to the Chief Engineer by the Superintending Engineer. Belgaum, and Ex. 92 which is a letter from the Superintending Engineer, Belgaum, to the Executive Engineer, Belgaum. It is contended by the learned Advocate for the appellant that this view of the learned trial Judge is wrong. It is pointed out that Ex. 91 which relates to the construction of the Police Lines and dated 6-1-1955 and Ex. 92 which relates to the construction of the Technical High Court and dated 15-1-1955 clearly show from their contents that the works to which they relate had not at all started by them. It is also urged that in respect of the construction works to which Exs. 91 and 92 relate, there is really no evidence adduced by the prosecution that, as a matter of fact, the Superintending Engineer had authorised the starting of the construction even before the works order was actually issued.

While there is some force in these contentions, still there is some material to show that it is not entirely impossible that britto had approached these contractors prior to his writing Ex. 10 to Denis. P.W. 14 Doddanavar has stated that it was most probably in December 1954 that Britto must have seen him. The evidence of P.W. 13 Dalvi goes even further, he stated that the Motor Transport Works at the Police Headquarters in Belgaum was in progress at the time when Britto had approached him. He also stated that the order for the Motor Transport works was received on 21-10-1954; he admitted that works had to be started about a week or so after receiving the work order from the P.W.D. From the recitals in Ex. 91 which is dated 6-1-1955, it would appear that Dalvi and Sons had been by then already constructing the workshop for the Police Department at Belgaum.

This evidence of P.W. 13 lends considerable support to Britto's version that he had seen these contractors, towards the end of 1954. It was pointed out that there is no reference either to P.W. 13 or P.W. 14, in Ex. 10. But, thought there is no mention of P.Ws. 13 or 14 in Ex. 10, it is clear from that letter that Britto was feeling the difficulty of being unable to supply tiles for the P.W.D. works on account of the want of the Executive Engineer's certificate. It is stated in Ex. 10 that a cheque (serial number of which is mentioned) on the Canara Bank for Rs. 1,000/- had been enclosed.

The receipt of this letter and the cheque has been acknowledged by Pinto and Co., in Ex. 27 which is a letter dated 10-1-1955. It is unlikely that Exs. 10 and 27 are falsely got up documents. Doddanavar and Dalvi are disinterested persons. Their evidence is not subject to any serious suspicion. Under these circumstances, it appears to us that the evidence of Britto to the effect that he had seen Doddanavar and Dalvi towards the end of December 1954 and that he then wrote Ex. 10, is not liable to be discarded as being false.

(6a) In regard to Britto having met the accused on 2-1-1955, it is no doubt true that there is only the evidence of Britto himself. As can be seen from Ex. 10, Britto was, at that time, very anxious to get the approval of the Executive Engineer for the use of his tiles in the P.W.D. works; therefore, it is not unlikely that he was desirous of seeing that Executive Engineer as soon as possible and had approached him on 2-1-1955. It was pointed out on behalf of the appellant that the date of this meeting has not been specifically mentioned in Ex. 23. It is no doubt true, that in Ex. 23 Britto has stated that he had seen the Executive Engineer in the beginning of January and that he did not remember the date.

But, from what is stated in the later portions of Ex. 23, it will be clear that it must have been on 2-1-1955 that Britto had met the accused. According to what he stated in Ex. 23, it was after he had seen the accused and the accused had told him that a test certificate from the Alipore Laboratory was necessary, that Britto went to Bombay to see Edward. It is stated in Ex. 23 that it was on 2-1-1955 that he left for Bombay for this purpose. When all these statements in Ex. 23 are altogether taken into consideration, much importance cannot be attached to Britto not having specifically stated in ex. 23 that it was on 2-1-1955 that he met the accused for the first time. The fact of Britto having gone to Bombay and met Edward on 3-1-1955 has been spoken to by P.W. 5 Edward Pinto.

From the evidence of P.W. 5, it is clear that he was not even aware of the understanding between Britto and Denis in regard to the payment of any bribe to the accused; Edward, certainly does not stand in the position of an accomplice. It was urged on behalf of the appellant that Edward was one of the partners in the firm manufacturing these tiles and that, therefore, he must be considered to be interested person. It may be, that as a partner of the firm, he was generally interested in the sale of Pinto tiles and was desirous of rendering any assistance which he could to Britto. But it should also be noted that Edward was in charge of the sales at Bombay and he was in no way concerned with the sales by Britto at Belgaum. There is no material on record which justifies any inference to the effect that Edward was so very much interested that he would go to the extent of deposing falsely in favour of Britto.

Under these circumstances, there is really no good reason as to why the evidence of P.W. 5 in regard to Britto having met him on 3-1-1955, should not be accepted. Support is also lent to the evidence of P.W. 5 by the certificate which has been marked Ex. X-2. It is dated 3-1-1955 and was obtained on that date by P.W. 5 from the Executive Engineer, Presidency Division, Bombay. That this certificate had been issued by the Executive Engineer, Presidency Division, is also made clear in the evidence of P.W. 21 Deshpande the P.W.D. Divisional Accountant who has identified the signature in Ex. X-2 as that of the Executive Engineer, Presidency Division.

Having assured Britto that he would be separately sending to the accused the certificate Ex. X-2 and other testimonials pertaining to Pinto tiles, Edward wrote Ex. 40 dated 4-1-1955(which is a letter requesting the accused to allow the use of Pinto tiles on all the P.D.W. works) and enclosing with it the certificate Ex. X-2 and a number of other testimonials. ('Though the actual date of receipt of Ex. 40 is in dispute, there cannot be any doubt that Ex. 40 was received in the accused's office, as could be seen from the evidence of P.W. 12 the P.W.D. Head Clerk). It must have been in consequence of Britto having seen Edward at Bombay on 3-1-1955 that Edward, realising the urgent necessity for the approval by the accused, wrote Ex. 40 on the very next day. In Ex. 14, which is a postal Inland letter dated 10-1-1955 written by Britto to Denis, it is stated that during the previous week Britto had been to Bombay to explain the whole situation to Edward.

This recital also lends support to the evidence of Britto that he had met P.W. 5 at Bombay on 3-1-1955 and had explained the difficulties to him. Under these circumstances, it appears to us that there cannot be any serious doubt about Brita having seen Edward at Bombay on 3-1-1955 for the purpose of explaining the difficulties to him, and to obtain from him such assistance as was possible with a view to get Pinto tiles approved by the Executive Engineer of belgaum. It was pointed out on behalf of the appellant that Britto had not mentioned to Edward about the accused having required to Edward about the accused having required the production of a certificate from the Alipore Laboratory; but it is seen that when Britto was questioned about it in the course of his cross-examination, he has explained by saying that he did not mention to Edward about the Alipore certificate, as he (Britto) thought that he would get other certificates from Bombay.

(6b) There is nothing surprising in Britto (who was anxious to secure the approval of the Executive Engineer as soon as possible) having seen the accused on 4-1-1955 and showing the accused the copy of the certificate of the Presidency Division Executive Engineer, and requesting the accused to give his approval for the use of Pinto tiles. In the course of the cross-examination of britto, it has been suggested (towards the end of para 23 of his deposition) that there is no mention in Ex. 23, it is seen it has been stated therein that immediately after reaching Belgaum on 4-1-1955, Britto had showed the certificate to the accused in the accused's office. It was suggested in the appellant that Britto's evidence to the effect that the accused wanted him to get his principals to meet the accused, is artificial and not believable.

But, the correspondence which has taken place between Britto, Edward and Denis, just within a few days after the 4th, does lend considerable support to Britto's evidence to the effect that the accused had desired to meet the principles of Britto. Britto has stated in the course of his evidence (Para 24 of his deposition) that after this meeting on 4-1-1955, he wrote to Bombay, to the effect that the accused wanted to see the principals. This letter written by Britto to Edward does not appear to have been available. But, that Britto must have written to Edward as stated by him, is made clear from Exs. 11 and 12 which have been written by Edward to Britto. Ex. 11 is dated 7-1-1955 and Ex. 12 is dated 8-1-1955. Both Exs. 11 and 12 purport to acknowledge the receipt of Britto's letter.

That Britto must have mentioned in his letter about his failure to obtain the accused's approval on the strength of the Presidency Executive Engineer's certificate, it clear from the recital in Ex. 11 to the effect that Edward was sorry to note that the certificate of the Presidency Division Executive Engineer was not of much use. That in his letter Britto must have requested Edward to go over to Belgaum, is made clear by Edward's excuse in Ex. 11 to the effect that under medical advice he was unable to leave Bombay. Edward has further stated in Ex. 11 that he was requesting Denis to fly over to Belgaum; it is seen from Ex. 11 that a copy of the letter had been sent to Denis. In Ex. 12, it is clearly stated that Edward had requested Denis to proceed to Belgaum on the 11th by plane and it is further stated that Denis would see the Engineer personally and fix up all the matters.

It was pointed out on behalf of the appellant that the reference in Ex. 12 was to an Engineer and it had not been specifically stated that it was the Executive Engineer that Denis had to meet. But, we do not think that in the context, the reference in Ex. 12 could have been to any Engineer other than the accused. Britto in his anxiety, that one of his principals should come and meet the accused, sent a telegram as per Ex. 13, on the morning of 10-1-1955 to Denis. On the same day he also wrote the letter Ex. 14 to Denis, confirming the wire and imploring Denis to go over to Belgaum for meeting the accused on the morning of 12-1-1955. Both Exs. 12 and 14 have been written on Postal Inland Letter paper and there cannot be any serious doubt about these letters having been written on the dates which they bear.

In the telegram as per Ex. 13 sent by Britto, it is stated that 'Government Orders' require the presence of Denis. In the course of his evidence, Britto explained that 'Government Order' was intended to refer to the accused. It is contended by Sri Ghaswala that this explanation of Britto is false and has been pit forward only with a view to implicate the accused. But, a reference to Ex. 14 will show that this explanation given by Britto is not an untrue one. In Ex. 14 which must have been written immediately alter the telegram was sent, Britto confirms having sent that telegram and he proceeds to State in that letter that the Executive Engineer desires to meet Denis personally on the 12th morning.

Exs. 13 and 14 considered together do corroborate Britto's evidence, not only on the point that he had met the accused on the 4th of January but also on the point that it had been arranged that Denis should meet the accused on the morning of 12th January. From the evidence of P.W. 9 Denis, it is seen that he did not get the letter Ex. 14, before he left Mangalore on the 11th. It is stated by Denis that he got Ex. 14 on the 14th of January after his return to Mangalore. It is argued on behalf of the appellant that when Britto knew from Edward's letter Ex. 12 that Denis had been requested to fly to Bengaum on the 11th, there was no need for Britto to have written Ex. 14 as late as on the 10th January and that, therefore, Ex. 14 should be viewed with suspicion. But, Britto has explained in the course of his evidence that he expected the letter to reach Denis before Denis left Mangalore.

Having regard to the circumstance that Britto must have been anxious that Denis should go over to Belgaum without fail and meet the accused on the 12th we do not consider that there is anything unnatural or suspicious in his having written Ex. 14, though it so happened that the letter did not reach. Denis before he left Mangalore on the 11th. The evidence of Britto and Denis to the effect that Denis went by plane from Mangalore to Belgaum on the 11th is supported by Ex. 15 which is a copy of the telegram sent to Britto by Denis from Mangalore on the 10th January intimating that Denis would be arriving at Belgaum on the next day by plane. It was on the next day, that is, on 12-1-1955 that both quested by Edward to go to Belgaum and help Britto and having actually arrived at Belgaum on the 11th of January, there is nothing improbable in Britto having explained to him the difficulties he was having and in both of them having subsequently met the accused on the 12th.

It was argued on behalf of the appellant that the evidence about Denis having straightway asked the accused as to why he was objecting to Pinto tiles, is very artificial. Having regard to the fact that Britto must have explained to Denis the difficulties he was having in regard to the use of the tiles, there is nothing strange in Denis having asked the accused without much preliminaries, as to why the accused was objecting to the use of Pinto tiles; on a consideration of the evidence of Britto and Denis, we do not think that there is anything that is artificial about the evidence of Britto and Denis, we do not think that there is anything that is artificial about the evidence relating to this meeting or the demand of Rs. 1,000/- by the accused. It is no doubt truth that in the course of his evidence Denis has sought to make it appear that he had not taken any active part in the alleged payment of Rs, 500/- by Britto subsequently on the same day.

An attempt has also been made in the evidence of Britto and Denis to make it appear that after they both came out of the house of the accused. Denis told Britto that the accused appeared to he a corrupt officer and that the complainant should try to create confidence and trap the accused. But it is hardly likely, in the circumstances, that Britto would have attempted to pay the sum of Rs. 500/- subsequently on the same day, without the consent of Denis. At para 20 of his evidence, Denis has stated that after Britto told Denis that he had paid Rs. 500/- to the accused Denis asked Britto whether the accused had given the certificate of approval and that Britto replied that the accused had promised to issue a circular permitting the use of Pinto tiles.

Ex. 16 lends some corroboration to this evidence of Denis. Ex. 16 was written on 14-1-1955, Ex. 16, Denis asks as to whether the Engineer informed the contractor and it is also suggested that Britto should meet the Engineer and ask him to issue the circular saying that Pinto tiles are approved. There has also been some evidence to show a favourable change of attitude on the part of the accused in regard to the use of Pinto tiles, after this meeting of 12-1-1955. Britto has stated that after this meeting he had met Contractor Doddanavar and informed him that the accused had no objection to the use of Pinto tiles.

That Britto had so informed Doddanavar, is corroborated by the evidence of P.W. 14 Doddanavar. Further, P.W. 14 also states that sometime thereafter when he asked the accused, the latter stated that Pinto tiles might be used. Having thus assured himself of the approval of the Executive Engineer,P.W. 14 asked Britto to supply the tiles. P.W. 14 asked Britto to supply the tiles. P.W. 14 states that Britto began on or about the 22nd of January 1955 to supply the tiles and completed the supply of 43,000 tiles, by about 22-2-1955.

From the answers given by P.W. 14 in the course of his cross-examination, it was pointed out on behalf of the appellant, that the entry dated 22-1.1955 in Doddanavar's account book showed hire having been paid to lorry No. 139 for Mangalore tiles and that it did not specifically state that they were Pinto tiles. But it has been explained later on, by p.W. 14, that after he agreed to purchase from Britto, he did not purchase tiles from anybody else and that in the entries, sometimes the same of Britto has been mentioned and sometimes it had not been mentioned.

P.W. 14 has also spoken to there being an entry dated 22-2-1955 in his accounts showing that Rs. 2000/- had been paid to Britto for having purchased Pinto tiles. Ex. 25 which is a letter dated 26-2-1955 written by Denis to Britto mentions the receipt of Britto's letter dated 22-2-1955 and a draft for Rs. 2000/- ; it is pointed out on behalf of the State that it is probable that this sum of Rs. 2,000/- could have been the same as that referred to in Doddanavar's account of 22nd February 1955.

Under these circumstances, there is no reason to doubt that contractor Doddanavar purchased 43,000 tiles from Britto, after assuring himself from the accused that these tiles had the accused's approval. A circular memo as per Ex. 32 dated 25-1-1955 was also issued by the accused to all the Deputy Engineers in his Division stating that in view of the test report of the college of Engineering. Guindy and the certificate of the Executive Engineer, Presidency Division, Bombay, there was no objection to the use of Pinto tiles of first class quality, in the Belgaum Division.

Ex. 54 which is the office copy of Ex. 32, has been initialled by the accused on 19-1-1955 which will be just a week after Britto and Denis had met him. The stand taken on behalf of the accused is that Ex. 54 was prepared, in the usual course, consequent on the receipt of Ex. 40 on 19-1-1955. From the evidence of the P.W. D. Head Clerk Katti (P.W. 12), it is seen that Ex. 40 bears the Executive Engineer's office seal dated 19-1-1955. The evidence of P.W. 5 Edward is to the effect that consequent on Britto having seen him at Bombay on 3-1-1955, he despatched Ex. 40 together with enclosures consisting of certificates, on the very next day, i.e., on 4-1-1955.

Ex. 40 also bears the date of 4-1-1955, Katti P.W. 12 is not able to say when exactly Ex. 40 was received in the office. But, when Edward had despatched this letter from Bombay on 4-1-1955, there is no reason why as in the usual course, this letter should not have reached the addressee within a day or two thereafter. It was argued on behalf of the appellant that in the absence of any documentary evidence produced by Edward to show that this letter had actually been posted from Bombay on 4-1-1955, there would always be the suspicion that Edward might have ante-dated the letter and may have posted it only much later.

It is no doubt true that P.W. 5 Edward has stated that apart from his word and the date on the letter, there is no record to show that Ex. 40 was posted on 4-1-1955. But, having regard to the anxiety on the part of Britto at that time and the urgency of the matter, it is not likely that Edward would have delayed the posting of this letter from Bombay. Nor are there circumstances which would justify any suspicion to the effect that Ex. 40 might have been deliberately ante-dated by P.W. 5.

On the other hand, on a consideration of the evidence of P.W. 12 in regard to the usual procedure that was being observed in respect of tappals, it is not wholly improbable that the accused after receiving Ex. 40 kept the same with him till Britto's principal Denis had met him, and then passed it on to the office. At para 5 of his deposition, Katti states that when tappet was received it was directly taken by the peon to the bungalow of the accused and that the accused after opening it in his residence and seeing the tappal, used to send it to the office.

Thereafter, P.W. 12 used to put his initials and inward it in the office registers either on the same day or on the next day. But Ex. 40 does not bear the initials of P.W. 12. It is possible as stated later on by P.W. 12, that the accused might have sent Ex. 40 direct to the Inward Clerk who was Katti's subordinate. Therefore, the possibility of the accused himself having kept Ex. 40 till the meeting with Denis was over and thereafter subsequently sent it to the office, cannot be ruled out, in the circumstances, as being improbable.

The resultant position is that, as can be seen from the evidence of Doddanavar and from the issue of the circular memo as per Ex. 32, the accused adopted a more favorable attitude towards Britto, subsequent to his having met Britto and Denis on 12-1-1955. Thereafter, the next meeting of the accused by Britto was on 4-8-1955. Britto states that as the accused sent for him, he went and met him. At this meeting, the accused is stated to have asked for the balance of Rs. 500/- and to have also threatened that if the same was not paid, he would ask for the removal from the Police Lines of the 43,000 titles which Britto had supplied.

It is pointed out on behalf of the appellant that Ex. 33 does not contain any reference either to this meeting of 4-5-1955 or to the alleged threat by the accused: it is contended that at para 32 of his judgment, the learned Special Judge has relied on conjectures for arriving at the conclusion that Britto must have met the accused on 4-2-1955 and the accused also must have held out a threat. It is no doubt true that there is no mention in Ex. 23 of this meeting or the alleged threat by the accused.

But, it is not necessary that every detail and every circumstance should have been mentioned by Britto in his complaint. There is sufficient material on record to show that Britto had met the accused on 4-3-1955 and was warned to pay the balance of Rs. 500/-. Ex. 13 is a letter dated 4-3-1955 written by Britto addressed to the accused requesting for a copy of the circular which had been issued in regard to Pinto tiles and also further requesting for a certificate that Pinto tiles are satisfactory for being used in P.W.D. works.

It was in response to this request that a copy of the circular memo, dated 25-1-1955(Ex. 32) was forwarded to Britto, as can be seen from the endorsement dated 14-2-1955 at the bottom of Ex. 32. In the course of his examination under Section 342 of the Cr.P.C., the accused has admitted while answering question No. 11, that Britto saw him on or about 4th February 1955 and gave an application requesting for being supplied with a copy of the 'no objection' certificate and Britto also wanted the accused to issue a certificate of satisfaction regarding Pinto tiles and that he declined to do so. (That this application is no other than Britto's letter Ex. 13 is clear from the next question put to the accused i.e., question No. 12). On the same date, i.e. on 4-2-1955, Britto has written to Denis the postal Inland letter Ex. 17 in which Britto has written as follows:

'The Began Engineer (Gandhi) sent for me. He told me 'you have not fulfilled your promise' and he wants the balance amount immediately.'

Britto has also further written in that letter that he cannot get more orders from other contractors 'because of Gandhi's difficulty'. In view of the admission made by the accused in the course of his answer to question No. 11, there cannot be any doubt that Britto must have met the accused on 4-2-1955. The letter Ex. 17 lends support to Britto's evidence to the effect that at that meeting on 4-2-1955, the accused had made a demand for the balance.

There would be nothing improbable if the accused had also offered a threat to Britto, to emphasise the consequences of not paying the balance of Rs. 500/-. It was urged on behalf of the appellant that as a circular as per Ex. 32 had already been issued by then, the accused was not in a position to take any effective action in respect of the tiles which may have been ordered by the P.W.D. contractors.

But the mere fact that the accused could not have, in the regular course, directly ordered the removal of the title does not necessarily lead to the conclusion that such a threat could not have been held out by the accused; having regard to the official position which the accused had, it is most unlikely that the P.W.D. contractors would either disregard his inclinations or give encouragement to anybody who had incurred his displeasure. Britto then met Denis at the Belgaum aerodrome on the 20th of February, when Denis was on his way to Bombay.

The telegram as per Ex. 19 dated 12-20-1995 probabilises this meeting at the aerodrome. Both Britto and Denis state in their evidence that Britto informed Denis at the aerodrome about the demand by the accused for a further amount of Rs. 500/- and that the accused was harassing Britto. After Denis returned to Mangalore from Bombay he wrote the letter Ex. 25 dated 26-2-1955. In this letter, Denis asks as to what had happened to the Engineer's request and as to whether the Engineer would be useful in securing further orders; Denis also asks Britto as to what remuneration he proposes. Again, in Ex. 33 which is another letter poses. Again, in Ex. 33 which is another letter dated 4-3-1955 and written by Denis to Britto it is stated as follows :

'We had promised Rs. 250/- but he was demanding Rs. 500/- any way we leave this matter to you.'

Both these letters had been produced by Britto at the time when he made the complaint as per Ex. 23 and have been initialled by the Magistrate. It is contended on behalf of the appellant, that these letters do not contain any specific reference to the accused. But, when they are considered along with the evidence of Britto and Denis, there cannot be much doubt that the portions above referred to in those two letters, related only to the accused. While matters stood thus, Britto went and saw the accused on 31-3-1955.

It is stated in Ex. 23 that it was at about 8 or 9 O'clock in the morning on 31-3-1955 that he went and gave a bribe of the remaining Rs. 500/- to the accused at his bungalow. Britto states in his evidence that the accused was happy over this and asked Britto as to why he was not putting a quotation for 5000 tiles required by the P.W. D. for the Rest House at Chikodi. Britto states that as suggested by the accused, he gave a quotation as per Ex. 20 for the supply of tiles at the rate of Rs. 265/- per thousand tiles.

From the evidence of P.W. 16 Cutting, it is seen that Ex. 20 was given to him by Britto on 31-3-1955. It was contended on behalf of the appellant that it is not stated in Ex. 23 that Ex. 20 had been given in the office, but that from the recitals in Ex. 23 it appears as if it had been given to the accused himself on the morning of that date at the accused's bungalow. But on a persual of the original complaint of Britto which is in Kanada, we find that it is stated therein that Britto went to the office of the Executive Engineer and gave the quotation.

It is also further seen from the evidence of P.W. 16 that even before Britto's question as per Ex. 20 was received there had already been received two other quotations Nos. 61 and 62, one from Dodanavar and the other from one Achamani. In Ex. 61 the rate quoted was Rs. 325/- per thousand tiles; the rate quoted in Ex. 62 was Rs. 278/- per thousand tiles. After these two quotations Exs. 61 and 62 had been received, Cutino as instructed and 62 had been received, Cutino as instructed by the Accountant, put them both before the Executive Engineer and told him that these two quotations had been received and sought his orders.

P.W. 16 states that the accused asked him to wait and see if some more quotations would be received. It was thereafter that the quotation as per Ex. 20 from Britto was received. Then, on being told by P.W. 16 that this was the lowed quotation, the accused accepted the same and on the same date informed Britto as per ex. 21, to supply five thousand tiles to the Overseer of the P.W. D. Store at Chikodi.

It is argued on behalf of the appellant that the accused did no more than to accept the lowest quotation. It is no doubt true that out of the three quotations received, Britto's was the lowest. But, the fact remains that though two quotations had already been received and the orders of the accused yet the accused asked P.W. 16 to wait for some more them; it was thereafter, that Britto's quotation which was slightly lower than that of Achamani was received and subsequently accepted.

The last minute quotation by Britto containing a rate lower than that mentioned in the two earlier tenders, does, to some extent, lend probability to Britto's evidence to the effect that the accused had told him earlier that day to put in a quotation at that rate. It was argued on behalf of the appellant that P.W. 16 Cutino had not been examined by the Police and that P.W. 16 may not be stating correctly when he says that Ex. 20 was received after the other two quotations had come in. But nothing has been elicited in the cross-examination of P.W. 16 to show that his evidence in regard to these matters is either incorrect or not true.

In the course of his examination under S. 342 of the Cr.P.C., the accused has not stated anything against P.W. 16, apart from including him amongst those witnesses who according to the accused, may have deposed under Police pressure. Under these circumstances it appears to us that it is not improbable that Britto had met the accused earlier on the morning of 31-3-1955.

(6c) Though the learned trial Judge was unable to hold that the receipt of the bribe of Rs. 500/- on 12-1-1955 and a similar amount on 31-3-1955 had been established beyond all reasonable doubt, he refused to accept the contention on behalf of the accused that Britto and Denis were thoroughly unreliable and completely untrustworthy witnesses. It is no doubt true that as pointed out on behalf of the appellant, that some of the letters which had passed in the correspondence between Britto and Edward and Denis, have not been produced. But from the evidence of Edward and also from the evidence of Denis, it appears that these letters are not available. Not being letters of a strictly business nature like those pertaining to orders placed or things supplied, etc.,) it is not improbable that no particular case was taken to preserve them.

There are no good grounds to support the contention that they might have been suppressed. There is no impediment to use being made of the letters which have been exhibited and proved, in respect of matters clearly stated therein and can, in the light of the oral evidence, be properly understood as being related to the transactions relevant for the purpose of the case. Nothing has been elicited in the cross-examination of Britto, Edward and Denis, from which a justifiable inference may be drawn to the effect that these people would have gone to the extent of forging the letters which have now been exhibited.

There are also no good grounds to suppose that Denis and Britto have tried to make use of letters written in some other connection, to falsely implicate the accused. The discussion in the above paras, of the evidence in regard to the events ending with 31-3-1955, shows that the probabilities are very much in favour of Britto's account being substantially true and therefore he certainly cannot be characterised as a thoroughly untruthful and unreliable witness as contended by Sri Ghaswala.

(7) Coming now to the events of 4-4-1955 and 7-4-1955, it has been pointed out on behalf of the State that Britto is not an accomplice, in view of the fact he had no real intention of giving the bribe of Rs. 250/- but, did so only with a view to trap the accused and after informing the Anti-Corruption Police about it. It is contended that as Britto has not participated in the criminality of the accused in the receipt of the bribe of Rs. 250/-, he is not an accomplice so far as the offence which is the subject-matter of the charge in Special Case No. 3, of 1956, is concerned. In support of this contention, reliance has been placed on the following observations of the Supreme Court in : 1958CriLJ976 :

'The correct rule is this : if any of the witnesses are accomplices who are particeps criminals in respect of the actual crime charged, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case, and in a proper case, the Court may even look for independent corroboration before convicting the accused person.'

The learned Special Judge treated the evidence of Britto as being in the nature of the evidence of an accomplice and he found that there was abundant corroboration for the evidence of Britto to the effect that the accused had received the bribe of Rs. 250/-.

Having regard to the fact that Britto had, according to his own statements, given bribes to the accused on the two previous occasions, it appears to be proper to require the same degree of corroboration for his evidence in regard to the alleged bribe of Rs. 250/-), as in the case of an accomplice. In Rameshwar v. State of Rajasthan, : 1952CriLJ547 , the Supreme Court has, with reference to S. 133 of the Indian Evidence Act and Illustration (b) to S. 114, considered the question as to whether the testimony of an accomplice needs corroboration and if so the nature and the extent of the corroboration required. The rule in regard to such corroboration has been stated at page 57, as follows :

'The rule which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispose with it, must be present to the mind of the Judge, and in jury cases, must find place in the charge, before a conviction without corroboration can be sustained..............The only rule of law is that this rule of prudence must be present to the mind of the Judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand.'

As regards the nature and the extent of the corroboration required, it is stated by his Lordship Bose J. in the abovesaid case, that it would be impossible and dangerous to formulate the kind of evidence which should, or would, be regarded as corroboration, and that the nature and the extent must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offences charged. The following rules in regard to the nature and the extent of the corroboration as expounded by Lord Reading of the corroboration as expounded by Lord Reading in Baskerville's case were referred to with approval, at pages 57 and 59 :

'First, it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain conviction....................

Secondly, the independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime. This does not mean that the corroboration as to identity must extend to all the circumstances necessary to identify the accused with the offence. Again, all that is necessary is that there should be independent evidence which will make it reasonably safe to believe the witness' story that the accused was the one, or among those, who committed the offence.

* * * * Thirdly, the corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another. But of course the circumstances may be such as to make it safe to dispense with the necessity of corroboration and in those special circumstances a conviction so based would not be illegal.

* * * * Fourthly, the corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime...................................'

In the later Supreme Court decision, i.e., : 1958CriLJ976 , reference has been made to : 1952CriLJ547 in regard to the question as to how the evidence of an accomplice has to be treated, and the nature and extent of corroboration required.

(7a) The direct evidence that is available in regard to the accused's demand on 4-4-1955 for a fresh bribe and the acceptance on 7-4-1955 of Rs. 250/- as bribe, is that of Britto only. The fact that the accused had made such a demand on 4-4-1955 and that after some discussion, it had been agreed that Rs. 250/- should be paid to him by Britto, is mentioned in Ex. 23. Both in Ex. 23 and in his evidence, Britto states that it was with a view to request the accused to expedite the payment of the bill Ex. 28, that he had been to see the accused on the morning of 4-4-1955. Britto had been directed as per Ex. 21, to supply 5,000 tiles to the Overseer of the P.W.D. Stores at Chikodi on the 31st March and to send his bill to the executive Engineer's office at Belgaum. As per Ex. 22, Britto had asked his agent at Chikodi on that very day to supply the tiles to the P.W.D. Rest House at Chikodi.

It is seen from Ex. 64 and the evidence of P.W. 16 Cutino, that the P.W.D. Overseer at Chikodi had been directed by a telegram issued by the accused on 31-3-1955, to take delivery of the five thousand tiles from Britto's agent at Chikodi. Therefore, there is really nothing very improbable in Britto having submitted the bill for these tiles, on 4-4-1955. This bill actually bears the date of 4-4-1955 and the officials in the Executive Engineer's office have given it a number on 6-4-1955(as cap be seen from the writing within the red ink circle on Ex. 23). P.W. 21 the P.W.D. Divisional Accountant has stated that this bill was scrutinised by them on 11-5-1955 and actual payment of the bill was made on 1-7-1955.

On the strength of the evidence of P.W. 12 Katti, to the effect that on week days the office hours of work were from 11 A.M. to 6. P.M., it was contended that Britto's evidence to the effect that he had already given the bill Ex. 28 in the office by the time he went and saw the accused in the latter's bungalow on the morning of 4-4-1955 should be disbelieved; the argument is that by the time Britto saw the accused, the office could not have been open and that, therefore, Ex. 28 could not have been given given at the office, by then. The learned Special Judge did not attach much importance to this contention, taking the view that office clerks often times come in the morning to the office and that, in any event, the exact time at which this bill was given would not make much difference.

It is argued before us that the learned trial Judge was not right in taking such a view of the matter. But it has been pointed out on behalf of the State that in the course of his cross-examination Britto has not been specifically questioned to explain as to how he could have given this bill to the office of the Executive Engineer during the early part of the morning, when the working hours of the office commenced only after 11 A.M. Further, P.W. 12 Katti cannot be understood as having said that there was an inflexible rule to the effect that the working hours of the office were from 11 A.M. to 6 P.M. on the week days. If was also pointed out on behalf of the State that the official year having ended with the 31st of March, it was no unlikely that some of the staff of the Executive Engineer's Office may have been attending the office in the morning, in connection with the work relating to the closing of accounts of the previous official year.

That the officials of the Executive Engineer's office were busy at that time with the year ending accounts, is also clear from the evidence of P.W. 16 Cutino. Under these circumstances, it appears to us, that when it has not been suggested to Britto or Katti during their cross-examination that the office of the Executive Engineer could not have been open on the morning of 4-4-1955, Britto's evidence to the effect that he gave Ex. 29 in the office on the morning of 4-4-1955, cannot be said to be impossible or false. It was argued on behalf of the appellant that it is most improbable that the accused could have held out any hope of placing a further order for fifteen thousand tiles, because, it was not really within the competence of the Executive Engineer to place such a order.

In this connection, reliance has been placed on the observations of the Supreme Court in the case of Madan Mohan Singh v. State of U. P., : AIR1954SC637 , to the effect that whether any motive for payment or acceptance of bribe existed at all is a relevant and material fact for consideration, and it is urged on behalf of the appellant that when it was not within the competence of the accused to place an order for fifteen thousand tiles, there would be no motive at all for the payment or acceptance of the bribe. That about fifteen thousand tiles were required at that time, is spoken to by P.W. 16 Cutino.

But the argument on behalf of the appellant is that as some tenders had already been received in regard to the supply of these tiles, no order for the supply of fifteen thousand tiles could have been given by the accused to Britto as the latter was not one of the persons that had already put in the tenders. In the course of his statement under S. 342 of the Cr.P.C., the accused has stated that in case he had to reject the tenders and place an order with a person who had not given a tender, then the concurrence of the Collector had to be obtained and that therefore, it was not within his power to give this order to Britto. Though ordinarily the lowest of the tenders may be accepted, it is seen from the evidence of P.W. 16 that the Executive Engineer is the final authority to accept or reject the tenders.

The P.W.D. Divisional Accountant P.W. 21 also has stated at para 26 of his deposition that the Executive Engineer is the sole authority to deal with the tenders in any manner be likes. From para 13 of the evidence of the Superintending Engineer P.W. 2, it is seen that it was possible for the Executive Engineer to reject the tenders after recording his reasons for so doing, and give the orders or the contract to an outsider after obtaining the concurrence of the Collector. Subject to following this procedure, it was possible for the accused to have placed an order with Britto for the supply of the fifteen thousand tiles, (at the rate of Rs. 265/- per thousand tiles) would be Rs. 3,975/- ; this would be within the limit up to which an Executive Engineer can make purchases. (At para 11 of his deposition, P.W. 2 the Superintending Engineer has stated that an Executive Engineer can make purchases up to Rs. 5,000/-)

Therefore, it would not be correct to say that it was not within the competence of the accused to have placed an order with Britto, for the fifteen thousand tiles. It was next contended on behalf of the appellant that there is nothing in the prosecution evidence to show that the accused had done any act either towards expecting the payment of the bill as per Ex. 28, or the placing of an order with Britto for the supply of fifteen thousand tiles. But, no such act was necessary to constitute an offence under S. 161 of the I.P.C. In a decision reported in Indur Dayaldas Advani v. State of Bombay, : AIR1952Bom58 , it was stated as follows by his Lordship Chainaji j. :

'It is, therefore, not necessary in order to constitute an offence under S. 161 that the act for doing which the bribe is given should actually be performed. It is sufficient if a representation is made that it has been or that it will be performed and a public servant, who obtains a bribe by making such representation, will, be guilty of the offence punishable under this section, even if he had or has no intention to perform and has not performed or does not actually perform that act.'

It has not been shown to us, that there is any good ground for taking a view different from that taken by his Lordship Chainani J. : we are in respectful agreement with the above view of the learned Judge. We do not find anything in the circumstances of the case, which would make inherently improbable the evidence of Britto to the effect that the accused demanded on 4-4-1955, the bribe from Britto. As pointed out by the learned Advocate-General on behalf of the State, when it is proved by the prosecution that the accused has accepted or obtained any gratification (other than legal remuneration), it is not necessary to prove the service (or the thing to be done) for which the gratification was given; because, under sub-s.(1) of S.. 4 of the Prevention of Corruption Act, it should be presumed unless the contrary's proved that the accused accepted or obtained that gratification as a motive or reward such as is mentioned in S. 161, I.P.C.

(8) The currency notes of the value of Rs. 250/- and the serial numbers of which had been noted in the presence of the panchas, were taken by Britto for being paid to the accused when he went to the bungalow of the accused on the afternoon of 7-4-1955. It was these very notices that were subsequently produced by the accused from his pyjama pocket. The fact that he produced these notices, is admitted by the accused in his answer to question No. 26, in the course of his examination under S. 342 of the Cri. P.C. It is argued on behalf of the appellant that the prosecution has not established 'acceptance' of the bribe, in the sense that there was a consenting mind on the part of the accused; it is argued that it is not sufficient if there is merely passing of the money into the hands of the accused but that it should be shown that he took it with a 'consenting mind.'

While considering this contention, it has to be remembered that this is not one of those cases in which marked money was found in the outside pocket of a person when he happened to be in a crowd or in the company of others and there were ample opportunities for the money being put into his pocket, without his having been aware of the same. The evidence of Britto is to the effect that he banded over this amount of Rs. 250/- to the accused and that the accused took the money and kept it with him. If this evidence of Britto is found to be worthy of acceptance, there cannot be any doubt of the accused having taken the money with a 'consenting mind.' In the course of his examination under S. 342 of the Cr.P.C., the accused has stated in his answer to question No. 28, that Britto had seen him and was with him for about one or two minutes.

The explanation given by the accused in regard to this bundle of currency notes which he produced from his pyjama pocket is, that immediately after Britto left when he locked up some of the files lying on his table, he found a bundle of currency notes, and thinking that it was his own money which he had withdrawn from the Bank and had misplaced be took the same and went into the dining room. These two rival version in regard to the exact circumstances under which the accused came to be in possession of these currency notes, had to be taken into consideration for the purpose of finding out whether the accused had accepted gratification other than legal remuneration.

From a perusal of the judgment of the Supreme Court in Shiv Bahadur Singh v. State of Vindhya Pradesh, : 1954CriLJ910 , it will be clear that such rival versions, (one of the prosecution and the other of the accused) will have to be taken into consideration, in finding out whether the money was received as a bribe. It cannot be said that the learned trial judge was in error in having considered the probabilities of the two rival versions put forward before him. He found that Brito's version about his having handed over this money to the accused was proved and he rejected the version of the accused; while reaching such a conclusion the learned Judge had also kept in mind the rule that as a matter of purdence, Britto's evidence required corroboration. As a matter of fact at para 44 of his judgment, the Special Judge had stated that there is abundant corroboration for the evidence of Britto that the handed over this money to the accused.

It has been contended on behalf of the appellant that Britto's evidence about his having handed over this money to accused is not satisfactory, that such corroboration as may be available is not of that nature as is required by law, that the probabilities are that the bundle of currency notes must have been planted by Britto amongst the files on the table of the accused and that there is no good reason to doubt the explanation of the accused that he must have taken it from amongst the files on his table, under a genuine belief that it was his own money which he had got from the Bank.

(8a) The accused has stated that Britto had already been seated in the office by the time the accused came from inside after changing his clothes. The suggestion is that by the time the accused came into the office room, Britto must have kept the currency notes amongst the files on the table. But from the evidence of Britto, at para 12 of his deposition, it is seen that when he went inside the bungalow, the accused was at his desk; in the course of his cross-examination, he has stated at para 34 of his deposition, that on going inside, the accused asked him whether he had brought the money. The evidence of Britto to the effect that the accused was at his desk when Britto entered the office room, is corroborated by the evidence of P.W. 7 peon Rahumane.

P.W. 7 has stated that at the time when britto came, the accused was in his office room looking into the office table, and that as directed by the accused, he took Britto into the office room. From the evidence of P.W. 12 Katti, it is seen that the tappet used to be taken directly to the bungalow of the accused and that the accused used to open the tappet in his residence and then send it on to the office. That morning, the accused had gone out with the Superintending Engineer; that day evening he had planned to leave Belganum. Under these circumstances, there is nothing unusual if the accused soon after his return to his residence from outside, was engaged at that time in looking into the tappals at his table, as stated by P.W. 7 Rahumane. In the course of the cross-examination of P.W. 7, it was elicited that he had not stated before the Police that the accused after changing his clothes went into the office room; it was elicited that in his statement under S. 164 of the Cr.P.C. P.W. 7 had not stated about the accused having gone and sat in the office room after changing his clothes.

On the strength of this, it has been contended that the evidence of Rahumane to the effect that when Britto came into his office room, the accused was sitting at his desk looking into the tappal, should not be believed. We are unable to agree with this contention. The omissions are all in respect of minor details to which importance has been attributed in the light of the subsequent defence of the accused; nor can these omissions in the statement before the Police he said to be contradictions (for the purposes of S. 162 of Criminal Procedure Code). In the light of the majority judgment in a recent decision of the Supreme Court reported in Thasildar Singh v. State of U. P., : 1959CriLJ1231 , these omissions are not such as to affect the evidence given in Court by Rahumane.

The evidence of Rahumane substantially corroborates the statement of Britto to the effect that at the time when he entered the office room of the accused, the accused was at his desk. It has been next argued on behalf of the appellant, that even if the accused was already in the office room by the time Britto went in, there is still the possibility of Britto having planted the bundle of currency notes in the midst of the files on the table, without the accused having been aware of it. That this interview between Britto and the accused was over within a very short time, is clear from the evidence in the case. From what is stated by Britto in the course of his cross-examination (at para 34 of his deposition), it is seen that this meeting was over within about five minutes.

The accused himself states in course of his answer to question No. 28 while being examined under S. 342 of the Cr.P.C., that Britto had seen him for only one or two minutes. It is too much to suppose, that within that short time, Britto could have planted the bundle of currency notes amongst the files on the table, without the same coming to the notice of the accused. It was argued by Sri Ghaswala that there was a conflict between the evidence of Britto and that of P.W. 17. Head Constable Bilgi, in view of the fact that while P.W. 17 stated that on Britto returning from the bungalow of the accused informed that the accused had kept the currency notes in his Pyjama pocket, Britto states in his evidence that he merely said that he had handed over the notes to the accused.

When according to Britto himself, the information that he gave was only to the effect that he handed over the currency notes to the accused, it is clear that P.W. 17's evidence on this point must be due to his not having properly understood what Britto said, in that moment of hurry. Further, it is also likely that P.W. 17's impression of what Britto had stated, may have become coloured by the subsequent fact of the production of the currency notes from the pyjama pocket of the accused. In view of these probabilities, much importance cannot be attached to this contention; what is really more important is that Britto had clearly stated that the currency notes had been handed over to the accused, wherever it may be that the accused kept it subsequently.

If really Britto had not handed over the currency notes to the accused, but surreptitiously planted them amongst the files on the table, he would have led the members of the raiding party, as soon as they entered the accused's bungalow, to the table; but, that is not what he did; the evidence in the case shows that immediately on entering the accused's bungalow, the raiding party following Rahumane, proceeded directly to the dining from where the accused was in the company of his children. The conduct of Britto in not having led the raiding party to the table, also to some extent, negatives the probability of Britto having planted the currency notes amongst the files on the table.

The accused did not tell either P.W. 2 Sri Pandit the Superintending Engineer or P.W. 10 Sri Ranade the Collector that he had picked the currency notes from amongst the files on his table. If the accused had picked up the currency notes from amongst the files on his table, under a mistaken impression that it was his money and had really not accepted it from Britto, it is reasonable to expect that the accused would naturally have given such an explanation when he was questioned by P.Ws. 2 and 10 as to how he came to be in possession of those currency notes.

(8b) From the evidence of P.W. 22 P. P. Naik the Police Inspector of the Anti-Corruption Branch it is seen that though the accused was informed about the allegations against him and was told to produce the bribe amount which he had received just then from Britto, the accused kept silent and did not show any sign of producing the same. Then in consultation with P. P. Nail, the Deputy Superintendent Sri Mulla called the Superintending Engineer P.W. 2. From the evidence of P.W. 2, it is seen that though the Police officer requested the accused to produce the amount if he had the same with him, the accused remained silent. Thereafter. At the request of P. P. Naik P.W. 2 informed the accused that if the accused had the money no purpose would be served by the accused refusing to hand it over, and that thereupon the accused took the money from out of his pyjama pocket and then gave it to the Police Officer.

The evidence of p. W. 6 Chitanand, who was a Senior Probation Officer, also shows that though asked many times to produce the money, the accused did not produce it for 10 or 15 minutes. Soon after the accused took out the money from his pyjama pocket and handed it over to the Police, P.W. 10 Sri Ranade, also came. P. Ws. 2 and 10 verified the numbers of the currency notes and found that they tallied with those which had been mentioned in the panchanama. In spite of all this having taken place, the accused had not offered any explanation as to how he had come to be in possession of these currency notes. Sri Ghaswala stated in the course of his arguments that the accused was not bound to offer any explanation. It is true that he was not under any obligation to offer any explanation; but the conduct of a person who had innocently come into possession of these notes would have been to state as to how the currency notes came to be in his possession.

From the evidence of P.Ws. 2 and 10, it is seen that in consultation with each other, they thought that the accused being a District Officer, the matter was a very grave one and that in case the accused had any explanation to offer, he should be given an opportunity to do so. Then, they both took the accused to the adjacent drawing room and there asked the accused as to whether he had anything to say against the Police or any explanation to offer or anything to say. It is also admitted by the accused in his answer to question No. 28 during his examination under S. 342 of the Cr.P.C., that P. Ws. 2 and 10 had taken him to the drawing room and asked him as to whether he had any explanation to offer and whether he had to say anything against the Police.

It is also clear from their evidence that nobody apart from these three, was present in the drawing room at the time. The accused, after sometime, stated that it was a frame up and he also further said that he had drawn this money from the Bank on the 4th April. In his answer to question No. 28 in the course of his examination under S. 342 of the Cr.P.C., the accused has admitted having told them that the amount of Rs. 250/- which he produced was his won money which he had withdrawn from the Bank on 4-4-1955. This is clearly a false explanation. There is some controversy as to whether the money was produced by the accused only after being repeatedly questioned and also as to whether the explanation that he had got the money from the Bank on the 4th was given by him only after a pointed suggestion was made by P.W. 10.

Even if those controversial matters are left out of consideration, the fact still remains that the admitted explanation given by the accused, is clearly a false one. This money (which consisted of currency notes the numbers of which had already been noted before in the panchanama), could not have been the money which the accused had got from the Bank on the 4th. Though in his statement before the Court the accused has stated that he picked up the currency notes from his table thinking that it was the money which he had got from the Bank on the 4th April, it is clear both from the evidence of P.Ws. 2 and 10 and from the answers given by the accused himself in the course of his examination under S. 342,. Cr.P.C. that he did not at that time tell P.Ws. 2 and 10 either he had picked up this money from the table or that he had picked it up under a mistaken impression.

(8c) It was argued on behalf of the appellant that the Court should hesitate to place reliance on the evidence of P.W. 2 Sri Pandit on the ground that there are contradictions between his evidence before the Court and his statements before the Police. From what is stated at para 45 of the judgment of the trial Court, it appears that a similar contention had been advanced before the learned Special judge also; the learned Special Judge explains away this contention by saying that as P.W. 2 was at that time in a hurry to leave for Kolhapur, it is possible that the statements made by him before the Police did not leave any impressions on him. However, toward the end of the said para, the learned Special Judge observes that even if the statements of P.W. 2 were to be left out of account, there is still the evidence of P.W. 10 as against the accused.

It has been contended on behalf of the State that having regard to the way in which P.W. 2 has been questioned in regard to his statements before the Police, no real contradictions have been established by the cross-examination and that the learned Special Judge should not have hesitated to place full reliance on the evidence of P.W. 2. During his cross-examination, P.W. 2 has been questioned as to what the had stated before the Police in regard to a number of matters; the answers of P.W. 2, to most of these questions, were to the effect that he did not remember, P.W. 2 was not confronted with these particular portions of his statement before the Police, with which it was intended to contradict him; nor was his attention drawn to any such specific portions of his statements made before the Police. (We may also observe in passing that this was the procedure which has been adopted in regard to other witnesses also when they were questioned about statements made by them before the Police, except in a few cases, for example, in the case of P.W. 14 at para 6 of his deposition, wherein it is recorded that the statement made by the witness before the Police was read over to the witness).

The procedure that has to be followed under S. 145 of the Indian Evidence Act for the purpose of contradicting the witness by his statements before the Police has been explained in the majority judgment of the Supreme Court in : 1959CriLJ1231 ; such a procedure has not been followed in the present case. When the Investigating Officer P.W. 2 was in the box, a copy of the notes prepared from memory of what P.W. 2 had stated before the Investigating Officer, was got exhibited by the defence counsel and was marked Ex. P. Making any use of such a document would offend the provisions of S. 162 of the Cr. P.C.

The record of the case does not disclose any portion of the writing in Ex. 9, having been confronted to P.W. 2. When we asked the learned Advocate for the appellant as to how this document was admissible, in explained that this was got admitted admissible, he explained that this was got admitted only with a view to show that P.W. 2's examination at the stage of investigation could not have been hurried or incomplete as sought to be made out by the prosecution and that P.W. 2 had been examined by the Investigating Officer at some length. Whatever the explanation may be, there cannot be any doubt that Ex. P. is inadmissible in evidence, by reason of S. 162 of the Cr.P.C. It is not proper to doubt the evidence given by P.W. 2 on the ground of some supposed contradictions in his statement before the Police. P.W. 2 was the official superior of the accused and there could not have been any reason for him to have acted adversely to the interests of the accused. In his statement under S. 342 of the Cr.P.C., the accused also does not say that P.W. 2 was not well disposed towards him. Under these circumstances, we do not find any good ground either to doubt the evidence of P.W. 2 or not to place reliance thereon.

(8d) In regard to P.W. 10, it was argued that he was in the same position as a police officer, as he has got certain powers of control over the police officer, as he has got certain powers of control over the police, under the provisions of the Bombay Police Act, 1951. We cannot accept this contention. Merely because he is vested with some powers of control over the police, in his capacity as a District Magistrate, it cannot be said either that he is a police officer or is in the same position as a police officer. Relying on the observations made by the Supreme Court in Shiv Bahadur Singh's case, : 1954CriLJ910 , in regard to the undesirability of Magistrates participating in such raids, it was contended that the entire evidence of P.W. 10 is liable to be excluded; it was also further contended that, in any event, the evidence of P.W. 10, at least in so far as it relates to the statements made to him by the accused, should be excluded from consideration as those statements have not been recorded in accordance with S. 164 of the Cr.P.C.

But, it has to be remembered that their Lordships of the Supreme Court were making the said observations, in that case, only in connection with the participation by the judicial Magistrate. Shanti Lal Ahuja who was an Additional District Magistrate, was a member of the judiciary. But, the position of an executive Magistrate is different from that of a regular Magistrate who discharges only judicial functions. This aspect of the case has been considered by the Supreme Court in the alter decision of : 1958CriLJ976 , where it has been pointed out that the principles on which the employment of Magistrates as witnesses of police traps has been condemned, have hardly any application where the Magistrate as witnesses of police traps has been condemned, have hardly any application where the Magistrates concerned are executive Magistrates who perform no judicial functions.

In the same case, after making reference to the earlier decision in Shiv Bahadur Singh's case, : 1954CriLJ910 , the Supreme Court has stated that the inexpedience of employing Magistrates as trap witnesses cannot be exalted into an inflexible rule of total rejection of their evidence. In view of P.W. 10 being an executive Magistrate and his not having taken any part in the raid itself, there is no justification for the total exclusion of his entire evidence. The observations made by the Supreme Court in Shiv Bahadur Singh's case. : 1954CriLJ910 in regard to the exclusion of the Magistrate's evidence about statements made to him and not recorded in accordance with S. 164 of the Cr.P.C. have been made, in the context of the circumstance that Shanti Lal Ahuja was a judicial Magistrate.

It appears to us, with very great respect that it may not be correct to take the view that in Shiv Bahadur Singh's case. : 1954CriLJ910 , it was intended to lay down as an inflexible rule that evidence of such statements made to Magistrate and not recorded under S. 164 of the Cr. P.C., should be excluded irrespective of whether the Magistrate was a judicial Magistrate or not and without reference to the circumstances under which the statements were made. This view also gains some strength from the fact that in the later decision of State of Madras v. Vaidyanatha Iyer. : 1958CriLJ232 , the Supreme Court took into consideration the statements which had been made by the accused to the Magistrate, who was P.W. 13 in that case even though those statements were oral ones and not statements recorded in accordance with S. 164 of the Cr.P.C. In the present case, the official position of P.W. 10 is primarily that of the District Collector; though he is an executive Magistrate, he performs no judicial functions. His presence had not been required for the purpose of any statement being recorded in his capacity as a District Magistrate. After the trap was successful, having regard to the fact that the accused occupied the position of a District Officer, the police by way of abundant caution, requested P.W. 10 who was the Collector of the District to come to the bungalow of the accused. From the evidence of P.Ws. 2 and 10, it is clear beyond all doubt that it was only with a view to afford an opportunity to the accused to offer any explanation which he may have in the matter or to say anything that he may desire against the police, that they took him aside into a separate room and questioned him. Under these circumstances, that evidence of P.W. 10 in regard to the statements made by the accused, would nut become inadmissible on the ground that they were not recorded under S. 164 of the Cr.P.C. In any event, there cannot be any doubt that the evidence of P.W. 2 in regard to such statements, will be clearly admissible. In Shiv Bahadur Singh's case, : 1954CriLJ910 , the Supreme Court has stated as follows at pages 333 and 334 :

'It has however to be observed that every statement made to a person assisting the police during an investigation cannot be treated as a statement made to the police or to the Magistrate and as such excluded by S. 162 or S. 164 of the Criminal Procedure Code. The question is one of fact and has got to be determined having regard to the circumstances of each case. On a scrutiny of the evidence of these two witnesses and the circumstances under which the statements came to be made by the Appellant No. 1 to them we are of the opinion that the Appellant No. 1 was asked by Shanti Lal Ahuja, the Additional District Magistrate to make the statements to these two witnesses not with a view to avoid the bar of Section 164 of the Criminal procedure Code or by way of colourable pretence but by the way of greater caution particularly having regard to the fact that the Appellant No. 1 occupied the position of a Minister of Industries in the State of Vindhya Pradesh.'

The statement made by the accused in the presence of P.W. 2 had not been obtained with a view to avoid the bar of S. 164 of the Cr.P.C. or by way of colourable pretence; the evidence of P.W. 2 in regard to such statements is clearly admissible.

(8e) It was suggested in the course of the arguments that there was the possibility of P.Ws. 2 and 10 having disposed inaccurately, owing to lapse of time and their not having remembered what all took place, quite clearly. It may be, that they might not have remembered the exact words used by them at the time when they gave their statements before the police; but, there are no good grounds to believe that at the time when they gave evidence before that at the time did not remember the incidents deposed to by them. On the other hand, it would not be surprising if the incidents (which were of an unusual nature) had left a fairly strong impression on their minds.

(8f) Apart from the bare statement of the accused, there is really no material to show that he had mislaid the money which he had got from the bank on 4-4-1955 and it is not stated by the accused when he missed it. Having regard to the fact that there was a locked cupboard in which cash was being kept, it is rather improbable that the accused would have left the amount of Rs. 250/- which he got from the bank, in some open place, easily accessible to others. There is no indication of the circumstance under which the money could have been misplaced by him. Nor has the accused stated what steps he had taken and in which places he had searched in the interval between the time when he first missed the amount which he had got from the bank and the afternoon of 7-4-1955.

The story of the accused having misplaced the money seems to be improbable. One other circumstance is that the money alleged to have been discovered at all, either during the search of the house or at any time subsequently. It was argued on behalf of the appellant that the misplaced amount of Rs. 250/- might have been included in the amount of Rs. 500/- and odd which was found in the cupboard and was left without being attached.

But this argument does not bear close scrutiny. It was a locked cupboard; as can be seen from the evidence, this cupboard was later on unlocked by the daughter of the accused, at his instance. If the accused had really missed the money which he had from the bank, it is not likely that he would have failed to look into this cupboard also does not say that the amount of Rs. 250/- which he thought had been mislaid by him was subsequently found to have been actually included in the money found in the cupboard. Under these circumstances, we are satisfied that the learned trial Judge was right in refusing to accept the false plea of the accused.

(9) It was contended that Surve the P.W.D. Mukdam should have been examined by the prosecution and that if he had been examined, it would have been established that the amount of Rs. 250/- drawn from the bank on 4-4-1955 had not at all been given to him for disbursement. On behalf of the State, it was pointed out that Surve had not been cited as a prosecution witness, in Special Case No. 8 of 1956 and that Surve's evidence was in no way necessary for the prosecution case.

Even if Surve had been examined and had given evidence to the effect that the money got from the bank had not been given to him for making disbursements, his evidence would not have helped the accused, when it is seen from the circumstances above discussed that the plea of the accused that he had misplaced that amount could not be true. It was argued that Sri Mulla, Deputy Superintendent of Police and one arum who was another Inspector of the Anti-Corruption branch that had been requested by P.W. 22 to assist him in the investigation of this case, should also have been examined.

It is seen from the evidence of P.W. 22 that it was only on the morning of 7-4-1955, when Inspector Arur came while Britto's complaint was being recorded, that P.W. 22 requested Arur to render him assistance in the investigation of this case. It is also stated by P.W. 22 that for a period of 3 or 4 days thereafter till Arur left Belgaum of this case. It was explained on behalf of the State that Arur and Mulla were not examined by the prosecution, not with a view to keep them away from the witness box but only because the prosecution thought it unnecessary to examine them in view of the fact that Inspector P. P. Naik (P.W. 22) who is the Investigating Officer in the case, has been examined and has given evidence in respect of all material points in the investigation and that Arur and Mulla could not, in any way, have added to the evidence given by P.W. 22.

We do not find any good reason to believe that if was with a view to suppress any evidence, that the prosecution omitted to examine these two persons; it could very well have been for the reason given on behalf of the State that they were not examined by the prosecution. We are not satisfied that their non-examination can in any way vitally affect the case. Britto had stated in the course of his evidence that he went and gave the complaint to P.P. Naik on the morning of 7-4-1955 as that Inspector was not at Belgaum between the 4th and the 6th. P.W. 22 also had stated in the course of his evidence that he was not in Belgaum during that period; this was attacked during his cross-examination.

The trial Judge accepted the evidence of P.W. 22 to the effect that he was not in Headquarters during the said period. It is contended on behalf of the appellant that the trial Judge should not have accepted the mere statement of P.W. 22 himself but should have insisted upon satisfactory documentary evidence to show that P.W. 22 had not been in Belgaum during this period. It was argued that this circumstance would be of importance in view of the possibility of Britto and P.W. 22 having put their heads together before 7-4-1955, with a view to implicate the accused.

We do not any force in this contention, P.W. 22 has clearly stated that he did not know Britto before; Britto approached him on 7-4-1955; he has stated that Britto was a total stranger to him when he came to him when he came to him on 7-4-1955. It is also pointed out on behalf of the State that nothing has been elicited during the cross-examination of Britto or of P.W. 22, which can justify a suspicion to the effect that they might have conspired together. There is no reason as to why the evidence of P.W. 22 in regard to his absence from Belgaum during that period should not be accepted.

(10) There is some evidence in the case to show that at the time when P.W. 22 called upon the accused to produce the money which had been received as bribe from Britto, the accused hesitated and that he was trembling and perspiring. It was pointed out on behalf of the appellant that the witnesses have not uniformly spoken to the accused having been trembling and perspiring and that the trial judge ought not to have attached much importance to such evidence.

The conduct of an accused under such circumstances, is a relevant factor which should be taken into consideration by the Court. In Shiv Bahadur Singh's case, : 1954CriLJ910 , the Supreme Court took into consideration the reaction and confusion on the part of the appellant in that case, at the time when he was called upon by the police to explain his possession of the bribe money. In the case of : 1958CriLJ232 , also, the Supreme Court took into consideration the evidence to the effect that when the accused was caught, he was seen to be trembling.

Even though, the concerned witnesses do not uniformly say that the accused had been trembling and perspiring at that time, it is quite clear from the evidence of P. Ws. 2, 6, 10 and 22 that the accused was silent for quite a long time and that there was considerable hesitation and confusion on the part of the accused when he was asked as to whether he had taken the bribe and if so to produce the bribe amount. (Though it was sought on behalf of the State to persuade us that there was no real impediment to the acceptance of the evidence of the panch witness, P.W. 4 Deshpande, we have not referred here to his evidence because the trial Judge was of the opinion that he should not have been selected as a panch, and has not relied on his evidence).

From the answer given by the accused to question No. 22 in the course of his examination under S. 342 of the Cr.P.C., it is seen that the accused, admittedly was confused at that time. It was argued on behalf of the appellant that different people react differently when placed in similar situations and that the Court should not draw any adverse inference from this conduct on the part of the accused. We are unable to agree with this contention. The accused was a highly placed District Officer; if the accused had been innocent and had really not received this amount from Britto as bribe, his reactions judged by standards or normal human conduct, would have been different. Even though he might not have been bound by law to offer any explanation, his normal conduct would have been to repudiate without undue delay the allegation that he had received the bribe, he would have also very naturally stated that he had picked up the notes from the files on his table, under a mistaken impression that it was his. It is argued that the accused did say that it was a frame-up.

But it is clear from the evidence of P.W. 2, that it was after the lapse of considerable time that the accused so stated; the accused also made a confused statement to P.W. 2 to the effect that the money had been trust on him by Britto. We are accused, are such as are not consistent with his innocence.

(11) It was argued that some arrangement should have been made to place panchas in such a way that from places of concealment, they could have witnessed the actual receipt of the bribe by the accused. But, it is not necessary, that there should be the evidence of independent eye-witnesses, to the taking of the bribe. In the case of basawan singh : 1958CriLJ976 , the Supreme Court, while dealing with a similar contention has started that corroboration need not be evidence that the accused committed the crime; it is sufficient even though it is merely circumstantial evidence of his connection with the crime.

In that case, the finding of a crumpled Rs. 10/- note (which was part of the bribe money) in the verandah was accepted by the Court as being sufficient to corroborate the evidence of the raiding party to the effect that on the identity of the officers of the raiding party being disclosed, the accused attempted to throw away the currency notes. In the present case the circumstances do not show that there was any strong reason for Britto to have foisted a false case on the accused. We are satisfied that there is sufficient corroboration of the evidence of Britto to show that the accused had received Rs. 250/- from Britto as bribe. The conduct of the accused and the explanation given by him are also inconsistent with his innocence; the plea that he took these notes under a mistaken impression is not a true one.

We are satisfied that the learned trial Judge was quite correct in finding the accused guilty. As regards the sentence also, we are not satisfied that there is any good ground for interference, therefore, the appeal in Criminal Appeal No. 331 of 1957 as well as the Criminal Revision Petition No. 444 of 1957 will have to be dismissed.

(12) We will now proceed to consider Criminal Appeal No. 332 of 1957 which relates to Special Case No. 9 of 1956. The circumstances under which a bribe of Rs. 500/- on 12-1-1955 and a bribe of a similar sum on 31-3-1955 were stated to have been paid by Britto to the accused, and the evidence relating to the same have all been sufficiently discussed while dealing with the appeal against Special Case No. 8 of 1956. The learned Special Judge has taken the view that the payments of the bribes on these two dates, have not been established beyond all reasonable doubt. On behalf of the State, it has not been shown to us in this appeal, that the finding of the learned Special Judge in regard to these two payments is wrong.

We are not satisfied that there is any strong ground for taking a view different from that taken by the learned trial judge in regard to these two payments. So far as the third instance mentioned in the charge, namely, the payment of Rs. 250/- on 7-4-1955 is concerned, the learned Special Judge has held that the payment of this particular bribe has been proved. For the reason already mentioned by us while dealing with the judgment in Special Case No. 8 of 1956, we have held that the finding of the learned Special Judge in regard to the payment of the bribe of Rs. 250/- on 7-4-1955, is correct. Only the contentions in regard to other matters remain to be considered.

The assets of the accused on 7-4-1955, according to the prosecution, were of the value of Rs. 2,77,754-13-4; according to the defence, (as per details given in para 22 of the written statement which the accused had filed and to which he had referred in the course of his examination under S. 342 of the Cr.P.C.), his assets were of the value of Rs. 1,88,739-0-0; according to the finding of the learned Special Judge, the assets of the accused on that date were of the value of Rs. 2,14,049. The total of the items accepted by the trial Judge, amounts actually to Rs. 2,14,240/- ; it appears to be due to arithmetical error in totalling up, that the figure has been put by the Special Judge as Rs. 2,14,049/- ; this is due to his having put the figure of Rs. 1,79,199/- as the total of certain items towards the end of para 50 of his judgment, instead of the correct figure of Rs. 1,79,399/-. The value of Rs. 2,14,049/- was arrived at by the trial Judge on the basis of the following items :

1. National saving Certificates which are in the name of the accused;

his wife and children. 1,01,000-0-0

2. Municipal Loans. 10,000-0-0

3. Shares. 33,435-0-0

4. Cash found in the house of the accused on 7-4-1955. 24,724-0-0

5. Value of land at Mourvi. 3,423-0-0

6. Bank Balance on 7-4-1955. 6,817-0-0

7. Jewellary and cash of the value of. 7,000-0-0

8. National Engineering Construction Company Loans. 11,000-0-0

9. National Engineering Construction Company Loans. 10,000-0-0

10. The value of the accused's car. 6,850-0-0

----

Total 2,14,249-0-0

In regard to the value of items 1 to 5 and 7, there is no dispute between the prosecution and the defence. In regard to item No. 6, namely, the bank balance, the prosecution had put it at Rs. 6,861-10-0 whereas the defence had put it at Rs. 6,817-0-0; the difference between the two figures being very small, the trial Judge has chosen to accept the figure given by the accused. Therefore, for all practical purpose, it can be taken there is no difference between the prosecution and the defence even in regard to the amount of the bank balance. The value of items 1 to 7 can, therefore, be taken to be undisputed.

It is only in regard to items 8, 9 and 10 of the above, that there has been serious difference between the prosecution and the defence. The value of items 8 and 9 above, viz. Shares and the loans of National Engineering Construction Company is Rs. 21,000/-. The sixty shares of the value of Rs. 6,000/- are standing in the name of the accused's son Dinesh. From the entries in the Company's register, as spoken to by P.W. 10 Mohanlal, it appears that the loan of Rs. 10,000/- has been noted as having been received by the Company from Proful, Dinesh and the accused's wife Mrs. Shanta Bai Gandhi. At para 25 of his written statement, the accused has stated that his son Proful and taken a loan of Rs. 15,000/- from money-lenders in Bombay and that it was out of that money that Proful got shares of the value of Rs. 6,000/- in his own name and shares of the value of Rs. 5,000/- in the name of his younger brother Dinesh as benami for him (Proful).

The accused also produced certain discharged Hundies in support of his statement to the effect that Proful had borrowed moneys from some money-lenders. As regards the loan of Rs. 10,000/- to the National Engineering & Construction Company, the accused stated that his son Proful had obtained a loan of Rs. 10,000/- from one Surajben Prabhashankar and that Proful drew a cheque for that amount in favour of the National Engineering and Construction Company Limited. In support of the statement that Proful had paid this amount by cheque, a letter dated 8-8-1957 purporting to be from Devakaran Nanjee Banking Company Limited, was also filed. It has been argued on behalf of the appellant that the explanation given by the accused the National Engineering said construction Company, and the documents produced in support of the accused's statement, have not been properly appreciated by the trial Judge and that it should have been held that these two items did not form part of the assets of the accussed.

Sri Ghaswala suggested that it was not unlikely that, amongst the people of the mercantile community to which the accused belonged, a young man like Proful would not have hesitated to borrow moneys for investing the same in business ventures. But, on a careful consideration of the probabilities to the case, we are not inclined to accept these contentions. In para 51 of the judgment, the learned Special Judge has discussed the reasons for not accepting the contention that these items were not part of the assets of the accused. The shares were actually found to have been in the custody of the accused; they were found in the accused's house, at the time of the search on 7-4-1955. From the evidence of P.W. 10, it is seen that in the year 1954 when these shares were purchased, Proful must have been just about 23 or 24 years old.

As stated in para 25 of the accused's written statement, Proful passed his B.E. examination in 1952 and joined service in Bombay with a firm there on a monthly salary of Rs. 225/-. After serving there for about 18 months he joined service with the National Engineering and Construction Company Limited. It is most unlikely that a young man like Proful getting a meagre salary (by Bombay standards) would have been able to raise such heavy amounts by way of loan, from Bombay money-lenders. It is also most unlikely that after having raised loans, he would go and invest part of the moneys by taking shares or advancing loans in the name of his younger brother. The Hundies and other documents filed to probabilise the taking of loans by proful have not been proved.

On the other hand, having regard to the way in which the accused had been investing his money by purchasing certificates and shares in the names of his wife and children, it is highly probable that these shares also have been purchased by the accused in the names of his sons and the loan also has been advanced in the name of his wife and sons. It may also be stated that in the course of his cross-examination, P.W. 10 has stated that Proful had told him that it was through accused that the finances had been arranged. Under these circumstances, we are not satisfied that the view taken by the learned trial Judge in regard to the shares and the loans is wrong. So far as the value of item No. 10, namely, accused's car is concerned, it appears that the accused had purchased it on 29-8-1953 for a sum of Rs. 8,850/-. On the ground that there will be depreciation in the value of the car, it seems to have been contended on behalf of the accused that its value in April 1955 should be taken as Rs. 4,000/-. But the trial Judge has taken the view that its value may be taken as Rs. 6,850/-. On behalf of the appellant it was argued that the value of this car should have been accepted as Rs. 4,000/- for purpose of computing the assets of the accused as on 7-4-1955.

It is no doubt true that the learned trial Judge has not given any reasons for computing the value of the car as on 7-4-1955 at Rs. 6,850/-. At the same time, it has to be noticed that the accused also had not placed any material in regard to the value of the car as on 7-4-1955. But having regard to the fact that in August 1953 the car was worth Rs. 8,850/- it is most impossible that within a period of one year and eight months, there would have been so much of depreciation as to bring down its value to Rs. 4,000/- only. The depreciation of Rs. 2,000/- allowed by the trial Judge for the period of one year and eight months appears to be quite reasonable and we are not shown any good reason as to why this value put by him should not be accepted. It is clear that the value as on 7-4-1955, of the assets of the accused on the basis of the items accepted by the trial Judge was Rs. 2,14,249/-. There was another sum of Rs. 2,090/- which was found in a safe deposit locket at Rajkot when it was opened in the presence of the panchas.

This sum of Rs. 2,090/- had been included by the accused himself, in the particulars of his assets. But, strangely enough, on the ground that a chit bearing the name of the wife of the accused was fund in that locker, the Special Public Prosecutor seems to have suggested to the trial Court that the said amount of Rs. 2,090/- need not be included in computing the assets of the accused. It is not clear why this suggestion by the Public Prosecutor was made, when the accused himself had admitted that this amount formed part of his assets. But, as the learned trial Judge his not included it, we also will not take it into account.

(13) The prosecution has thus proved, that on 7-4-1955, the accused was in possession of assets of the value of Rs. 2,14,249/-. We have now to see as to how much out of this was already in the possession of the accused at the time when he entered Bombay service on 4-12-1948. According to the prosecution, his assets at the time of his entering Bombay service were Rs. 1,52,242/-. According to the defence his assets at that time were Rs. 1,80,242/-. At para 55 of his judgment, the learned trial Judge has discussed this aspect of the case and has come to the conclusion that the assets of the accused on 4-12-1948 were of the value of Rs.1,66,242/-. Both the prosecution and the defence were agreed in respect of the value of some of the items of the assets. They were :

(1) Cash certificates and NationalSavings Certificates of the value of : 75,797-0-0 (2) Municipal Loans of the value of : 10,000-0-0(3) Shares of the value of : 41,008-0-0(4) Bank balance : 29,014-0-0(5) Land at Mourvi : 3,423-0-0 ---- Total. Rs. 1,59, 242-0-0

The dispute between the prosecution and the defence was in respect of two items alleged by the accused; the first of those was a sum of Rs. 6,000/- described by the accused as locker amount; the second item consisted of cash and jewellery claimed by the accused to be of the value of Rs. 15,000/-. The learned Special Judge did not take into account the sum of Rs. 6,000/- which had been alleged by the accused to have been the locker amount. The sum found in the locker at Rajkot subsequent to 7-4-1955, at the time when that locker was opened in the presence of the panchas was Rs. 2,090/- and the same was not taken into account by the trial Judge as a chit in the name of the wife of the accused was found there.

The learned trial Judge took the view that there was no reason for supposing that any amount larger than Rs. 2,090/- was there in that locker prior to 7-4-1955 and he consequently did not take into account the amount claimed by the accused as having been in that locker. As the value of the cash and jewels with the wife of he accused on 7-4-1955, had been stated by the accused to be Rs. 7,000/-, the learned trial Judge accepted that as the value of the cash and jewellary at the time when the accused entered Bombay service. When there was no positive evidence on the side of the accused to show that at the time when he entered Bombay service, he had kept Rs. 6,000/- in the locker and that his wife had in her possession cash and jewellery of the value of Rs. 15,000/-, it cannot be said that the reasoning adopted by the learned trial Judge was unfair to the accused.

When the amount of Rs. 7,000/- being the value of the cash and jewellery as accepted by the learned trial Judge is added on to the undisputed value of Rs. 1,59,242/-, the total value of the assets of the accused on 4-12-1948 will be Rs. 1,66,242/-. We are not shown that there is any good reason for our not accepting this figure as correctly representing the value of his assets on 4-12-1948. The amount of Rs. 47,807/- which is the difference between the value of his assets on 4-12-1948 and the value of his assets on 7-4-1955, is the accumulation to his wealth during the period of his service under Bombay State. Part of these assets was the sum of Rs. 24,724/- found (in cash and mostly currency notes) at the residence of the accused on 7-4-1955.

(14) Before the presumption under sub-s.(3) of S. 5 of the Prevention of Corruption Act could arise, it has to be seen whether these assets of the value of Rs. 47,807/- acquired after he entered Bombay service and in his possession on 7-4-1955, were disproportionate to his known sources of income. In the case of a whole time Government servant, the known source is generally the salary; by rules governing the conduct of Government servants and by conditions of service, a full time Government servant is generally prevented from following any other occupation or profession. In the recent case of C. S. D. Swami v. The State, Criminal Appeal No. 177 of 1957 decided on 21-5-1959: : 1960CriLJ131 , the Supreme Court has observed as follows:

'The source of income of a particular individual will depend upon his position in life with particular reference to his occupation or avocation in life. In the case of a Government servant, the prosecution would, naturally, infer that his known source of income would be the salary earned by him during his active service.'

From the observations made a little later on in the same case, it appears to have been urged that the prosecution had not adduced evidence in regard to other sources of income disclosed by the accused to the Investigating Officer. This is what their Lordships say :

'We are not, therefore, impressed by the argument that the prosecution has failed to lead proper evidence as to the appellant's known sources of income. It may be that the accused may have made statements to the Investigating Officers as to his alleged sources of income, but the same, strictly would not be evidence in the case, and if the prosecution has failed to disclose all the sources of income of an accused person, it is always open to him to prove those other sources of income which have not been taken into account or brought into evidence by the prosecution.'

From what is stated by the accused in para 14 of his written statement, it is seen that when he entered service under the State of Bombay on 4-12-48, his salary was Rs. 600/- and that on 7-4-1955, his salary was Rs. 740/- per month. Having regard to the salary which the accused was getting between the salary which the accused was getting between 4-12-1948 and 7-4-1955, we are of the opinion that the assets of the value of Rs. 47,807/- (acquired by him during that period and his possession on 7-4-1955) were disproportionate to his known sources of income. Unless he satisfactorily accounted for the same, the presumption under sub-s.(3) was bound to arise against the accussed.

(15) The details of the total income of the accused and the probable total expenditure, during the period between 4-12-1948 and 7-4-1955, have been discussed by the trial Judge at para 58 of his judgment. It is not disputed that the total of his pay including the dearness allowance, amounted to Rs. 55,601-11-0. (It will be convenient to on it the small sum of Rs. 0-11-0 in making subsequent calculations). The interest which had been received on the National Saving Certificates amounted to Rs. 10,918/-. As regards the dividends earned on shares, the prosecution put the figure at Rs. 5,803/- where as the accused put it at Rs. 8,836/- ; but, the learned trial Judge accepted the figure given by the accused. Adding up all these figures, the total income of the accused during the above said period would come to Rs. 75,355/-. Out of this total income, deduction will have to be given to certain undisputed items of expenditure. Such undisputed items are the following:

1. Deductions made towards rent of bungalow, income-tax, etc. 9,908-0-0

2. Expenses of education of the accussed's children 10,000-0-0

3. Premia paid on insurance policies 4,291-0-0

----

Total : Rs. 24,199-0-0

Deducting this sum from out of the total income above-mentioned, a balance of Rs. 51,156/- will be left. From this balance of Rs. 51,156/- will be left. From this balance of Rs. 51,156/-, the living expenses of the accused and his family during the abovesaid period have got to be deducted. The prosecution appears to have got to be deducted. The prosecution appears to have put the living expenses at Rs. 500/- per month whereas the defence seems to have put it at Rs. 350/-. The learned Special Judge considered it reasonable to put the living expenses at Rs. 400/- per month. Calculating at that caused and his family for the period between 4-12-1948 and 7-4-1955 came to Rs. 30,400/-. In this connection, two contentions have been urged on behalf of the appellants.

The first is that a sum of Rs. 16,334/- which had been drawn during this period by the accused as permanent travelling allowance of the accused; it was also stated that the permanent travelling allowance is considered as income, for purposes of the Income-tax Law; the second contention is that the learned trial Judge has put the monthly living expenses of the accused, arbitrarily at Rs. 400/-. We are unable to accept either of these contentions. Whatever may be the position under provisions of the Income-tax Act, it cannot be denied that any travelling allowance given to whole-time Government servant who draws a regular monthly salary, is for the purpose of covering incidental expenses during travelling on Government duty and not intended to be a source of profit. As observed by the Orissa High Court is Biswabhusan v. The State 1952 Cri. L. J. 1533, at page 1538 paras 12-15: : AIR1952Ori289 , the travelling allowance cannot be treated by a Court as a source of legitimate income. In the recent case of Criminal Appeal No. 177 of 1957: : 1960CriLJ131 . The Supreme Court observed as follows :

'The prosecution would not be justified in concluding that travelling allowance was also a source of income when such allowance is ordinarily meant to compensate an officer concerned of his out of pocket expenses incidental to journeys performed by him for his official tours.'

The accused had been maintaining a car; he had to meet not only the expenses for the running of the car but also he had to pay tax and insurance premia for that car; he also had to meet the repair and replacement expenses, necessary for the proper maintenance of the car. It is not known whether after meeting all these expenses, there would be any substantial balance left out of the money which has been received towards his permanent travelling allowance. Both in regard to the actual living expense incurred by him and any saving, if at all, they may have been effected out of this permanent travelling allowance, the accused did not place before the Court proper materials, though these were all matters especially within his knowledge. The bare statement of the accused cannot be viewed as being sufficient to discharge the burden to 'satisfactorily account'. In the case of Cri. Appeal No. 177 of 1957, D/- 21-5-1959: : 1960CriLJ131 above referred to, the Supreme Court has observed as follows :

'But the Legislature has advisedly use the expression 'satisfactorily account'. The emphasis must be on the word 'satisfactorily', and the Legislature has, thus, deliberately cast a burden on the accused not only to offer a plausible explanation as to how he came by his large wealth, but also to satisfy the Court that his explanation was worthy of acceptance.'

The learned trial Judge was right in not taking the permanent travelling allowance of the accused as part of his income. The prosecution had placed some evidence to show that the accused's monthly milk bill used to come to about Rs. 40/- to Rs. 50/- except during some months when the accused used to be away on tour. Taking this into consideration and also having regard to the figures which had been put forward by the prosecution and the accused, the learned trial Judge was of the opinion that it would be reasonable to put the monthly living expenses of the accused at Rs. 400/-. Under these circumstances, we are unable to hold either that this figure is unreasonable or that it was arbitrarily fixed.

The sum of Rs. 30,400/- can be taken to fairly represent the living expenses of the accused and his family during the period between 4-12-1948 and 7-4-1955. When this sum is deducted out of Rs. 51,156/-, the balance left would be Rs. 20,756/-. But it is found that he is in possession of assets of the value of Rs. 47,807/- which is more than double of what he could have saved from out of assets, the accused has not been able to satisfactorily account for the sum of Rs. 27,051/- (i.e., the balance remaining after deducting Rs.20,756/- from Rs.47,807/-). This amount, is in itseld, disproportionate to his known sources of income and, therefore, under sub-s.(3) of S. 5 of the Prevention of Corruption Act, the Court should presume, unless the contrary is proved, that the accused is guilty of criminal misconduct in the discharge of his official duties.

Part of the said Rs. 27,051/-, is the sum of Rs. 24,724/-, found in his house in the shape of cash and currency notes. The possession of so much of cash at the residence of a Government servant like the accused is, in itself, a most unusual circumstance. Out of this amount, Rs. 24,200/- were found in a trunk kept in the bath room of his house. Out of the 57 notes had been issued by the State Bank at Belgaum from 27-9-1954; of these, 35 notes were in consecutive numbers. The prosecution had adduced some evidence to show that during the years 1953-54 and 1954-55 allotment had been made for the expenditure of more than Rs. 50,00,000/- worth of P.W. D.works at Belgaum, the suggestion being that the accused had the opportunity to take dishonest advantage of his official position, with the P.W. D. Contractors.

The explanation given by the accused was to the following effect : Out of his savings he had lent moneys on a number of occasions to his friends, relatives and wife's relatives; between 1953 and 1955, some of those loans were returned. But, as he did not visit Rajkot after February 1953, he could not put these cash amounts into his bank locker. He intended to go to Rajkot on the evening of 7-4-1955 and he wanted to take this money from Belgaum to Rajkot for being kept there in his locker. In regard to many of the Rs. 100/- notes being in consecutive numbers and having been issued by the State bank at Belgaum, the explanation offered by him was that on several occasions he had got exchanged several Rs. 5/- and Rs. 10/- notes for Rs. 100/- notes and also that he had exchanged some soiled notes for new ones.

This explanation given by the accused is unbelievable and it is not surprising that the learned trial Judge refused to accept it. The materials available in the case and relating to his pecuniary affairs, show that the accused has not lost opportunities to make investments with a view to earn money; that being so, it is most improbable that he would have kept such a huge sum in this manner, in his house, had the same been honestly earned. It was suggested on behalf of the appellant during the course of arguments that as the accused had withdrawn moneys from time to time from his deposits in the bank, it is not improbable that it may be as a result of those withdrawals that so much of money was found in his house. But, no such explanation has been given by the accused himself. The burden cast on the accused by sub-s.(3) of S. 5, to prove the contrary of the presumption, cannot be discharged by mere probabilities or bare statements of the accused. Referring to this burden which is cast on the accused by sub-s.(3), the Supreme Court, in the case of C. S. D. Swami, states as follows :

'In this case, no acceptable evidence, beyond the bare statements of the accused, has been adduced to show that the contrary of what has been proved by the prosecution, has been established, because the requirement of the section is that the accused person shall be presumed to be guilty of criminal misconduct in the discharge of his official duties 'unless the contrary is proved.' The words of the Statutes are peremptory, and the burden must lie all the time on the accused to prove the contrary. After the conditions laid down in the earlier part of sub-s.(3) of S. 5 of the Act, have been fulfilled by evidence to the satisfaction of the Court, as discussed above, the Court has got to raise the presumption that the accused person is guilty of criminal misconduct in the discharge of his official duties, and the presumption continues to hold the field unless the contrary is proved, that is to say, unless the Court is satisfied that the statutory presumption has been rebutted by cogent evidence. Not only that, the section goes further and lays down in forceful words that 'his conviction therefor shall not be invalid by reason only that it is based solely on such presumption:'

The burden to prove the contrary not having been discharged by the accused in the present case, the Court is bound under sub-s.(3) of S. 5 of the Prevention of Corruption Act to presume that the accused is guilty of criminal misconduct in the discharge of his official duties. By virtue of the said sub-s.(3) the conviction of the accused for the offence of criminal misconduct cannot be invalid by reason only that it is bases solely on the presumption.

(16) Sri Ghaswala contended that as the prosecution had made it clear that only the three instances of corruption had been disclosed during the investigation, and only one of them had been held to be proved, the accused cannot, on the strength of the presumption under sub-s.(3), be held to be guilty of criminal misconduct by habitually accepting or obtaining illegal gratification. This does not appeal to us as a correct contention. As observed by the Calcutta High Court in Blythe v. The King AIR 1949 Cal 641 at page 650 para 61, the failure of the prosecution to prove affirmatively the truth of the allegations (in regard to the bribed on the two earlier occasions), does not justify a finding that they are probably false. Further, even in a case where it is found that the prosecution had failed to prove the particular facts and circumstances of criminal misconduct, the presumption under sub-s.(3) cannot be avoided, if the prosecution has satisfied the requirements of that sub-section. In C. S. D. Swami's case, Cri. Appeal No. 177 of 1957: : 1960CriLJ131 , the Supreme Court held as fallacious, the argument that when the facts and circumstances mentioned in the charge had not been proved, the accused person must be acquitted as having disproved the charge with reference to the particular cases of bribery which had been held not proved. With reference to sub-s.(3) and the effect of the presumption raised thereunder, the Supreme Court has, in the case of : 1957CriLJ575 , stated as follows:

'Sub-section (3) is an important piece of legislation to the effect that where a person is charged under S. 5(1) and it is found that the accused person cannot satisfactorily account for the pecuniary resources or property disproportionate to his known sources of income, then the fact that he has such extensive pecuniary resources or property is sufficient to presume, until the contrary is proved, that the accused person was guilty of criminal misconduct in the discharge of his official duty and a conviction for that offence shall not be invalid by reason only that it is based solely on such presumption. It is, clear, therefore, that where a person is charged with criminal misconduct and it is seen that he is in possession of property or income which could not have been amassed or earned by the official remuneration which he had obtained, then the Court is entitled to come to the conclusion that the amassing of such wealth was due to bribery or corruption and the person is guilty of an offence of criminal misconduct.'

(17) Sri Ghaswala pointed out that the charge framed by the learned Special Judge does not specifically refer either to clause (a) or clause (d) of sub-s.(1) of S.5 of the Prevention of Corruption Act and that in the absence of such specific mention of any of the clauses of sub-s.(1), a conviction on the basis of the presumption under sub-s.(3) would not be legal. In support of this contention, he has cited a decision of the Patna High Court reported in Akhouri Inderdeo v. The State, : (1958)IILLJ451Pat . But we find, on a careful scrutiny, that the facts and circumstances of that case are quite different from those of the present case. A perusal of that decision as reported, shows that from the very ginning the case against the accused had been proceeded on the basis that mere possession by him of assets disproportionate to his known sources of income, was itself punishable under sub-s.(3) of S. 5 of the Prevention of Corruption Act; even the sanctioning authority had proceeded on that basis.

The charge did not disclose his having committed an offence under sub-s.(1) of S. 5. It was pointed out by their Lordships of the Patna High Court that sub-s.(2) made punishable of the offence of criminal misconduct which had been defined in sub-s.(1) and that the mere possession by the accused of property which was disproportionate to his known sources of income, was not by itself criminal misconduct. It was under those circumstances that they pointed out that the charge ought to disclose under which of the different clauses of sub-s.(1) under which of the different clauses of sub-s.(1) the offence of criminal misconduct had been committed. In the present case, it is no doubt true that there is no specific reference in the charge either in the order of sanction as per Ex. 195 and in the charge, it is clearly alleged that the accused had been habitually accepting or obtaining gratification other than legal remuneration as a motive or reward for doing official acts and for showing favours to P.W. D. contractors and others in the exercise of his official functions. It has also been alleged in the charge that by corrupt or illegal means or by otherwise abusing his official position, the accused had obtained pecuniary advantages.

By way of instances, the acceptance of bribe of Rs. 500/- on or about 11-1-1955, Rs. 500/- on 31-3-1955 and Rs. 250/- on 7-4-1955, had been cited. It has been further alleged that the accused had amassed wealth of more than Rs. 2,00,000/- which was quite disproportionate to his known sources of income. It is also alleged that the cash of Rs. 24.974/- found in his house on 7-4-1955, by itself was disproportionate to his known sources of income. It is also stated in the charge that he has committed an offence punishable under S. 5(2) of the Prevention of Corruption act. All the particulars necessary to make the accused understand that he was being tried for the offence of criminal misconduct in the discharge of his official duties on grounds failing under clauses (a) and (d) of sub-s.(1) of S. 5, have been set out in the charge.

The accused has also been further intimated by the particulars given in this charge that his total wealth as well as the cash of Rs. 24,374/- found in his residence, was disproportionate to his known sources of income. It cannot be said that the accused had no notice of the intention of the prosecution to make out a case for the presumption under sub-s.(3) being raised against him. The accused has not been taken by surprise and he knew what case he had to meet; the witnesses for the prosecution have been subjected to a full cross-examination and the accused has, in addition to his being examined under S. 342 of the Cr.P.C. Also filed a lengthy written statement. We are satisfied that there has been no prejudice to the accused, by the mere non-mention of the specific clauses of sub-s.(1) of S. 5 in the charge. In the case of Biswabhusan v. State of Orissa, : 1954CriLJ1002 , the Supreme Court while referring to the absence of particulars in the charge, has stated as follows :

'But no particulars need be set out in the charge in such a case because the offence under S. 5(1)(a) does not consist of individual act of bribe taking as in S. 161 of the Indian Penal Code but is of a general character. Individual instances may be useful to prove the general averment in particulars cases but it is by no means necessary because of the presumption which S. 5(3) requires the Court to draw. There was therefore no illegality either in the sanction or in the charge; nor has the accused been prejudiced because he knew everything that was urged against him and led evidence to refute the facts on which the prosecution relied. He was also questioned about the material facts set out above in his examination under S. 342 of the Criminal Procedure Code and was given a chance then as well to give such explanation as he wished.'

We do not find any strength in this contention and we cannot say that, in the circumstances of the present case, a conviction for the offence of criminal misconduct punishable under sub-s.(2) would be wrong, merely because of the omission to mention in the charge the particular clauses of sub-s.(1).

(18) Lastly, it was pointed out on behalf of the appellant, that the learned Special Judge while holding that the accused was liable for punishment under sub-s.(2) of S. 5, does not state specifically whether it was under clause (a) or whether it was under clause (d) of sub-s.(1) that the accused had committed the offence of criminal misconduct. On a careful consideration of the argument with reference to the facts and circumstances of the case. It appears to us that the conviction of the accused for the offence of criminal misconduct in the discharge of his duty, can be sustained on the ground that he is guilty not only of the offence under clause (a) but also of the offence under clause (d). Sri Ghaswala contended that when only one instance of bribery has been proved, the accused cannot be held to be guilty under clause (a) which relates only to habitual acceptance of bribes. But this argument over looks the effect of the presumption under sub-s.(3).

Even though the other instances of bribery mentioned in the charge have not been satisfactorily established, it is competent for the Court on the strength of the presumption under sub-s.(3) to hold the accused guilty of the offence of criminal misconduct under clause (a) of sub-s.(1), particularly having regard to his wealth of Rs. 27,051/- which has not been satisfactorily accounted for. When the conviction is on the basis of presumption under sub-s.(3), we think it would be appropriate to hold the accused guilty of criminal misconduct falling under clause (a) of sub-s.(1) of S. 5. At the same time, we cannot ignore that the proved instance of bribery, namely, the acceptance of Rs. 250/- on 7-4-1955 is, in itesrl, sufficient to establish against the accused criminal misconduct under clause (d) of sub-s.(1) It was by the abuse of his official position that he obtained Rs. 250/-.

It was contended on behalf of the appellant that clause (d) did not contemplate the acceptance of money and that the expression 'pecuniary advantage' in that clause did not include payments of money. In this connection, he relied on the reasoning adopted by the Rajasthan High Court in The State v. Abhey Singh, , while dealing with the meaning of the expression 'gratification'. In the case of Mahfuz Ali v. State, : AIR1953All110 , it has been held specifically with reference to clause (d) of S. 5(1) that the words 'pecuniary advantage' are wide enough to include cases of cash payment.

It is also stated therein, that when a man gets some money in cash he certainly makes a pecuniary gain and has, therefore, a pecuniary advantage. It may also be stated that from certain observations made by the Supreme Court in the case of Ram Krishan v. State of Delhi, : 1956CriLJ837 , it becomes clear that there is no justification for construing the expression 'pecuniary advantage', in such a way as to exclude from its meaning payments of money. In para 9 at page 478 while discussing clause (d) of sub-s.(1), his Lordship Chandrashekhara Aiyar J. observes as follows :

'One may accept money that is offered, or solicit payment of a bribe or-extort the bribe by threat or coercion; in each case, he obtains a pecuniary advantage by abusing his position as a public servant.'

Under these circumstances, we have no doubt that the meaning of the expression 'pecuniary advantage' is wide enough to include payments of money. It was urged by Sri Ghaswala that when the accused was convicted under S. 161 of the I.P.C. for the acceptance of the bribe of Rs. 250/-, he cannot again be convicted under clause (d) of sub-s.(1), for the same acceptance. In this connection he relied on S. 26 of the General Clauses Act. The prohibition under S. 26 of General Clauses Act is against a person being punished twice for the same offence. Reference was also made to clause (2) of Art. 20 of the Constitution which prohibits the punishment of a person for the same offence more than once. The prohibition is not against punishment more than once, for different offences.

The offence punishable under S. 161 of the Indian Penal Code is different from the offence of criminal misconduct punishable under Section 5(2) of Prevention of Corruption Act, though it may be that some of the ingredients of these two offences are common. As pointed out by the Supreme Court at para 28 in (S) AIR 1956 SC 458 at page 464, the offence of criminal misconduct is a new offence created by the Prevention of Corruption Act. In the case of Venkataraman v. The State, : 1958CriLJ254 , it has been observed by the Supreme Court (at para 13 in page 110) that

'Section 5 of the Act created the offence of criminal misconduct on the part of a public servant, an offence unknown to any of the provisions of :the Indian Penal Code dealing with bribery of corruption'.

Therefore, the offence of criminal misconduct falling under clause (d) of sub-s.(1) of S. 5 of the Prevention of Corruption Act is quite distinct from the offence punishable under S. 161 of the I.P.C. When they are distinct offences, the prohibition in S. 26 of General Clauses Act against a person being punished twice for the same offence cannot apply. Section 33 of the Interpretation

1889 also, provides that an offender shall not be liable to be punished twice for the same offence. The word 'act'. In Rex v. Thomas, 1950-1 KB 26 at p. 31. Humphrays J. While repelling the contention that the word 'offence' in S. 33 should be construed as having the same meaning as 'act ' and that 'act', 'cause', and 'offence' all mean the same thing.

In our view that is not correct. It is not the law that person shall not be liable to be published twice for the same act; it has never been so stated I any case, and the Interpretation Act itself does not say. What S. 33 says is : 'No persons shall be liable to be punished twice for the 'same offence'. Not only is it not the law that a person shall not be punished twice for the same act, but it never has been the law.'

That, clause (2) of Art. 20 of Constitution also will not be offended, is clear from what has been stated by the Supreme Court in the case of Leo Roy Frey v. Supdt., Dist. Jail, Amristar, : 1958CriLJ260 . In that case, the petitioner had contended that as he had been punished under the provisions of the Sea Customs Act, he was not liable to be proceeded against under S. 120-B of the Indian Penal Code. While rejecting that contention, the Supreme Court stated as follows :

'The offences with which the petitioners are now charged include an offence under S. 120-B. Indian Penal Code, Criminal conspiracy is an offence created and made punishable by the Indian Penal Code Criminal conspiracy is an offence created and made punishable by the Indian Penal Code. It is not an offence under the Sea Customs Act. The offence of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore, quite separate offences....................The offence of criminal conspiracy was not the subject-matter of the proceedings before the Collector of Customs and therefore it cannot be said that the petitioners have already been prosecuted and punished for the same offence'.

It appears to us, that there is really no impediment for the conviction of the accused for the offence of criminal misconduct within the meaning of S. 5(1)(d). Having regard to the view taken by the Supreme Court in the case of C. S. D. Swami, Cri. Appeal No. 177 of 1957: : 1960CriLJ131 , it is competent for the Court to convict the accused for the offence of criminal misconduct within the meaning of S. 5(i)(d) solely on the basis of the presumption under sub-s.(3), even when, in the circumstances of a particular case, the Court considers it inappropriate to convict the accused for the offence of criminal misconduct within the meaning of S. 5(1)(a) on the basis of the said presumption. While it would be appropriate to view the conviction of the accused as being on the basis of the presumption under sub-s.(3) and for criminal misconduct under clause (a) of sub-s.(1), we are satisfied that the conviction can also be sustained on the grounds falling under clause (d).

(19) For the reasons above stated, the conviction of the accused under S. 5(2) of the Prevention of Corruption Act, by the learned Special Judge should be upheld. As regards the revision Petition filed by the State in Criminal Revision Petition No. 445 of 1957, it is enough to state that there is no merit in the same and that the same has also not been seriously pressed before us. Having regard to the objects of the Prevention of Corruption Act, it cannot be said that the punishment is excessive.

(20) In the result, both the appeals filed by the accused as well as the Revision Petitions filed by the State are dismissed. The appellant shall surrender to his bail.

(21) Order accordingly


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