Full Judgment Text
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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.