M MGANDHI Vs. STATE OF MYSORE

JUDGEMENT

(1.) The appellant in both these appeals is the same person; he has been holding the position of Executive Engineer, P.W. D., Belgaum division. In Special Case No. 8 of 1956 on the file of the Special; Judge at Belgaum, the appellant was convicted of an offence punishable under Section 161 of the I.P.C. for having accepted a bribe of Rs. 250.00 from P.W. 1 Britto on 7-4-1955 and has been sentenced to rigorous imprisonment for one year and to pay a fine of Rs. 5,000.00 and in default, suffer further rigorous imprisonment for six months. The appeal in Criminal Appeal No. 331 of 1957 is directed against this conviction and sentence. In Special Case No. 9 of 1956 on the file of the same Judge, the appellant was tried for the offence of criminal misconduct as defined in Section 5 of the Prevention of Corruption Act and he has been convicted under Section 5(2) of the said Act and has year and to pay a fine of Rs. 75,000.00 and in default to suffer further rigorous imprisonment for six months. (The learned Judge has ordered that the sentence of substantive imprisonment in Special Case No. 9 of 1956 should run concurrently with that awarded in Special Case No. 8 of 1956). It is against this conviction and sentence, that the appeal in Criminal Appeal No. 332 of 1957 has been directed. The State has preferred the Criminal Revision Petition No. 444 of 1957 praying for enhancement of the sentence awarded in Special Case No. 8 of 1956. Another Petition has been filed by the State in Criminal Revision Petition No. 445 of 1957; this purports to be under Section 520 of the Cr.P.C. And the prayer is that the sum of Rs. 24,000.00 and odd which had been found in the house of the accused at the time of the search on 7-4-1955, be ordered to be forfeited to Government. In both these appeals, the appellant has been represented by Sri Ghaswala, Advocate, assisted by Sri Murudkar and Sri Datar. The Advocate-General and the Additional Assistant Advocate-General and the Additional Assistant Advocate-General have appeared for the State.

(2.) P.W. 1 Britto was the agent at Belgaum for the sale of certain tiles known as Pinto Tiles. These tiles were being manufactured at Bangalore by a firm which owned about 3 or 6 Tile Factories. There were a number of partners in that firm, but it is sufficient for the purpose of this case to state that P.W. 5 Edward Pinto and his brother--Denis Pinto P.W. 9 were two of the partners. Denis used to be residing at Bangalore, while Edward Pinto was at Bombay in charge of the sales there. On the morning of the 7th of April 1955, P.W. J went to the office of P.W. 22 Sri P. P. Naik who was the Inspector of Police, Anti-Corruption Branch, Belgaum, and made allegations of corruption against the Executive Engineer (i.e., the present appellant). P.W. 22 recorded as per Ex. 23, the complaint of P.W. 1. The complainant P.W. 1 also produced at that time before P.W. 22 certain documents which are Exhibits 11, 12, 15, 16, 21, 24, 25 and 26). In this complaint as per Ex. 23, P.W. 1 had alleged that on the morning of 4-4-1956 when he had visited the Executive Engineer for requesting him to expedite the passing and payment of a bill which P.W. 1 had preferred on account of his having applied 5000 tiles in connection with the construction of a Rest House at Chikodi, the Executive Engineer told P.W. 1 that he would pass that Bill and also that he would place an order for 15,000 more tiles, but wanted that P.W. 1 should pay him Rs. 400.00. It was alleged that after protracted discussion, the Executive Engineer agreed to accept Rs. 250.00 and had asked P.W. 1 to bring that amount. The complainant stated, as per Ex. 23 that he was going to give that amount of Rs. 250.00 that day (7-4-1955) to the accused. P.W. 1 also stated in some detail, in his complaint, the circumstances under which he had come to know the Executive Engineer and also about the Executive Engineer having demanded a bribe of Rs. 1,000.00 when P.W. 1 and Denis Pinto had gone to see the Executive engineer on 12-1-1955; this demand was stated to have been met by the payment of Rs. 500.00 on 12-1-1955 and another sum of Rs. 500.00 on 31-13-1955. The complainant had stated that he had no desire to bribe but that as the Executive Engineer was unnecessarily giving trouble, the bribes were given with a view to get him caught. He also alleged that he had heard people talking that Shri Gandhi (the Executive Engineer) was accepting bribes from the Public Works Department Contractors and had acquired property more than reasonable and he prayed that enquiry be made about the same. Thereafter, P.W. 22 went and produced before the Judicial Magistrate, First Class, Belgaum, the complaint Ex. 23 and certain other documents Exs. 11, 12, 15, 16, 21, 24, 25, 26 and got them initialled by the Magistrate. He also made an application praying for permission under Section 5-A of the Prevention of Corruption Act for investigating into the offences. That application and the permission accorded by the Magistrate and the permission accorded by the Magistrate are marked as Ex. 99. Then, currency notes of the value of Rs. 250.00 which were produced by P.W. 1 were shown to the panchas and a panchanama as per Ex. 37 was made mentioning the numbers of the currency notes. Thereafter, the currency notes were returned to P.W. 1 with instruction that in case the Executive Engineer demanded the amount, those notes may be handed over to him; P.W. 1 was also informed that in case the Executive Engineer received the currency notes, P.W. 1 should come and give information of the same. The complainant was asked to proceed to the bungalow of the Executive Engineer. P.W. 22. Head Constable Bilgi (P.W. 17) and the panchas followed him, in such a way as to be keeping him within sight; on the way they also picked up Sri Mulla, Deputy Superintendent of Police, Anti-Corruption Branch. This was at about 2 P.M. P.W.1 went inside the bungalow of the Executive Engineer while P.W. 17 was standing near the bungalow and the rest of the party waited near the Superintending Engineers' residence nearby. Within about five minutes the complainant returned; Head Constable Bilgi came and told P.W. 22 that the complainant had informed that the Executive Engineer had received the bribe. Then,they all together with the complainant went to the bungalow of the Executive Engineer. They went inside following peon Rahusane (P.W. 7) who went inside to inform the Executive Engineer. They found that the Engineer was sitting with his children at the dining table in the dining hall. P.W. 22 disclosed his identity, informed about the allegation that Sri Gandhi had received the bribe and demanded that the bribe money be produced. After sometime, the accused Sri Gandhi produced currency notes of the value of Rs. 250.00 from the left hand pocket of his pyjama. By the time the accused produced the currency notes, the Superintending Engineer Sri Pandit P.W. 2 had also come there and was present. In the meanwhile, P.W. 10 Sri Ranade the Collector of Belgaum who had been informed by phone by Sri Mulla, arrived there. Sri Pandit, Sri Ranade and the panchas verified the numbers of the currency notes produced by the accused with those previously mentioned in the panchanama Ex. 37 and found that the numbers were the same. After having a talk between themselves Sri Ranade and Sri Pandit thought that as the accused was a District Officer and the matter was gave one, the accused should be given an opportunity to offer any explanation he may have. Then, they took him to a separate room and asked the accused whether he had any explanation to offer. The accused stated that the matter was a frame-up. Then he stated that the money was thrust upon him; he also said that he had withdrawn money from the bank and that it was that money that was in his pocket. It should be mentioned that in regard to what exactly the accused stated there in the presence of Sri Pandit and Sri Ranade, there is difference between the prosecution and the defence; as to whether it was of his own accord or whether it was after a suggestion was made by Sri Ranade that the accused stated that he had got the money from the bank, is a matter of dispute. Thereafter, all the three persons came out of the drawing room and Sri Ranade told P.W. 22 about the accused's statement that he had got the money from the bank. As the peon Rahusane had been mentioned as the person who had withdrawn the money on behalf of the accused from the State Bank, P.W. 22 called Rahusane and recorded his statement. Thereafter, is the presence of the accused a search of the house was conducted for the purpose of the investigation into the alleged offence under S. 5(2) of the Prevention of Corruption Act. A sum of Rs. 24,000.00 and odd, mostly in currency notes of Rs. 100.00 each, was found in envelopes in a trunk in the bath room. In a cupboard a sum of Rs. 500.00 and odd was found. Both the cupboard and the trunk had been locked and they were unlocked at the instance of the accused by his daughter. The amount of Rs. 500.00 and odd found in the cupboard was not attached. But the sum of Rs. 24,000.00 and odd which had been found in the trunk and some other documents including certain account books, were attached as per the panchanama Ex. 38. After investigation and obtaining necessary orders of sanction as per Exs. 100 and 110, charge-sheets were placed before the Special Judge in Special Case No. 8 of 1956 for the offence under S. 161 of the I.P.C. was only in respect of the sum of Rs. 250.00 alleged to have been taken as bribe, by the accused on 7-4-1955. The charge framed in Special Case No. 9 of 1956 was for the accused having committed an offence of misconduct as defined in S. 5 of the Prevention of Corruption Act. It has been alleged in the charge that the accused had habitually accepted gratification other than legal remuneration as a motive or reward for doing official acts and showing favours to P.W.D. contractors and others, in the exercise of his official functions. It had also been alleged that he had, by corrupt or by illegal means or otherwise by abusing his position as a public servant obtained pecuniary advantages and had amassed wealth of more than two lakhs of rupees, which was quite disproportionate to his known source of income. By way of instances of his having committed the offence of misconduct, it had been mentioned that he had accepted as illegal gratification a sum of Rs. 500.00 on or about 11-1-1955, a similar sum on 31-3-1955 and a sum of Rs. 250.00 on 7-4-1955 from Britto. It had also been further alleged in the charge that the sum of Rs. 24,974.00 found in his house on 7-4-1955, was by itself disproportionate to his known sources of income and that the had thus committed an offence punishable under S. 8(2) of the Prevention of Corruption Act. The accused had pleaded not guilty, in both these cases. He denied having received any bribe on 12-1-1955 or 31-3-1955 or on 7-4-1955. While he admitted having produced from his pyjamma pocket the currency notes of the value of Rs. 250.00 and the search of his house on 7-4-1955 and the seizure of cash of Rs. 24,000.00 and odd, he offered certain explanations. In regard to the currency notes of the value of Rs. 250/which he produced from his pyjamma pocket, his explanation, briefly stated, was as follows : It was his habit, every month to withdraw a sum of Rs. 250.00 from the Bank, in the beginning of the month, to meet certain house-hold expenses. In the month of April 1955 also, he had withdrawn a sum of Rs. 250.00 on the 4th he had withdrawn a sum of Rs. 250.00 on the 4th from the State Banki at Belgaum. One Surve (a P.W.D. official), used to be receiving the money every month for making disbursements in connection with the house-hold expenses. But Surve had not come either on the 5th or on the 6th of April 1955; on the 7th of April, when the accused returned to his residence at about 2 P.M. after having gone out in the morning, he was informed by his children that Surve had come that morning and would again be coming in the afternoon. The accused then looked up as to where he had put the sum of Rs. 250.00 which he had withdrawn from the Bank, as he could not find the same with him. While he was changing his cloths in the bed room and was searching his clothes in notes of Rs. 250.00 his peon Rahusane came and informed him that Britto had come. He told the peon to have Britto seated in the office room. Then, after changing his clothes, the accused went and disposed of Britto within about two minutes. Thereafter, when he looked up the files lying on his table to see whether there was anything urgent, he found a bundle of currency notes under them and thinking it was his own money which he had withdrawn from the Bank had misplaced, he took the same and went into the dining room. The learned Special Judge found that the alleged payments of Rs. 500.00 on 12-1-1955, and a similar sum on 31-3-1955 had not been proved. So far as the payment of Rs. 250.00 on 7-4-1955 was concerned he rejected the explanation of the accused and held that the payment of the said sum as bribe had been proved. In Special Case No. 9 of 1956, the prosecution seems to have produced on the basis that it was only the wealth which was earned or amassed by the accused between 4-12-1958(the date on which the accused became a public servant in Bombay State) and the date of his suspension in April 1955, that could be challenged by the prosecutions as having been earned by corrupt or illegal means, In the charge framed in that case it was clearly stated in para 2 that it in the discharge of his duties as Executive Engineer in the State of Bombay, from 4-12-1948 the accused habitually accepted illegal gratification, in the exercise of his official duties. Prior to that date, the accused had been in service in Gondal and Mourvi States and the provisions of the Prevention of Corruption Act were not applicable to him prior to 4-12-1948.

(3.) It is not disputed that the accused was a public servant on 7-4-1955, holding the post of Executive Engineer, P.W.D., at Belgaum. As can be seen from the judgments of the trial Court, the legality of the order authorising P.W. 22 to investigate and the orders sanctioning the prosecution of the accused, had not been questioned by the accused. Before us also, the legality or the correctness of these orders has not been disputed. As desired by the learned Advocate for the appellant, the arguments in Criminal Appeal No. 332 of 1957 were heard after the arguments in Criminal Appeal No. 331 of 1957 had been completed. Towards the close of the arguments, when we asked as to whether it would not be convenient to dispose of both the appeals by one judgment, no objection was stated to such a course being followed. We will first deal with the subject-matter of Criminal Appeal No. 331 of 1957 and then proceed to deal with the subject-matter of Criminal Appeal No. 332 of 1957.