REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO.  1130 OF 2001

Baliram S/o Irrappa Kamble …Appellant  

Versus

State of Maharashtra  ..Respondent   

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a learned Single Judge

of the Bombay High Court upholding the conviction of the appellant  for

offence punishable  under Sections 7 and 13(1)(d) read with Section 13(2)

of  Prevention  of  Corruption  Act,  1988  (in  short  the  ‘Act’).  The  learned

Special Judge, Osmanabad, convicted the appellant and sentenced to suffer

rigorous imprisonment for one year and to pay a fine of Rs.1,000/-  with

default stipulation.  

2. Prosecution version as unfolded during trial is as follows:

The  appellant  was  appointed  as  a  Minimum  Wages  Inspector

(Agriculture), in the month of June, 1984, by the Deputy Commissioner of

Labour, Aurangabad.  At the relevant time he was serving at  Osmanabad.

The  appellant  visited  the  land  belonging  to  complainant,  Shivaji  Bandu

Padwal which is situated at village Upala, taluka and district Osmanabad on

22nd of April, 1989. In fact, this land stands in the name of the wife and two

sons of Shivaji Padwal in the revenue record. Laxman Kadam (PW-5) was

in the employment of Shivaji Padwal on yearly basis. He was present in the

field at the relevant time. Appellant made enquiry with regard to his service

conditions. Laxman Kadam (PW5) told that his yearly salary was fixed at

Rs.3,000/-. He did not supply necessary information with regard to holidays

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and  hours  of  the  work.   He  was  not  aware  about  the  register  to  be

maintained by the employer with regard to yearly servants.  

The  appellant  issued  a  notice  dated  24.4.1989  to  Shivaji  Padwa1

(PW-1)  and asked him to see him in his office in connection with service

conditions of his yearly servant. Shivaji Padwal (PW-1) did not respond to

the said notice. Thereafter, appellant issued another notice on 25.5.1989 to

Shivaji  Padwal  and  asked  him  to  see  him  in  his  office  with  required

registers.  However,  Shivaji  Padwal did not  respond to the second notice.

Shivaji  Padwal  visited  the  office  of  the  appellant  on  1.6.1989  and

15.6.1989. However, appellant was not present in the office and, therefore,

Shivaji Padwal could not see appellant.

Shivaji Padwal went to the office of the appellant on 22.6.1989. He

met accused in the office at about 2.00 p.m. Appellant made enquiry with

Shivaji  Padwal  and  asked  him whether  he  had  maintained  register  with

regard to service conditions of his yearly  servant Laxman Kadam. Shivaji

Padwal told appellant  that he had not maintained a register. However, he

promised him to keep the register in future and produce the same before him

for  the  purpose  of  inspection.  It  is  the  prosecution’s  case  that  appellant

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demanded Rs.100/-  from Shivaji  Padwal  for  dropping  the  action  for  not

maintaining  the  register.  Shivaji  Padwal  had  no  money  that  day  and

therefore promised him to pay Rs.100/- later.  

On 20.7.1989,  Shivaji  Padwal  went  to  the  office  of  the  appellant.

Appellant  demanded  Rs.100/-  from him.  Shivaji  Padwal  (PW1)  had  no

money  with  him  that  day,  however,  he  promised  appellant  to  fulfil  his

demand. Appellant asked Shivaji Padwal (PW 1), to maintain register and

asked  him to  come on  27.7.1989.  On  27.7.1989  at  10.30  a.m.   Shivaji

Padwal (PW-1) went to the office of Anti Corruption Bureau and contacted

Dy. S.P. Shetkar (PW 11) and told him about the demand of appellant for

illegal  gratification.  Shetkar  (PW-11)  recorded  the  complaint  Exh.  16

lodged by Shivaji Padwal (PW-1).  Dy. S.P. Shetkar (PW 11) immediately

called  two  independent  panchas,  namely,  Kashinath  Gore  (PW-2)  and

Madhukar  Kulkarni  from the  Accounts  Department  of  Zilla  Parishad.  In

response to the requisition, Kashinath Gore (PW-2) and Madhukar Kulkarni

appeared in the office of the Anti Corruption Bureau. Shetkar apprised them

about the complaint  of Shivaji  Padwal.  Shetkar  (PW-11) then arranged a

trap. Shivaji Padwal presented one currency note of denomination of Rs.50/-

and five  currency notes  of  denomination  of  Rs.10/-.  The  currency notes

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were treated with anthracene powder. Shetkar (PW-11) told Shivaji Padwal

and two panchas about the properties of anthracene powder. He told them

that if treated currency notes are seen by naked eye in ordinary light, the

currency notes do not emit any light or shining. He further told them that if

the treated currency note is examined in the light of ultraviolet lamp, the

treated  currency  notes  emit  a  particular  colour  or  shining.  He  gave  a

demonstration  with  the  help  of  an  ultraviolet  lamp.  He  gave  usual

instructions  to  the  members  of  the  raiding  party.  Treated  currency notes

were  kept  in  the  right  side  pant  pocket  of  Shjvaji  Padwal.  Complainant

Shivaji  Padwal  (PW-1)  was  asked  to  offer  the  treated  currency notes  to

appellant only on demand. Panch Kashinath Gore was asked to accompany

Shivaji  Padwal.  Panch  Madhukar  Kulkarni  was  asked  to  accompany the

members of the raiding party. A detailed pre-trap panchanama Exh.20 was

prepared.  

Shivaji Padwal (PW 1) and Kashinath Gore (PW 2) went to the office

of appellant  at  3.45 p.m. on 27.7.1989. Appellant  was not  present  in the

office.  Shivaji  Padwal  and  Panch  Kashinath  Gore  contacted  Dy.  S.P.

Shetkar (PW 11) and told him that accused was not present in the office.

Shetkar  (PW-11)  asked  them  to  wait  in  the  office  of  appellant  and

accordingly both of them returned to the office of the appellant. After some

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time, appellant came to the office and occupied his chair.  Shivaji Padwal

(PW 1) and panch Gore (PW-2) sat on the Bench. Shivaji Padwal (PW-1)

opened the topic. Appellant asked him whether he had brought the money.

Shivaji Padwal replied in the affirmative.  Appellant then took out Exh. 18

and made endorsement. Appellant put his signature (Exh. 17). Thereafter,

Shivaji Padwal took out the treated currency notes from his right side pant

pocket  and  offered  the  treated  money  to  the  appellant.  The  appellant

accepted  the  treated  money  with  his  right  hand.  Appellant  counted  the

currency notes by both the hands and kept the currency notes in the right

side pocket of his pant.  

After delivery of the tainted money, Shivaji Padwal gave signal to the

members of the raiding party. The members of the raiding party immediately

entered  the  office  of  the  appellant.  Police  Head  Constable  Mane

immediately caught both the hands of the appellant. On enquiry, appellant

told Shetkar (PW-11) that currency notes were in the right side pocket of his

pant. Shivaji Padwal was asked to go outside the office and accordingly he

went outside the office. Inspector Gaedade who was member of the raiding

party  put  on  the  ultraviolet  lamp and  in  the  said  light  hands  of  all  the

members of the raiding party including two panchas and Shetkar (PW-11)

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were  examined.  Anthracene  powder  was  not  seen  on  the  hands  of  the

members of the raiding party. Thereafter, both the hands of accused were

examined in the light of ultraviolet lamp. Anthracene Powder was found on

both the hands of the appellant.  In the light of ultraviolet lamp, the finger

tips of both the hands of the appellant emitted a particular shining. Shetkar

(PW-11)  then  asked  panch  Madhukar  Kulkarni  to  take  out  the  treated

currency notes from the right side pocket of the pant of the appellant and in

response to the instructions, Panch Madhukar Kulkarni took out the treated

currency notes. The treated currency notes and the inner portion of the right

side pant pocket of the appellant were examined in the light of ultraviolet

lamp. The treated currency notes and the inner portion of the right side pant

pocket of the appellant emitted a shining. A currency note of denomination

of Rs.2/- which was found in the right side pant pocket of the accused was

also  recovered  and  was  examined  in  the  light  of  ultraviolet  lamp.  The

currency note of Rs.2/- emitted a shining. However, anthracene powder was

not  noticed  on  the  remaining  three  currency notes  of  Rs.2/-  which  were

found kept inside the fold of the upper currency note of denomination of

Rs.2/-  which  emitted  the  shining.   All  the  articles  were  attached  under

panchnama.  The  document  i.e.  Exh.  18  on  which  appellant  had  made

endorsement  was  also  attached  from  the  custody  of  the  appellant.

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Complainant Shivaji Padwal was called inside the office. His right hand and

inner portion of his right side pant pocket were examined in the light of the

ultraviolet lamp. The finger tips of his right hand and inner portion of the

right  side  pocket  of  his  pant  emitted  shining.  A  detailed  post  trap

panchnama Exh. 21 was prepared.  

Dy. S.P. Shetkar lodged FIR, Exh.39 on 28.7.1989. On the basis of

FIR Exh.39 crime No.29/1989 was registered under Section  7,  13(1)(d)

read with Section 13(2) of the Act.  Dy. S.P. Shetkar (PW-11) carried out

the investigation of the crime. After obtaining the sanction (Exh.37) from

Dy. Commissioner of Labour, Aurangabad, Shetkar submitted charge sheet

on 31.12.1989.  Learned Special Judge, Osmanabad, framed charge (Exh.

10) against the appellant, who pleaded not guilty to the charge and claimed

to be tried.  

 In order to prove the guilt of the accused, prosecution examined 11

witnesses.  The  appellant  accused  put  forth  the  plantation  theory.

According to him, Shivaji Padwal forcibly inserted treated currency notes

into  his  right  side  pant  pocket  on  27.7.1989.   He  offered  resistance  to

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Shivaji  Padwal at  that  time.  In the process of resistance, the anthracene

powder was transmitted to the finger tips of both his hands.  

The  learned  Special  Judge  held  that  the  prosecution  proved  the

demand of bribe money, offer of tainted money by PW 1 and acceptance of

tainted  money by the  appellant  and  recovery  of  tainted  money from the

person. Accordingly, he was convicted.  

The stand of the appellant before the High Court was that money was

thrusted  on  him and  there  was  no  scope  for  making  any demand.   The

relevant dates are 24.4.89, 25.5.89, 1.6.89 and 15.6.89. That being so, the

complaint which was filed on 27.9.89 appears to be mala fide and which is

apparent from the fact that the raid was made on 27.7.89. The endorsement

on Exh.18 on 26.6.89 has not been established to have been done by the

appellant. After the case was closed on 26.6.89, there was no occasion for

making any demand.  

3. Learned counsel for the respondent on the other hand supported the

judgment of the High Court.

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4. So far as the stand that there was no demand made, as noted above on

20.7.1989,  PW-1  had  gone  to  the   office  of  appellant  who  demanded

Rs.100/-  from him. Since PW-1 had no money with  him on that  day he

promised to come later. Appellant asked PW-1 to maintain the register and

asked him to come on 27.7.1989. Thereafter,  PW-1 contacted Deputy SP

(PW-11) and told him about the demand. The complaint was recorded as

Exh.16. Two independent witnesses PW 2 and one Madhukar Kulkarni were

called from the Accounts Department of Zilla Parishad.  They were apprised

of  the  demand  of  bribe.  Trap  was  thereafter  arranged.  The  fact  that  in

Exh.18 there is an endorsement, is a clear indication that the case was to

continue,  falsifies  the  stand  of  the  appellant  that  no  proceeding  was

continuing.  

5. So far as the question regarding no demand is concerned, this Court

in  State  Represented  by  Inspector  of  Police,  Pudukottai,  T.N. v.  A.

Parthiban (2006 (11) SCC 473) observed as follows:

“5.  The  stand  that  respondent  could  not  have  been simultaneously  convicted  for  offences  relatable  to  Section  7 and Section 13(2) read with Section 13(1)(d) of the Act, as held by the  High  Court  is  clearly  unacceptable.   Section  71  IPC provides the complete answer.  The same reads as follows:

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“71. Limit of punishment of offence made up of several  offences.  -  Where  anything  which  is  an offence is made up of parts, any of which parts is itself  an  offence,  the  offender  shall  not  be punished with the punishment of more than one of such  his  offences,  unless  it  be  so  expressly provided.

Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences  are defined or punished, or  

where several acts, of which one or more than one would  by  itself  or  themselves  constitute  an offence,  constitute,  when  combined,  a  different offence,  

the  offender  shall  not  be  punished  with  a  more severe punishment than the court which tries him could award for any one of such offences.”

Xx xx xx  

8.  Every acceptance of illegal gratification whether preceded by a demand or not, would be covered by Section 7 of the Act. But if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall under section  13(1)(d)  of  the  Act.  The  act  alleged  against  the respondent,  of  demanding  and  receiving  illegal  gratification constitutes an offence both under Section 7 and under Section

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13(1)(d) of the Act. The offence being a single transaction, but falling  under  two  different  Sections,  the  offender  cannot  be liable  for  double  penalty.  But  the  High  Court  committed  an error  in  holding  that  a  single  act  of  receiving  an  illegal gratification, where there was demand and acceptance, cannot be an offence both under Section 7 and under Section 13(1)(d) of  the  Act.  As  the  offence  is  one  which  falls  under  two different sections providing different punishments, the offender should not be punished with a more severe punishment than the court  could  award  to  the  person  for  any  one  of  the  two offences. In this case, minimum punishment under Section 7 is six months and the minimum punishment under Section 13(1) (d) is one year. If an offence falls under both Sections 7 and 13 (1)(d)  and  the  court  wants  to  award  only  the  minimum punishment, then the punishment would be one year.”

6. The  evidence  of  the  witnesses  clearly  establishes  not  only  the

demand,  but  also  the  acceptance.  The  anthracene  powder  test  conducted

leads considerable support to the prosecution version.  

7. Above being the position, there is no merit in this appeal which is

dismissed accordingly.  

…………….…………........................J. (Dr. ARIJIT PASAYAT)              

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………………………......................... J.

        (Dr. MUKUNDAKAM SHARMA) New Delhi, November 20, 2008

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