The essential ingredients of the offence Under Section 5(l)(a) are the same as the ingredients of the offence Under Section 161, IPC subject to one difference, viz., that the offence Under Section 5(l)(a) is an aggravated form of the offence Under Section 161, IPC Repetition of the offence under Section 161, IPC would amount to the offence of criminal misconduct Under Section 5(l)(a) of the Prevention of Corruption Act. It follows, therefore, that the charge framed against the accused that he committed the offence Under Section 5(l)(d) of the Prevention of Corruption Act necessarily implies that he had committed the offence punishable Under Section 161, IPC In Jayarama Iyer v. State of Hyderabad A.I.R. 1954 Hyd 56, it was held that Section 5(2) of the Prevention on Corruption Act, in fact, makes the sentence Under Sections 161 and 165, IPC more severe und the sentence for an offence Under Section 5(1 )(c) is made less severe by prescribing a punishment extending to seven years or with fine or with both.
.
2. The accused P.S. Aravamudha Aiyangar was employed as Progress Supervisor, Golden Rock Workshop, Southern Railway. It is in evidence that notwithstanding the fact that at the time of the commission of the offence in question the accused was getting a salary of Rs. 320 plus Rs, 70 dearness allowance, per month, and his. wife seems to be a musical instructor having occasional engagements : the All India Radio also, he was. not in flourshing circumstances. Till May 1957 his salary stood attached in execution of a simple money decree and he was getting only between Rs, 156 odd and Rs. 197 odd by way of nett salary.
It is also possible that the accused was leading a standard of life a cut above his resources. But in these cases of corruption it is not possible, however, to find out the motive, because incorruptibility depends upon the strength of character and not upon the financial resources. It is within our common experience that many low paid servants are incorruptible and many high paid servants are corrupt. It is not possible therefore for us to delve into the minds of these people taking bribes because as has been well said "The devil himself know not the thoughts of man."
In this case, however, we have the evidence that the accused was not in such financial circumstances that he would be above all temptation. It is also possible that when he is on the verge of retirement he wanted as much money as possible when the going was good, because nobody would give him bribes after retirement.
3. Chennaiyappan P.W. 2 resides near Erode. In June 1957 he came to Golden Rock to find Out if he can get employment as a Kalasi in the Golden Rock workshop. He made enquiries of some persons in Golden Rock about the job and learnt that if he contacted the accused who was residing in H-l. Quarters, Golden Rock, he would be able to do something for him. It may be parenthically pointed out here that much point was made and rightly disbelieved by the lower court that the accused was not in a position to recruit Kalasis, a job for which this untrained P.W. 2 was eligible.
But unfortunately in this country of illiterates and needy people out to secure a job by hook or by crook, people who are in a position to give jobs as well as people who pretend that they will be able to secure jobs for the applicants by Siparsu or otherwise, take money and this is a notorious fact of which judicial notice can be taken. Therefore, P.W. 2 met the accused at 6-30 p.m. on a day in June 1957 at his quarters and requested him to advise him how he can get the job of a Kalasi.
The accused told him that when vacancies arose it will be notified and that if P.W. 2 applied when vacancies were notified he would be sent for. P.W. 2 went to Golden Rock on 2 or 3 further occasions but he was not able to get any information. In the first week of August 1957, P.W. 2 met accused for the second time at his house and asked him if recruitment was likely in the near future. Accused told P.W. 2 that in a month or two candidates are likely to be recruited and if P.W. 2 agreed to pay him (accused) Rs. 100 before the end of that month and a further sum of Rs. 100 after P.W. 2 got the appointment, he would help P.W. 2 in getting an application form and also in getting him selected. To this, P.W. 2 who was hard pressed for securing a job readily n greed.
4. On 19-8-1957, on information that accused was receiving illegal gratification for securing jobs in the railway workshop, Sri A. Devasahayam, P.W. 7, the Inspector of Police, Special Police Establishment, Madras, proceeded to Erode, stayed at the retiring room in Erode railway station and sent for P.W. 2. P.W. 2 met P.W. 7. I may point nut here that on account of the growing civic consciousness in this country it is very fortunate for us that people who give bribes also cooperate with the authorities for the exposure of the bribe-takers once they are convinced that it is that duty to do so.
Therefore, on being questioned by P.W. 7, P.W. 2 told him the gist of the conversation between himself and the accused and the demand made by the accused for payment of Rs. 200 for securing him the job of a Kalasi. P.W. 7 asked P.W. 2 to give & .written complaint, P.W. 2 consented to the same. The complaint is Ex. P. 2 recorded by P.W. 7. P.W. 7 thereupon arranged for a trap being sprung and took preliminary steps.
5. P.W. 7 after directing P.W. 2 to meet the accused on 21-8-1957 and find out if the accused asked for the money and if so meet him on 22-8-1957 night at the Tiruchirapalli Junction railway station, sent Ex. P. 2 to the Superintendent of Police, Special Police Establishment at Madras, requesting for an authorisation letter to the Additional First Class Magistrate, Tiruchirapalli, to permit him, P.W. 7, to investigate into the case.
P.W. 7 got the letters from Sri C. V. Narasimhan, Superintendent of Police, Special Police Establishment, authorising him to investigate into the case. The Additional First Class Magistrate, Tiruchirapalli, passed an order Ex, P. 8 authorising P.W. 7 to investigate into the case. Ex. P. 9 is the first information report which P.W. 7 sent to the court. P.W. 7 registered the case as crime No. 15 of 1957 on 23-8-1957.
6. In the meanwhile on 21-8-1957, P.W. 2 proceeded to Golden Rock and was sitting in the park near the house of the accused. At about 11-30 a.m. the accused returned home. P.W. 2 met the accused and the latter enquired him if he had got the money. P.W. 2 told him that he would pay the money day after next. The accused told P.W. 2 to wait for him in the same place and time on the day after next.
7. On 22-8-1957 at about 8 p.m. P.W. 2 met P.W. 7 at the Tiruchirapalli Junction railway retiring room and informed P.W. 7 of the conversation between himself and the accused. P.W. 7 instructed P.W. 2 to meet him at 7-30 a.m. on 23-8-1957 with Rs. 100, Nataraja Mudaliar, P.W, 3, is the Karnam of Theyamir. He resides in Beema-nagar, a suburb of Tiruchirapalli. P.W. 7 sent for P.W. 3 through a railway police constable. P.W. 3 met P.W. 7 at 9 p.m. on 22-8-1957 in the railway retiring room, Tiruchirapalli Junction. P.W. 7 directed P.W. 3 to meet him on the next day at 7-15 a.m. in his room.
P.W. 3 met P.W. 7 at the retiring room as arranged. At about 7-45 a.m. P.W. 2 met P.W. 7 at the railway retiring room taking with him ten ten-rupee currency notes, M. Os. 1 to 10 and a change of eight annas towards bus fare. P.W. 2 handed over M. Os. 1 to 10 to P.W. 7 who prepared a mahazar noting the number of M. Os, 1 to 10 in the presence of P.W. 3. P.W. 2 signed the mahazar Ex, P.S. P.W. 3 attested it. P.W. 7 directed P.W. 2 to proceed to the place mentioned by accused on 21-8-1957 and give M. Os. 1 to 10 if accused demanded the money and then signal to him as pre-arranged by dropping his towel and retrieving it back.
P.W. 2 agreed and went to Golden Rock by bus. Before P.W. 2 went for Golden Rock P.W. 7 searched his person and found that there was no incriminating material. Some time later P.W. 7 instructed P.W. 3 to follow P.W. 2 and stay somewhere nearby without drawing any attention to himself and watch what was happening. P.W. 3 left for Golden Rock. P.W. 2 sat on a bench in between the Armoury Gate of the Golden Rock work- shop and the park, at the place indicated by the accused the day before.
P.W. 3 went to the same place and sat on a bench by the side of the road in opposite direction and a little away from the place where P.W. 2 was sitting, as if he was a casual wayfarer resting there, but sufficiently near to see what was happening. By 8-45 a.m. P.W. 7 left for Golden Rock by bus, got down at Park bus stop. There he met Sri J, M. Davis, P.W. 4, a B.A.,B.T. employed as an assistant in the Golden Rock Railway High School, who was on his way back from the railway hospital. P.W. 7 disclosed his identity to P.W. 4 and requested him to assist him in a trap against an official.
After some reluctance P.W. 4's sense of duty overcame the unpleasantness of the duty he was asked to discharge and he consented. P.Ws, 4 and 7 took that position near the eastern gate of the park, a few yards west of the place where P.W. 2 was sitting. Thus, the stage was set for a trap being sprung.
8. At about 11-15 a.m. accused came out of the Golden Rock railway workshop through the Armoury Gate and was walking towards the Park. Accused was wearing a dhoti and a slack shirt. Someone leading a cycle was accompanying him. On seeing the accused P.W. 2 got up and made a Narnaskar. The accused asked P.W. 2 to follow him. After they had gone a few feet west, the person who had the cycle got on it and proceeded along the post office road. Accused enquired P.W. 2 who was trotting along, if he had brought the money.
P.W. 2 told the accused that he had arrived just then and he had brought the money. The accused asked P.W. 2 to give the sum of Rs. 100. P.W. 3 slowly followed the accused and P.W. 2 from behind. P.Ws. 4 and 7 were observing the movements of the accused and P.W, 2.
9. Thus, while three pairs of eyes were being trained on him at unsuspectingly fairly close quarters, P.W. 2 took the sum of Rs. 100, M.Os. 1 to 10, and gave them to the accused. The accused received them with his right hand and put M. Os, 1 to 10 into the left side pocket of his slack shirt. Accused told P.W. 2 not to worry about the job, that he would attend to it, that P.W. 2 who was to keep himself in touch with him and that as soon as there were vacancies P.W. 2 would be given an application form and that he (accused) would see that P.W. 2 got selected.
The accused also told P.W, 2, that if any other persons desired to get the job of Kalasis, P.W. 2 might take them to him and that he would oblige them also for similar considerations. By this time P.Ws. 3, 4 and 7 closed upon this accused. In fact, they could even overhear part of the conversation between the accused and P.W. 2 and as soon as the accused had proceeded about 25 feet along the southern road bend of the road, round the park, P.Ws. 4 and 7 stopped the accused,
10. P.W. 7 revealed his identity to the accused and called upon him to produce the currency notes received by him from P.W. 2. By that time P.W. 3 had joined them. The accused took out the currency notes, M. Os. I to 10 from the left side pocket of his slack shirt and gave them to P.W. 7. P.W. 7 verified the numbers in M. Os. 1 to 10 with the numbers recorded by him in the mahazar Ex. P. 3 and found the numbers tally. The currency notes were seized under a mahazar Ex. P. 5. This mahazar has been attested by P.Ws. 3 and 4. P.W. 7 searched the person of the accused but did not and anything incriminating.
11. F.W. 7 interrogated the accused and examined P.Ws. There are no irregularities in the investigation and, in fact, a model procedure has been followed in this case. I need not point out that irregularities in investigation unless they have brought about a miscarriage of justice will not vitiate the result : Ramchand Tolaram v. State (S) , Vaghji Nanji v. State (S) A1K 1955 Sau 91, Debi
Prasanna v. State (S) (FB), Mubarak Ali v. State
A.I.R. 1958 MP " |157, State of M. P. v. Veereswar Rao (S) , Wareppan v. Manipur Administration A.I.R. 1958
Manipur 17.
On completing the investigation he submitted his report to the Inspector General of Police, Special Police Establishment, New Delhi. He applied for sanction to prosecute the accused to the General Manager, Southern Railway. The facts relating to the charge were placed before the General Manager and sanction accorded by the General Manager not mechanically but applying his mind has been proved through P.W. 1, The sanction is in conformity' with the settled law on the subject: Dharam Sarup v. State , Ravi Datt v. State A.I.R. 1956 Pepsu 12, Nishan Singh v. State A.I.R. 1955 Punj 65, Rameshwar Dayal v. State A.I.R. 1955 NUC (Madh B.) 852, Mohanlal v. State , Baijnath Prasad v. State A.I.R. 1956 Bhopal 86,
Bangiram v. State 1957 Cri LJ 131 (Him Pra), Indu Bhushan v. State of West Bengal , Jaswant Singh v. State of Punjab
, Ayyangar v. State A.I.R. 1954 Madh B 101, State v. Hiranand A.I.R. 1958 Madh Pra 2, State v. Mehra A.I.R. 1953 Ajmer 17. The charge sheet was laid on 24-12-1957.
Madras High Court
In Re: P.S. Aravamudha Iyengar vs Unknown on 17 November, 1958
Equivalent citations: 1960 CriLJ 92
1. This appeal is preferred against the conviction and sentence by the Special Judge, Tiruchirapalli, in C. C. No. 2 of 1958.
2. The accused P.S. Aravamudha Aiyangar was employed as Progress Supervisor, Golden Rock Workshop, Southern Railway. It is in evidence that notwithstanding the fact that at the time of the commission of the offence in question the accused was getting a salary of Rs. 320 plus Rs, 70 dearness allowance, per month, and his. wife seems to be a musical instructor having occasional engagements : the All India Radio also, he was. not in flourshing circumstances. Till May 1957 his salary stood attached in execution of a simple money decree and he was getting only between Rs, 156 odd and Rs. 197 odd by way of nett salary.
It is also possible that the accused was leading a standard of life a cut above his resources. But in these cases of corruption it is not possible, however, to find out the motive, because incorruptibility depends upon the strength of character and not upon the financial resources. It is within our common experience that many low paid servants are incorruptible and many high paid servants are corrupt. It is not possible therefore for us to delve into the minds of these people taking bribes because as has been well said "The devil himself know not the thoughts of man."
In this case, however, we have the evidence that the accused was not in such financial circumstances that he would be above all temptation. It is also possible that when he is on the verge of retirement he wanted as much money as possible when the going was good, because nobody would give him bribes after retirement.
3. Chennaiyappan P.W. 2 resides near Erode. In June 1957 he came to Golden Rock to find Out if he can get employment as a Kalasi in the Golden Rock workshop. He made enquiries of some persons in Golden Rock about the job and learnt that if he contacted the accused who was residing in H-l. Quarters, Golden Rock, he would be able to do something for him. It may be parenthically pointed out here that much point was made and rightly disbelieved by the lower court that the accused was not in a position to recruit Kalasis, a job for which this untrained P.W. 2 was eligible.
But unfortunately in this country of illiterates and needy people out to secure a job by hook or by crook, people who are in a position to give jobs as well as people who pretend that they will be able to secure jobs for the applicants by Siparsu or otherwise, take money and this is a notorious fact of which judicial notice can be taken. Therefore, P.W. 2 met the accused at 6-30 p.m. on a day in June 1957 at his quarters and requested him to advise him how he can get the job of a Kalasi.
The accused told him that when vacancies arose it will be notified and that if P.W. 2 applied when vacancies were notified he would be sent for. P.W. 2 went to Golden Rock on 2 or 3 further occasions but he was not able to get any information. In the first week of August 1957, P.W. 2 met accused for the second time at his house and asked him if recruitment was likely in the near future. Accused told P.W. 2 that in a month or two candidates are likely to be recruited and if P.W. 2 agreed to pay him (accused) Rs. 100 before the end of that month and a further sum of Rs. 100 after P.W. 2 got the appointment, he would help P.W. 2 in getting an application form and also in getting him selected. To this, P.W. 2 who was hard pressed for securing a job readily n greed.
4. On 19-8-1957, on information that accused was receiving illegal gratification for securing jobs in the railway workshop, Sri A. Devasahayam, P.W. 7, the Inspector of Police, Special Police Establishment, Madras, proceeded to Erode, stayed at the retiring room in Erode railway station and sent for P.W. 2. P.W. 2 met P.W. 7. I may point nut here that on account of the growing civic consciousness in this country it is very fortunate for us that people who give bribes also cooperate with the authorities for the exposure of the bribe-takers once they are convinced that it is that duty to do so.
Therefore, on being questioned by P.W. 7, P.W. 2 told him the gist of the conversation between himself and the accused and the demand made by the accused for payment of Rs. 200 for securing him the job of a Kalasi. P.W. 7 asked P.W. 2 to give & .written complaint, P.W. 2 consented to the same. The complaint is Ex. P. 2 recorded by P.W. 7. P.W. 7 thereupon arranged for a trap being sprung and took preliminary steps.
5. P.W. 7 after directing P.W. 2 to meet the accused on 21-8-1957 and find out if the accused asked for the money and if so meet him on 22-8-1957 night at the Tiruchirapalli Junction railway station, sent Ex. P. 2 to the Superintendent of Police, Special Police Establishment at Madras, requesting for an authorisation letter to the Additional First Class Magistrate, Tiruchirapalli, to permit him, P.W. 7, to investigate into the case.
P.W. 7 got the letters from Sri C. V. Narasimhan, Superintendent of Police, Special Police Establishment, authorising him to investigate into the case. The Additional First Class Magistrate, Tiruchirapalli, passed an order Ex, P. 8 authorising P.W. 7 to investigate into the case. Ex. P. 9 is the first information report which P.W. 7 sent to the court. P.W. 7 registered the case as crime No. 15 of 1957 on 23-8-1957.
6. In the meanwhile on 21-8-1957, P.W. 2 proceeded to Golden Rock and was sitting in the park near the house of the accused. At about 11-30 a.m. the accused returned home. P.W. 2 met the accused and the latter enquired him if he had got the money. P.W. 2 told him that he would pay the money day after next. The accused told P.W. 2 to wait for him in the same place and time on the day after next.
7. On 22-8-1957 at about 8 p.m. P.W. 2 met P.W. 7 at the Tiruchirapalli Junction railway retiring room and informed P.W. 7 of the conversation between himself and the accused. P.W. 7 instructed P.W. 2 to meet him at 7-30 a.m. on 23-8-1957 with Rs. 100, Nataraja Mudaliar, P.W, 3, is the Karnam of Theyamir. He resides in Beema-nagar, a suburb of Tiruchirapalli. P.W. 7 sent for P.W. 3 through a railway police constable. P.W. 3 met P.W. 7 at 9 p.m. on 22-8-1957 in the railway retiring room, Tiruchirapalli Junction. P.W. 7 directed P.W. 3 to meet him on the next day at 7-15 a.m. in his room.
P.W. 3 met P.W. 7 at the retiring room as arranged. At about 7-45 a.m. P.W. 2 met P.W. 7 at the railway retiring room taking with him ten ten-rupee currency notes, M. Os. 1 to 10 and a change of eight annas towards bus fare. P.W. 2 handed over M. Os. 1 to 10 to P.W. 7 who prepared a mahazar noting the number of M. Os, 1 to 10 in the presence of P.W. 3. P.W. 2 signed the mahazar Ex, P.S. P.W. 3 attested it. P.W. 7 directed P.W. 2 to proceed to the place mentioned by accused on 21-8-1957 and give M. Os. 1 to 10 if accused demanded the money and then signal to him as pre-arranged by dropping his towel and retrieving it back.
P.W. 2 agreed and went to Golden Rock by bus. Before P.W. 2 went for Golden Rock P.W. 7 searched his person and found that there was no incriminating material. Some time later P.W. 7 instructed P.W. 3 to follow P.W. 2 and stay somewhere nearby without drawing any attention to himself and watch what was happening. P.W. 3 left for Golden Rock. P.W. 2 sat on a bench in between the Armoury Gate of the Golden Rock work- shop and the park, at the place indicated by the accused the day before.
P.W. 3 went to the same place and sat on a bench by the side of the road in opposite direction and a little away from the place where P.W. 2 was sitting, as if he was a casual wayfarer resting there, but sufficiently near to see what was happening. By 8-45 a.m. P.W. 7 left for Golden Rock by bus, got down at Park bus stop. There he met Sri J, M. Davis, P.W. 4, a B.A.,B.T. employed as an assistant in the Golden Rock Railway High School, who was on his way back from the railway hospital. P.W. 7 disclosed his identity to P.W. 4 and requested him to assist him in a trap against an official.
After some reluctance P.W. 4's sense of duty overcame the unpleasantness of the duty he was asked to discharge and he consented. P.Ws, 4 and 7 took that position near the eastern gate of the park, a few yards west of the place where P.W. 2 was sitting. Thus, the stage was set for a trap being sprung.
8. At about 11-15 a.m. accused came out of the Golden Rock railway workshop through the Armoury Gate and was walking towards the Park. Accused was wearing a dhoti and a slack shirt. Someone leading a cycle was accompanying him. On seeing the accused P.W. 2 got up and made a Narnaskar. The accused asked P.W. 2 to follow him. After they had gone a few feet west, the person who had the cycle got on it and proceeded along the post office road. Accused enquired P.W. 2 who was trotting along, if he had brought the money.
P.W. 2 told the accused that he had arrived just then and he had brought the money. The accused asked P.W. 2 to give the sum of Rs. 100. P.W. 3 slowly followed the accused and P.W. 2 from behind. P.Ws. 4 and 7 were observing the movements of the accused and P.W, 2.
9. Thus, while three pairs of eyes were being trained on him at unsuspectingly fairly close quarters, P.W. 2 took the sum of Rs. 100, M.Os. 1 to 10, and gave them to the accused. The accused received them with his right hand and put M. Os, 1 to 10 into the left side pocket of his slack shirt. Accused told P.W. 2 not to worry about the job, that he would attend to it, that P.W. 2 who was to keep himself in touch with him and that as soon as there were vacancies P.W. 2 would be given an application form and that he (accused) would see that P.W. 2 got selected.
The accused also told P.W, 2, that if any other persons desired to get the job of Kalasis, P.W. 2 might take them to him and that he would oblige them also for similar considerations. By this time P.Ws. 3, 4 and 7 closed upon this accused. In fact, they could even overhear part of the conversation between the accused and P.W. 2 and as soon as the accused had proceeded about 25 feet along the southern road bend of the road, round the park, P.Ws. 4 and 7 stopped the accused,
10. P.W. 7 revealed his identity to the accused and called upon him to produce the currency notes received by him from P.W. 2. By that time P.W. 3 had joined them. The accused took out the currency notes, M. Os. I to 10 from the left side pocket of his slack shirt and gave them to P.W. 7. P.W. 7 verified the numbers in M. Os. 1 to 10 with the numbers recorded by him in the mahazar Ex. P. 3 and found the numbers tally. The currency notes were seized under a mahazar Ex. P. 5. This mahazar has been attested by P.Ws. 3 and 4. P.W. 7 searched the person of the accused but did not and anything incriminating.
11. F.W. 7 interrogated the accused and examined P.Ws. There are no irregularities in the investigation and, in fact, a model procedure has been followed in this case. I need not point out that irregularities in investigation unless they have brought about a miscarriage of justice will not vitiate the result : Ramchand Tolaram v. State (S) , Vaghji Nanji v. State (S) A1K 1955 Sau 91, Debi
Prasanna v. State (S) (FB), Mubarak Ali v. State
A.I.R. 1958 MP " |157, State of M. P. v. Veereswar Rao (S) , Wareppan v. Manipur Administration A.I.R. 1958
Manipur 17.
On completing the investigation he submitted his report to the Inspector General of Police, Special Police Establishment, New Delhi. He applied for sanction to prosecute the accused to the General Manager, Southern Railway. The facts relating to the charge were placed before the General Manager and sanction accorded by the General Manager not mechanically but applying his mind has been proved through P.W. 1, The sanction is in conformity' with the settled law on the subject: Dharam Sarup v. State , Ravi Datt v. State A.I.R. 1956 Pepsu 12, Nishan Singh v. State A.I.R. 1955 Punj 65, Rameshwar Dayal v. State A.I.R. 1955 NUC (Madh B.) 852, Mohanlal v. State , Baijnath Prasad v. State A.I.R. 1956 Bhopal 86,
Bangiram v. State 1957 Cri LJ 131 (Him Pra), Indu Bhushan v. State of West Bengal , Jaswant Singh v. State of Punjab
12. These facts were proved through the seven witnesses examined on behalf of the prosecution and by Exs. P.I to P. 9 and M.Os. 1 to 10.
13. The accused denied the offence and contended as follows : P.W. 2 did not meet him in connection with securing the job of a Kalasi. The accused did not offer to get a job of Kalasi to P.W. 2 if the latter agreed to pay him Rs. 200 Rs. 100 immediately and the balance of Rs. 100 after P.W. 2 got the job. On 23-8-1957 at about 11-15 a.m. while the accused was returning to his house from the Golden Rock Workshop, P.W. 2 met him and gave him a sum of Rs. 100 consisting of M. Os. 1 to 10, which he received. But he did not receive them as bribe or as illegal gratification.
Immediately afterwards P.W. 7 stopped him and asked him to produce the currency notes which if P.W. 2 gave him and he produced M.Os. 1 to 10 from his slack pocket and gave them to P.W. 7. Accused knew P.W. 2 for the past four years. P.W. 2 used to go to him very often and take small loans and return the same on the promised dates. On 11-8-1957, P.W. 2 came to him and asked him for a loan of Rs. 100 stating that P.W. 2 had spent the money given by his mother and promised to repay the same in 2 or 3 day's time.
On 16-8-1957 P.W. 2 met him and told him that he was not able to repay it as undertaken by him and promised to repay the same in 2 or 3 days' time. Accused abused P.W. 2 and sent P.W. 2 out of the house. On 21-8-1957 P.W. 2 again came to accused's house and said that the loan amount was ready and that he would repay it on 23-8-1957. P.W. 2 asked the accused where he could give the money. Accused told him that he could repay the money wherever he chose and whenever he chose. Accordingly P.W. 2 paid the sum of Rs. 100 to the accused on 23-8-1957.
Because he pressed P.W. 2 for repayment of the loan, P.W. 2 had given false evidence against him. He did not know P.W. 3 at all, that P.W. was not present on 23-8-1957 and that P.W. 7 might have asked P.W. 3 to give evidence against him. P.W. 4 is a distant relation of P.W. 7, the suggestion of the accused being that P.W. 4 might have given evidence to oblige P.W. 7.
14. On behalf of the accused two witnesses were examined to support his case that he gave a loan of Rs. 100 to P.W. 2 and that it was this sum that P.W. 2 paid him, on 23-8-1957. The learned Special Judge has exhaustively examined the evidence of D.Ws. 1 and 2 in paragraphs 12 and 13 of his judgment and has come to the conclusion that one has only to read their evidence to be convinced that both of them are speaking to unmitigated falsehoods.
From the admissions of D.W. 1 it is seen that he had been prematurely retired from the railway-workshop where he was employed in an inferior position and that he had been committed to civil prison-for non-payment of a small decree debt. Further, D.W. 1 stated that the accused called his debtor by name Kanniappan in chief examination, whereas the name of P.W. 2 is Chennaiyappan. It is unnecessary to multiply the other details given by the learned Special Judge showing the worthless character of his evidence.
Similarly D.W. 2 was found to be an equally worthless witness and though he did not know in which village the accused owns lands, nevertheless he was willing to oblige the accused by saying that he had seen paddy and rice being brought to the house of the accused on numerous occasions and though he does not even own a radio and cannot legitimately be expected to know anything about the accused's wife giving musical concerts, he had the temerity to claim knowledge of what the accused's wife was earning etc.
Though D. W. 1 is residing in Woraiyur and. D.W. 2 is residing in Pomnalipatti, they had the brazenness to say that they went to the house of the accused to witness P.W. 2 coming there without money and being abused by the accused and D. W. 2 recommending the loan of Rs. 100 to P.W. 2, an alleged gambler, who had lost the money. It is obvious that the testimony of these worthless witnesses D. Ws. 1 and 2 had been procured by the accused to speak to an improbable story that the incriminating goods, with which this accused was caught represented the return of a loan.
15. But this need not detain us, however, because it is not for the accused to establish his innocence and it is for the prosecution to establish satisfactorily and affirmatively the guilt of the accused. That is the one golden thread which runs through the web of our criminal jurisprudence derived from the British: Woolrnington v. Director of Public Prosecutions 1935 AC 462; Mancini v. Director of Public Prosecutions 1942 AC 1; Kwaku Mensah v. The King, 1946 Mad WN 186 : A.I.R. 1946 PC 20, Emperor v. Damapala A.I.R. 1937 Rang 83 (FB); Parbhoo v. Emperor A.I.R. 1,941 All 402 (FB); Stephen Seneviratne v. The King, 1936 Mad WN 1340 : A.I.R. 1936 PC 289; Wauchope v. Emperor A.I.R. 1933 Cal 800; Hasan Din v. Emperor A.I.R. 1943 Lah 56. To be fair the learned advocate for the appellant here did not rely upon the defence evidence, seeing that it would not and did not at all commend itself Vo any court.
16. In this state of evidence there cannot be the slightest doubt that the learned Special Judge came to the correct conclusion that the prosecution has affirmatively and satisfactorily proved its case against the accused for the offence of public servant taking illegal gratification (Section 161, IPC 1 and criminal misconduct punishable Under Section 5(l)(d) read with Section 5(2) of Act II of 1947. The requirements Under Section 361 will be found set out in the standard commentaries: Dr. Sir Hari Singh Gour's The Penal Law of India. 6th Edn. 1955, Vol. I, page 668 and following; V. B. Raju. I.C.S., The Penal Code, 1957, p. 524 and following; and the requirements Under Section 5 will be found set out in Kapur and Pandit's The Prevention of Corruption Act (The Criminal Law Series Publications, Ry, Road, Ambala City) pages 56 to 108; I. C.S. Aggarwalla, Prevention of Corruption Act, page 85 and following; Varshini, the Law relating to Bribery and Corruption, Eastern Book Co., p. 95 and following; Baye's Commentary on Prevention of Corruption Act, p. 28 and foil.
17. That this appellant-accused was asking for bribe to see-art an employment to P.W. 2 it makes no difference whether the public servant was in a position to appoint him or not. Crown v. Phul Singh A.I.R. 1941 Lah 276, Mahadeo Daunappa v. State ; Indur
Dayaldas v. State of Bombay and Ram Sewak v. Emperor 48 Cri LJ 467 : A.I.R. 1948 All 17. The bribe was given is spoken to not only by P.W. 2 but also by the Inspector P.W. 7, the Karnam P.W. 3 and the B.A. B.T. Assistant P.W. 4. The accused himself does not deny that he was caught with M. Os. 1 to 10 after obtaining (Ram Krishna v. State of Delhi (S) ) the bribe. In fact, he wanted to make out that it was for the repayment of a loan.
Now, in view of Section 4(1) of the Prevention of Corruption Act (Central Act II of 1947), a presumption at once arises that accused accepted the gratification as a motive or reward. The Legislature has by the words "shall presume" used in Section 4(1) of the Act, made it obligatory on the Court to raise a presumption in every case brought under the Prevention of Corruption Act that the accused received or accepted the money as an illegal gratification unless he rebutted the same. It has been pointed out by that Lordships of the Supreme Court in State of Madras v. Vaidyanathe Iyer , which has been followed by the Kerala High Court in Sreekrishna-narayana Rao v. Republic of India A.I.R. 1958 Kerala 136, that for rebutting the presumption Under Section 4(1) it is not enough for the accused to offer an explanation which has not been disproved or to create some doubt in the mind of the Court, but that it is necessary for the accused to prove that he did receive the money otherwise then as illegal gratification or bribe, i.e., innocently. Relying on the observations of the Supreme Court in 1958 Mad WN 34 : A.I.R. 1958 SC 01) and following the observations of Willes J. in Cooper v. Slade (1858) 6 HLC 746 and of Lord Goddard C. J. in R. v. Dunbar, 1957-2 All ER 737, the Kerala High Court held, if I may say so with respect, rightly that the burden of proof required to be discharged by the accused in such cases is less then that required at the hands of the prosecution in proving the case beyond reasonable doubt and that the burden may be discharged by the evidence satisfying the Court of the probability of that which the accused is called upon to establish, and that where the onus is placed on the accused person it may be discharged by proving what would be enough to support a verdict in his favour in a civil action and that in civil cases the preponderance of probability may constitute sufficient ground for verdict.
18. The scope and extent of this presumption has been expounded in the following decisions deserving of careful study: Mooolraj v. State A.I.R. 1955 Him-Pra 51; Mehar Singh Hajara Singh v. State (S) A.I.R. 195 Pepsu 156; The State v. Minakatan Patnaik ; Mitra v. State ; Krishnabiharilal v. State A.I.R. 1958
Madh-B 86; Narayan v. State A.I.R. 1956 Madh-B 51; Lalchand Topindas v. State A.I.R. 1956 Orissa' 20.1; Ranjeet Singh v. State 1957 Cri LJ 42 (All); State v. Abhey Singh ; Akhouri Inderdeo Prasad v. State .
19. If we examine the explanation given by the accused in the light of these observations, it does not amount even to that reduced amount of proof. The test under both English and Indian law regarding probabilities is that of a prudent man envisaged in Section 3 of the Indian Evidence Act. It is found that the story put forward by the accused is a cock and bull story. P.W. 2 is a native of Erode. There was no necessity for P.W. 3 to borrow from the accused. The accused was not in flourishing circumstances. His own salary was under attachment. His story that he used to lend out moneys is not supported by any evidence on record.
Then, is it credible that this accused would lend to a gambler who had lost the money and did not want his people in the house to know that he had gambled away the money entrusted to him for a family purpose? If really money had been lent like that, would not this accused have taken a promissory note or a bond or a voucher from P.W. 2? The circumstances, under which P.W. 2 seems to have called upon the accused as narrated by D. Ws. 1 and 2 do not impress oneand the place, .time and manner of the alleged repayment the whole thing is an obvious concoction. In fact, in this. State of Madras this description of bribe as a loan, was a favourite doubt raising dodge which I am sorry to say sometimes got put across successfully in our courts also even when the plea was wholly unfounded until this doubt-raising trick was exposed and given its death blow by that Lordships of the Supreme Court in A.I.R. 1958 SC 81.
20. The accused has been convicted both for the offences Under Section 161, IPC and Under Section 5(1): (d) read with Section 5(2) of Act II of 1947. The learned advocate for the accused Sri V. T. Rangaswami Aiyangar drew my attention to my decision in In re Satyanarayanamurthi in which I have held that the provisions of the
Pre-vention of Corruption Act do not repeal the provisions of the Indian Penal Code and that a person cannot be punished both under the Penal Code and the special law for the same offence. In Narayana-swami v. Kerala State, 1957 Ker LJ 476: (S) A.I.R. 1957 Kerala 134, the Kerala High Court held as follows: Clauses (a) to (d) of Sub-section (1) of Section 5 of the Prevention of Corruption Act, specify the different offences which would amount to criminal misconduct by a public servant in the discharge of his official duty and punishable under Sub-section (2) of Section 5. Every one of the offences specified in clauses (a) to (d) is an offence made punishable under the Penal Code also.
The essential ingredients of the offence Under Section 5(l)(a) are the same as the ingredients of the offence Under Section 161, IPC subject to one difference, viz., that the offence Under Section 5(l)(a) is an aggravated form of the offence Under Section 161, IPC Repetition of the offence under Section 161, IPC would amount to the offence of criminal misconduct Under Section 5(l)(a) of the Prevention of Corruption Act. It follows, therefore, that the charge framed against the accused that he committed the offence Under Section 5(l)(d) of the Prevention of Corruption Act necessarily implies that he had committed the offence punishable Under Section 161, IPC In Jayarama Iyer v. State of Hyderabad A.I.R. 1954 Hyd 56, it was held that Section 5(2) of the Prevention on Corruption Act, in fact, makes the sentence Under Sections 161 and 165, IPC more severe und the sentence for an offence Under Section 5(1 )(c) is made less severe by prescribing a punishment extending to seven years or with fine or with both. See also Mahfuz Ali v. State ; Bhup Narain v. State ; Om
Prakash v. State (S) (FB). Section 26 of the General Clauses Act envisages the possibility of the same act of omission not only being an offence under different enactments but of the accused being charge ,.t under ether or any of them, though he shall not be punished twice for the same offence.
In Lahana Kantilal v. State A.I.R. 1954 Sau 121, it was held that separate sentences for the conviction Under Section 161, IPC and Section 5(2) of the Prevention of Corruption Act are illegal and there is only one act which constitutes an offence under two enactments Therefore, the sentence Under Section 161, IPC imposed on this accused has to be i formally set aside. In this case as a matter of 'fact the sentences awarded Under Section 161, IPC and Under Section 5(2) of the Prevention of Corruption Act have been made to run concurrently. But the requirements of the law can be fully complied with only if the sentence imposed Under Section 161, IPC is formally set aside find it is hereby set aside.
21. The conviction of the accused by the learned Special Judge Under Section 161, I. P. C and Section 5(2) of the Prevention of Corruption Act are correct and they are confirmed.
22. In regard to the sentence, where the (earned Special Judge has given adequate reasons for giving a sentence of one year's imprisonment, I do not think it proper that I should interfere with it for no reason. The sentence of imprisonment imposed Under Section 5(2) of the Prevention of Corruption Act is also confirmed.
23. I would like, however, to point out that in this case where the accused is almost on the verge of retirement and had put in a long period of service, the authorities might consider whether there . should be a complete forfeiture of his full gratuity and bonus, amounting to a large sum, thereby cause vicarious suffering to his dependants. This is a matter entirely for the powers-that-be to consider and not for this Court, which can do nothing more then merely drawing attention.
24. The model investigation of this case by Sri A. Devasahayam, Inspector of Police, Special Police Establishment, is specially commended.
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