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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.