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PETITIONER: C.K. DAMODARAN NAIR

       Vs.

RESPONDENT: GOVT. OF INDIA

DATE OF JUDGMENT:       08/01/1997

BENCH: M.K. MUKHERJEE, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      M.K. MUKHERJEE, J.      Four Provident Fund Inspectors of Calicut including the appellant  before  us  were  tried  by  the  Special  Judge, Ernakulam for  offences punishable under Section 161 PIC and Section 5  (2) read with Section 5 (1) (d) of the Prevention of Corruption Act, 1947 (‘Act’ for short). The learned Judge acquitted all  of them  and aggrieved thereby the respondent preferred an  appeal. The  High Court disposed of the appeal by  setting   aside  the  acquittal  of  the  appellant  and convicting him  for the above offences while maintaining the acquittal of  the other  three. Hence  this  appeal  at  the instance of the appellant.      According to the prosecution case on March 24, 1984 the appellant and  two of  the other  three accused  person (who were arrayed  as A3,  A1 &  A2 respectively at the trial and will hereinafter  be so  referred  to)  visited  the  Relief Hospital at  Kondotty, of  which Dr.  Moideenkutty  (P.W.1), K.K. Nair  (P.W.2) and  Haneefa (P.W.9)  were  the  Managing partner, Office  Manager and Assistant Manager respectively. There they first met P.W.2 and then, along with him, went to meet P.W.1. Before P.W.1 they disclosed their identities and told that  they had  come to  inspect  the  records  of  the Hospital. Accordingly,  under  directions  of  P.W.1,  P.W.2 handed over the attendance book and wages registers to them. The three accused persons then directed P.W.2 to produce all other  relevant   records  of  the  Hospital  including  the partnership deed  in their  office on  March  29,  1984.  As directed, P.W.9  took the records to the office of the above three accused  persons on the appointed day. Even though, A1 and A3  scrutinised the records on that day they asked P.W.9 to produce  the same  again on  the following day i.e. March 30, 1984.  On  the  day  so  fixed  when  P.W.9  and  P.W.2, alongwith the  records, went  to the  office of  the accused persons they  found only A2 present there. A2 directed PWs 3 and 9  to go and meet A1 and A3 who were waiting for them in room No.  17 of the nearby Alakapuri Guest House. P.W. 2 and P.W.9 then  went to Alakapuri Guest House and met A1 and A3. A3 told P.Ws 2 and 9 that the Hospital would have to pay Rs. 7500/- towards  its provident  fund contribution but if they

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were paid Rs.3500/- the Hospital could be exempted from such payment. When  P.W.9 expressed  his  inability  to  pay  the amount  demanded,   A1  insisted  on  payment  of  at  least Rs.2000/- and out of that amount Rs.1000/- on March 31, 1984 in their  office. P.Ws 2 and 9 then returned to the Hospital and apprised  P.W.1 decided  to complain against the accused persons to  the CBI  and handed  over a  sum of Rs.1000/- to P.W.9 for  payment to them at the appropriate time. On March 31, 1984  P.W.9 visited  the office  of the  accused when A2 alone was  present and he asked P.W.9 whether he had brought the amount.  P.W.9 however  told A2  that he could not bring the amount  as he  could not  contact  P.W.1.  A2  thereupon instructed P.W.9 to bring the money to their office on April 2, 1984 before 10.30 A.M.      Immediately thereafter P.W.9 contacted Inspector Thomas John (P.W.10)  of the  CBI Office,  Cochin over  phone  from Calicut. On  being told  about  the  entire  episode  P.W.10 reached Calicut  the same evening accompanied by A.S.I. A.D. Nambiar and  constable Sreekumar and met P.W.9. P.W.9 gave a written complaint  (Ext.  P16)  to  P.W.10  and  the  latter immediately forwarded  the same  to  the  Superintendent  of Police, (S.P.)  C.B.I. Cochin  through a constable. The S.P. C.B.I. marked  the complaint  to Inspector  S.  Vijay  Kumar (P.W.8) with  a direction  to register  a case Under Section 161 IPC  and arrange  a trap. In terms of the said direction P.W.8 drew  up an  FIR (Ext. P.15) and immediately proceeded to  Calicut   along  with   Inspector  M.R.  Kurup  and  two constables to  lay a  trap.  On  arrival  at  Calicut  P.W.8 ensured the  presence of two local witnesses viz. Premarajan (P.W.3), local  Manager of  the State Bank of India and K.V. Anandakrishnan (P.W.4), an Accountant of Canara Bank. P.W.10 then directed P.W.9 to meet the Police party in room No. 204 of the  Neelima Lodge  on April  2, 1984  at 7.30 A.M. where P.W.8 hand directed P.Ws 3 and 4 to be present.      On April  2, 1984  P.Ws 3,  4 and  9 and the trap party consisting of P.Ws 8 and 10 and Inspector M.R. Kurup, A.S.I. A.D. Nambiar  and the  constables assembled at Neelima Lodge around 7.30 A.M. P.W.10 introduced the persons present there and read  out the  complaint (Ext.  P16) in  their presence. After P.W.9  had vouched  for its genuineness P.W.10 took 10 hundred rupee notes from P.W.9 which were to be given to the accused as  bribe and  got their numbers noted by P.Ws 3 and 4. Thereafter Sodium-phenolpthaline test was demonstrated to the witnesses  and the resultant solution was preserved in a bottle which  was sealed  and attested by the witnesses. The notes were  then  smeared  with  phenolpthaline  powder  and entrusted to  P.W.9 with  instructions to hand over the same to the accused preferably outside the office on their asking for  the   bribe.  A   sign  (wiping  of  the  face  with  a handkerchief), which  P.W.9 was  to display  if the  accused received the  bribe was  also pre-arranged.  An  entrustment mahazar was  then prepared  by P.W.10  detailing  the  above proceedure and  the numbers  of the  notes. Thereafter P.W.3 and P.W.4  were instructed  to follow  P.W.9 and witness the transaction between P.W.9 and the accused.      The party  thereafter proceeded  to the  office of  the accused at  or about  10 A.M.  P.W.9 first  went inside  the office and  met A3. Following him P.W.3 also went inside the office introducing himself as a telephone employee. A3 asked P.W.9 whether he had brought the money. Thereupon P.W.9 gave a proposal  that they would go to a nearby hotel to which A3 agreed. A3  also called  A2 and  the other  accused (A4) who were present  there. The  party consisting of the above four persons then  went to  hotel Nilgiris followed by P.W.3. The rest of  the trap  party who were waiting outside the office

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also followed P.W.9. They went inside the family room of the hotel and  took tea.  P.W.3 and  other members  of the party took positions  in the  nearby dining  hall from  where they could see the inside of the family room. After taking tea A3 asked P.W.9  to hand over the amount. P.W.9 then handed over the notes  to A3  who kept  them in  the right pocket of his trousers after  counting. They  then came  out of the family room followed  by P.W.9  and by  the time  they reached  the counter they  were apprehended  by the  C.B.I. officials. A3 immediately started  weeping and  admitted to  have received the bribe.  The palms  of A3  and the  right pocket  of  his trousers were  then subjected  to phenolpthaline  test which gave positive results. Thereafter A3 took out the notes from the pocket of his trousers and the numbers of the notes were compared by  P.Ws.3 and  4 with  the numbers  noted  in  the entrustment mahazar and they were found to tally. Thereafter the accused  were taken to their office where the table used by A1  and A3  was  searched  and  a  draft  enquiry  report prepared by  A3 in respect of the Hospital was recovered and seized.  From  personal  search  of  A2  a  diary  was  also recovered. The  investigation was subsequently taken over by Inspector V.A.  Mohan (P.W.11)  and on completion thereof he filed chargesheet against the four accused.      All the  four accused pleaded not guilty to the charges levelled against  them. When examined under Section 313 Crl. P.C. the  appellant (A3)  admitted that  he alongwith A1 had visited the  Hospital on  March  24,  1984,  that  they  had verified the  registers (Exts.  P1 and P2) and that they had handed over  a list of documents to the Hospital authorities with a  direction to produce them on March 27, 1984 in their office for inspection. He however denied to have met P.Ws. 1 or 9  on any  day after  March 24,  1984; and stated that on April 2,  1984 P.W.9 did not come to their office. According to the  appellant, he  and A2  were on out-door duty on that day and  while they  were taking  tea in  the family room of Neelgiri Hotel,  P.W.9 approached  him and forcibly put some notes in  his trouser  pockets. He  immediately brought them out and insisted P.W.9 to take them back but in the meantime the CBI Officers came and arrested him.      On  consideration   of  the   evidence  of  the  eleven witnesses examined  on behalf of the prosecution (no witness was examined  on  behalf  of  the  defence)  and  the  other materials on  record  the  trial  Court  observed  that  the prosecution succeeded in proving recovery of the ten hundred rupee notes,  which were entrusted to P.W.9 for handing over to the  appellant, from  him; but  as, according  to it, the prosecution failed to prove beyond reasonable doubt that the appellant demanded  and accepted  the said  amount  and  the defence of  the appellant  that he  was taken  to the family room of Motel Nilgiris where P.W.9 thrust the notes into his trousers’ pocket  was a  probable  one,  acquitted  him.  In setting aside his acquittal the High Court firstly held that the finding  of the  trial Court  that the appellant neither demanded  nor   accepted  the  amount  of  Rs.  1,000/-  was perverse. Besides,  the High  Court held,  relying upon  the judgment of this Court in Hazari Lal vs. State (Delhi Admn.) AIR 1980  SC 873  that the  recovery of the above notes from the appellant coupled with the other attending circumstances on record  entitled the  Court to  draw a  presumption under Section 4  (1) of  the Act and since the appellant failed to rebut that  presumption, he  was liable  for conviction  for accepting illegal gratification.      Mr. Nambiar,  the learned  counsel  for  the  appellant contended that  the judgment  of the  trial Court acquitting the appellant  was based  on a  proper appreciation  of  the

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evidence and  hence the  High Court was not at all justified in setting  aside the  same. Mr. Nambiar next contended that one of  the essential  ingredients of the offences for which the  appellant   was  convicted  is  a  demand  for  illegal gratification and  as the trial Court recorded, after proper appraisal of  the evidence,  a categorical  finding that the prosecution  signally   failed  to  prove  such  demand  the recovery of the notes from the appellant by itself could not have  been   made  a   ground  for   drawing  the  statutory presumption under Section 4 (1) of the Act.      Before we  proceed to  consider whether the prosecution has, in  fact,  succeeded  in  proving  that  the  appellant demanded bribe  from the  Hospital authorities  it  will  be necessary to  ascertain whether  such demand is an essential ingredient of  the offences  in  question.  To  sustain  the charge under Section 161 IPC [since omitted from the IPC and incorporated in  Section 7  of the  Prevention of Corruption Act, 1988 (‘1988 Act’ for short) with certain modifications] against the  appellant the prosecution was required to prove that      (i)  the  appellant  was  a  public      servant at the material time;      (ii)  the   appellant  accepted  or      obtained     from     P.W.9     and      gratification  other   than   legal      remuneration; and      (iii)  the  gratification  was  for      exempting the  Hospital in question      from its liability to pay statutory      provident fund contributions.      So far  as the  other  offence  is  concerned,  Section 5(1)(d) of  the Act (now replaced by Section 13(1)(d) of the 1988 Act)  lays down that if a public servant, by corrupt or illegal means  or by  otherwise abusing  his position  as  a public servant  obtained for himself or for any other person any valuable thing or pecuniary advantage he would be guilty of ‘criminal  misconduct’ and  Section 5  (2) thereof (which corresponds to Section 13 (2) of the 1988 Act) speaks of the punishment for  such misconduct.  The  other  Section  which requires  reproduction  is  Section  4(1)  of  the  Act  (it corresponds to  section 20(1)  of the 1988 Act). It reads as under:      "Where in  any trial  of an offence      punishable  under   Sec.   161   or      Section 165  of  the  Indian  Penal      Code or  of an  offence referred in      clause (a)  or clause  (b) of  sub-      section (1)  of Section  5 of  this      Act  punishable  under  sub-section      (2) thereof  it is  proved that  an      accused  person   has  accepted  or      obtained or has agreed to accept or      attempt to  obtain for  himself, or      for   any    other    person    any      gratification  (other   than  legal      remuneration) or any valuable thing      from  any   person,  it   shall  be      presumed  unless  the  contrary  is      proved that he accepted or obtained      or agreed to accept or attempted to      obtain that  gratification or  that      valuable thing  as the  case may be      as a  motive or  reward such  as is      mentioned in  the said  Sec. 161 or      as  the   case   may   be   without

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    consideration or  for consideration      which he knows to be inadequate."           (emphasis supplied)      From a  combined reading of Section 161 IPC and Section 4 (1) of the Act it is evident that if, in the instant case, the prosecution  has succeeded in proving that the appellant was a  public servant  at the  material time and that he had ‘accepted’  or   ‘obtained’  Rs.   1,000/-  from   P.W.9  as gratification not  only the  first two  ingredients  of  the former would stand proved but also the third, in view of the presumption under  the latter  which the  Court is  bound to draw unless,  of course,  the appellant,  in his  turn,  has succeeded  in   rebutting  that  presumption.  According  to Shorter Oxford  Dictionary ‘accept’ means to take or receive with a  ‘consenting mind’. Obviously such a ‘consent’ can be established not  only by leading evidence of prior agreement but also  from the circumstances surrounding the transaction itself  without   proof  of  such  prior  agreement.  If  an acquaintance of a public servant in expectation and with the hope that  in future,  if need  be, he  would be able to get some  official  favour  from  him,  voluntarily  offers  any gratification and  if the  public servant willingly takes or receives such  gratification it  would certainly  amount  to ‘acceptance’ within  the meaning  of  Section  161  IPC.  It cannot be  said, therefore,  as an  abstract proposition  of law,  that   without  a   prior  demand   there  cannot   be ‘acceptance’.      The position  will, however,  be different so far as an offence under Section 5 (1)(d) read with Section 5(2) of the Act is  concerned. For  such an  offence prosecution  has to prove that  the accused  ‘obtained’ the  valuable  thing  or pecuniary advantage  by  corrupt  or  illegal  means  or  by otherwise abusing  his position as a public servant and that too without  the aid  of  the  statutory  presumption  under Section 4(1)  of the  Act as it is available only in respect of offences  under Section  5(1)(a) and  (b) - and not under Section 5(1)(c),  (d) or  (e) of  the Act. ‘Obtain’ means to secure or  gain (something)  as the  result  of  request  or effort (Shorter  Oxford Dictionary).  In case  of obtainment the initiative  vests in the person who receives and in that context a  demand or  request from  him will  be  a  primary requisite for  an offence  under Section 5(1) (d) of the Act unlike an  offence under  Section 161 IPC, which, as noticed above, can be, established by proof of either ‘acceptance’ - or ‘obtainment’.      Keeping  in  view  the  above  principles  we  may  not consider the  facts of the instant case to ascertain whether the High  Court was  justified in setting aside the order of acquittal recorded  in favour  of the  appellant. As already noticed the  appellant did not dispute the fact that the sum of Rs.  1,000/- was  recovered from  his  possession.  While according to  the prosecution  the appellant ‘accepted’ that amount, the  appellant contended  that the  same w as thrust into his  trouser pocket  by P.W.9. From the judgment of the trial Court  we find that the principal reason which weighed with it  for accepting the case of the defence in preference to that of the prosecution was that P.W.9 w as an interested witness and  P.Ws. 3  and 4,  the two independent witnesses, who  were   examined  by   the  prosecution   to  prove  the transaction did  not speak  about any  demand  made  by  the appellant. Having gone through the evidence of the above two witnesses,  namely,  P.Ws.  3  and  4  we  are  in  complete agreement with  the High  Court that the finding recorded by the trial  Court in  this regard  is patently perverse. Both these witnesses,  who at  the  material  time  were  holding

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responsible positions in State Bank of India and Canara Bank respectively,  categorically  stated  that  they  saw  P.W.9 taking out  the notes  from his  shirt’s pocket  and handing over  the   same  to  Damodaran  (the  appellant),  and  the appellant, after  counting those  notes, putting them in the right  front  pocket  of  his  trousers.  The  unimpeachable evidence of  these two  independent  witnesses  conclusively proves that  the transaction was consesual. That necessarily means that  the  appellant  ‘accepted’  the  money  and  the defence story  that P.W.9  thrusted the  money  is  patently untrue. Consequent  upon such  proof, the  presumption under Section  4(1)  of  the  Act  would  operate  and  since  the appellant did  not rebut  that presumption the conviction of the appellant under Section 161 IPC has got to be upheld.      That brings  us to  the question whether the conviction of the appellant for the other offence under Section 5(1)(d) read with  Section 5 (2) of the Act can be sustained or not. The prosecution  led evidence through P.Ws. 2 and 9 that the appellant and the other accused persons had earlier demanded bribe to  exempt their  Hospital from  the operation  of the Employees Provident  Funds Act.  Since there is no reason to disbelieve their  evidence and  since  their  evidence  gets amply corroborated  by the fact of acceptance of Rs. 1,000/- by the appellant subsequently on April 2, 1984, as testified by a  number of  witnesses including  P.Ws. 3  and 4  it  is manifest that  the appellant  obtained the money pursuant to the demand  earlier made by him by abusing his position as a public  servant.  The  conviction  of  the  appellant  under Section 5(2) of the Act is also therefore well merited.      On the  conclusions as  above we uphold the convictions recorded  against  the  appellant.  Since  the  sentence  of rigorous imprisonment  for six  month  and  a  fine  of  Rs. 2,000/- imposed  upon the  appellant for  each of  the above convictions errs on the side of leniency, no interference in respect thereof  is called  for. The  appeal is,  therefore, dismissed.  The   appellant,  who  is  on  bail,  shall  now surrender to his bail bonds to serve out the sentence.