1. The appellant in Criminal Appeal No. 100 of 1955 filed this appeal against his conviction under Section 165, Penal Code and sentence to a fine of Rs. 600/-, in default to undergo rigorous imprisonment for 3 months, by the judgment of the Special Judge, Puri. The Criminal Revision was filed by the State for enhancement of the sentence.
2. The Investigating Officer, the Deputy Superintendent of Police. Special Police Establishment. Puri filed a charge sheet against the appellantthat the appellant committed an offence of criminal misconduct under Section 5(i)(d), Prevention of Corruption Act (Act 2 of 1947), punishable under Clause (2) of the said section.
The Investigating Officer alleged that during Investigation of Crime No. 5 of 1952 which was a complaint against the accused of having committed criminal conspiracy, cheating and attempt to cheat in connection with contract and payments taken by a contractor for excavation of certain reaches in Dudbhaga distributory, it came to light that the accused L.T. Wadhwani when employed as an Executive Engineer in Canal Division No. 1 of the Hirakud Dam Project between 1-1-51 to 1-3-51 issued invitations to nearly all contractors who had taken contract works in his division for participating in the marriage function of his daughter Kalan which was being held at Rajkot on 16-2-51; that it was found out on investigation that in consequence of these invitations contractors either gave costly presents to the accused before he started from his headquarters to join the marriage function of his daughter or after he left, they sent valuable presents consisting of sarees and gold ornaments to his address at the place where the marriage was to be held; that two such instances which were traced with evidence are, -- (1) sending of a saree costing Rs. 73/- and 2 gold sovereigns costing Rs. 160/- by contractor B. C. Mohanty by registered parcel on 12-2-51, and (2) a gold necklace worth Rs. 450/- to Rs. 5007- sent in the name of Satyabati, sister of the contractor Harbansalala Rowley of Bargarh by registered parcel on 13-2-51; and that all these valuable presents having been obtained by the accused from persons who were executing contract works under his official authority and were therefore persons having connection with his official functions, the accused committed an offence under Section 5(i)(d) of Act of 1947.
3. The Special Judge, on this information and the evidence adduced, framed two charges against the appellant -- one under Section 5(2) of the Prevention of Corruption Act and the other under Section 165, Penal Code.
4. The accused pleaded not guilty to both the charges framed against him and stated that he never invited the contractor late Sri B. C. Mohanty nor Sm. Satyabati; that he had invited Rai Sahib Krutartha, Acharya; and that he received presents, as alleged, on the occasion of his daughter's marriage from Rai Sahib Krutartha Acharya and also from Sm. Satyabati, but did not receive any present from late Sri B.C. Mohanty. He also stated that he received the gold necklace from Sm. Satyabati on behalf of his wife; and that according to the social custom of his community, for the articles received from Krutartha Acharya, he gave him a return gift of a pair of Dhotis, one saree and some sweets and his wife gave to Sm. Satyabati in return a saree one blouse and some sweets and fruits. He also pleaded that the receipt of these presents on the marriage occasion, according to the custom, was not an offence and that even according to the Central Civil Services (Conduct) Rules, 1955, the receipt of these presents in this case could not amount to an offence.
5. The prosecution examined 12 withesses and filed Exs. 1 to 8. The learned Special Judge, after a careful discussion of the evidence adduced, came to the conclusion that as regards the charge framed against the appellant under Section 5 (2) of Act 2 of 1947, there was no evidence to show that by corrupt or illegal means or by abusing the position as a public servant the appellant obtained the presents in question from P.W. 1, and P.W. 10; and that by merely issuing invitation letters to those people on the occasion of his daughter's marriage, he could not be said to have adopted any corrupt or illegal means or to have abused his position as a public servant to obtain presents for himself or for his daughter, and consequently acquitted him of the said charge under which alone the Investigating Officer filed the charge-sheet.
6. As regards the charge under Section 165, Penal Code, the prosecution adduced evidence with regard to three instances. The first instance was that the contractor Rai Sahib Krutartha Acharya sent four door-curtains, one bed-sheet, one table cloth and one tea-pay cover, all designed handloom cloth, the value was between Rs. 60/- to Rs. 70/-.
The second instance was that another contractor late Shri B.C. Mohanty was alleged to have sent, by registered post, two gold sovereigns and one saree worth Rs. 339/-, and the third was that one Sm. Satyabati, the sister of the contractor Sri Harbanslal Rowley was said to have sent the appellant a gold necklace weighing 3 totals 10 annas which the appellant received.
7. With regard to the second Instance, namely, the receipt of two gold sovereigns and one saree by the appellant, the learned Special Judge held that there was no evidence to show that two gold sovereigns and a saree were given as a wedding gift to the accused by late B. C. Mohanty and that the prosecution had failed to prove that the accused received any wedding present from late Sri B. C. Mohanty.
With regard to the first instance of the receipt of the presents from Rai sahib Krutartha Acharya, the learned Special Judge held that Krutartha Acharya sent presents worth Rs. 60/- to Rs. 70/- and that in return, after the marriage, the accused sent him a pair of Dhotis, a silk saree and some sweets, according to the evidence of P.W. 1 Krutartha Acharya himself, but it was doubtful whether it was for adequate consideration or not.
With regard to the third and the last instance, the learned Special Judge held that the appellant received the presents by Sm. Satyabati P.W. 10 which were costly presents for grossly inadequate consideration; and that there was no doubt thefact that the accused knew the consideration paid to P.W. 10 to be grossly inadequate. He also held that it was quite clear that the accused knew fully well that Sm. Satyabati was the sister of the contractor Harbanslal Rowley who had contract business which had connection with the official functions of the accused as an Executive Engineer and that therefore the accused, by accepting a valuable gold necklace from P.W. 10 for a consideration which he knew to be inadequate, committed an offence punishable under W. 165, Penal Code.
8. Mr. H. Mohapatra, the learned counsel for the appellants contends that the learned Special Judge committed an error in holding that the appellant had admitted that he knew P.W. 10 to be the sister of the contractor Harbanslal Rowley; that the learned Special Judge ought to have held that the prosecution failed to prove the value of the articles sent by P.W. 10 as the prosecution did not adduce any evidence to that effect; and that even if the accused appellant received those presents knowing that P.W. 10 was the sister of the contractor Harbanslal Rowley, he has not committed any offence, as under the Centrial Civil Services (Control) Rules, even on the assumption that the value is about Rs. 200/-, the matter should only be reported to the Central Government and cannot be made the subject-matter of a criminal charge.
9. The learned Special Judge held in this judgment that it was also quite clear that the accused knew fully well that Sm. Satyabati was the sister of the contractor Harhanslal Rowley who had contract business which had connection with the official functions of the accused as an Executive Engineer. This finding is, in my opinion, erroneous as contended by the learned counsel for the appellant. In his examination under Section 342, Criminal P. C. on 12-7-55, the Special Judge put him the question
'Did you receive this gold necklace M. O, 1 weighing 3 tolas and 10 annas (with thread) per insured post at Rajkote from Sm. Satyabati, sister of the contractor Mr. H. Rowley, on the occasion of your daughter Kalan's marriage at Rajkote, as present?'
Though a separate question was not put whether Sm. Satyabati was the sister of the contractor Mr. H. Rowley to his knowledge yet the accused answered,
'Yes, I have received the gold necklace M.O. 1 by insured post from one Satyabati P.W. 10, care of Bansidhar, on behalf of my wife. I do not know whether she is the sister of Mr. H. Rowley. I do not know whether it was present or not'.
To another question put earlier 'Did you know Sm.Satyabati P.W. 10, the sister of Harbanslal Rowley?', the accused answered categorically 'No'. To the last question put to him whether he had anything else to say, the accused answered. 'No, except that file my written, statement' and it is after this examination under Section 342, Criminal P. C., the written statement was filed by the accused in the case.
The learned Special Judge relied upon a statement in the written statement to come to the conclusion that it was quite clear that the accused knew fully well that Sm. Satyabati was the sister of the contractor Harbanslal Rowley. The written statement filed by the accused in this case covers about 7 pages. It appears to me to be more a memo of arguments than a written statement. In that written statement in para 6, it is stated:
''It is a fact that she happens to be the sister of Mr. Harbanslal, contractor but she has a living husband earning emoluments of Rs. 500/- per monthand they live separately from Mr. Harbanslal'.
This is merely an argumentative sentence and cannot be an admission of knowledge of P.W. 10 being the sister of the contractor. This statement should also be considered in the light of the other statements which the accused previously made just then in his examination under Section 342, Criminal P. C., where he denied any knowledge of P.W. 10 being the sister of the contractor.
P.W. 10, in her evidence, stated that she knew Mrs. Wadhwani only and did not know the accused Wadhwani and that she gave this ornament, as a present out of friendship without the knowledge of her brother or husband. In my opinion, therefore, the learned Special Judge erred in holding that the accused admitted that he had knowledge that P.W. 10 was the sister of the contractor.
The learned Government Advocate drew our attention to the evidence of P.Ws. 7 and 8 and contended that the evidence of these witnesses showed that the appellant had knowledge that P.W. 10 was the sister of the contract. In my opinion, the evidence of these two witnesses does not, in any way, show that the accused had any such knowledge. P.W. 7 simply stated that he had seen the wife of the contractor Rowley visiting the house of the accused and that once or twice the wife of the accused also visited Rowleys house.
P.W. 8 stated that he did not know Rowley's wife and did not know any woman named Satyabati and that the office of the accused and his residence were the same. On these facts, therefore, it is clear that the appellant had no knowledge of P.W. 10 being the sister of the contractor Harbanslal Rowley.
10. Section 165, Penal Code is as follows:
'Whoever, being a public servant, accepts or obtains, or agrees to accept or attempts to obtain, for himself or for any other person, any valuable thing without consideration, or for a consideration which he knows to be inadequate,
from any person whom he knows to have been', or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by such public servant, or having any connection with the official functions of himself or of any public servant to whom he is subordinate or from any person whom he knows to be interested in or related to the person so concerned shall be punished ....'
It is clear from the wording of this section that in order to be liable, the accused must know that he obtained a valuable thing from any person whom he knows to be related to the person so concerned. The accused has denied any such knowledge and P.W. 10 has stated that she knew Mrs. Wadhwani only and she did not know the accused Wadhwani. Therefore, the accused cannot be held guilty under Section 165, Penal Code for having received a valuable thing without consideration or for a consideration which he knew to be inadequate from a person whom the knew to be related to the person so concerned.
11. The learned Government Advocate contended that under Section 4, prevention of Corruption Act,' a presumption has to be made that the appellant had such knowledge Section 4(1) simply says:
'Where in any trial of an offence punishable under Section 161, or Section 165 Penal Code (Act 45 of 1860), it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved, that he accepted or obtained, or agreed to accept or attempted to obtain that gratification or that valuablething, as the case may be as a motive or rewardsuch as is mentioned in the said Section 161, or as the case may be, without consideration or for a consideration which he knows to be inadequate.'
The only presumption which can be drawn by virtue of this provision is that the thing was obtained without consideration or for a consideration which he knew to be inadequate. A presumption that it was obtained from any person whom he knew to be interested in or related to the person so concerned, is not covered by this proviso. It is for the prosecution to prove by positive evidence that the appellant obtained the thing from a person who is known to be related to the concerned person.
12. It may be stated that the accused contended that on the evidence he did not obtain the thing from P.W. 10 without consideration or for inadequate consideration. P.W. 10 has admitted in her evidence that they give presents to relatives and friends when their girls attain marriageable age and that Mrs. Wadhwani also brought one saree, a blouse and some sweets for her. It may be that the value of the return presents forms a good consideration, but as observed by the learned Special Judge there was no evidence adduced by the appellant as to the value of the return presents.
13. With regard to the value of the present sent by P.W. 10, no doubt the valuation, as given in Ex. 3(1), the postal register of the insured articles, is Rs. 500/-, but the seizure list Ex. 6 does not state the value of the article. It simply states that the gold necklace weighed 3 tolas 10 annas, Including tying thread which was in a case bearing stamp 'Seth Chamanlai Hiralal sarai Qadina Dist. Gurdaspur' both in English and Urdu.
In the charge sheet, the value of the articles which are the subject matter of the other two Instances was given, the value of the necklace was also given but the prosecution never cared to adduce any evidence with regard to the value of the necklace or the price for which it was purchased by P.W. 10. The necklace is a finished product and is not gold bullion. It is a matter of common knowledge that copper is added in gold by the makers of the necklaces for the purpose of finishing the workmanship. Though it is sold as gold necklace, the value may not be dependent upon the price of gold bullion,
The case containing the necklace sold had the name of the seller on it. It was incumbent upon the Special Police Establishment to adduce evidence with regard to the value as the value is material to show the guilt or otherwise of the appellant in conjunction with the conduct rules of the Central Civil Services. In my view, therefore, in the absence of a finding or proof of the value of the article, the guilt of the accused cannot be established.
14. Rule 10 of the Central Civil Services (Con-duct) Rules, 1955 is as follows:
'(1) Save as otherwise provided in these rules, no Government servant shall, except with the previous sanction of the Government, accept or permit his wife or any other member of his family to accept from any person any gift of more than trifling value:
Provided that gifts of a value, reasonable in all circumstances of the case, may be accepted from relations and personal friends or presented to such persons on occasions such as weddings, anniversaries, funerals and religious functions, when the making or receiving of such gifts is in conformity with the prevailing religious or social customs; but acceptance of such gifts other than those of a trifling value shall be reported to the Government andthe gifts shall be disposed of in such manner as the government may direct (2) if a question arises whether any gift is of a trifling value or not, or where a Government servant is in any doubt whether a gift offered to him is of a trifling value or not, a reference shall be made to the Government by such Government servant and the decision of the Government thereon shall be final.
Explanation -- Whether or not a gift should be treated as of a trifling value shall depend on who the donor is and the circumstances in which the gift is made. A gift exceeding in value l/20th of the monthly emoluments of a Government servant or Rs. 20/- (whichever is less) from a person who is not his relation or his personal friend shall ordinarily be regarded as a gift not of trifling value. Gifts from relatives and personal friends upto the value of l/8th of the monthly emoluments of the Government servant or Rs. 50/- whichever is less, or even upto the value of one half of such emoluments or Rs. 200/- whichever is less, on special occasions such as mentioned in the proviso to Sub-rule (1) may be regarded as of trifling value'.
In this case there is evidence that P.W. 10 is a friend of the wife of the appellant and it is admitted that the gift was made by her on the occasion of the marriage of Kalan, daughter of the appellant. It was received by the appellant on behalf of his wife. According to this Rule, the appellant can receive on this occasion a gift of a thing valued at Rs. 200/-. There is no evidence on the side of the prosecution that M. O. I is worth more than Rs. 200/- though it is stated to be of 3 tolas 10 annas weight.
In this connection, the learned counsel for the appellant also contended that what all R. 10 requires is that if a gift obtained by a public servant is of a value more than Rs. 200/- from relations and personal friends on occasions such as wedding etc., it shall be reported to the Government and the gift shall be disposed of in such manner as the Government may direct, and consequently on the wording of this rule, such acceptance of such a gift cannot be an offence.
The learned Government Advocate, on the other hand contended that this rule was a departmental rule and the provisions of this Rule cannot do awaywith the liability under the criminal law, to which the learned counsel for the appellant replied that as this Rule is made in exercise of the powers conferred by the proviso to Article 309 and Clause (5) of Article 148 of the Constitution, they override even the provisions of the Penal Code. I do not think that the contention of the learned counsel for the appellantcan be accepted.
But in view of my finding on the first point, it is not necessary to decide this question. It is unfortunate that this contention of the appellant was not taken into consideration by the learned Special Judge though it was expressly raised in the written statement.
15. In my opinion, therefore, the prosecution failed to prove that the appellant obtained the necklace in question from P.W. 10 and that she is interested in or related to the contractor. His conviction and sentence under Section 165, Penal Code are therefore set aside.
16. The Criminal Revision filed by the State for enhancement of the sentence is, in view of my decision in the appeal, also dismissed.
17. Before closing this judgment, I must say that the Special Police Establishment has not considered the tenability or otherwise of this prosecutionunder the Prevention of Corruption Act of 1947. There is absolutely no evidence as found by the learned Special Judge that the appellant obtained the gifts by corrupt or illegal means or otherwise abusing his position as a public servant and no attempt was made by the prosecution to prove the ingredients required and the charge sheet was framed by the department only under Section 5(2), Prevention of Corruption Act.
It is only the Special Judge that framed a charge also under Section 165, Penal Code and even then the prosecution did not make any attempt to adduce evidence with regard to the value of M. O. I, though it was incumbent upon the prosecution to do so. Had the investigating Officer referred to the Central Civil Service (Conduct) Rules, which he ought to have done at least the instance of Krutartha Acharya's present would not have constituted, an offence. In my opinion, this case appears to have been launched more for statistical purposes than for vindicating law.
18. I agree that the conviction and sentence should be Set aside and the petition of the Government for enhancement of the sentence should also be dismissed.
19. The only, charge which according to the lower Court was proved against the appellant, was his receiving a costly gold necklace weighing 3 tolas and 10 annas from one Sri. Satyabati who is the sister of a, Contractor named Shri Haribanslal Rowley. The receipt of the necklace from Satyabati was admitted by the appellant, but he denied his knowledge of her being the sister of the Contractor Shri Harbanslal Rowley.
It was clearly the duty of the prosecution to prove that the appellant knew Satyabati to be the sister of Harbanslal Rowley. There was practically no evidence to prove this essential ingredient of the charge and the learned lower Court misconstrued a paragraph in the written statement of the appellant as Indicative of his knowledge of that relationship. The charge under Section 165, Penal Code, must therefore fail, and it is unnecessary to consider the other questions raised by Mr. H. Mohapatra on behalf of the appellant.