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 15

th

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 29

th

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

18

th

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 20

th

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 19

th

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 19

th

April,

1995 he received a complaint against the appellant of

demanding illegal gratification from the contractor and he

conducted a pre-trap proceedings on 20

th

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

9

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

13

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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