AMBADAS Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant, who was a Junior Clerk in the Government College of Education at Bhandara, has filed this appeal challenging his conviction under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947. He was originally charged for the offence under section 161 of the Indian Penal Code also but he has been acquitted of that charge. According to the prosecution, Hariram (P.W.2) had passed his B.A. Examination in 1969 and was residing in the Shukrawari Ward at Bhandara, in which Chintaman (P.W.3), a peon in the Government College of Education where the accused was employed, was also living. It is alleged that Chintaman suggested to complainant Hariram that he should seek admission to the College of Education, and on 31-3-1970 the complainant and Chintaman met the accused near the State Bank of India when the complainant was introduced to the accused and the accused is alleged to have told Chintaman that he would help the complainant for getting admitted to the college. An admission form (Ex.11) was obtained by the complainant on 1-4-1970 from the office of the College and was presented at the College on 13-4-1970. The prosecution alleged that on 10-4-1970 Chintaman told the complainant that the accused would help him to get admission provided he paid Rs. 50.00 to him. On 14-4-1970, i.e. the day after the form was submitted, the complainant is alleged to have gone to the College and the accused is alleged to have taken him and Chintaman by the side of the well and demanded Rs. 50. Though the complainant initially expressed his inability to raise such a large amount, he is said to have agreed finally, and it was then settled that the amount would be paid in the house of Chintaman the next day at about 11 a.m. or 12 noon. The complainant then approached the Anti-Corruption Department at 8 p.m. on the same day and narrated this complaint to P.S.I. Kothe (P.W.6) who recorded it and the complaint is Ex.14. It was decided that a trap would be laid the next morning. P.S.I. Kothe obtained permission of the Judicial Magistrate First Class, for investigating this offence. He collected two panchas-Sudhakar (P.W.4) and one Bhayyalal who is not examined. The amount of Rs. 50 was made available by P.S.I. Kothe himself and the currency notes were coated with phenolphthalein powder and the usual formalities which were gone through were recorded in the first Panchanama (Ex. 15). The complainant was instructed to go to the house of Chintaman and sit in the front room and pay the amount if it was demanded by the accused. If the amount was accepted, the agreed signal to be given was that the complainant was to cough thrice. Behind the front room of the house of Chintaman there is another room, and according to the prosecution, P.S.I. Kothe, along with the two panchas Sudhakar and Bhayyalal, sat in the tear room with the connecting door closed. It is alleged that the connecting door had a hole and chinks through which the panchas and the Sub-Inspector could see what was going on in the front room. The office in which the accused and Chintaman were employed used to work in the morning hours and admittedly Chintaman and the accused came to the house of Chintaman at about noon time when they found the complainant in the room. The complainant is alleged to have asked the accused if he would do his work, on which the accused is said to have assured the complainant that he was the whole-sole authority in the College and he could get it confirmed from the other Lecturers in the College, and thereafter the accused demanded the amount of Rs. 50 which was paid by the complainant. It is not in dispute that the currency notes of Rs. 50 were placed on the thigh of the accused, and after the money was placed on the thigh by the accused after counting the currency notes, on the agreed signal being given, the two panchas and P.S.I. Kothe appeared on the scene and the accused was apprehended. The accused was told not to move or touch the currency notes which were on his thigh, then the usual formalities of comparing the numbers of the currency notes as originally noted in the first panchanama (Ex. 15) and testing the hands of the panchas, the Sub-Inspector and the accused were gone through. It is also admitted that on the accused putting his hands in the solution of washing soda, the colour turned purple. The part of the pyjama where the currency notes were placed was also tested by sprinkling the solution of washing soda and it turned purple. The currency notes were seized and the second panchanama drawn up is Ex. 16. Thus, according to the prosecution the accused had accepted Rs. 50 as illegal gratification as a motive or reward for showing to the complainant the favour of getting him admitted to the College and that he had received this bribe money by corrupt and illegal means or otherwise by abusing his position as a public servant. Accordingly charges under section 161 of the Indian Penal Code and section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act were framed against the accused.

(2.) The prosecution story rests on the evidence of Hariram (P.W.2), Chintaman (P.W.3), Sudhakar (P.W.4) and P.S.I. Kothe (P.W.6). The Special Judge, Bhandara, accepted the evidence of all the witnesses and came to the conclusion that the accused who was a public servant had obtained bribe by weilding his position as a public servant and by making a representation that he was the wholesole authority in the College and that he could help candidates who wanted admission to the College. He was, therefore, convicted of the offence under section 5(1)(d)read with section 5(2) of the Prevention of Corruption Act. But having found that the accused did not have the power to admit any candidate, the Special Judge took the view that the bribe was not in connection with the exercise of an official function and, therefore, it was not proved that he was guilty of the offence under section 161 of the Indian Penal Code. He was accordingly acquitted of that offence. He was sentenced to suffer rigorious imprisonment for six months and to pay a fine of Rs. 100, or in default, to suffer further rigorious imprisonment for one month, for the offence under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act. This appeal has now been filed by the accused challenging his conviction.

(3.) At the outset, Mr. Pendse, learned counsel appearing on behalf of the accused, contended that the accused could not have been convicted of the offence under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act because he cannot be said to be a "public servant" as contemplated by section 2 of the said Act. The argument is that under section 2 of the said Act, "public servant" is defined as meaning a public servant as defined in section 21 of the Indian Penal Code, and since no further amendments have been made in section 2, the only person who could be prosecuted for an offence under that Act would be a public servant as defined in section 21 of the Indian Penal Code as it stood on the date on which the Prevention of Corruption Act, 1947, came into operation. The Prevention of Corruption Act came into operation in March 1947, and according to Mr. Pendse, what must be found out is whether the accused could be held to be a public servant within the meaning of section 21 of the Indian Penal Code as it stood in March 1947. The basis of this argument is the decision of the Privy Council in Secretary of State Vs. Hindustan Co-operative Insurance Society, AIR 1931 P.C. 149 in which the Privy Council observed: