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P.S. Aravamudha Iyengar Vs. the State of Madras - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Reported in(1959)2MLJ141
AppellantP.S. Aravamudha Iyengar
RespondentThe State of Madras
Cases ReferredIn Lohana Kantilal v. State A.I.R.
Excerpt:
- - it is not possible therefore for us to delve into the minds of these people taking bribes, because as has been well said 'the devil himself knoweth not the thoughts of man'.in this case, however, we have the evidence that the accused was not in such financial circumstances that he would be above all temptation. it is also possible that when he is on the verge of retirement he wanted as much money as possible when the going was good, because nobody would give him bribes after retirement. but unfortunately in this country of illiterates and needy people out to secure a job by hook or by crook, people who are in a position to give job as well as people who pretend that they will be able to secure a job for the applicants by siparsu or otherwise, take money and this is a notorious fact.....ramaswami, j.1. this appeal is preferred against the conviction and sentence by the special judge, tiruchirapalli, in c.c. no. 2 of 1958.2. the accused p.s. aravamuda ayyangar was employed as progress supervisor, golden rock workshop, southern railway. it is in evidence that notwithstanding the fact that at the time of the commission of the offence in question the accused was getting a salary of rs. 320 plus rs. 70 clearness allowance, per month, and his wife seems to be a musical instructor having occasional engagements in the all india radio also, he was not in flourishing circumstances. till may, 1957, his salary stood attached in execution of a simple money decree and he was getting only between rs. 156 odd and rs. 197 odd by way of net salary. it is also possible that the accused was.....
Judgment:

Ramaswami, J.

1. This appeal is preferred against the conviction and sentence by the Special Judge, Tiruchirapalli, in C.C. No. 2 of 1958.

2. The accused P.S. Aravamuda Ayyangar was employed as Progress Supervisor, Golden Rock Workshop, Southern Railway. It is in evidence that notwithstanding the fact that at the time of the commission of the offence in question the accused was getting a salary of Rs. 320 plus Rs. 70 clearness allowance, per month, and his wife seems to be a musical instructor having occasional engagements in the All India Radio also, he was not in flourishing circumstances. Till May, 1957, his salary stood attached in execution of a simple money decree and he was getting only between Rs. 156 odd and Rs. 197 odd by way of net salary. It is also possible that the accused was leading a standard of life a cut above his resources. But in these cases of corruption it is not possible, however to find out the motive, because incorruptibility depends upon the strength of character and not upon the financial resources. It is within our common experience that many low-paid servants are incorruptible and many high-paid servants are corrupt. It is not possible therefore for us to delve into the minds of these people taking bribes, because as has been well said 'The devil himself knoweth not the thoughts of man'. In this case, however, we have the evidence that the accused was not in such financial circumstances that he would be above all temptation. It is also possible that when he is on the verge of retirement he wanted as much money as possible when the going was good, because nobody would give him bribes after retirement.

3. Chenniyappan P.W. 2 resides near Erode. In June, 1957, he came to Golden Rock to find out if he can get employment as a kalasi in the Golden Rock Workshop. He made enquiries of some persons in Golden Rock about the job and learnt that if he contacted the accused who was residing in H-1 Quarters, Golden Rock, he would be able to do something for him. It may be parenthetically pointed out here that much point was made and rightly disbelieved by the lower Court that the accused was not in a position to recruit kalasis a job for which this untrained P.W. 2 was eligible. But unfortunately in this country of illiterates and needy people out to secure a job by hook or by crook, people who are in a position to give job as well as people who pretend that they will be able to secure a job for the applicants by siparsu or otherwise, take money and this is a notorious fact of which judicial notice can be taken. Therefore, P.W. 2 met the accused at 6-30 p.m. on a day in June, 1957, at his requested and required him to advise him how he can get the job of a kalasi. The accused told him that when vacancies arose it will be notified and that if P.W. 2 applied when vacancies were notified he would be sent for. P.W. 2 went to Golden Rock on 2 or 3 further occasions but he was not able to get any information. In the 1st week of August, 1957, P.W. 2 met accused for the second time at his house and asked him if recruitment was likely in the near future. Accused told P.W. 2 that, in a month or two, candidates are likely to be recruited and if P.W 2 agreed to pay him (accused) Rs. 100 before the end of that month and a further sum of Rs. 100 after P.W. 2 got the appointment, he would help P.W. 2 in getting an application form and also in getting him selected. To this, P.W. 2 who was hard pressed for securing a job readily agreed.

4. On 19th August, 1957, on information that accused was receiving illegal gratification for securing jobs in the Railway Workshop, Sri A. Devasahayam (P.W. 7) the Inspector of Police, Special Police Establishment, Madras, proceeded to Erode, stayed at the Retiring Room in Erode Railway Station and sent for P.W. 2. P.W. 2 met P.W. 7. I may point out here that on account of the growing civic consciousness in this country it is very fortunate for us that people who give bribes also co-operate with the authorities for the exposure of the bribe-takers once they are convinced that it is their duty to do so. Therefore on being questioned by P.W. 7, P.W. 2 told him the gist of the conversation between himself and the accused and the demand made by the accused for payment of Rs. 200 for securing him the job of a kalasi. P.W. 7 asked P.W. 2 to give a written complaint. P.W. 2 consented to the same. The complaint is Exhibit P-2 recorded by P.W. 7. P.W. 7 thereupon arranged for a trap being sprung and took preliminary steps.

5. P.W. 7 after directing P.W. 2 to meet the accused on 21st August, 1957 and find out if the accused asked for the money and if so meet him on 22nd August, 1957 night at the Tiruchirapalli Junction Railway Station, sent Exhibit P-2 to the Superintendent of Police, Special Police Establishment at Madras, requesting for an authorisation letter to the Additional First Class Magistrate, Tiruchirapalli, to permit him (P.W. 7) to investigate into the case. P.W. 7 got the letter from Sri C. V. Narasimhan, Superintendent of Police, Special Police Establishment authorising him to investigate into the case. The Additional First Class Magistrate, Tiruchirapalli, passed an order Exhibit P-8 authorising P.W. 7 to investigate into the case. Exhibit P-9 is the first information report which P.W. 7 sent to the Court, P.W. 7 registered the case as Crime No. 15 of 1957 on 23rd August, 1957.

6. In the meanwhile on 21st August, 1957, P.W. 2 proceeded to Golden Rock and was sitting in the Park near the house of the accused. At about 11-30 a.m. the accused returned home. P.W. 2 met the accused and the latter enquired him if he had got the money. P.W. 2 told him that he would pay the money day after next. The accused told P.W. 2 to wait for him in the same place and time on the day after next.

7. On 22nd August, 1957, at about 8 p.m. P.W. 2 met P.W. 7 at about 8 p.m. at the Tiruchirapalli Junction Railway Retiring Room and informed P.W. 7 of the conversation between himself and the accused. P.W. 7 instructed P.W. 2 to meet him at 7-30 a.m. on 23rd August, 1957, with Rs. 100. Nataraja Mudali P.W. 3 is the Karnam of Thayanur. He resides in Beemanagar, a suburb of Tiruchirapalli. P.W. 7 sent for P.W. 3 through a Railway Police Constable. P.W. 3 met P.W. 7 at 9 p.m. on 22nd August, 1957, in the Railway Retiring Room, Tiruchirapalli Junction. P.W. 7 directed P.W. 3 to meet him on the next day at 7-15 a.m. in his room. P.W. 3 met P.W. 7 at the retiring room as arranged. At about 7-45 a.m. P.W. 2 met P.W. 7 at the Railway Retiring Room taking with him ten-ten rupee currency notes, M. Os. 1 to 10, and a change of eight annas towards bus fare. P.W. 2 handed over M. Os. 1 to 10 to P.W. 7 who prepared a Mahazar noting the number of M. Os. 1 to 10 in the presence of P.W. 3. P.W. 2 signed the Mahazar Exhibit P-3. P.W. 3 attested it. P.W. 7 directed P.W. 2 to proceed to the place mentioned by accused on 21st August, 1957 and give M. Os. 1 to 10 if accused demanded the money and then signal to him as pre-arranged by dropping his towel and retrieving it back. P.W. 2 agreed and went to Golden Rock by bus. Before P.W. 2 went for Golden Rock P.W. 7 searched his person and found that there was no incriminating material. Some time later P.W. 7 instructed P.W. 3 to follow P.W. 2 and stay somewhere nearby without drawing any attention to himself, and watch what was happening. P.W. 3 left for Golden Rock. P.W. 2 sat on a bench in between the Armoury Gate of the Golden Rock Workshop and the Park, at the place indicated by the accused the day before. P.W. 3 went to the same place and sat on a bench by the side of the road in the opposite direction and a little away from the place where P.W. 2 was sitting, as if he was a casual wayfarer resting there, but sufficiently near to see what was happening. By 8-45 p.m. P.W. 7 left for Golden Rock by bus, got down at Park Bus stop. There he met Sri J. M. Davis (P.W. 4) a B.A. B.T. employed as an assistant in the Golden Rock Railway High School, who was on his way back from the Railway Hospital. P.W. 7 disclosed his identity to P.W. 4 and requested him to assist him in a trap against an official. After some reluctance P.W. 4's sense of duty overcame the unpleasantness of the duty he was asked to discharge and he consented. P.Ws. 4 and 7 took their position near the eastern gate of the Park, a few yards west of the place where P.W. 2 was sitting. Thus, the stage was set for a trap being sprung.

8. At about 11-15 a.m. accused came out of the Golden Rock Workshop through the Armoury Gate and was walking towards the Park. Accused was wearing a dhoti and a slack shirt. Some one leading a cycle was accompanying him. On seeing the accused P.W. 2 got up and made a Namaskar. The accused asked P.W. 2 to follow him. After they had gone a few feet west, the person who had the cycle got on it and proceeded along the Post Office Road. Accused enquired P.W. 2, who was trotting along, if he had brought the money. P.W. 2 told the accused that he had arrived just then and he had brought the money. The accused asked P.W. 2 to give the sum of Rs. 100. P.W. 3 slowly followed accused and P.W. 2 from behind. P.Ws. 4 and 7 were observing the movements of the accused and P.W. 2. 2

9. Thus, while three pairs of eyes were being trained on him at unsuspectingly fairly close quarters P.W. 2 took the sum of Rs. 100, M.Os. 1 to 10, and gave them to the accused. The accused received them with his right hand and put M.Os. I to 10 into the left side pocket of his slack shirt. Accused told P.W. 2 not to worry about the job, that he would attend to it, that P.W. 2 was to keep himself in touch with him and that as soon as there were vacancies P.W. 2 would be given an application form and that he (accused) would see that P.W. 2 got selected. The accused also told P.W. 2 that if any other persons desired to get the job of kalasis, P.W. 2 might take them to him and that he would oblige them also for similar considerations. By this time P.Ws. 3, 4 and 7 closed upon this accused. In fact they could even overhear part of the conversation between the accused and P.W. 2 and as soon as accused had proceeded about 25 feet along the Southern bend of the road, round the Park, P.Ws. 4 and 7 stopped the accused.

10. P.W. 7 revealed his identity to the accused and called upon him to produce the currency notes received by him from P.W. 2. By that time P.W. 3 had joined them. The accused took out the currency notes M.Os. 1 to 10 from the left saide pocket of his slack shirt and gave them to P.W. 7. P.W. 7 verified the numbers in M.Os. 1 to 10 with the numbers recorded by him in the Mahazar Exhibit P-3 and found the numbers tally. The currency notes were seized under a Mahazar Exhibit P-5. This Mahazar has been attested by P.Ws. 3 and 4. P.W. 7 searched the person of the accused but did not find anything incriminating.

11. P.W. 7 interrogated the accused and examined the P.Ws. There are no irregularities in the investigation and in fact a model procedure has been followed in this case. I need not point out that irregularities in investigation unless they have brought about a miscarriage of justice will not vitiate the result. Ramchand Tolaram v. The State : AIR1956Bom287 , Vaghji Nanji v. State A.I.R. 1955 Sau. 91; Debi Prasanna v. State : AIR1956Cal56 , Mubarack Ali A.I.R. 1958 Madh. Pra. 166; M. P. State v. Veereshwar Rao : 1957CriLJ892 , Warriappan A.I.R. 1958 Manipur 17; on completing the investigation he submitted his report to the Inspector-General of Police, Special Police Establishment, New Delhi. He applied for sanction to prosecute the accused to the General Manager, Southern Railway. The facts relating to the charge were placed before the General Manager and sanction accorded by the General Manager not mechanically but applying his mind has been proved through P.W. 1. The sanction is in conformity with the settled law on the subject. Brahim Sarup v. The State : AIR1953All37 ; Ravi Dutt v. State 1956 Cri. L.J. 103 : A.I.R. 1956 Pepsu 12; Nizhal Singh v. State , Rameshwar Dayal Lakhpat Rai v. State A.I.R. 1955 N.U.C. 852 Mohanlal : AIR1956Bom504 Baynath A.I.R. 1956 Bhopal 36; Bangiram 1957 Cri. L.J. 132; Indu Bhushan : 1958CriLJ279 ; Jaswant Singh : 1958CriLJ265 , K.N.N. Ayyangar v. State A.I.R. 1954 Madh. B. 101; Hiranand : AIR1958MP2 ; State v. Mehra . The charge-sheet was laid on 24th December, 1957.

12. These facts were proved through the seven witnesses examined on behalf of the prosecution and by Exhibits P. 1 to P. 9 and M.Os. 1 to 10.

13. The accused denied the offence and contended as follows : P.W. 2 did not meet him in connection with securing the job of a kalasi. The accused did not offer to get a job of kalasi to P.W. 2 if the latter agreed to pay him Rs. 200, Rs. 100 immediately and the balance of Rs. 100 after P.W. 2 got the job. On 23rd August, 1957, at about 11-15 a.m., while the accused was returning to his house from the Golden Rock Workshop P.W. 2 met him and gave him a sum of Rs. 100 consisting of M.Os. 1 to 10, which he received. But he did not receive them as bribe or as illegal gratification. Immediately afterwards P.W. 7 stopped him and asked him to produce the currency notes which P.W. 2 gave him and he produced M.Os. 1 to 10 from his slack pocket and gave them to P.W. 7. Accused knew P.W. 2 for the past four years. P.W. 2 used to go to him very often and take small loans and return the same on the promised dates. On nth August, 1957, P.W. 2 came to him and asked him for a loan of Rs. 100 stating that P.W. 2 had spent the money given by his. mother and promised to repay the same in 2 or 3 days' time. On 16th August, 1957, P.W. 2 met him and told him that he was not able to repay it as undertaken by him and promised to repay the same in two or three days' time. Accused abused P.W. 2 and sent P.W. 2 out of the house. On 21st August, 1957, P.W. 2 again came to accused's house and said that the loan amount was ready and that he would repay it on 23rd August, 1957. P.W. 2 asked the accused where he could give the money. Accused told him that he could repay the money wherever he chose and whenever he chose. Accordingly P.W. 2 paid the sum of Rs. 100 to the accused on 23rd August, 1957. Because he pressed P.W. 2 for repayment of the loan, P.W. 2 had given false evidence against him. He did not know P.W. 3 at all, that P.W. 3 was not present on 23rd August, 1957 and that P.W. 7 might have asked P.W. 3 to give evidence against him. P.W. 4 is a distant relation of P.W. 7, the suggestion of the accused being that P.W. 4 might have given evidence to oblige P.W. 7.

14. On behalf of the accused two witnesses were examined to support his case that he gave a loan of Rs. 100 to P.W. 2 and that it was this sum that P.W. 2 paid him on 23rd August, 1957. The learned Special Judge has exhaustively examined the evidence of D.Ws. 1 and 2 in paragraphs 12 and 13 of his judgment and has come to the conclusion that one has only to read their evidence to be convinced that both of them are speaking to unmitigated falsehoods. From the admissions of D.W. 1 it is seen that he had been prematurely retired from the Railway Workshop where he was employed in an inferior position and that he had been committed to civil prison for non-payment of a small decree debt. Further, D.W. 1 stated that the accused called his debtor by name Kanniyappan in chief examination, whereas the name of P.W. 2 is Chenniyappan. It is unnecessary to multiply the other details given by the learned Special Judge showing the worthless character of his evidence. Similarly, D.W. 2 was found to be an equally worthless witness and though he did not know in which village the accused owns lands, nevertheless he was willing to oblige the accused by saying that he had seen paddy and rice being brought to the house of the accused on numerous occasions and though he does not even own a Radio and cannot legitimately be expected to know anything about the accused's wife giving musical concerts, he had the temerity to claim knowledge of what the accused's wife was earning, etc. Though D.W. 1 is residing in Woraiyur and D.W. 2 is residing in Ponmalaipatti, they had the brazenness to say that they went to the house of the accused to witness P.W. 2 coming there without money and being abused by the accused and D.W. 2 recommending the loan of Rs. 100 to P.W. 2, an alleged gambler, who had lost the money. It is obvious that the testimony of these worthless witnesses D.Ws. 1 and 2 had been procured by the accused to speak to an improbable story that the incriminating goods with which this accused was caught represented the return of a loan.

15. But this need not detain us, however, because it is not for the accused to establish his innocence and it is for the prosecution to establish satisfactorily and affirmatively the guilt of the accused. That is the one golden thread which runs through the web of our Criminal Jurisprudence derived from the British : Woolmingtom v. D.P.P. L.R. 1935 A.C. 462; Mancini v. D.P.P. L.R. 1942 A.C. 1; Kwatu Mensah v. The King (1946) 1 M.L.J. 212 : A.I.R. 1946 P.C. 20. Emperor v. Damapala A.I.R. 1937 Rang. 83; Parbhoo v. Emperor : AIR1941All402 ; Stephen Senavirlane v. The King A.I.R. 1936 P.C. 289; Wanchope v. Emperor : AIR1933Cal800 , Hasan Din v. Emperor A.I.R. 1943 Lah. 56. To be fair the learned advocate for the appellant here did not rely upon the defence evidence, seeing that it would not and did not at all commend itself to any Court.

16. In this state of evidence there cannot be the slightest doubt that the learned Special Judge came to the correct conclusion that the prosecution has affirmatively and satisfactorily proved its case against the accused for the offence of public servant taking illegal gratification (Section 161, Indian Penal Code) and criminal misconduct punishable under Section 5(1) read with 5(2) of Act II of 1947.) The requirements under Section 161 will be found set out in the standard commentaries; Dr. Sir Hari Singh Gour's 'The Penal Law of India ' 6th edition (1955), volume 1, page 668 and following; V. B. Raju, I.C.S., 'The Penal Code' (1957), page 524 and following; and the requirements under Section 5 will be found set out in Kapur and Pandit's 'The Prevention of Corruption Act' (The Criminal Law Series Publications Railway Road, Ambala City), pages 56 to 108; Aggarwalla : 'Prevention of Corruption Act', page 85 and following ; Varshini : 'The Law Relating to Bribery and Corruption', (Eastern Book Co.), page 95 and following ; Bayes 'Commentary on Prevention of Corruption', page 28 and following.

17. That this appellant-accused was asking for bribe to secure an employment to P.W. 2 it makes no difference whether the public servant was in a position to appoint him or not, Emperor v. Phul Singh A.I.R. 1941 Lah. 276; Mahadeo Dannappa v. State : AIR1952Bom435 ; Indur Dayaldas v. State of Bombay : AIR1952Bom58 ; Satya Vir v. State : AIR1958All746 , the bribe was given is spoken to not only by P.W. 2 but also by the Inspector P.W. 7, the Karnam P.W. 3 and the B.A., B.T. Assistant, P.W. 4. The accused himself does not deny that he was caught with M.Os. 1 to 10 after obtaining Ram Krishnan : 1956CriLJ837 the bribe. In fact he wanted to make out that it was the repayment of a loan. Now, in view of Section 4(1) of the Prevention of Corruption Act (Central Act II of 1947) a presumption at once arises that accused accepted the gratification as a motive or reward. The Legislature has by the words ' shall presume ' used in Section 4(1) of the Act, made it obligatory on the Court to raise a presumption in every case brought under the Prevention of Corruption Act that the accused received or accepted the money as an illegal gratification unless he rebutted the same. It has been pointed out by their Lordships of the Supreme Court in State of Madras v. Vaidyanatha Iyer : 1958CriLJ232 , which has been followed by the Kerala High Court in Sree Krishnanarayana Rao v. Republic of India : (1958)IILLJ728Ker that for rebutting the presumption under Section 4(1) it is not enough for the accused to offer an explanation which has not been disproved or to create some doubt in the mind of the Court, but that it is necessary for the accused to prove that he did receive the money otherwise than as illegal gratification or bribe, i.e., innocently. Relying on the observations of the Supreme Court in State of Madras v. Vaidyanatha Iyer : 1958CriLJ232 and following the observations of Willes, J., in Copper v. Sladet (1858) 6 R.L. Can. 746 and of Lord Goddard, C.J. in R. v. Dubbar (1957) 2 A.E.R. 737 the Kerala High Court held, if I may say so with respect, rightly that the burden of proof required to be discharged by the accused in such cases is less than that required at the hands of the prosecution in proving the case beyond reasonable doubt and that the burden may be discharged by the evidence satisfying the Court of probability of that which the accused is called upon to establish, and that where the onus is placed on the accused person it may be discharged by proving what would be enough to support a verdict in his favour in a civil action and that in civil cases the preponderance of probability may constitute sufficient ground for verdict.

18. The scope and extent of this presumption has been expounded in the following decisions deserving of careful study, Moolraj v. The State 1955 Crl. L.J. 1585 : A.I.R. 1955 Him.Pra. 51; Mehar Singh Hajara Singh v. The State (1955) Cri. L.J. 1387 : A.I.R. 1955 Pepsu.156; The State v. Minaketan Patmali : AIR1952Ori267 ; Mitra v. The State Cri. L.J. 1116 : : AIR1957Cal524 ; Krishnabi Harilal v. The State A.I.R. 1956 Madh. B. 86; Narayan v. The State A.I.R. 1955 Mad. Bh. 51; Lalchand Topindas v. State : (1957)ILLJ650Ori , Ranjit Singh v. The State 1957 Crl. L.J. 42 ; State v. Abhey Singh , Sree Krushna Narayana Rao v. Republic of India : (1958)IILLJ728Ker , Akhouri Inder Deo Prasad v. State : (1958)IILLJ451Pat .

19. If we examine the explanation given by the accused in the light of these observations, it does not amount even to that reduced amount of proof. The test under both English and Indian Law regarding probabilities is that of a prudent man envisaged in Section 3 of the Indian Evidence Act. It is found that the story put forward by the accused is a cock-and-bull story. P.W. 2 is a native of Erode. There was no necessity for P.W. 2 to borrow from the accused. The accused was not in flourishing circumstances. His own salary was under attachment. His story that he used to lend out moneys is not supported by any evidence on record. Then, is it credible that this accused would lend to a gambler who had lost the money and did not want his people in the house to know that he had gambled away the money entrusted to him for a family purpose? If really money had been lent like that, would not this accused have taken a promissory note or a bond or a voucher from P.W. 2? The circumstances under which P.W. 9, seems to have called upon the accused as narrated by D.Ws. 1 and 2 impress one that-and the place, time and manner of the alleged repayment the whole thing is an obvious concoction. In fact in this State of Madras this description of bribe as a loan was a favourite doubt-raising-dodge which I am sorry to say sometimes got put across successfully in our Courts also even when the plea was wholly unfounded until this doubt-raising-trick was exposed and given its death blow by their Lordships of the Supreme Court in State of Madras v. Vaidyanatha Iyer : 1958CriLJ232 .

20. The accused has been convicted both for the offences under Section 161, Indian Penal Code and under Section 5(1)(d) read with Section 5(2) of Act II of 1947. The learned advocate for the accused, Sri V. T. Rangaswami Ayyangar, drew my attention to my decision in In re Satyanarayanamurty : AIR1953Mad137 ; in which I have held that the provisions of the Prevention of Corruption Act do not repeal the provisions of the Indian Penal Code and that a person cannot be punished both under the Penal Code and the special law for the same offence. In Narayanaswami v. Kerala State (1957) M.L.J. 443 : 1957 Ker. L.J. 476, the Kerala High Court held as follows:

Clauses (a) to (d) of Sub-section (1) of Section 5 of the Prevention of Corruption Act, specify the different offences which would amount to criminal misconduct by a public servant in the discharge of his official duty and punishable under Sub-section (a) of Section 5. Every one of the offences specified in Clauses (a) to (d) is an offence made punishable under the Penal Code also. The essential ingredients of the offence under Section 5(1)(a) are the same as the ingredients of the offence under Section 161, Indian Penal Code, subject to one difference, viz., that offence under Section 5(1)(a) is an aggravated form of the offence under Section 161, Indian Penal Code. Repetition of the offence under Section 161, Indian Penal Code, would amount to the offence of criminal misconduct under Section 5(1)(a) of the Prevention of Corruption Act. It follows therefore that the charge framed against the accused that he committed the offence under Section 5(1)(d) of the Prevention of Corruption Act necessarily implies that he had committed the offence punishable under Section 161, Indian Penal Code. In Jayarama Iyer v. The State of Hyderabad A.I.R. 1954 Hyd. 56 it was held that Section 5(2) of the Prevention of Corruption Act in fact makes the sentence under Sections 161 and 165, Indian Penal Code, more severe and the sentence for an offence under Section 5(1)(c) is made less severe by prescribing a punishment extending to seven years or with fine or with both. See also Mahfus Ali v. The State : AIR1953All110 , Bhup Narain v. State : AIR1952All35 , Om Prakash v. The State : AIR1955All275 : : AIR1955All275 .

21. Section 26 of the General Clauses Act envisages the possibility of the same act or omission not only being an offence under different enactments but of the accused being charged under either or any of them, though he shall not be punished twice for the same offence. In Lohana Kantilal v. State A.I.R. 1954 Sau. 121 it was held that separate sentences for the conviction under Section 161, Indian Penal Code and Section 5(2) of the Prevention of Corruption Act are illegal since there is only one act which constitutes an offence under two enactments. Therefore, the sentence under Section 161, Indian Penal Code, imposed on this accused has to be formally set aside. In this case as a matter of fact the sentences awarded under Section 161, Indian Penal Code, and under Section 5(2) of the Prevention of Corruption Act have been made to run concurrently. But the requirements of the law can be fully complied with only if the sentence imposed under Section 161, Indian Penal Code, is formally set aside and it is hereby set aside.

22. The convictions of the accused by the learned Special Judge under Section 161, Indian Penal Code and Section 5(2) of the Prevention of Corruption Act are correct and they are confirmed.

23. In regard to the sentence, where the learned Special Judge has given adequate reasons for giving a sentence of one year's imprisonment, I do not think it proper that I should interfere with it for no reason. The sentence of imprisonment imposed under Section 5(2) of the Prevention of Corruption Act is also confirmed.

24. I would like, however, to point out that in this case where the accused is almost on the. verge of retirement and had put in a long period of service, the authorities might consider whether there should be a complete forfeiture of his full gratuity and bonus, amounting to a large sum, thereby cause vicarious suffering to his dependents. This is a matter entirely for the powers-that-be to consider and not for this Court, which can do nothing more than merely drawing attention.

25. The model investigation of this case by Sri A. Devasahayam, Inspector of Police, Special Police Establishment, is specially commended.


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