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PETITIONER: MAHENDRA SINGH CHOTELAL BHARGAD

       Vs.

RESPONDENT: STATE OF MAHARASHTRA & ORS.

DATE OF JUDGMENT:       12/12/1997

BENCH: M.K. MUKHERJEE, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M.K. MUKHERJEE, J.      For obtaining  an illegal  gratification of Rs. 3,000/- from Rajkumar Mohanram Sawani, (P.W.1)  through     Mahendra Singh,  the  appellant  before  us,  Uttamrao  Baburao  Raut Inspector  and   Abdul  Kadar,  Sub  Inspector  (hereinafter referred to as A1 and A2 respectively), of Ramdaspeth Police Station, Akola  were convicted under Sections 161 I.P.C. and 5(1)(d) read  with 5(2) of the Prevention of Corruption Act, 1947, while  the appellant  was convicted  under Section 163 I.P.C. Aggrieved  thereby they  preferred  separate  appeals before the  Bombay High Court which were disposed of with an order of  affirmation of the conviction of the appellant and acquittal of the two Police Officers. Hence this appeal. 2.   According  to   the  prosecution  case,  in  the  night intervening April  12 and 13, 1984, A1 and A2 carried a raid at Seema Guest House of Akola and found Madhukar @ Shaligram Raut (  P.W. 10)  and one  Ashok Thakur indulging in immoral sexual activities  with two  girls. They  were arrested  and brought to  the police  Station by A1 and A2. Rajkumar (P.W. 1), the  Manager of  the Guest  House, and Pramod Gangaramji Bhirad (P.W.5),  a friend  of the  persons arrested, went to the police  Station and  secured their release on bail after paying Rs. 1,200/- to A2 as illegal gratification. it is the further prosecution  case that  a few  days later  A1 and A2 demanded a sum of Rs. 5,000/- as a consideration to drop the prosecution launched  against  Seema  Guest  House  and  its proprietor  for  immoral  trafficking,  but  ultimately  the consideration was fixed at Rs. 3,000/-. On April 27, 1984 A1 instructed P.W.  1 to  pay that amount to the appellant, who stayed in  a nearby hotel, on the following day. On the same day  P.W.1   lodged  a   written  complaint  with  the  Anti Corruption Bureau  for the  illegal demand  made by A1 (Ext. 58) and  Mr. Rade  (P.W. 14),  an Inspector  of the  Bureau, arranged a  trap. On  April  28,  1984  when  the  appellant accepted the  currency notes  worth Rs.  3,000/- at the tea- stall of  mahadeo (P.W.  3), as per earlier arrangement, the raiding party apprehended him with the notes. 3.   To prove  the accusation  levelled  against  the  three accused persons,  the prosecution relied upon- and the trial

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Court accepted  - the  evidence of  P.W.1 and the members of the raiding party, to convict them. The High Court, however, declined to  accept the production case regarding the demand made by  A1 and A2 for illegal gratification as it found the evidence of P.W.1 (on which the prosecution solely relied to prove the  demand made  by A1 and A2) unsatisfactory. Since, however, the  evidence of  P.W.1  that  the  amount  of  Rs. 3,000/- was  paid to the appellant stood corroborated by its recovery from  the  appellant,  as  testified  by  the  trap witnesses, it convicted the appellant. 4.   It passes  our comprehension  as to how the High Court, after having disbelieved the prosecution case qua A1 and A2, could convict  A3 and that too for the offence under Section 163 I.P.C..  On a  plain reading  of the  said Section it is manifest that  to convict  an accused  for the above offence the following ingredients are required to be proved. (i)  The accused  accepted or  agreed to accept, obtained or attempted to  obtain for  himself or anyone on his behalf, a gratification; (ii) The  gratification must  be as  a motive  or reward  to Induce  a   public  servant  by  the  exercise  of  personal influence:- (a)  to do or to forbear to do any official act, or (b)  to show in exercise of his official functions favour or disfavor; or (c)  to  render  or  attempt    to  render  any  service  or disservice. any  person with the Central Government or State Government or with any public servant, as such.      The gist  of the offence, therefore, is that the person arraigned must  accept the  gratification to induce a public servant by  the exercise of his personal influence (emphasis supplied )  to do  any of the acts mentioned in the Section. It is  the positive case of the prosecution, as testified by P.W.1, that  it was  A1 and  A2 who  initially demanded  the money from  him (P.W.1)  and in terms of an arrangement that he had  with A1 and under his instruction and direction that he paid the money to A1. It was not the appellant who struck the deal  and received the money to induce A1 and A2 who had struck the  deal and  received the money to induce A1 and A2 who had  struck the deal and the appellant was the recipient of the  money in  terms  of  an  arrangement  which  he  has (obviously) entered  into with  A1 and  A2. By no stretch of imagination, therefore, can it be said that the appellant is guilty of the offence under Section 163 I.P.C. Of course the acceptance of  the money  by the  appellant from  P.W.1  for handing over same to A1 and A2 would certainly constitute an abetment of  the offences  allegedly committed by A1 and A2, but then  this aspect  of the  matter need  riot detain  us: firstly because,  such was not the charge framed against the appellant and  secondly, because,  A1 and A2 stand acquitted of the offence alleged against them. 5.   We,  therefore,   allow  this  appeal,  set  aside  the conviction of  the appellant  under Section  163 I.P.C.  and acquit him.  The appellant,  who  is  on  bail,  will  stand discharged from his bail bonds.