M.M. GANDHI 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/ - 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/ - 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 52 of the said Act and has year and to pay a fine of Rs. 75,000/ - 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/ - 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/ -. It was alleged that after protracted discussion, the Executive Engineer agreed to accept Rs. 250/ - 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/ - 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/ - 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/ - on 12 -1 -1955 and another sum of Rs. 500/ - 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/ - 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/ - 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. 52 of the Prevention of Corruption Act. A sum of Rs. 24,000/ - and odd, mostly in currency notes of Rs. 100/ - each, was found in envelopes in a trunk in the bath room. In a cupboard a sum of Rs. 500/ - 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/ - and odd found in the cupboard was not attached. But the sum of Rs. 24,000/ - 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/ - 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/ - on or about 11 -1 -1955, a similar sum on 31 -3 -1955 and a sum of Rs. 250/ - on 7 -4 -1955 from Britto. It had also been further alleged in the charge that the sum of Rs. 24,974/ - 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. 82 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/ - and the search of his house on 7 -4 -1955 and the seizure of cash of Rs. 24,000/ - 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/ - 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/ - on the 4th he had withdrawn a sum of Rs. 250/ - 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/ - 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/ - 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/ - on 12 -1 -1955, and a similar sum on 31 -3 -1955 had not been proved. So far as the payment of Rs. 250/ - 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 -1958the 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. 2 a. Though he found that the alleged bribe taking of Rs. 250/ - on 7 -4 -1955 had been proved, the learned Judge observed that one instance does not establish any habit, and also that although technically it would amount to criminal misconduct within the meaning of S. 51d, a person cannot be punished twice for the same offence. 2 b. The learned Special Judge found, after a consideration of the materials placed by the prosecution and the defence, that the assets of the accused on 7 -4 -1955 were of the value of Rs. 2,14,049. He also found that the entered service in Bombay State, were worth Rs. 1,66,342/ -. He found that between 4 -12 -1948 and 7 -4 -1955 there was an addition of Rs. 47,807/ - to the assets of the accused. After making deductions towards the rent of the bungalow, Income Tax, etc., the learned Judge found that the aggregate income of the accused from all known sources, namely, his salary, dearness allowance interest and dividends from share certificates, was Rs. 65,447/ - during the period between 4 -12 -1948 and 7 -4 -1955. Putting the monthly living expenses of the accused an his family at Rs. 400/ -, the Special Judge calculated that the accused would have incurred an expenditure or Rs. 30,400/ - during this period. Accepting the figure given by the accused in his written statement, the Special Judge found that a sum of Rs. 10,000/ - has been, in addition, spent for education of the accused's children. The accused had also admitted in his statement that he had paid a sum of Rs. 4,291/ - as premia towards his insurance policies. The total expenditure during this period was thus brought up to a sum of Rs. 44,691/ -. After deducting this amount from Rs. 66,447, which were the earnings of the accused from all known sources of income, a balance of only Rs. 20,756/ - ought to have been left. But actually the addition to his assets during this period was a sum of Rs. 47,807/ -. The learned Judge found that the accused was it possession of property disproportionate to known sources of income for which the accused could not satisfactorily account and that the presumption under sub -s.3 of S. 5 of the Prevention of Corruption Act should be drawn against him. The Special Judge viewed the possession by the accused in his house of the cash of Rs. 24,524/ - as an unusual circumstance and that this amount was in itself disproportionate to the accused's known sources of income. He considered that the explanation given by the accused did not displace the presumption of criminal misconduct arising against the accused. He found that this was a fit case in which the accused should be held to be guilty of criminal misconduct on the presumption raised under S. 53 of the Prevention of Corruption Act. Accordingly, he found the accused guilty under S. 52 of the Prevention of Corruption Act and convicted him for that offence.

(3.) THE charge framed in Special Case, No. 8 of 1956 in respect of the offence under S. 161 of the I.P.C. has been confined only to the bribe of Rs. 250/ - received by the accused on 7 -4 -1955 from Britto, as a motive or reward for expediting the payment of Britto's bill for having supplied 5000 titles and for showing favour to britto by placing a further order with him for the supply of 15,000 tiles. According to the allegation in britto's complaint Ex. 23, it was when he met the accused on 4 -4 -1955 for requesting him to expedite the passing and the payment of his bill which has been marked as Ex. 28 that the accused had demanded the bribe; he demanded a sum of Rs. 400/ - for passing the bill and placing an order with Britto for the supply of 15,000 more tiles; according to the allegations in Ex. 23, the accused agreed after some discussion, to accept a sum of Rs. 250/ -. It was this sum of Rs. 250/ - that Britto had to pay on 7 -4 -1955. Even from the allegations in Ex. 23, it was clear that the previous demand for the payment of Rs. 1,000/ - by way of bribe, had been completely met by the payment of Rs. 500/ - on 31 -3 -1955. That incident had thus become closed and the demand alleged to have been made by the accused on 4 -4 -1955 for the payment of another bribe, was really a fresh demand which did not have anything to do with the previous demand for Rs. 1,000/ -. But a very considerable portion of the voluminous evidence in Special Case No. 8 of 1956 is in regard to incidents pertaining to the previous bribe of Rs. 1,000/ - half of which is stated to have been paid on 12 -1 -1955 and the remaining half on 31 -3 -1955. At least in regard to a part of such evidence, the defence counsel had objected though unsuccessfully as can be seen from the note made by the Special Judge prior to the commencement of the examination of P.W. 9 Denis. When we asked as to how the evidence in regard to the incidents pertaining to the previous bribes would be relevant pertaining to the previous bribes would be relevant in Special Case No. 8 of 1956, Sri Ghaswala stated that these incidents are linked up with one another and formed the foundation for the alleged incident of 7 -4 -1955, while it was sought to be explained on behalf of the State that it was only in the nature of introductory evidence and formed a sort of a background to the later incident of 7 -4 -1955 which alone was the subject -matter of the charge. The learned Special Judge, at para 21 of his judgment, has stated that these previous incidents are not of much importance in Special Case No. 8 of 1956, except in so far as they are intended to show how the incident of the taking of the bribe on 7 -4 -1955 developed through various stages. Having regard to the fact that the demand for a fresh bribe was made for the first time only on 4 -4 -1955 and that it was in consequence of that demand alone that Britto agreed to pay Rs. 250/ -, we are of the view that it would not be correct to say that the evidence relating to the previous incidents either formed the foundation for the subsequent incident of 7 -4 -1955 or would be relevant for showing that the taking of the bribe on 7 -4 -1955 had developed through various stages. In the case of Om Prakash Gupta Vs. State of U.P., AIR 1957 SC 458 , the Supreme Court while pointing out the distinction between Ss. 51b of the Prevention of Corruption Act on the one hand, and Ss. 161 and 162 of the Penal Code on the other, has stated at page 464, that while a course of conduct can be proved when a person is arraigned under Ss. 51a and 51b, such a course of conduct under Ss. 161 and 162 is being enquired into or tried. Nor would it be correct to take the view that the evidence in regard to the previous bribes is in the nature of introductory evidence forming a background to the later incident which alone is the subject -matter of the charge. In somewhat similar circumstances, the Bombay High Court refrained from referring to the previous events which formed the background for the later incident to which formed the background for the later incident to which alone the charge related. Vide para 6 of Ramchand Tolaram Khatri and Anr. Vs. The State, AIR 1956 Bom 287 . Evidence is regard to previous incidents not mentioned in the charge, has the danger of creating prejudice against the accused, while it is no proof of the particular offence which is the subject -matter of the charge. The prosecution case in regard to the charge about the accused having accepted the bribe of Rs. 250/ - is not essentially or vitally dependent on the truth or otherwise of the previous incident on the truth or otherwise of the previous incidents, and the evidence in regard to such previous incidents would ordinarily be not relevant. Vide also the observations of the Supreme Court in State of Bihar v. Basawan Singh at para 3 of page 504 of S AIR 1956 SC 500. Under these circumstances, it appears to us, that the evidence in Special Case No. 8 of 1956 should have been properly confined only to the transactions on 4 -4 -1955 when the accused is stated to have demanded this afresh bribe and to the incidents of 7 -4 -1955 which related to the laying of the trap and the accused being caught. In respectful agreement with the attitude taken by the High Court of Bombay in Ramchand Tolaram Khatri and Anr. Vs. The State, AIR 1956 Bom 287 , we also would have been inclined to refrain from referring to the evidence pertaining to the incidents prior to 4 -4 -1955. But Sri Shaswala has strenuously contended before us that he evidence in regard to these previous incidents should be considered by the Court for the purpose of finding out whether Britto was a truthful witness. It has been argued by him that a scrutiny of the evidence regarding these previous incidents, would establish that every one of those incidents is false and that Britto is a throughly untruthful and unreliable witness. In this situation, we are of the view that the evidence pertaining to the incidents prior to 4 -4 -1955 requires to be considered in Special Case No. 8 of 1956, only for the limited purpose of appreciating and evaluating Sri Ghaswala's contention that a such a thoroughly untruthful and unreliable witness that the Court should refuse to accept any portion of his evidence. Practically every one of the acts forming these prior incidents having been attacked as being false, a fairly detailed scrutiny is necessitated.