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In Re: Madhukar Dasarath Mendekar and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1972CriLJ978
AppellantIn Re: Madhukar Dasarath Mendekar and ors.
Excerpt:
- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 216: [r.b.naik,j] alteration of charge - held, charge could be altered at any time before judgment. -- section 244 & chapter xix (b):examination of party prosecuting case and witnesses before framing charge in cases instituted otherwise than on police report - held, the provisions as contained in section 244 mandates that a magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. as such, the discretion is vested with the complainant to produce the evidence in support of his case. it cannot be said that even if the averments made in the complaint alone disclose sufficient grounds to frame charge, the magistrate is precluded from framing such charge, which the.....c. honniah, j.1. the 8 accused persons, who are appellants in these two appeals, were charged with having entered into a criminal conspiracy for the purpose of obtaining illegal gratification from various persons, of them except a-1 the other accused persons received illegal gratification to induce a-l. a public servant to recruit candidates to the air force and in pursuance of that conspiracy obtained illegal gratification from some persons and pooled all the amounts and paid part of that amount to a-l and the remaining amount was utilised by them and thereby committed offences punishable under sections 120-b and 162 of the indian penal code. a-l was further charged with having accepted illegal gratification, punishable under section 5 (1) (a) and (d) read with section 3 (2) of the.....
Judgment:

C. Honniah, J.

1. The 8 accused persons, who are appellants in these two appeals, were charged with having entered into a criminal conspiracy for the purpose of obtaining illegal gratification from various Persons, of them except A-1 the other accused persons received illegal gratification to induce A-l. a public servant to recruit candidates to the Air Force and in pursuance of that conspiracy obtained illegal gratification from some persons and pooled all the amounts and paid Part of that amount to A-l and the remaining amount was utilised by them and thereby committed offences punishable under Sections 120-B and 162 of the Indian Penal Code. A-l was further charged with having accepted illegal gratification, punishable under Section 5 (1) (a) and (d) read with Section 3 (2) of the Prevention of Corruption Act. in the court of the Special Judge. Bangalore Division, Bangalore in C. C. No. JO of 1966 on his file.

2. By his judgment dated 28-10-1970. the Special Judge acquitted A-6 Panicker. But however, he convicted A-l Mendekar, A-3 Padmanabhan Adiyodi and A-4 Kuttan under Section 120-B I. P.C. and sentenced A-l to undergo R. I. for three years and to pay a fine of Rs. 1000/- with a default sentences; A-3 was sentenced to undergo S. I. for 3 years and to pay a fine of Rs. 100/ with a default sentence. A-l was further convicted under Section 162 read with Section 109 I. P. C and sentenced to undergo Rule I. for two years. He was also convicted under Section 5 (a)(a) and (d) read with Section 5 (2) of the Prevention of Corruption Act and sentenced to undergo Rule I. for two years, and to pay a fine of Rs. 1000/-with a default sentence.

The learned Judge convicted A-2 Sukimaran. A-4 Kuttan. A-5 Soman Nair. A-7 Ramachandran and A-8 Javadevan under Section 162 I. P.C. and sentenced A-2 to undergo Rule I- for one year. A-4 to undergo Rule I. for two years, A-5 to undergo R. I. for six months. A-7 to undergo R. I. for six months and A-8 to undergo R. I. for three months respectively. However, he directed the sentences in respect of A-l and A-4 to run concurrently. Against these convictions and sentences. A-4 has preferred Criminal Appeal No. 312 of 1970 and the other accused along with A-3 have preferred Criminal Appeal No. 298 of 1970.

3. The facts that gave rise to the prosecution of these accused persons may briefly be stated as follows; A-l was working as a Senior Recruiting Officer in Indian Air Force. Bangalore, at the relevant time. A-2 and A-3 were residents of Bangalore, All the other accused persons came from different parts of the States of Kerala. The jurisdiction of A-l was the States of Mysore and Kerala and for purposes of recruiting candidates to the Indian Air Force, he was camping in various places of these two States and in discharge of his duty. he recruited large number of persons.

4. The case for the prosecution was that A-3 and A-4 were working as principal agents to induce candidates to get themselves recruited on payment of. probably varying from Rs. 500/- to Rs. 1100/- depending upon their anxiety to join the Air Force and according to their capacity. The other accused persons were sub-agents of A-3 and A-4 and according to the prosecution, they approached various persons and persuaded them to get themselves recruited to the Air Force. The collections made by the other accused persons were pooled together and the total sum was handed over either to A-3 or A-4. who. in his turn, remitted the monies to the account of A-l with P. W. 3 Fateh Chand. The evidence in this case shows that with reference to the charges against the accused persons, number of persons including some of the witnesses examined in this case were recruited in the year 1963-64.

On these facts, the prosecution alleged that the accused persons conspired together to do an illegal act. namely to collect monies from candidates, probably on the promise of being selected by A-l to the Indian Air Force and in pursuance thereof A-3 and A-4 acted as agents and other accused as sub-agents and in fact according to the prosecution, collected monies from some persons, handed over the same to P. W. 3 to be credited to the account of A-l and that A-l selected them to the Air Force and later some of them were disqualified on medical grounds. None of the persons who were disqualified made any complaint against any one of the accused persons but however the law was set in motion by one Chinabuddin of Varkala. Trivandrum District in Kerala State.

He made an oral complaint to the Sub Inspector of Police C. I. D. Branch. Bangalore. C. Mohan Rao (P. W. 1) on 20-7-1963. His statement is marked as Ex. P-l in this case. His complaint was that one Himaluddin took money from him promising to get selected to the Air Force. But he was not even called for interview, much less he was selected. He, therefore, approached Himaluddin. who told him that A-2 was the person who was arranging to get him a job and he would go to Bangalore shortly and get him the job. All of them came to Bangalore on the 27 the of June and on the 28th morning A-2 met Chihabuddin and told him that he would get him a job within a short time.

For 10 days he kept quiet and then he asked Himaluddin to get back his money from A-2. Accordingly. Himaluddin promised to get the money, but neither Himaluddin nor A-2 did return the money. P. W. 1' arrested A-2 and then handed over A-2 along with Ex. P-l to the Sub Inspector of Police. Kengeri Gate Police Station, who registered a case against him for an offence under Section 420 I. P. C on the information furnished by A-2. P. W. 2, arrested A-3. On the orders of the S. P. he handed over the case file to the Special Police Establishment. Bangalore, who after investigation charge-sheeted all the accused, as stated above for the said offences including Himaluddin who later jumped the bail whose whereabouts are not known even today.

5. Chihamuddin. on whose complaint, the law was set in motion, has not been examined in this case.

6. The prosecution have mainly relied upon both circumstantial and direct evidence to prove the charges against the accused.

7. 'In cases where the evidence is of a circumstantial nature, the circum stances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established, and the circumstances so established should be consistent only with the hypothesis of the guilt of the accused persons: that is. the circumstances should be of such a nature as to reasonably exclude every hypothesis but the one proposed to be proved. To Put it in other words the chain of evidence must be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused person. In such cases, the court must guard against the danger of allowing conjecture or suspicion to take the| place of legal proof.' (Vide Charan Singh v. State of U.P. : AIR1967SC520 .

8. In Hanumant v. State of M. P. : 1953CriLJ129 the Supreme Court referred further to the danger in such cases that conjecture or suspicion may take the place of legal proof. Therein, their Lordships have quoted the well known statement of Baron Alderson to the Jury Re. Hodge. (1838) 2 Lewin 227) as follows: 'The mind is apt to take a pleasure in adapting circumstances to one another, and even in straining them a little if need be. to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it. considering such matters, to over-reach and mislead itself, to supply some little link that is wanting. to take for granted some fact consistent with its previous theories and necessary to render them complete.

9. Before dealing with the case of the other accused. I propose to deal with the case of Al. A-3 and A-4. who have been convicted of the charge of conspiracy. An offence under Section 120-B consists of conspiracy without any reference to the subject-matter of the conspiracy and it is not necessary to establish the offence that there must have been definite object about which the parties were negotiating. The section applies to those who are the members of the conspiracy during its continuance Conspiracy has to be treated as a continuing offence and whoever is a party to the conspiracy during the period for which he is charged is liable under this section.

The gist of the offence is the agreement itself, and where the object of the agreement is to do an unlawful act and to do a lawful act by unlawful means it is sufficient to specify the unlawful object without specifying the means adopted by all or any of the conspirators to gain that object. Mere evidence of association is not sufficient to lead an inference of conspiracy. It is not necessary that there should be express Proof of conspiracy. From the acts and conduct an agreement can be inferred. If it is proved that the accused pursued, by their acts, the same object. often by the same means, one performing one part of the act and the other another part of the same act so as to complete it with a view to the attainment of the object which they were pursuing, the court is at liberty to draw the inference that they conspired together to effect that object.

10. The prosecution. therefore, must prove an agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means, provided that where the agreement is other than one to commit an offence, the prosecution must go further and prove that some act besides the agreement was done by one or more of the Parties in pursuance of it. Proof of overt act committed by all the accused or any one of them is not strictly necessary on this charge, but needless to say. proof that they or some of them were concerned in the overt acts alleged would go to establish that the agreement alleged was in fact made between them.

In case of conspiracy direct evidence will be seldom forthcoming and it becomes necessary to look at the circumstances to see whether the conspiracy actually existed. It is clear from the above statement of law that the prosecution must prove that there was an agreement between the accused persons to obtain illegal gratification from the candidates who were to be recruited to the Air Force and to distribute the amount so collected amongst themselves.

11. So far as A-l. A-3 and A-4. who have been convicted of the charge of conspiracy, are concerned, reliance is placed on some documents and the evidence of P. W. 3. Ex. P-21 is a draft for Rs. 4000/- dated 24-5-1963 purchased by P. W, 23. a relation of A-4 in the name of P. W. 3. The prosecution case is that A-l was having a running account from 1955 with P W. 3 who was a Banker. His account was started when A-l was at Madras and even after he came to Bangalore, the transaction continued between him and P. W. 3. In regard to this there is no dispute. There is no evidence direct or circumstantial to prove that A-4 collected Rs. 4000/- from any of the persons who wanted to be recruited to the Air Force.

The prosecution case itself is that the eye-sight of A-4 was not good and he had no account in any Bank and therefore he gave Rs. 4000/- to P. W. 23 to get a draft for that sum in the name of P. W. 3 Accordingly, he obtained the draft Ex. P-21 and handed over the same to A-4. The evidence of P. W. 23 is that A-4 told him while obtaining a draft that that money was intended to purchase a boat.

12. Another draft, which was not traced, for Rs. 3000/- was purchased by P. W. 8 on 17-4-1963 in the name of P. W. 3 at the instance of A-4. He handed over the draft to A-4 Ex. P-22 is a cheque dt. 14-5-1963 for Rs. 2000/- drawn by A-3 in favour of P. W. 3. In this cheque. the payee's name is written by A-l, Ex. P-23 is another cheque dated 10-4-1963 for Rs. 4000/- drawn by A-l in favour of P. W. 3. Ex. P-23 is another cheque dated 5-3-1963 for Rs. 2000/- drawn by A-l in favour of Dughar Co.. which is the name of the firm of P. W. 3. In respect of these drafts and cheques the evidence of P. W. 23 and P. W. 8 does not throw any light, but on the other hand, the evidence of P. W. 23 is to the effect that at the time he handed over the draft to A-4. A-4 told him that he drew the draft in favour of P. W. 3 for the purpose of purchasing a boat. Regarding the other draft nothing could be made out because P. W, 3 has stated that at the instance of A-4 he purchased the draft for Rs. 3000/- Regarding the cheque drawn by A-3 in favour of P. W. 3, P. W. 3 has given evidence that Accused-3 told him that money was intended to purchase a scooter. Regarding the cheques drawn by A-l in favour of P. W. 3. one for a sum of Rs. 1400 and another for Rs. 2000 the evidence of P. W. 3 is that he credited the amounts to the account of A-l. That is not disputed by A-l.

However, strong reliance has been placed by Mr. Nagappa. the learned Counsel appearing for the State, on the statement of P. W. 3 that the two drafts, one for Rs. 400/- and another for Rs. 3000/-referred to above, were cashed and credited to the account of A-l'. According to him. if A-4 took the drafts in the name of P. W. 3 and the proceeds thereof were credited to the account of A-l the only inference that could be drawn is that these amounts must have been collected from persons who wanted to be recruited by A-l. Otherwise, there was no rational explanation why the drafts drawn by A-4 in the name of P. W. 3 should be credited to the accounts of A-l.

13. A-4 in his statement under Section 342 Cr. P.C. has disowned these two drafts. We are then left only with the evidence of P. W. 3. P. W. 3 is treated hostile by the prosecution. But nevertheless, the contention of Mr. Nagappa was that the statements in his evidence so far as they are helpful to the prosecution could be made use of in order to foist the liability on A-l. A-3 and A-4. Reliance was placed on the decision in re: Saibanna Tippanna AIR 1966 Mys 248. In that case it was pointed out that 'even in the case of a witness who has been permitted to be cross-examined under Section 154 of the Evidence Act. the court can depend upon that part of the testimony given by the witness, which appears to be truthful evidence, there being no principle on the basis of which it can be said that a witness who is permitted to be cross-examined must be dismissed as person giving false evidence on every matter about which he speaks.'

14. The next decision Mr. Nasappa relied upon is Profulla Kumar v. Emperor : AIR1931Cal401 in which, after reviewing the case law on the point their Lordships held:

The fact that the witness is dealt with under Section 154. Evidence Act. even when under that section he is cross-examined to credit, in no wav war- rants a direction to the jury that they are bound in law to place no reliance on his evidence or that the party who called and cross-examined him can take no advantage from any part of his evidence. The evidence of such a witness is not to be rejected either in whole or in part. It is not also to be rejected so far as it is in favour of the party calling the witness, nor is to be rejected so far as it is in favour of the opposite party. The whole of the evidence so far as it affects both parties favourably or unfavourably must go to the jury for what it is worth.

Lastly. Mr. Nagappa relied upon the decision in Purustam Naik v. Chakradhar Das : AIR1959Ori19 . In that case also it was pointed out that 'it is not correct to say that when a witness is cross-examined by the party calling him. his evidence cannot be believed in part and disbelieved in part but must be excluded from consideration altogether. The correct rule is that either side may rely upon his evidence and that the whole of the evidence so far as it affects both parties favourably or unfavourably must be considered for what it is worth.'

15. The cross-examination of a witness by a party who called him must have some useful purpose and if neither side can rely upon the witness whatever answers he may give, it would be more convenient and less humiliating for all concerned that he should be allowed to. Besides it can hardly be said that the wide discretion given to the court by Section 154 is a discretion to deprive the accused of any valuable right: still less that the court and the prosecutor between them can destroy in advance testimony which may be vital to the defence. The defence is entitled to rely on so much of the evidence of the witness to support its case as much the prosecution depends.

It is construed that a hostile witness has been described as a witness who from the manners in which he gives his evidence shows that he is not desirous of telling the truth to the court. This is not a very good definition of a hostile witness and the evidence act is most careful in Section 154 not to restrict the right of 'Cross-Examination' even by committing itself to the word 'hostile'. The ordinary rule that leading questions must not on material points be put by a party to his own witness has its basis in the circumstance that as the party chooses what witnesses he will call, a witness is very often anxious to assist the party on whose behalf he is called.

The rule is to guard against the bias of the witness in favour of the side in support of which his evidence is sought. Where no such bias need be apprehended the rule loses much of its utility. The hostile witness is ex hypothesi one who cannot be led. The rule is not relaxed because the witness has already forfeited all right to credit but because his evidence will be more fully given and his credit more adequately tested by questions put in a more pointed and searching way.

16. Taking into consideration how best the evidence of a hostile witness can be made use of by the courts, we have got to examine the evidence of P. W. 3 whether any part of his statement is trustworthy, which supports the case of the prosecution. No doubt. P. W. 3 has stated that, with reference to the two drafts he credited the amounts to the account of A-l. But that evidence is destroyed by the evidence of the prosecution witnesses themselves namely. P. W 23 and P. W. 8 and the statement of A-3. More than all. if what P. W. 3 has stated with reference to these two drafts is a true statement of fact, he would have produced the accounts relating to the year in question and that would have certainly helped a good deal in support of the prosecution case.

But what is his evidence in this be half? His evidence is that only the accounts relating to the year 1963 in which year these two drafts were credited to the account of A-l were stolen with the result he could not produce them. Can any court believe such a statement of a wit ness and then act upon that statement to hold that there was a conspiracy between A-l. A-3 and A-4. P. W. 3 is a man on whom no reliance can be placed. It is very difficult to separate the truth from the falsehood that he is stating and I go to the extent of sayings that except for the statement that A-l had a running account with him from 1955. all other statements made by him. could be characterised as tissues of falsehood.

17. P. W. 16 was examined to connect the two drafts with A-l'. but he did not support the case of the prosecution. The other evidence relied upon by the prosecution is in respect of certain documents recovered from the house of A-4 on search of P. W. 43 at the instance of P. W. 53. who was a Circle Inspector of Police, on 29-6-1965. Exs. P44 and P-121 to P-163 are documents said to have been seized from the house of A-4. A perusal of the documents shows that they are literatures relating to Air Force Ex P-119 is a Government of India Publication relating to recruitment to Armed Forces. Ex.. P-120 is another publication, titled as 'Commissions in India's Armed Forces'. Ex. P-135 is a list of candidates selected by A-l in which serial No. 6 relates to P, W. 36, Against P. W. 36's name, the name of A-7 is written in bracket Ex. P-137 is a copy of the Public Examination marks relating to P. W. 36. Exs. P-140 to P-144 are letters relating to recruitment, some of which are written in Malayalam. Amongst them one letter is written by P. W. 31.

Ex. P-145 is a telegram sent from Kayamkulam to Ravindran at Rajamahal Hotel in Bangalore. The contents of it reads as follows:

Unread inform me when and where to meet next.

It is said to have been sent by one Subash, Ex. P-156 is a tour programme of A-l for December 1964. Ex. P-160 is a certificate of fitness relating to P. W. 50. Ex, P-147 is another document in which the name of P. W. 31 is another docu the name of P. W. 31 is found. Exs. P-150 to P-155 are letters written in Malayalam. From these documents it is impossible to hold that A-l, A-3 and A-4 hatched a conspiracy between themselves to obtain illegal gratification with the object of influencing A-l to recruit candidates to the Air Force.

18. Lastly, reliance is placed on the oral evidence adduced in the case There is absolutely no material worth the name to connect A-l'. A-3 and A-4 with the other accused or between themselves Therefore, the learned Judge was in error in drawing an inference which was not warranted and hold that there was a conspiracy between these three accused persons for the said purpose. I am unable to see. even if the prosecution story is true, that the documents seized from the house of A-4 in the year 1965 have any relevance to show that they conspired for the purpose stated by the prosecution.

19. If A-4 possessed certain documents which were connected with the Air Force, from that alone it is impossible to hold that he was in possession of those documents is pursuance of the conspiracy. More than all. these documents were seized in the absence of A-4 admittedly when he was living with other members of his family and in these circumstances it is impossible to hold that they were found in his exclusive possession.

Assuming it to be so his two sons were in the Air Force and there appears to be nothing sinister in possessing these documents. So far as the drafts and cheques are concerned, as already stated, if we read all of them either together or individually, the evidence adduced in that behalf dissociates one or the other accused from the others. In this state of evidence, the conclusion arrived at by the learned Judge on the charge of conspiracy against A-l. A-3 and A-4 is baseless. On the other hand, the material placed on record points out that there could not have been any conspiracy between them.

20. A criminal conspiracy need not and cannot often be Droved as stated earlier, by direct evidence and it often happens that participation in overt acts in pursuance of the alleged agreement provide good grounds for the inference of participation in the agreement itself. But in the present case the only overt act attributed to A-l is that he knew A-3. Be-yond that there is nothing to suggest even remotely that he had anything to do with any criminal conspiracy to obtain illegal gratification. So far as A-2 is concerned the overt act that is attributed against him is that he had in his possession some literature relating to the Air Force. There is no other evidence against him. So far as A-2 and A-3 are concerned, they gave cheques to P. W. 3 and the, evidence in this case shows that these cheques were given to A-3 for their own transactions not connected with A-l at all.

The totality of circumstances available against these 3 accused persons is wholly insufficient even to suspect that they had conspired together for the Purpose stated above. When the test of circumstantial evidence is applied, it falls far short of being inconsistent with any reasonable hypothesis of innocence of these accused persons. The inference, therefore can only be one of innocence of these accused persons, more so of A-l'.

21. A-l has been convicted under Section 162 of the Indian Penal Code. That Section provides that:

Whoever accepts or obtains, or agrees to accept, or attempts to obtain, from any person for himself or for any other person, any gratification whatever as a motive or reward for inducing, by corrupt or illegal means any public servant to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person or to render or attempt to render any service or disservice to any person with the Central or any State Government or Parliament or the Legislature of any State or with any public servant as such, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Again here, there is no direct evidence to support the prosecution case that A-l accepted or attempted to obtain from any person for himself or for any other person any gratification whatsoever as motive or reward for inducing by corrupt or illegal means by another person. At the relevant point of time. A-l was an officer empowered to recruit persons for Air Force his jurisdiction extending over the States of Mysore and Kerala. He used to camp in various places in these two States for the said purpose and during that period, he has recruited a large number of persons, although some, as can be made out from the evidence, could not pass the medical test later.

Reliance is placed on the evidence of P. W. 28 to connect A-l. His evidence is that he paid a sum of Rs. 500-/ to A-2 and that A-2 told him that that amount-had to be paid to A-l P. W. 28 was selected by A-l and then he was disqualified as he did not pass the medical test. His version is that he paid a sum of Rs. 500/ to A-2 in the presence of his own uncle who is examined in this case as P. W. 26. But P. W. 26 does no support the story of P W. 28.

During the course of investigation, he has stated before the investigating officer that he paid money to his uncle who in turn paid the same to A-2 (Vide Ex. D-2). P. W. 28 does not say on what. date: of month he paid the amount to A-2. It is therefore unsafe to rely upon the uncorroborated testimony of P. W. 28 to hold that he paid Rs. 500/- to A-2 and that A-2 told him that that money was intended to be paid to A-l.

Except the solitary evidence of P. W. 28. there is no other evidence in this case direct or circumstantial, to support the case of the prosecution that A-l received any money from any of the accused persons, directly or indirectly, much less there is any evidence to show that any person who was selected paid the amount to A-l. Even assuming for the sake of argument that A-2 took some money from P. W. 28 stating that that money was intended to be paid to A-l. I really do not understand how A-l' can be made liable unless the prosecution establishes direct connection between A-2 and A-l.

In order to bring home the charge under Section 162 of the Indian Penal Code against A-l. the prosecution must prove that A-l received illegal gratification by corrupt means in some form or other to do any official favour viz.. recruiting one or the other persons. The evidence in this behalf to connect A-l is unsatisfactory. The evidence of the only witness on which reliance is placed, even if it is accepted will not prove the charge against A-l of having accepted illegal gratification.

22. A-2 was a resident of Bangalore at that time and was doing bakery business. The only evidence against A-2 is that of the evidence of P. W. 28. It is unnecessary to repeat again the evidence of P. W. 28 because that evidence will not in any way prove the case against A-2 viz that he took Rs. 500/- from P. W. 28 stating that that money was intended to be paid to A-l. All that can be stated is that no reliance could be placed on the evidence of P. W. 28 to base a conviction.

23. So far as A-3 is concerned, the evidence to connect him is with reference to the cheque Ex. P-22 given by him to P. W. 3. The payee's name, viz.. P W. 3's name is written by A-l and A-3 gave the cheque for Rs. 2,000/ to P. W. 3 to purchase a scooter for him. Although the prosecution case was that this cheque was given by A-3 with a direction that P. W. 3 should credit the amount to the account of A-l, the prosecution evidence itself shows that P, W. 3 has cashed the cheque and that the amount has gone to his own account. P. W. 3 has stated that he credited the amount to his account and later returned the amount to A-3. One fails to understand the relevancy of this transaction to connect A-3 with A-l.

There is no evidence direct or indirect to show that A-3 collected Rs. 2.000/-from various persons who were recruited by A-l and that amount was. in fact paid directly or indirectly to A-l. That being the case the charge sheet against A-3 under Section 162 of the Indian Penal Code must necessarily fail.

24. The prosecution have attempted to connect A-4 with A-l not only for purpose of conspiracy but also to hold him liable for collecting monies from various persons to be paid to A-l. That was the case put forward by the prosecution: but no attempt has been made by the prosecution to prove that A-4 collected any money from any person and that person ultimately was recruited by A-l. However, the prosecution has relied upon the draft which is marked as Ex. P-21 in this case. That draft was purchased by P. W. 23 for which the money was given by A-4. According to P. W. 3 the Banker, the draft was for Rs. 4,000/- P W. 23 handed over the draft to A-4.

25. P. W. 3 Fateh Chand has stated that he encashed the draft and credited the amount to the account of A-l. P. W. 3 does not say in his evidence that A-4 save the draft in question to him P. W. 23 has stated that A-4 told him at the time he purchased the draft that he intended to purchase a boat. There is no positive evidence to show that A-4 handed over the draft to P. W. 3. P. W. 3 has not produced his account book to probabilise his version and his own version is that that amount was credited to the account of A-l' If. as stated by P. W. 23 the draft was taken for Rs. 4.000/-by A-4 for the purchase of a boat, one fails to understand how that circumstance can be made use of against A-4 of A-l to hold that money was collected from various persons to be given to A-l.

The prosecution have also placed on record material to show that A-4 obtained a draft for Rs. 3,000/-. That draft is not forthcoming; but however the original application. Ex. P-32. for obtaining the draft has been produced and that shows that the draft has been obtained in the name of P. W. 3. Here again P. W. 3 does not say that A-4 gave the draft to him. Reliance is placed on the statement of P. W. 3 that he credited the amount of this draft to the account of A-l. by the prosecution to show that this amount was intended to be given to A-l Again P. W. 3 has not produced his account book in this behalf.

As stated earlier, it is unsafe to rely upon the evidence of P. W. 3. who is an untrustworthy witness and if his evidence is scrutinised it shows that it contains full of untruths. The prosecution sought to rely upon the evidence of P. W. 16 that A-4 purchased the draft for Rs. 3.000/-to be given to A-l, but P. W. 16. has not supported the Prosecution case.

26. Some documents were recovered from the house of A-4 at the instance of P W. 53. A-4 admittedly was not there at the time of the seizure. That circumstance, in no way helps the prosecution to prove the charge under Section 162 of the Indian Penal Code.

27. Regarding A-5 the prosecution have relied upon the evidence of P. W. 50 and P. W.30. Both of them have stated that A-5 took Rs.600/- from P. W. 50 stating that that money had to be given to A-l and that P. W. 50 would be selected. It can be gathered from their evidence that the mother of P. W. 50 mortgaged a cocoanut garden to one Sridhara Pillai for Rs. 800/- and out of that amount she paid Rs. 300/- to A-5 and A-6. She also mortgaged one of her shops to one Lakshmi Amma for Rs. 300/ and paid that amount to A-5.

If the mother of P. W. 50 raised money by mortgaging her properties to two persons with a view to see that her son was recruited by A-l the best evidence that the Prosecution would have adduced was that of the evidence of the 2 mortgagees or at least produce the mortgage deeds to probabilise that in fact money was raised for. the said purpose. In the absence of this evidence, it is unsafe to rely upon the oral testimony of these 2 witnesses to hold that P. W. 50 paid Rs. 600/- to A-5. As can be made out from the evidence, they were not in a position to pay any money to A-5 unless the mother of P. W. 50 mortgaged her properties. Neither P. W. 50 nor P. W. 30 had their own properties In these circumstances, it is unsafe to act upon the oral evidence of these two witnesses to show that they Paid Rs. 600/- to A-5.

28. The evidence against A-7 is similar to the evidence against A-5.. The prosecution case is that A-7 wanted P. W. 36 him to pay him Rs. 1.100/- if he were to be selected in the Air Force. Therefore the father of P. W. 36 viz.. P. W 35 sold his wet land to one Unknown in the presence of one John and another Mathai Kutty in the year 1964. P. W. 37 brother-in-law of P. W. 35 has stated that he attested the sale-deed and was present when the amount was paid to A-7. But P. W. 35 does not say that P. W. 37 was present when the money was paid. Again here, it is unsafe to act upon the oral testimony of these witnesses when the prosecution could have proved by producing the sale-deed and examining the purchaser to probablise their case.

In the absence of such evidence, it is unsafe to base a conviction on the oral testimony of these witnesses. More-or less, similar is the evidence against A-8. P, W. 31 has stated that he wanted that he should be selected to Air Force and for that purpose A-8 demanded from him Rs. 1.000/-. According to him he or his father had no money at that time. Therefore his father borrowed from his sister's son O. P. Nand. He has not been examined in this case to probablise the version of P. W. 31. Here again. It is unsafe to rely upon the uncorroborated testimony of P. W. 31 to base a conviction against A-8.

29. Reliance is also placed on the evidence of P. W. 17 to show that one or the other accused persons took money from intending candidate and bribed A-l for selecting those candidates. P. W. 47 has stated that Himaluddin who is absconding, took from him Rs. 750-/ stating that money had to be paid to A-l and that A-l would select him. P. W. 47 in fact was selected by A-l but he was found medically unfit. Thereafter he has stated that he approached A-l and demanded him to return the money paid by Himaluddin. A-1 according to him replied that he had done his part of job and he would not return the amount.

In the course of his evidence, he has stated that Himaluddin paid him back Rs. 400/- out of Rs. 750/- which he had received and that he is yet to receive Rs. 350/- from Himaluddin. He has stated that no one was present except Himaluddin when the conservation took place between him and A-l. According to him he took money from his mother and paid the same to Himaluddin. Again his mother has not been examined to show that Himaluddin was paid. It is not the case of P. W. 47 that he paid money in the presence of A-l to Himaluddin. If that were so, it is unlikely that the witness would approach A-l for the return of the money, much more unlikely that A-l would tell him that he would not return the money stating that he had done his part of the Job. In the absence of any other material to support the evidence of P. W. 47, it is unsafe to rely upon his testimony.

30. Some evidence has been let in to show that A-l and A-4 knew each other. Beyond that there appears to be no evidence connecting any of the accused persons with A-l or other accused persons between themselves. I have held earlier that the charge of conspiracy has not been proved. The other evidence regarding the collection of money from various persons by one or other accused persons stating that they would pay to A-l is unsatisfactory.

31. A-l has also been convicted under Section 5(1)(a) and (b) read with Section 5 (2) of the Prevention of Corruption Act and also under Section 162 of the Indian Penal Code. There is no satisfactory evidence, direct or circumstantial to show that A-l habitually accepted or obtained or agreed to accept or attempted to obtain from any person for himself or for any other persons any gratification (other than legal remuneration as a motive or reward nor there is any evidence to show that by corrupt or illegal means or otherwise abused his position as public servant obtained for himself or for any other persons any valuables, things or pecuniary advantage.

32. For the reasons stated above the convictions and sentences passed against the accused persons. A-l. A-2. A-3, A-4, A-5, A-7 and A-8 cannot be sustained. In the result. I acquit them of all the charges with which they have been convicted and allow their appeals.


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