REPORTABLE

 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

  CRIMINAL APPEAL NO.232 OF 2006

C.M. SHARMA             .... APPELLANT

VERSUS

STATE OF A.P. TH. I.P.           ..... RESPONDENT

J U D G M E N T  

CHANDRAMAULI KR. PRASAD, J.

1.  The appellant, at the relevant time was posted as Deputy  

Chief  Engineer,  Railway  Electrifications,  South  Central  

Railway.  He was put on trial for commission of the offences  

under Section 7 and 13 (1) (d) read with Section 13 (2) of the  

Prevention of  Corruption Act,  1988 (hereinafter referred ‘the  

Act’).   Special  Judge  for  CBI  cases  at  Visakhapatnam  by  

judgment and order dated 15th of February, 1999 passed in  

C.C. No. 17 of 1997 held him guilty of the aforesaid offences  

and sentenced him to undergo rigorous imprisonment for  a  

period of one year and fine of Rs. 2,000/-, in default to suffer  

simple imprisonment for three months for the offence under

Section 7 of the Act.  The appellant was further sentenced to  

undergo rigorous imprisonment for a period of one year and to  

pay  a  fine  of  Rs.  2,000/-,  in  default  to  suffer  simple  

imprisonment for three months for the offence under Section  

13 (1) (d)  (ii)  read with Section 13 (2)  of  the Act.   Both the  

substantive sentences were directed to run concurrently.   

2. Aggrieved  by  the  same  he  preferred  appeal  and  High  

Court  by  its  judgment  dated  29th of  July,  2005  passed  in  

Criminal Appeal No. 499 of 1999 had affirmed the conviction  

and  sentence  of  the  appellant  and  dismissed  the  appeal.  

Aggrieved by the same the appellant has preferred this appeal  

with the leave of the court.

3. According  to  the  prosecution,  the  appellant  at  the  

relevant time was posted as Deputy Chief Engineer, Railway  

Electrification, South Central Railway, Vijaywada.  PW-1, M.  

Venka  Reddy  (hereinafter  referred  to  as  the  ‘contractor’),  

during  the  years  1992-1994,  was  awarded  the  contracts  of  

railway  electrification  between railway  stations  Bhongir  and  

Sanathnagar  and  Maulali  and  Sanathnagar  bypass  under  

agreement No. 29 dated 3.4.1992 and agreement No. 41 dated  

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20.11.1992 respectively.  Further by agreement No. 3 dated  

18th October, 1994 work to provide height gauges at railway  

crossing between Vijayawada and Gannavaran was awarded to  

him.  According to the prosecution the contractor completed  

the works to the satisfaction of the railway authorities and in  

respect of the works covered by aforesaid agreement nos. 29  

and  41  he  received  the  payment.   The  contractor  also  

completed  the  work  covered  under  agreement  No.  3  dated  

18.10.1994  aforesaid  in  the  month  of  March,  1995.   The  

appellant was the competent authority to pass the bills and  

accordingly  the  contractor  met  him  on  19.4.1995  and  

requested to finalise the bill.  It is alleged that the appellant  

told to the contractor that he had passed the final  bill  and  

demanded Rs. 3,000/- as illegal gratification and reminded the  

contractor that he did not pay any amount in respect of earlier  

bills.  The contractor expressed his inability to pay the illegal  

gratification but the appellant insisted and asked him to bring  

the money on 20th April, 1995.  The contractor was not willing  

to  pay  the  illegal  gratification  and  accordingly  he  met  the  

officials  of  the  Central  Bureau  of  Investigation  and  gave  a  

written  report  (Exh.  P-1  dated  19th of  May,  1995).  Being  

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satisfied with the bonafide of the allegation, a pre-trap exercise  

was undertaken by PW-7, S.B. Shankar in which PW-2, G.T.  

Kumar besides the contractor participated.  PW-2, G.T. Kumar  

at the relevant time was posted as Inspector of Central Excise  

and on the instruction of office Superintendent, he had gone  

to participate in the pre-trap exercise.  It is alleged that the  

contractor  alongwith the  shadow-witness PW-2,  G.T.  Kumar  

went to the office of the appellant but he asked the shadow-

witness  to  go  out  of  the  chamber.  Shadow witness  left  the  

chamber.  However, contractor brought the shadow witness in  

the  chamber  and explained  to  the  appellant  that  he  is  his  

financer.  Despite that shadow-witness was asked to leave the  

chamber and he went out.  Thereafter appellant demanded the  

money and the contractor handed over the tainted money to  

him, which he received from his right hand and kept in right  

side pocket  of  the  trouser.   A signal  was given,  whereupon  

PW-7 S.B. Shankar, the Inspector along with his team entered  

in  the  chamber,  apprehended  the  appellant  and  conducted  

sodium carbonate test on the fingers of both the hands and  

right trouser pocket of the appellant, which turned pink.  The  

tainted notes were lying on the floor of the office, which were  

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recovered.   

4. After  usual  investigation,  the  Investigating  Agency  

submitted the charge-sheet and the appellant was put on trial,  

where he abjured his guilt and claimed to be tried.  In order to  

bring home the charge, prosecution had examined altogether  

seven  witnesses  and  got  exhibited  a  large  number  of  

documents.  Out of the witnesses examined by the prosecution  

PW-1, M. Venka Reddy is the contractor, whereas PW-2, G.T.  

Kumar  is  a  shadow  witness,  PW-7,  S.B.  Shankar,  at  the  

relevant  time  was  Inspector  of  the  Central  Bureau  of  

Investigation,  who had conducted  the pre-trap exercise  and  

laid the trap in which appellant was apprehended after he had  

accepted the bribe.  The plea of the appellant in his statement  

under Section 313 of the Code of Criminal Procedure is of false  

implication due to  enmity  with the  contractor.   In  order  to  

prove the defence, he had examined DW-1, Bodh Raj Sharma,  

Chief Administrative Officer, Construction as defence witness.  

5. The trial court on appreciation of the evidence came to  

the conclusion that the prosecution has been able to prove its  

case  beyond  all  reasonable  doubt.   While  doing  so  it  

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considered  the  defence  version  and  rejected  the  same.  

Accordingly  the  appellant  was  convicted  and  sentenced  as  

above by the trial court, which has been affirmed in appeal by  

the High Court.

6. Mr. Nagendra Rai, learned Senior Counsel appearing on  

behalf  of  the  appellant  submits  that  there  being  strained  

relationship  between  the  appellant  and  the  contractor  it  is  

highly  improbable  that  he  would  demand  the  illegal  

gratification from him.  In this connection he has drawn our  

attention  to  the  evidence  of  the  contractor  in  his  cross-

examination  wherein  he  had  stated  that  as  his  bill  was  

pending in the office of the accused, he entertained an idea to  

make complaint against the appellant.  Our attention also has  

been drawn to the evidence of DW.1, Bodhraj Sharma and the  

letter dated 11.3.1995 (Exh.2) written by the appellant to the  

Chief Engineer, in which he had stated that since he has flatly  

refused  to  clear  the  bill  as  per  contractor’s  claim,  he  had  

threatened him to rope in some false case.  In the aforesaid  

background,  it  has  been highlighted  that  demand of  illegal  

gratification  alleged  to  have  been made  by  the  appellant  is  

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absolutely untrue.  In support of the submission reliance has  

been placed on a decision of this Court in the case of Panalal  

Damodar Rathi v. State of Maharashtra, 1987 Supp. SCC  

266  and  our  attention  has  been  drawn  to  the  following  

paragraph of the judgment:

“26.  Therefore,  the  very  foundation  of  the  prosecution  case  is  shaken  to  a  great  extent.  The  question  as  to  the  handing  over  of  any  bribe  and   recovery  of  the  same  from the  accused  should  be  considered along with  other material  circumstances   one of  which  is the  question whether  any demand  was at all made by the appellant for the bribe. When  it is found that no such demand was made by the   accused and the prosecution has given a false story  in that  regard,  the court will  view the allegation of  payment  of  the  bribe  to  and  recovery  of  the  same  from the accused with suspicion.”

7. We do not find any substance in the submission of Mr.  

Rai and the decision relied on has no bearing on the facts and  

circumstances of the case.  From the evidence of contractor  

PW.1,  M.  Venka Reddy and the  shadow-witness  PW.2,  G.T.  

Kumar  it  is  evident  that  both  of  them  entered  into  the  

chamber of  the appellant.  The appellant asked the shadow-

witness  to  go  out  and  PW.2  accordingly  left  the  chamber.  

However, he was brought back by the contractor stating that  

PW.2,  G.T.  Kumar  is  his  financer  but  the  appellant  again  

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asked him to go out and within few minutes after PW.2, G.T.  

Kumar  left  the  chamber  appellant  demanded  the  money,  

whereupon he delivered the tainted notes. Appellant kept them  

in  the  right  trouser’s  pocket.   After  the  signal  PW.7,  S.B.  

Shanker Inspector of the Central Bureau of Investigation came  

and sodium carbonate test was conducted on the right hand  

fingers and the right trousers pocket and the solution turned  

pink.

 8. PW.7, S.B. Shanker, Inspector of the Central Bureau of  

Investigation  had  stated  in  his  evidence  that  on  19th April,  

1995  he  received  a  complaint  against  the  appellant  of  

demanding  illegal  gratification  from  the  contractor  and  he  

conducted a pre-trap proceedings on 20th April, 1995 at about  

8 a.m. in the presence of PW.2, G.T. Kumar and others.  He  

has further stated that he laid the trap on the same day at  

11.45 a.m. and recovered the tainted currency notes under the  

office table of the appellant when the appellant had thrown the  

said notes on being questioned by him.  In the face of  the  

specific and positive evidence of these witnesses which cannot  

be said to be inherently improbable, the plea of the appellant  

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that the prosecution case is fit to be rejected on the ground of  

improbability does not appeal to us.  It is accordingly rejected.  

9. As  regards  the  decision  of  this  Court  in  the  case  of  

Nanjudiah (supra) the same does not advance the case of the  

appellant.   Whether  the  case  of  the  prosecution  deserves  

acceptance or not is decided on appreciation of evidence and  

no hard and fast rule can be laid in this regard.  In the said  

case  the  Court  on  fact  did  not  accept  the  case  of  the  

prosecution. Here in the present case as stated above there  

does  not  seem  any  reason  to  reject  the  evidence  of  the  

contractor, the shadow-witness and the Inspector who laid the  

trap.   

10. Mr. Rai, then submits that the conviction of the appellant  

is not fit to be sustained only on the evidence of the contractor  

without any corroboration. He submits that the contractor is  

an accomplice and, therefore, before sustaining the appellant’s  

conviction it is essential that his evidence is corroborated by  

evidence of other witnesses.   Reference has been made in this  

connection to a decision of this Court in the case of  Panalal  

Damodar Rathi vs. State of Maharasthra, (1979) 4 SCC  

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526 and  which  attention  has  been  drawn  to  paragraph  9  

thereof which reads as follows:

“9. It  will  be  seen  that  the  version  of  the  complainant  that  the  appellant  asked  the   complainant whether he had brought the money and  that the complainant told him that he had and that   the  appellant  asked  him  to  pay  the  money  to  the  second  accused  is  not  spoken  to  by  the  panch  witness PW 3.  According to  panch witness on the   complainant asking the appellant whether his work  will  be achieved,  the  appellant  assured him in the   affirmative  and  the  appellant  told  the  complainant   what  was  to  be given to  the second accused. It  is   significant  that  PW 3  does  not  mention  about  the   appellant  asking  the  complainant  whether  he  had  brought the money and on the complainant replying  in the affirmative asking the complainant to pay the   money to the second accused. Omission by PW 3 to  refer  to  any  mention  of  money  by  the  appellant  would  show  that  there  is  no  corroboration  of   testimony of the complainant regarding the demand  for  the  money  by  the  appellant.  On  this  crucial   aspect, therefore, it has to be found that the version  of the complainant is not corroborated and, therefore,  the  evidence  of  the  complainant  on  this  aspect   cannot be relied on.”

11. Yet another decision on which reliance is placed is the  

decision  of  this  Court  in  the  case  of  Meena  (Smt)  W/O  

Balwant Hemke v. State of Maharashtra, (2000) 5 SCC 21  

in which it held as follows:

“The corroboration  essential  in  a  case  like  this  for  what  actually transpired at  the time of  the alleged  occurrence  and  acceptance  of  bribe  is  very  much  wanting in this case. Even the other panch witness,   PW  5  categorically  admitted  that  even  as  the   Inspector of Police, PW 6 arrived, the appellant gave  the  same version that  PW 1 tried to  force into  her   

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hands the currency note which she turned down by  pushing it away, and his evidence also does not lend  credibility  to  the  case  of  the  prosecution.  The  contradictory  version  of  PW 1  of  the  very  incident   when earlier examined in departmental proceedings  renders his testimony in this case untrustworthy. PW  3, the Head Copyist, seems to be the brain behind all   this  and  that  PW  1  as  well  as  Jagdish  Bokade  appear to be working as a group in this affair and  despite the blunt denial by PW 3, his closeness to PW  1 and Jagdish Bokade stands well substantiated. All   these relevant aspects of the case seem to have been  completely overlooked by the courts below.”

We do not find any substance in the submission of Mr. Rai.

The word accomplice has not been defined under the Evidence  

Act and therefore presumed to have been used in the ordinary  

sense.   A  person concerned  in  the  commission  of  crime,  a  

partner in crime and associate in guilt is an accomplice. He  

takes part in the crime and is privy to the criminal intent. In  

our opinion a witness forced to pay on promise of doing or  

forbearing to do any official act by a public servant, is not a  

partner in crime and associate in guilt and therefore can not  

be said to be accomplice.  It has long been rule of practice,  

which has become equivalent to rule of law, that the evidence  

of an accomplice is admissible but to be acted upon, ordinarily  

requires corroboration. Contractor who gave bribe, therefore,  

can not be said to an accomplice as the same was extorted  

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from him.   Reference  in  this  connection  can be  made  to  a  

decision  of  this  Court  in  the  case  of  Dalpat  Singh  and  

another v. State of Rajasthan, AIR 1969 SC 17, in which it  

has been held as follows:

“We  are  unable  to  accept  the  contention  of  the  learned counsel for the appellants that PWs 1,2,3,4  and  17 and  other  prosecution  witnesses  to  whose  evidence  we  shall  presently  refer,  should  be  considered  as  accomplices  and  therefore  their   evidence is  required to be corroborated  in material   particulars  before  being  accepted.  On  the  proved  facts, even those who gave illegal gratification to the   appellants cannot be considered as accomplices as  the same was extorted from them. Though PWs 1,2,4  and 17 can be considered as interested witnesses as   regards their evidence relating to trap, as a matter of   law, it is not correct to say that their evidence cannot   be accepted without corroboration, see State of Bihar  v.  Basawan  Singh 1959 SCR 195 = (AIR 1958 SC  500)     (underlining ours)

12. Further corroboration of evidence of a witness is required  

when his evidence is not wholly reliable.  On appreciation of  

evidence,  witnesses  can  be  broadly  categorized  in  three  

categories viz., unreliable, partly reliable and wholly reliable.  

In  case  of  a  partly  reliable  witness,  the  court  seeks  

corroboration  in  material  particulars  from  other  evidence.  

However in a case in which a witness is wholly reliable,  no  

corroboration  is  necessary.   Seeking  corroboration  in  all  

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circumstance of the evidence of a witness forced to give bribe  

may lead to absurd result.  Bribe is not taken in public view  

and, therefore, there may not be any person who could see the  

giving and taking of bribe.  As in the present case, a shadow  

witness did accompany the contractor but the appellant did  

not allow him to be present in the chamber.  Acceptance of  

this submission in abstract will encourage the bribe taker to  

receive  illegal  gratification  in  privacy  and  then  insist  for  

corroboration  in  case  of  prosecution.   Law  can  not  

countenance such situation.  In our opinion it is not necessary  

that  the  evidence  of  a  reliable  witness  is  necessarily  to  be  

corroborated by another witness.  Not only this corroboration  

of  the  evidence  of  a  witness  can  be  found  from  the  other  

materials on record.  Here in the present case there does not  

seem any reason to reject the evidence of the contractor PW.1,  

M. Venka Reddy.  His evidence is further corroborated by the  

evidence  of  the  shadow-witness  PW.2,  G.T.  Kumar.   The  

shadow-witness  has  stated  in  his  evidence  that  when  he  

entered in the chamber, appellant was asked by the Inspector  

as  to  whether  he  had  received  any  amount  from  the  

contractor,  he denied and then removed the currency notes  

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from his trouser’s pocket and threw the same.  He had further  

stated that sodium carbonate test was conducted in which the  

solution  turned  pink  when  the  appellant’s  fingers  and  the  

right side trouser’s pocket were rinsed.  From the aforesaid  

one  can  safely  infer  that  the  evidence  of  the  contractor  is  

corroborated in material particulars by the shadow-witness.   

13. In the case of  Panalal Damodar Rathi  (supra)  relied  

on by the appellant, the version of the complainant was not  

supported by the Panch witnesses and in the face thereof this  

Court gave the accused the benefit of doubt, which is not the  

situation  in  the  present  case.  Similarly  in  the  case  of  

Meena(supra),  faced with contradictory evidence and plea of  

the  accused  this  Court  found  corroboration  necessary  to  

uphold conviction.

14. Mr.  Rai,  lastly  submits  that  from  the  evidence  of  the  

prosecution witnesses the worst which can be said against the  

appellant  is  that  currency  notes  were  recovered  from  him.  

That itself, in his submission, does not constitute the offence.  

He submits that to bring home the charge the prosecution is  

required to prove beyond reasonable doubt that the accused  

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had demanded the illegal gratification and accepted the same  

voluntarily.  In support of the submission reliance has been  

placed on a decision of this Court in the case of C.M. Girish  

Babu v. CBI, Cochin, High Court of Kerala, 2009 (3) SCC  

779  and our attention has been drawn to the paragraph 18 of  

the judgment which reads as follows:

“18. In  Suraj Mal v.  State,(Delhi Admn.) 1979 (4)  SCC 725 this Court took the view that (at SCC p.  727,  para  2)  mere  recovery  of  tainted  money  divorced from the circumstances under which it is  paid is not sufficient to convict the accused when  the substantive evidence in the case is not reliable.  The mere recovery by itself cannot prove the charge  of  the  prosecution  against  the  accused,  in  the  absence of any evidence to prove payment of bribe  or to show that the accused voluntarily accepted the  money knowing it to be bribe.”

Another decision on which reliance is placed is the decision of  

this  Court  in  the  case  of  State  of  Maharashtra  v.  

Dnyaneshwar Laxman Rao Wankhede, (2009) 15 SCC 200  

in which it has been held as:

“16.  Indisputably,  the  demand  of  illegal  gratification is a sine qua non for constitution of an  offence under the provisions of the Act. For arriving  at the conclusion as to whether all the ingredients  of an offence viz. demand, acceptance and recovery  of  the  amount  of  illegal  gratification  have  been  satisfied  or  not,  the  court  must  take  into  consideration the facts and circumstances brought  on the record in their entirety.”  

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15. We do not have the slightest hesitation in accepting the  

broad  submission  of  Mr.  Rai  that  demand  of  illegal  

gratification is sine qua non to constitute the offence under the  

Act.  Further mere recovery of currency notes itself does not  

constitute  the  offence  under  the  Act,  unless  it  is  proved  

beyond  all  reasonable  doubt  that  the  accused  voluntarily  

accepted the money knowing it to be bribe.  In the facts of the  

present case, we are of the opinion that both the ingredients to  

bring the act within the mischief of Sections 7 and 13 (1) (d) (ii)  

of the Act are satisfied.  From the evidence led on behalf of the  

prosecution  it  is  evident  that  the  appellant  demanded  the  

money from the contractor as he had passed his bills. There is  

further evidence that when the contractor went along with the  

shadow-witness on the date told by the appellant for payment  

of the bribe, appellant asked the shadow-witness to leave the  

chamber  and  thereafter  the  demand  for  payment  of  illegal  

gratification  was  made  and  paid.   The  positive  sodium  

carbonate test vis-à-vis the fingers and right trousers pocket of  

the  appellant  go  to  show  that  he  voluntarily  accepted  the  

bribe.  Thus there is evidence of demand of illegal gratification  

and the voluntary acceptance thereof.

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 16. All  the  submissions  made  on  behalf  of  the  appellant  

being devoid of any substance, we do not find any merit in this  

appeal and it is dismissed accordingly. Appellant is on bail, his  

bail  bonds are cancelled and he is  directed to surrender to  

serve out the remainder of the sentence.  

…………………...........................J      [HARJIT SINGH BEDI]

 ................................................J

    [CHANDRAMAULI KR. PRASAD] NEW DELHI NOVEMBER 25, 2010.

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