Full Judgment Text
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PETITIONER:
CHATURDAS BHAGWANDAS PATEL.
Vs.
RESPONDENT:
THE STATE OF GUJARAT
DATE OF JUDGMENT06/04/1976
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
SHINGAL, P.N.
CITATION:
1976 AIR 1497 1976 SCR (3)1052
1976 SCC (3) 46
ACT:
Indian Penal Code (Act 45 of 1860), s. 161-Scope of.
Prevention of Corruption Act (2 of 1947), ss. 4(1) and
5(1) and (2)-Statutory presumption under-Rebuttal by
accused.
Code of Criminal Procedure (Act 5 of 1898) s. 537-
Charge under ss. 161 and 34 I.P.C.-Co-accused acquitted-
Conviction under s. 161, simpliciter-Validity.
HEADNOTE:
The appellant (a Head Constable) and the Sub-Inspector
of Police were charged with offences under s. 161 read with
s. 34 and s. 165A, IPC, and under s. 5(2) read with s.
5(1)(d) Prevention of Corruption Act, 1947. The appellant
admitted the receipt of money and its recovery from him but
stated that PWS 1 and 4 came to the Police Station, that PW
4 claimed to be a relative of the Sub-Inspector and that it
was PW 4 and not PW 1 who gave him the money to be handed
over to the Sub-Inspector who was absent. The prosecution
adduced evidence to show that the two accused arranged for
the production of PW 1 at the Police Station in connection
with the investigation of a charge of abduction of a woman;
that the Sub-Inspector directed the appellant to take charge
of PW 1 when he arrived; that the appellant demanded a bribe
from PW 1 to save himself from the charge as well as the
indignity of being handcuffed, locked up and paraded; that a
trap was set the next day when PW 1 paid the amount in the
presence of PW 4 and that the amount was recovered from the
appellant in a raid. The trial court acquitted both the
accused, but on appeal, the High Court acquitted the Sub-
Inspector but convicted the appellant under s. 161 IPC and
s. 5(2). Prevention of Corruption Act.
In appeal to this Court, the appellant contended, (1)
that PW 1’s evidence regarding the payment of gratification
should not be accepted without independent corroboration,
(2) that the statutory presumption under s. 4(1). Prevention
of Corruption Act that the appellant accepted the
gratification as a motive or reward such as is mentioned in
s. 161, I.P.C., should not be drawn against the appellant,
because, (a) there was, in fact, no complaint whatever
against PW 1 in respect of the commission of the offence of
abduction; and (b) the effect of the acquittal of the Sub-
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Inspector was that the money could not be held to have been
paid to the appellant pursuant to any 161 demand of bribe;
and (c) that since the two accused were charged under s. 161
read with s. 34, on the acquittal of the Sub-Inspector the
appellant could not be convicted under s. 161 simpliciter.
Dismissing the appeal,
^
HELD: (1) The testimony of PW 1 stood fully
corroborated by other independent and reliable testimony and
hence could be safely acted upon. The defence version that
it was PW4 who paid the money was falsified by the fact that
no anthracene powder, with which the notes used in the raid
were smeared, was found on PW 4’s hands. while it was found
on the hands of the accused and PW1. [1057E; 1059B-C]
(2)(a) The mere fact that no complaint of abduction or
of any other offence had been made or registered against PW
1 could not take the act of the appellant-in demanding and
accepting the gratification from PW 1 in the context of the
threat by the appellant-out of the mischief of s. 161,
I.P.C. The section does not require that the public servant
must,in fact,be in a
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position to do the official act, favour or service at the
time of the demand or receipt of the gratification. To
constitute an offence under this section it is enough if the
public servant who accepts the gratification takes it by
inducing a belief or by holding out that he would render
assistance to the giver, with any other public servant, and
the giver gives the gratification under that belief. It is
also immaterial if the public servant receiving the
gratification does not intend to do the official act, favour
or forbearance which he holds himself out as capable of
doing. The last Explanation and Illustration (c) to the
section show that the person who receives a gratification as
a motive for doing what he does not intend to do, or as a
reward for doing what he has not done, comes within the
purview of the words "a motive or reward for doing". When a
public servant, being a police officer, is charged under s.
161, I.P.C., and it is alleged that the illegal
gratification was taken by him for doing or procuring an
official act, the question whether there was any offence
against the giver of the gratification which the accused
could have investigated or not, is not material for that
purpose. If he has used his official position to extract
illegal gratification the requirement of the law is
satisfied. [1059F-1060E]
Mahesh Prasad v. State of U.P. [1955] 1 SCR 965;
Dhaneshwar Nariam Saxena v. Delhi Admn. [1962] 3 SCR 259;
Bhanuprasad Hariprasad Dave and anr. v. State of Gujarat
[1969] 1 SCR 22 and Shiv Raj Singh v. Delhi Administration
[1969] 1 SCR 183, followed.
In the present case, on the day of the payment the Sub-
Inspector was away and the appellant was actually in charge
of the police station. It was he who called PW 1 and asked
if he had brought the money and when PW 1 replied in the
affirmative but hesitated to hand over the money,
represented that the money should be handed over to him, and
that he would pass it on to the Sub-Inspector, and that PW 1
would have nothing to fear. [1059C-F]
(b) The only effect of the acquittal of the Sub-
Inspector is that it cannot be urged that the Sub-Inspector
had demanded any bribe from PW 1. It does not in any way
discount the evidence that PW 1 was called to the police
station and was informed by the appellant that a charge of
abduction was against him and that the appellant demanded
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and received a bribe from him. [1058H-1059B]
(c) The burden on the accused to displace a presumption
is not as onerous as that on the prosecution to prove its
case, but the accused has to discharge it by adducing
evidence, circumstantial or direct, which establishes with
reasonable probability that the money was accepted by the
accused other than as a motive or reward such as is referred
to in the section. In the present case,the appellant had
failed to show such a balance of probability in his favour.
[1060E-G]
(3) The language of the charge shows that in addition
to the charge under s.161 read with s. 34, the appellant was
in substance also being charged under s. 161 simpliciter.
All the material circumstances appearing in evidence,
constituting an offence under s. 161, were put to him during
his examination under s. 342, Cr.P.C. The objection that he
could not be convicted under s. 161 simpliciter was not
raised in any of the courts below. No prejudice has,
therefore, been caused to him because of this technical
defect of there being no express charge under s. 161
simpliciter, and the irregularity if any, is cured under s.
537, Cr.P.C. [1061B-D]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
250 of 1971.
Appeal by special leave from the judgment and order
dated the 1st July, 1971 of the Gujarat High Court at
Ahmedabad in Criminal Appeal No. 33 of 1970.
N. N. Keswani, for the appellant.
S. N. Anand and M. N. Shroff, for the respondent.
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The Judgment of the Court was delivered by
SARKARIA, J. The appellant in this appeal was Accused
No. 2 in the trial court. He was a Head Constable (Jamadar)
posted at the relevant time in Police Station, Zinzuwada.
His co-accused (No. 1) was a Police Sub-Inspector posted in
the same station. One Bai Sati,was alleged to have been
abducted by Ghanshyamsinh alias Ghanuba. She was in the
Police Station on the 10th and 11th of July, 1968. Accused 1
recorded her statement and thereafter asked one Fateh Sinh
(PW 7) to bring and produce his cousin Ghanshamsinh. Fateh
Sinh accordingly produced Ghanshamsinh before Accused 1 on
July 11, 1968. Accused 1 directed the appellant to take
charge of Ghanshamsinh. The appellant did likewise and told
Ghanshamsinh that if he wanted to get rid of the charge, he
should gratify the Sub-Inspector. The appellant backed up
the suggestion with a threat to handcuff Ghanshamsinh and
put him in the police lock up. The appellant further
demanded a bribe of Rs. 2,000/-. At first Ghanshamsinh
expressed his inability to pay the amount. Ultimately at the
intervention of Accused 2, the demand was scaled down to Rs.
1,000/- and it was agreed that out of the amount, a sum of
Rs. 500/-would be paid on the following evening at the
latest. Ghanshamsinh was then allowed to go. He then talked
about this deal to his cousin, Fatehsinh.
On the following day, Ghanshamsinh went to Ahmedabad
and contacted Shri R. R. Desai (PW 8), Inspector of the
Anti-Corruption staff of Police and made a complaint which
was recorded. Shri Desai then in the presence of Panchas,
supplied a sum of Rs. 500/-in five currency notes of the
denomination of Rs. 100/- each to Ghanshamsinh for use in
the trapping the accused persons in the act of taking the
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bribe. The notes were smeared with anthracene powder and
Ghanshamsinh was directed to hand over the same on demand to
the accused, and then signal to the raiding party. After
settling the plan, the party came to Zinzuwada on July 12,
1968. Ghanshamsinh was sent ahead with the tainted money to
the Police Station. On seeing Ghanshamsinh along with Panch
Mahendra going to the residence of Accused 1, the appellant
called him and took him to his office room in the Police
Station. Ghanshamsinh informed the appellant that he had
brought the money as agreed for payment to Accused 1. The
appellant told him that Accused 1 being away, he was the
acting Station House Officer and the money should be paid to
him, adding that he would, in turn, pass it on to Accused 1
on his return. Ghanshamsinh then handed over those five
currency notes to the appellant who accepted the same and
placed them in the drawer of his table. All the three
persons then came out of the room. The appellant locked the
room. On receiving the agreed signal from Ghanshamsinh, the
police party rushed in and caught hold of the appellant by
the hand. With the key found on the person of the appellant,
Inspector Desai unlocked the room and recovered the currency
notes from the drawer of the appellant’s table. The hands of
the complainant Ghanshamsinh, Panch Mahendra and the
appellant were examined in the light of an ultra-violet
lamp. Such examination revealed anthracene powder on the
hands of the appellant and Ghanshamsinh; but no such powder
was seen on Panch Mahendra. Shri
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Desai prepared the Panchnama. Certain police papers on the
demand of Inspector Desai were produced by the Writer-
Constable, Kansanbhai. These are: (1) Statement, dated July
11, 1968 of Bai Sati recorded by Accused 1; (2) Statement
dated July 11, 1968 of Koli Mana Jiva, recorded by Accused
1; (3) the writing sent by Police Sub-Inspector, Dasuda
under Javak No. 2991 dated July 10, 1968 as per endorsement
dated July 18, 1968 to the Police Inspector, Zinzuvada; (4)
The Statement of Bai Sati recorded by the Police Sub-
Inspector at Dasuda on July 10, 1968. The Inspector seized
these records.
After completing the investigation, the police sent
both the accused under a charge-sheet for trial before the
Special Judge, Surendranagar on charges under s. 161 read
with s. 34 and s. 165A of the Penal Code and under s. 5(2)
read with s. 5(1)(d) of the Prevention of Corruption Act.
The trial Judge acquitted both the accused of all the
charges levelled against them.
On appeal by the State, the High Court of Gujarat,
reversed the acquittal of the appellant and convicted him on
two counts, namely, one for an offence under s. 161, Penal
Code and the other under s. 5(2) read with s. 5(1)(d) of the
Prevention of Corruption Act and sentenced him to suffer
rigorous imprisonment for two years on the latter count. No
separate sentence under s. 161, Penal Code was inflicted.
Hence this appeal by special leave.
The mainstay of the prosecution case is the testimony
rendered by Ghanshamsinh (PW 1) and Panch Mahendra (PW 4)
and Police Inspector Desai. The first two are witnesses of
the demand of the tainted currency notes and the acceptance
thereof by the appellant from PW 1. Inspector R. R. Desai,
PW 8, was the Head of the raiding party who recovered the
tainted notes.
Examined under s. 342, Cr. P.C., the appellant while
denying the demand of the bribe on the 11th July, 1968 from
Ghanshamsinh, gave this account of what happened on the 12th
July 1968:
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"...the complainant Ghanubha Champubha and his
companion came up to me. I asked Ghanubha as to why he
had come.... He informed me that his companion was
related to the P.S.I.,and that he had some work with
him. He told me that he had accompanied him to show him
the police station. I offered them seats, and gave them
water. I questioned the above person about his
relationship with the Sub-Inspector. He replied to me
that he was the agnate of P.S.I. Joshi, and that he had
come to hand over money to him as his son was sick and
that, the said money was sent by his family from
Ahmedabad. I instructed him to approach his wife and
give money to her. He told me that if he met her, he
would have to stop for the night, so that he would not
be able to attend the H.L. College in the morning. He
told me to take the money and give it to P.S.I.
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Joshi, and that, I should arrange for his transport to
Ahmedabad in some motor truck proceeding there. He gave
me Rs. 500/- in five G. C. Notes, which are now before
the Court at Art. 2. I placed them in a cloth purse,
and kept it in my drawer, over the said application of
Narubha Ex. 51. I offered them tea and asked them to
wait outside. I also told him that I would arrange for
his lift in the motor truck carrying salt to Ahmedabad.
So saying, we came out of the police station. I locked
my room because in it, are placed arms and ammunitions.
I was leaving the Police Station and going to the hotel
for placing an order for tea, when two men held me by
my two hands. They brought me in the compound of the
Police Station. Other 3, 4 men turned up, and one Saheb
from amongst them asked me to produce the money. I
exclaimed, "What money": I told him if the money, that
was required, was the same, which the cousin of P.S.I.
Joshi had handed over to me. The officer insisted that
the money must be produced. I was then perplexed. He
took the key from one of my hands and opened my room,
and took out the money. I was seated in the verandah
and was not allowed to go inside...I then learnt that
the said brother of the P.S.I. was none else but Panch
No. 1. The Officer asked from me the papers of
investigation against Ghanubha. I said that I had no
such papers, and that I had not made any such
investigation against him. He then attached some papers
from the Writer Constable Karsan Talshi."
Thus, the appellant had admitted the acceptance of the
tainted currency notes which were not his legal
remuneration. In variance with the prosecution case, he,
however, alleged that this money was handed over to him by
Mahendra, PW 4, with the representation that he was a cousin
of P. S. I. Joshi (who was then away) and the money was to
be passed on to Mr. Joshi. The appellant, further, admitted
that after the recovery of the money, when his hands were
examined in the light of the ultra violet lamp, shining
powder was found thereon. He expressed ignorance if the
hands of Ghanshamsinh and Mahendra were also similarly
examined. He expressed a desire to appear in the witness box
and make a statement on oath. Subsequently, however, he did
not do so, but examined one Naruba Dosubha (D.W. 1) in
defence, who more or less supported the version of the
appellant with regard to the receipt of Rs. 500/- by the
appellant from PW Mahendra.
The trial Judge instead of appraising the evidence of
the witnesses produced by the prosecution in the light of
the admission made by the appellant in regard to the
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acceptance of money, rejected the prosecution case in toto
against both the accused on grounds which were manifestly
erroneous and unreasonable. Without there being any
evidence, he came to the conclusion that Ghanshamsinh was a
tool in the hands of one Parbhat Singh Jhala, Girasdar of
Ahmedabad, who was inimically disposed towards all the
members of Zanzuwada Police, including the appellant. He
brushed aside the evidence of Mahendra with the puerile
observation that he "as a trainee Press Reporter would be
beguiled into
1057
getting this first class report of a sensational raid by
acting as a panch witness in this raiding party, at the
instance of Mr. Desai.....and in that event, Mahendra would
be too willing to accompany the raiding party and in that
context would be under the intelligent thumb of police, not
by means of pressure, but as a result of human inquisitive,
willingness induced in him."
The trial Judge further stressed the fact that Mahendra
had accompanied the raiding party from Ahmedabad to
Zunzuwada and had travelled in the police van for over three
hours and this in his opinion was sufficient to show that
the witness was "not so much independent as he professed to
be." He further found it unbelievable that the appellant
would accept the sum of Rs. 500/- as a bribe from
Ghanshamsinh in the presence of a stranger (Mahendra).
The conclusions reached by the trial Judge had no
foundation in evidence. They belonged to the realm of
purespeculation. Apart from mere suggestions put to the
prosecution witnesses, in cross-examination, (which were
emphatically denied), there was no evidence to show that
Parbhat Singh Girasdar was in any way hostile or inimically
disposed towards the appellant. There was no justification
for the conjecture that Panch Mahendra was under the thumb
of Inspector Desai and as such, was an interested witness.
We have examined the evidence of Mahendra and are satisfied
that the High Court rightly found him a truthful and
trustworthy witness who had no axe of his own to grind. The
defence version to the effect, that it was Mahendra who had
actually passed on the tainted money to the appellant by
holding himself out as a relation of the Sub-Inspector, was
falsified by the circumstance that no anthracene powder was
found on Mahendra when immediately after the recovery of the
tainted notes, his hands were examined in the light of
ultra-violet lamp; while such powder was admittedly found on
the hands of the appellant, and Ghanshamsinh. This
circumstance was deposed to by Inspector Desai (PW 8) whose
version on this point was not challenged in cross-
examination. Thus, while DW 1 told a lie on this point, this
uncontroverted circumstance could not.
The presence of Mahendra (PW 4) at the time of the
receipt of the tainted notes was admitted by the appellant
himself. In the face of this admission, there was no
justification for the surmise made by the trial Court, that
the appellant, an experienced Head-Constable, could not be
so stupid as to receive Rs. 500/- as a bribe in the presence
of an unknown person.
Thus it had been indubitably established that the
appellant, a public servant accepted a gratification, that
is, a sum of Rs. 500/- which was not his legal remuneration,
from Ghanshamsinh (PW 1). On proof of this fact, the
statutory presumption under s.4(1) of the Prevention of
Corruption Act was attracted in full force and the burden
had shifted on to the appellant to show that he had not
accepted this money as a motive or reward such as is
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mentioned in s. 161, Penal Code.
Mr. Keswani contends that the appellant had rebutted
this presumption by bringing on record circumstances which
militate against it. The
1058
first and the foremost of these circumstances, according to
the Counsel, is that no complaint whatever against
Ghanshamsinh in respect of the commission of an offence was
under investigation with the police; that no F.I.R had been
lodged by any person complaining of the abduction of Bai
Sati against Ghanshamsinh or any other person. Our attention
has been drawn to the statement of Bai Sati, which is said
to have been recorded by Accused 1 on the 11th January in
which it is recorded that she had not been kidnapped or
abducted by any person but had gone away from her father’s
house of her own accord. The second circumstance stressed by
the Counsel is that Accused 1 has been acquitted of the
charge of demanding a bribe directly or indirectly through
the appellant, from Ghanshamsinh. It is urged that the
effect of the acquittal of Accused 1 is that the money
passed on to the appellant on the 12th cannot be held to
have been paid pursuant to any demand of bribe made by
Accused 1 or by the appellant. The third circumstance,
pointed out by the Counsel is that Ghanshamsinh had a grudge
against the appellant and a motive to falsely implicate him,
because the appellant had previously investigated a criminal
case under s. 324, Penal Code against the appellant, who
being aware of it, would be least disposed to accept the
amount, as a bribe, for himself or for the Sub-Inspector. It
is further contended that PWs Fatehsinh and Ghanshamsinh
were persons of questionable antecedents, and their evidence
in the absence of reliable independent corroboration in
regard to the demand and acceptance of the money as a bribe
could not be safely accepted.
We are unable to accept the contention that the
presumption under s. 4(1) of the Prevention of Corruption
Act had been rebutted.
While it is true that no report or complaint had been
made or registered in the Police Station that Ghanshamsinh
had abducted Bai Sati, there was credible evidence on the
record to believe that both the accused had asked Fatehsinh,
PW 7, to produce his cousin Ghanshamsinh in the Police
Station in connection with the investigation of a charge of
abduction of Bai Sati against him. Fatehsinh conveyed this
message to Ghanshamsinh on July 10, 1968. Consequently on
July 11, 1968, Ghanshamsinh was produced by Fateh Singh
before the Police Sub-Inspector at the latter’s residence,
and thereafter Accused 2, the appellant, took him into the
Police Station and made him sit in his room. It was the
appellant who then accused Ghanshamsinh of having abducted
Bai Sati and warned him that in case he did not pay money to
the Sub Inspector, he would be arrested and paraded in
handcuffs around the village. Evidence of PWs Ghanshamsinh
and Fatehsinh with regard to the summoning of Ghanshamsinh
to the Police Station to answer a supposed charge of
abduction, received assurance from the circumstance that on
the 10th and 11th July 1968, Bai Sati was in the Police
station.
It is no doubt correct that the High Court has not
disturbed the acquittal of Accused 1 on the ground that
Ghanshamsinh’s evidence with regard to the demand of the
bribe by accused 1 on the 11th, had not been corroborated by
other independent evidence. The only effect of the acquittal
of Accused 1, however, is that it cannot be now urged that
Accused 1 had demanded any bribe from Ghanshamsinh on
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the 11th. But his acquittal does not in any case discount
the fact or obliterate the evidence in regard to the fact
that Ghanuba was called to the Police Station and was told
by the appellant that there was a charge of abduction of Bai
Sati against him. Nor does the acquittal of Accused 1 have
the effect of exonerating the appellant of the demand of
bribe on the 11th and again on the 12th.
As already noticed, the testimony of Ghanshamsinh both
with regard to the demand of the gratification by the
appellant and its payment to him, on the 12th stood fully
corroborated by the independent and reliable testimony of
Panch Mahendra. Thus, so far as the appellant is concerned
the testimony of Ghanshamsinh, having been fully confirmed
by other trustworthy evidence, could safely be acted upon.
As regards the contention that the appellant was not in
a position to show any favour or disfavour to Ghanshamsinh
in connection with his official duties, it may be noted, in
the first place, that on the 12th July at the relevant time,
the Sub-Inspector being away, the appellant was actually
incharge of the Police Station. This fact is borne out by
the entry Ex. 47 in the Station Diary. On seeing Ghansham
and Mahendra going towards the residence of the Sub-
Inspector, the appellant called them and enquired from
Ghanshamsinh if he had brought the money. Ghanshamsinh
replied in the affirmative but hesitated to hand over the
money to him saying that the Sub-Inspector was not present.
Thereupon, the appellant represented that he was the P.S.I.
and that the money should be handed over to him, adding that
he would pass it on to the P.S.I. on his return. Thereupon,
Ghanshamsinh paid the amount to the appellant saying that he
should not be harassed any more, and that the demand for the
balance be mercifully dispensed with. The appellant while
accepting the money assured Ghanshamsinh that he had nothing
to fear so long as the appellant was concerned in that
affair.
Secondly, this demand for payment and acceptance of the
money by the appellant on the 12th July had to be
appreciated in the context of the representation made by the
appellant on the preceding day, to the effect, that if
Ghanshamsinh would not pay the gratification, he would be
arrested, handcuffed and paraded for the offence of
abducting Bai Sati.
The proof of the foregoing facts was sufficient to
establish the charge under s. 161, Penal Code. The mere fact
that no case of abduction or of any other offence had been
registered against Ghanshamsinh in the Police Station or
that no complaint had been made against him to the Police by
any person in respect of the commission of an offence, could
not take the act of the appellant in demanding and accepting
the gratification from Ghanshamsinh, out of the mischief of
s. 161, Penal Code. The Section does not require that the
public servant must, in fact, be in a position to do the
official act, favour or service at the time of the demand or
receipt of the gratification. To constitute an offence under
this section, it is enough if the public servant who accepts
the gratification, takes it by
1060
inducing a belief or by holding out that he would render
assistance to the giver "with any other public servant" and
the giver gives the gratification under that belief. It is
further immaterial if the public servant receiving the
gratification does not intend to do the official act, favour
or forbearance which he holds himself out as capable of
doing. This is clear from the last Explanation appended to
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s. 161, according to which, a person who receives a
gratification as a motive for doing what he does not intend
to do, as a reward for doing what he has not done comes
within the purview of the words "a motive or reward for
doing." The point is further clarified by Illustration (c)
under this Section. Thus, even if it is assumed that the
representation made by the appellant regarding the charge of
abduction of Bai Sati against Ghanshamsinh was, in fact,
false, this will not enable him to get out of the tentacles
of s. 161, although the same act of the appellant may amount
to the offence of cheating, also (see Mahesh Prasad v. State
of U.P.,Dhaneshwar Narain Saxena v. Delhi Admn.
Indeed, when a public servant, being a police officer,
is charged under s. 161 Penal Code and it is alleged that
the illegal gratification was taken by him for doing or
procuring an official act, the question whether there was
any offence against the giver of the gratification which the
accused could have investigated or not, is not material for
that purpose. If he has used his official position to
extract illegal gratification, the requirement of the law is
satisfied. It is not necessary in such a case for the Court
to consider whether or not the public servant was capable of
doing or intended to do any official act of favour or
disfavour (see Bhanuprasad Hariprasad Dave and anr. v. State
of Gujarat, and Shri Raj Singh v. Delhi Administration.
In the light of what has been said above, it is clear
that the appellant has failed to rebut the presumption
arising against him under s. 4(1) of the Prevention of
Corruption Act. It is true that the burden which rests on an
accused to displace this presumption is not as onerous as
that cast on the prosecution to prove its case.
Nevertheless, this burden on the accused is to be discharged
by bringing on record evidence, circumstantial or direct,
which establishes with reasonable probability, that the
money was accepted by the accused, other than as a motive or
reward such as is referred to in s. 161. The appellant had
hopelessly failed to show such a balance of probability in
his favour.
Thus the charge under s. 161, Penal Code had been fully
brought home to the appellant. The charge under s. 5(1)(d)
read with s. 5(2), also had been proved against him to the
hilt. Clearly he had obtained the money by grossly abusing
his position.
Lastly, towards the fag end, in reply, Mr. Keswani
attempted to assail the conviction recorded by the High
Court on a ground which had not been raised in the courts
below. The charge against the
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appellant was that he had committed an offence under s. 161,
read with s. 34, Penal Code. No charge under s. 161
simpliciter was separately drawn up against him. This being
the case, contends ’Mr. Keswani, the High Court was not, in
the event of the acquittal of Accused 1, competent to
convict the appellant under s. 161 with the aid of s. 34
Penal Code.
The contention must be repelled. Firstly, the High
Court has not convicted the appellant with the aid of s. 34,
Penal Code. Secondly, although in the charge, only s. 161,
read with s. 34, Penal Code was mentioned, the language of
the charge, could leave the appellant in no doubt that in
addition to the vicarious charge under s. 161, read with s.
34, he was being charged with the commission of an offence
under s. 161, simpliciter also. This was manifest from the
words : "You Accused 2 directly accepted from Shri
Ghanshamsinh Champublia Zala Rs. 500/- . . . " All the
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material circumstances appearing in evidence constituting an
offence under s. 161, Penal Code simpliciter were put to him
during his examination. This objection was not raised in any
of the courts below at any stage. No prejudice has
therefore, been caused to the appellant by this technical
defect in the charge. In any case this irregularity stood
cured under s. 537, Criminal Procedure Code.
For the foregoing reasons, the appeal fails and is
dismissed.
V.P.S. Appeal dismissed.
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