1. This is an appeal preferred against the acquittal by the learned Sessions Judge of Chittoor division, Mr. M. A. Azeem reversing the conviction under Section 161, Penal Code (i.e. receiving illegal gratification by a Supervisor of Highways) and sentence of one year's rigorous imprisonment awarded by the learned Assistant Sessions Judge of Chittoor division, Sri D. R. Venkatesa Aiyar, M. L., in S. C. No. 17 of 1950.
2. The facts leading to the institution of this appeal are: The accused Sri P. V. Audinarayana Chetty was a Supervisor employed in the Highways Department, Madras State. His office was at Puttur and his actual place of residence was Tirupati. This accused who was the Supervisor of the Puttur section of the Highways Department of the Chittoor district is stated to have been regularly receiving bribes from contractors who did road maintenance work in that section. His 'modus operandi was as follows : He used to insist upon contractors agreeing to pay 5 per cent, of the bills, and which he later on raised to 10 per cent, and which sudden departure from the 'mamool created an active resentment and protest. Then he would check-measure the works and prepare bills for payment and either before or after the cheques were cashed by the contractor, the 'mamool' had to be paid. This 'modus operandi' and payments to him are spoken to, by P. Ws. 7, 11, 12 and 1, who arc all contractors working on this Puttur section. I shall now briefly summarise the evidence of these four contractors.
3-6. (His Lordship reviewed their evidence and continued:)
7. This is the evidence of the prosecution regarding the 'modus operandi' of the accused, the systematic toll levied by him and spoken to by the four contractors, P. W. 7 Muniswami Reddi P.W. 11 K. Sesha Pillai, P.W. 12 Purushotham Naicker and P. W. 1 Rangiah Naidu.
8. I have just now mentioned that Rangiah Naidu was being demanded in regard to 1949-50 works 10 per cent, whereas the 'mamool', which was being paid was 5 per cent. This Rangiah Naidu P. W. 1 pleaded with the accused that the percentage should not be raised. On that, the accused told him that he was justified in raising his 'mamool' as the contractors had secured higher rates for these two works. Thereupon Rangiah Naidu pleaded that he had suffered losses and that he would pay the usual 5 per cent. Thereupon the accused pressed for immediate cash payment. Rangiah Naidu promised payment after cashing the cheque, with the mental reservation of naturally booking this accused because by that time the Madras State through the press and platform had been widely broadcasting -- a notorious fact of which judicial notice can be taken -- that in Republican India such 'mamools' should not be paid and citizens should come forward and help the authorities, that prompt investigations will be made and that those who rendered assistance to book these public leeches would be protected from being proceeded against as accomplices.
Thereupon Rangiah Naidu arranged with the clerk in the P. W. D. office to give him a cheque on the Chittoor Imperial Bank for this contract standing in the name of Venkataraju after misleading the accused that he would take a cheque on the Chandragiri treasury. This bill for Rs. 5700 had already been sent to the Divisional Engineer at Chittoor. P. W. 1 cashed the cheque on 7-7-1949 and took his share as Sub-contractor, of Rs. 1904. Then both this P. W. 1 and Venkataraju went to the Collector of Chittoor and gave a complaint Ex. P. 1 in which it has been-narrated how this accused has been pressing for payment of high bribes of 10 per cent on the bill amounts and that he prepared bills only after a promise of payment of 5 per cent, and that it would be easy to catch him red-handed. Having apprised the authorities and setting in motion the forces of law and order to trap the accused this Rangiah Naidu P. W. 1 evaded meeting the accused who was naturally on his toes for getting his cut in the bill. This accused sent his peon Subbaraju once and maistry Isack (P. W. 5) at another time to fetch this P. W. 1. But Rangiah Naidu after cashing the cheque on 12-7-1949 for Rs. 5700 had gone home and made himself scarce to the supervisor. But on reaching home, maistry Doraiswami was in his house sent by the accused with a message to come and cough up the per centum, and P. W. 1 sent a soothing message that he (accused) need not worry himself and that he (P. W. 1) would stick by his undertaking and come and pay up. This increased pressure by the accused on this P. W. 1 Rangiah Naidu made him all the more energetic to book this supervisor. So he went to Chittoor but could not find the Divisional Engineer. Therefore, he went to Madras to complain to the Minister in charge of P. W. D. and finding that the Minister was on tour he went to the office of the Criminal Investigation Department. There he gave the complaint, Ex. P. 3 on the evening of 15-7-1949 at Madras to P. W. 15 Sri Y. Satyanarayana Choudhury, Deputy Superintendent of Police, C. I. D. This Ex. P. 3 mentions all the details of payment in 1948-49 and the worry given by this Supervisor to the contractor for higher percentage and how this accused was waiting for payment in respect of the bill which had just been cashed. Thereupon P, W. 15, an officer of great experience and integrity in the service of the Madras State, set a trap for this accused.
9. P. W. 15 took three currency notes of Rs. 103 denomination from P. W. 1 who had them with him and then both of them left by car to Puttur. On learning at Puttur that the accused had gone to Tirupathi with the object of retunring_ on the next day P. W. 15 and Rangiah Naidu went to Tirupathi from Pultur and stayed in the Travellers' bungalow at Tirupati on the night of 15-7-1949. The Deputy Superintendent of Police P. W. 15 instructed Rangiah Naidu to contact the accused at about 2 p.m. and gave the three marked currency notes to the accused when the latter was expected to go to the bus stand and then come round to the Deputy Superintendent of Police who had moved to the Devasthanam choultry and inform him of what had happened so that P. W. 15 and the panchayatdars could catch the Supervisor with the goods on him.
10. P. W. 1 Rangiah Naidu thereupon waited for the accused near the Koneru opposite to the bus stand at Tirupati, because as I have just now stated inside information had made this Rangiah Naidu know that the accused would be coming to the bus stand, and I have mentioned also that the accused lives in Tirupati though his office is in Puttur. On seeing this accused coming as expected P. W. 1 contacted him and the accused who did not apparently suspect this trap remarked to P. W. 1 that he had been avoiding seeing him though he had sent word several times. I suppose the accused meant by this to mildly rebuke this P. W. 1 to see the errors of his ways and how he should keep up his word with the supervisor. Then Rangiah Naidu handed over the three currency notes to him and accused thereupon demanded the balance of Rs. 200. This P. W. 1 has evasively stated that Venkataraju would pay him the balance the next day. The accused after expressing his dissatisfaction with the contractor's altered behaviour alter the completion of the work and the passing of the bill put the three currency notes in a purse and tucked it inside the pocket of his coat. The accused went to the bus stand and sat in the bus preparatory to its starting. I may point out what is stated by the Public Prosecutor and which is not denied by the other sidej that on account of the congestion of bus traffic in Tirupati and elsewhere passengers do try to get into the buses sometime before the scheduled time of departure to get a good place and the bus people leave the stand after the bus gets completely filled up. Therefore while the accused was sitting inside the bus apparently feeling complacent that he was the richer by a sum of Rs. 300, -this P. W. 1 slipped away and contacted within five minutes P. W. 15 who was waiting for him in the Devastanam choultry and told him how he had handed over the three currency notes to the accused and that the accused was sitting inside the bus with currency notes inside his pocket in a purse.
11. Then P. W. 15, the Deputy Superintendent of Police, with two panchayatdars Raghava Reddi and another Ponneri Raju came towards the bus stand from the choultry, stopped the bus which had just started and asked the accused whom P. W. 1 had pointed out to get down. The accused got down and on P. W. 15's demand produced two purses, M. Os. 2 and 3 from his inside coat pocket. M. O. 2 which is a smaller purse contained three currency notes M. Os. 4, 4(a) and 4(b). Ex. P. 5 was also recovered from this accused from the bigger purse M. O. 3. On the request of the Deputy Superintendent of Police, P. W. 4 Raghava Reddy verified the numbers on the three notes with the numbers given in a slip of paper Ex. P. 4 and Raghava Reddi said that the numbers tallied alright. This recovery was also witnessed by P. W. 2 Dr. H. N. Simham a pilgrim to Tirupati and who happened to be at the bus stand and who was impressed as a panchayatdar. P. W. 2 testifies that the notes which were found in the money purse of the accused bore the same numbers that were given in the list Ex. P. 4 which was with the Deputy Superintendent of Police, P. W. 15. P. W. 4 is a resident of Tirupati and a forest contractor of property and a respectable man and Dr. Simham was an entire stranger to the locality who had come as a casual pilgrim. The accused was then arrested and taken into custody. Then after completing the investigation and obtaining the sanction of the Chief Engineer, Highways, Madras under Ex. P. 9, which is proved by P. W. 6, the accused was charge-sheeted for offences under Sections 5(1) (a) and (d) and 5(2) of the Prevention of Corruption Act. 2 of 1947 and also for an offence under Section 161, Penal Code.
12. The Stationary Sub-Magistrate, Tirupati, who held a preliminary enquiry committed the accused for trial at the sessions for offences under Sections 5(1) (a) and (d) of the Prevention of Corruption Act, 2 of 1947. This Sessions case was tried by the learned Assistant Sessions Judge, Sri D. R. Venkatesa Aiyar on two charges, namely criminal misconduct in the discharge of official duties under Sections 5(1) (a) and (2) of the Prevention of Corruption' Act and under Section 161, I. P. C. of receiving illegal gratification of Rs. 300 on 16-7-1949.
13. In regard to the first charge, the case for the prosecution was as set out in the earlier paragraphs above and based on the evidence of the four contractors, P. Ws. 7, 11, 12 and 1, and the corroborative witnesses of P. W. 7, viz.,-P. Ws. 8, 9 and 10 and the account books of P. W. 11, viz., Exs. P. 14 and P. 15. The charge under Section 161, Penal Code, was based on the evidence of the prosecution set out in later paragraphs above and spoken to mainly by P. Ws. 1 to 5 and 15.
14. The learned Assistant Sessions Judge has after thoroughly analysing the evidence with great care in an elaborate judgment came to the conclusion that the offence regarding the first charge, viz., habitual taking of bribes was not made out because of two reasons namely, that in regard to these payments these contractors stood in the position of accomplices of willing payers of the bribes and that therefore their evidence required independent corroboration in regard to each of them and that in this case, though he accepted the testimony of the four contractors themselves there was such independent corroboration only as regards the testimony of P. W. 7 in regard to the transaction covered by Ex. P, 5 and that therefore the charge under the Prevention of Corruption Act 2 of 1947 failed as this solitarily corroborated instance would be inadequate to support the finding of habitual bribe taking which is contemplated under Sections 5(l)(a) and (2) of Act II of 1947. In regard to the offence under Section 161, Penal Code, the learned Assistant Sessions Judge agreeing with the unanimous opinion of the four assessors in the case cams to the conclusion that the charge had been brought home by reliable and corroborative evidence against this accused and convicted him thereunder and sentenced him to one year's rigorous imprisonment.
15. In appeal, the learned Sessions Judge of Chittoor, Mr. M. A. Azeem came to the conclusion that the charge under Section 161, Penal Code, had not been brought home to the accused and acquitted him. The State of Madras has thereupon preferred this appeal.
16. Before discussing the evidence in this case, I must briefly point out that this being an appeal preferred by the State under Section 417, Criminal P, C. unlike a criminal revision petition preferred by a private party against an acquittal, it is open to the High Court to review at large the evidence upon which an order of acquittal is founded and the Code makes, no distinction between an appeal from an acquittal and an appeal from a conviction. In an appeal from an acquittal, if the court thinks the lower court has taken an erroneous view of the evidence it has no jurisdiction to refuse to convict: see -- 'Emperor v. Mott Khoda', : AIR1924Bom335 (A). This court has laid down that in reviewing at large the evidence upon an order of acquittal, the High Court has to consider such matters as (i) the views of the trial Judge as to the credibility of the witnesses (ii) the presumption of innocence in favour of the accused (iii) the right of the accused to the benefit of any doubt (iv) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses: -- 'Sheo Swarup v. Emperor . But in this case we have the opposite view, the lower appellate court without considering these matters has reversed the conviction and sentence of the learned Assistant Sessions trial Judge. And, yet, bearing in mind these considerations laid down by this court I shall review the evidence and arrive at my conclusion.
17. The other point to be borne in mind is that in regard to two charges based upon several acts of bribe-taking including the receiving of illegal gratification of Rs. 300 the subject-matter of the trap, the trial court itself on the ground that adequate corroboration was not forthcoming, acquitted the accused in respect of offences under Act II of 1947 and convicted him under Section 161, Penal Code. This appeal to the High Court has been preferred only against the acquittal under Section 161, Penal Code, and in such a case can the whole evidence be looked into for the purpose of finding out whether the charge under Section 161, Penal Code, has been made out or not? This has been answered in the affirmative in a decision of this court in -- 'In re Rangarao', AIR 1945 Mad 240 (C). In that case an accused was charged for the offence of cheating effectuated by means of forgery that is to say for offence under Sections 420 and 467, I. P. C. The accused was acquitted in regard to cheating and convicted for forgery. On appeal a reference was made to the High Court by the Sessions Judge and the High Court answered the reference as follows:
'The whole evidence is before the court. He is entitled if he thinks fit, to express his disagreement with the findings of fact in the acquittal although there being no appeal the acquittal still stands. He is not in the least bound by any finding of facts in the acquittal. The fact that the trial Judge was able to 'acquit of cheating and convict of forgery makes evident that this is not a case when on precisely the same facts a man is tried for two offences......The reference will be returned to the learned Sessions Judge with these observations. He can come to his conclusion with regard to the appeal against the conviction under Section 467 quite untrammelled by the fact that the acquittal under Section 420, I. P. C. stands. It may act as a plea in bar to further trial of cheating but does not in the least act as a plea in bar with regard to the facts in so far as they are relevant in considering the charge of forgery.'
But unfortunately in this case the evidence for the offence under Section 161, I. P. C., stands apart from and was not the subject-matter of adjudication in respect of the offences under Act 2 of 1947. This was so because the habitual bribe taking constituted the preliminary part & the offence under Section 161, I. P. C., constituted the sequel as a result of the trap to catch this habitual bribe-taker. Therefore, it is not necessary in this case to consider or make use of the evidence on which the acquittal of the trial court was based though I need not point out it can be made use of wherever relevant and proved in the adjudication of this offence under Section 161, I. P. C., for the limited purpose permissible under Sections 5 to 9, 11, 14, and 15 of the Indian Evidence Act.
18. There is no dispute regarding the recovery of the three one hundred rupee currency notes from the person of the accused at the bus stand by P. W. 15, and the only point of dispute is according to the prosecution these notes had been given by P. W. 1 as an illegal gratification in the circumstances set out by them and in order to catch the accused red handed and according to the accused P. W. 1 Rangiah Naidu gave him the three currency notes at the Koneri near the bus stand in the following circumstances : The explanation of the accused is that when he met Rangiah Naidu the latter expressed inability to leave Tirupathi to Puttur on account of a case in court and that Rangiah Naidu's son-in-law would be waiting at the Puttur bus stand expecting Rangiah Naidu with money and that Rangiah Naidu requested him to take the three currency notes to be handed over to his son-in-law and that tbe accused undertook the errand with a view to help the coolies so that the work would not suffer and that at that time one T. Ramakrishnaiya (D. W. 1) was in his company.
19. On a review of the entire circumstances of the case I have come to the conclusion that the prosecution had brought home beyond reasonable doubt that the three currency notes recovered from the accused had been received by him as an illegal gratification as alleged by the prosecution witnesses and in the circumstances set out by them and incidentally that the explanation which the accused has put forward to give an innocent origin for his possession is thoroughly false. I shall now set out my reasons.
20-28. (His Lordship considered the explanation of the accused and the evidence offered by him and also the reasoning of the Sessions Judge and proceeded :) I am unable to follow this reasoning of the learned Sessions Judge, who seems to think that he would have arranged the trap more cleverly than the C. I. D. Officer, and in any event I am unable to see its relevance or logic. Sixthly, the learned Sessions Judge makes much of the immaterial discrepancy, viz., that when the Deputy Superintendent of Police asked the accused to hand up the money taken as bribe one witness said that the accused got a fright and after five minutes unbuttoned his coat and another witness said that he stood motionless without talking for a while and a third said that he did not tremble. But it is curious that the learned Sessions Judge does not say that on account of those discrepancies he disbelieves these witnesses but merely contents himself with the remark 'There are discrepancies' without finding whether they arc more apparent than real or cut at the root of the prosecution story. It has been laid down by several High Courts that immaterial discrepancies of this nature do not affect the conclusion one way or the other. See -- 'King Emperor v. Narotam', AIR 1923 Oudh 217 (D) -- 'Ghanshyam Singh v. Emperor', : AIR1928Pat100 (E) and --'Mania Singh v. Emperor', AIR 1931 Lah 38 (F). It is not surprising that this inconsequential discussion of the evidence of the learned Sessions Judge has been wound up with an observation from the decision in -- 'Huntley H. T. v. Emperor', (G), wholly overlooking that the learned Assistant Sessions Judge himself, an officer of great experience and considerable ability, has scrupulously weighed the evidence and come to his conclusion in the light of the principles laid down in this very decision. On the other hand, it is the treatment accorded to the evidence by the learned Sessions Judge which recalls the dissatisfaction expressed by one of the eminent Judges of this Court the late Mr. Justice Sir V. Bhashyam Aiyangar in -- 'Ramasami Gounden v. Emperor', 14 Mad L J 226 (H) about over-subtlising of the law of the country for the protection of corrupt officials and not for the furtherance of justice.
29. I have therefore not the slighest hesitation in setting aside the acquittal by the learned Sessions Judge of Chittoor, and I find the accused guilty of the offence under the second charge viz., Section 161, I. P. C. and convict him thereunder and sentence him to one year's rigorous imprisonment.