Ashok Kashinath Pathare vs State of Maharashtra

T.K. Chandrashekhara Das, J.—The appellant has been facing trial for the charges of corruption for allegedly demanding and accepting bribe from six persons on different occasions. The Lower Court has framed in all fourteen charges of the same kind against appellant u/s 161 of I.P.C. and u/s 5(2) read.

with Section 5(1)(d) of the Prevention of Corruption Act, 1947. He was convicted and sentenced to R.I. for one year and to pay fine of Rs. 6,000/- in default R.I. for two months for the offence u/s 161 of I.P.C. and also R.I. for one year and to pay fine of Rs. 6,000/- in default R.I. for two months for the offence u/s 5(2) r/w. Section 5(1)(d) of the Prevention of Corruption Act, 1947 for having demanded and accepted a bribe of Rs. 600/- from one Kantilal Shivaji Faria on 10.07.1987 under the judgment of the Trial Court which is impugned in this appeal. The substantive sentences are directed to run concurrently.

Precisely the allegations against the appellant was that while he was working as Asstt. Electrical Inspector, Inspection Division, Thane No. 1 during the period from February, 1987 to August, 1987, he demanded and obtained certain amounts as illegal gratification from some of the unit owners of the Govind Udyog Bhavan Industrial Estate, Mulund (West), Bombay on different dates as follows :

(i) Rs. 300/- on 5.2.1987 from John Alex Pareira for Unit No. 236 and a packet Super Staple Pins also valued as Rs. 25/- from him.

(ii) Rs. 1500/- on 5.2.1987 from Shri. Homi Nanji Adajania for the Unit No. 233.

(iii) Rs. 600/- from Shri. Dinesh Bamji Bachh on 5.2.1987 for Unit No. 9 and 10.

(iv) Rs. 500/- from Shri. Kirti Vallabhdas Dawda on 6.2.1987 for the Unit No. 130 and

(v) Rs. 600/- from one Shri. Kantilal Shivaji Paria in Govind Udyog Bhavan Industrial Estate Mulund (W) Bombay on 10.2.1987 for Unit No. 247.

The Trial Court on the basis of these allegations framed 14 separate charges against the appellant. The Charges Nos. 1 to 2 were with regard to the acceptance of bribe from the Kantilal Shivaji Paria for Unit No. 247. Charges Nos. 4 to 13 relates to the allegation of acceptance of bribe from other persons named above and charge No. 14 was the consolidation of all the charges mentioned above to show that he was habitually committing the offence u/s 5(2) r/w Section 5(1)(a) of the Prevention of Corruption Act. 1947.

The Court below had acquitted the appellant from all the charges except the charges Nos. 1 to 3 to the illegal gratification demanded and obtained an amount of Rs. 600/- from Shri Kantilal Shivaji Paria on 10.02.1987. Therefore, in the appeal we are concerned only with regard to the formal charges Nos. 1 to 2 which relates to the allegation of demanding and accepting the bribe of Rs. 600/- from Shri Kantilal Shivaji Paria through John Alex Paria relating to Unit No. 247.

The general allegation against the appellant is that the petitioner while he was working as Electrical Inspector, used to collect the bribe in Hafta (installments) from the Unit Holders of this Industrial Estate regularly. In that context he had visited Industrial Unit of Kantilal Shivaji Paria on 6th Feb., 1987, Unit No. 247. According to the prosecution, when he visited that Unit on 6th Feb., 1987 he found that a wire was hanging from the tube light connection. The accused then pointed out this defect to the complainant Kantilal Shivaji Paria that it is very serious defect and if the accused reports this matter to M.S.E.B. electric supply would be disconnected. He further told him that in consideration of not making any such complaint to M.S.B.B. the complainant should pay Rs. 600/- explaining that amount was calculated only at the rate of Rs. 50/- per month for one year. Though the complainant told him that he was unable to pay that amount, the accused insisted on him to pay. The complainant pleaded with him to reduce the amount to Rs. 200/-. But this request was turned down by the accused. Ultimately the complainant had agreed to pay this amount to the accused. The accused then informed the complainant that he will come in between 12.00 to 2.00 p.m. on 10.2.1987 for collecting the said amount.

According to the prosecution, the complainant then decided to lodge a complaint before the Anti Corruption Bureau. He accordingly went to the office of A.C.B., Thane on 9.2.1987. Though the Govind Udyog Bhavan Industrial Estate is coming under the jurisdiction of A.C.B., Greater Bombay it appears that on the basis of the complaint made by the complainant to the A.C.B. Thane, intimation was sent to A.C.B. Bombay One getting the information, Addl, Commissioner of Police, Mr. Sawant directed the Police Inspector Abdul, Mohd. Ismail Rauf to proceed to Thane and look into the matter, Shri Abdul Rauf, P. W. 9 before the Court has proceeded to Thane. After recording the complaint, P. W. 9 Mr. Rauf sent intimation to Collector''s Office for making two panchas available, Panchas Shri Shivaji Mahadev Bhalerao and Bhaskar Balwant Naik were sent to the office of A.C.B., Thane. Shivaji Bhalerao was examined before the court as P. W. 5. Two panchas and the complainant was directed to come to the office of A.C.B., Thane on 10.2.1987 at 10.00 a.m. P. W. 9 also directed the complainant to bring Rs. 600/- with him. Along with complaint, the complainant has produced an intimation of inspection to be held by the appellant on 10.2.1987 and also demand of inspection fees for Rs. 15/-.

A trap was accordingly arranged at the instance of Abdul Rauf P. W. 9, on 10.2.1987. The complainant brought Rs. 600/- in the shape of six currency notes of Rs. 100/- each. In addition to this, another Rs. 24/- and Railway pass and handkerchief was with the complainant. After introducing the panchas to the complainant, necessary instruction were given by Shri Abdul Rauf to them about the procedure of conducting trap. Thereafter, the demonstration was shown about the procedure of applying powder on currency notes to the panchas and the complainant. It was also demonstrated that how the invisible anthracene powder will become visible in the light of ultra violet lamp. In the light of ultra violet lamp, these currency notes emitted bluish glow. After these demonstrations were over, anthracene powder tainted six currency notes of Rs. 100/- each were folded and these currency notes in left side chest pocket of the complainant by the head constable. Necessary instructions were given about signals to be shown when the accused was handed over the money. Pre-trap Panchanama on procedure of trap was recorded and produced at Exh. 24. Serial numbers of the currency notes subjected to application of anthracene powder were also noted. According to pre-trap arrangement instruction was given to the complainant that he should contact accused and hand over currency notes treated with anthracene powder only when the bribe is demanded by the accused. The instructions were given to Bhalerao, P. W. 5 pancha, to be present throughout, near the accused and the complainant so that he could hear the conversation between the accused and the complainant. Panch Shri Naik was asked to remain with the remaining members of the raiding party. However, he was not examined. Thereafter, the raiding party under the leadership of Mr. Rauf, P. W. 9, reached near the temple of Santoshi Mate on Agra Road, Mulund (West) at 11.30 a.m. After reaching near the spot, all the members of the raiding party got down from the vehicle. As per the previous understanding the complainant and pancha Bhalerao started ahead and the remaining members of the raiding party followed them at some distance. Gala No. 247 is on the second floor of Govind Udyog Bhavan and the complainant and panch Bhalerao reached that Gala at about 11.50 hours. Thereafter, they started waiting for the accused.

Further case of the prosecution is that the accused did not directly come to Gala No. 247. At about 1.30 p.m. he came to Pareira, P. W. 3. It may be noted here that Shri. Pareira was the Secretary of Unit Owners of the Govind Udyog Bhavan Industrial Estate. Accused enquired with Pareira whether his message had been conveyed to all the members. In reply Pareira informed him that the message had been conveyed to a few members of the Society. After this talk, accused asked Pareira to accompany him to Gala No. 247. Both of them started towards Gala No. 247. They entered Gala No. 247. The accused was carrying a briefcase in his hand. After entering the Gala, the accused was informed by the complainant that he had brought Rs. 600/- as per his demand. On hearing this, the accused kept his brief case on a stool which was there and went to Urinal. After some time he came out. The complainant placed on order for cold drinks and three cold drinks arrived. The complainant, the. accused and Pareira consumed these cold drinks and in the meantime, Bhalerao, P. W. 5 was also in the same Gala. After they had cold drinks, the accused called complainant to the Varandah which is just outside of Gala No. 247. Complainant and Pareira went along with the accused to Varandah. After coming to Varandah, the accused informed the complainant that he should pay Rs. 615/- to Shri. Pareira and that he would accept that amount from Pareira later on. After giving this direction to the complainant, Panch Bhalerao, P. W. 5 was following them the accused started towards Gala No. 248. The complainant and Bhalerao also went behind him and waited outside. The accused was there in Gala No. 248 for half an hour. After half an hour he came out and visited Gala No. 250. He remained there for about 5 minutes. All this time, the complainant, Pareira and Bhalerao were waiting outside. When the accused came out of Gala No. 250, he went in front of Gala No. 247 and the accused again informed the complainant that he should hand over the amount to Pareira and thereafter he could go. Then the accused" and Pareira started towards Gala No. 240. The complainant along with Bhalerao followed them. When the accused came in between Gala No. 248 and 243. he informed the complainant to hand over the amount of Rs. 615/- to Pareira and also directed Pareira to accept the same. Accordingly the complainant took out Rs. 600/- from left side chest pocket of the shirt and Rs. 15/- from the pocket of the pant. He took out Rs. 600/- by his right hand and Rs. 15/- from left side pocket of his pant by his left hand. Then complainant handed over Rs. 615/- to Mr. Pareira. Thereafter the complainant whispered into the ears of Pareira that after money was accepted by the accused, he should inform the same to Bhalerao and police about it. After handing over money to Pareira the complainant went downstairs.

The accused and Pareira then entered into Gala No. 240. After entering into Gala No. 240, the accused and Pareira went to the cabin of that Gala. There Pareira handed over the marked currency notes of Rs. 600/- and also Rs. 15/- to the accused. The accused kept it in his briefcase. Thereafter Pareira came out of Gala No. 240. Bhalerao and some other members of the staff of A.C.B were outside. Pareira informed them that the accused had accepted the money. After giving this information, Pareira went to his Gala. Bhalerao, P. W. 5. and other members of the staff of A.C.B. entered into Gala No. 240. In that cabin the accused was alone. He was sitting on a chair. His briefcase was kept on his thins. On the brief case he had kept a receipt book. One electric bill was also there. Hands of the accused were held by some members of A.C.B. and thereafter the ultra violet lamp was called for. In the light of ultra violet lamp it was ascertained that there was no anthracene powder over the hands of anybody from the raiding party. At this stage the complainant, who had gone down stairs appeared there. He was directed to wait outside and to come back only after being called. The body and clothes of the accused were examined in the light of ultra violet lamp. Bluish glow Was noticed on all fingers upto their base and thumb of his right hand. Similar bluish glow was seen on the tips of four fingers of his left hand. Anthracene powder was not detected over his clothes. Bluish glow was seen on two receipts from the receipt book. Those receipts are Receipt Nos. 275931 and 275933. Similar bluish glow was noticed on the electric bill. This bill pertains to Bombay Products which happens to be of the brothers of the complainant. One more paper was there and on that paper also bluish glow was noticed. There was a ball pen with the accused and on tip of that ball pen and on the handle of the briefcase bluish glow was noticed. After examining the accused and all the articles which were with him, the briefcase was opened by panch Shri. Naik. He took out all the contents of the briefcase. Marked currency notes of Rs. 600/- were found in the brief case. By comparing their serial numbers with those mentioned in the pre trap panchanamas it was ascertained that they were the same currency notes. On these currency notes, when examined in the light of ultra violet lamp, anthracene powder was noticed. Amount of Rs 15/- consisted of one currency note of Rs. 10/- and one currency note of Rs. 5/- both these currency notes were examined in the ultra violet lamp. No. glow was noticed on currency notes of Rs. 5/- but glow was noticed on the currency note of Rs. 10/-. In the brief case, some other cash and some other papers were found but as of these articles anthracene powder was not noticed and therefore, were returned back to the accused. However, a diary was also found with the accused. In this diary on a page some writing about Bombay Products were there and hence, this was also seized.

After having completed the examination of the accused in the light of ultra violet lamp, the complainant was called inside the cabin. His person and clothes were examined in the light of ultra violet lamp and bluish glow was noticed on all the fingers and thumb of his right hand. Similarly, it was noticed on inner side of his left side chest pocket. The complainant was searched and it was found that at that time besides the articles which were returned to him, nothing else was there. On none of these articles anthracene powder was noticed. Briefcase of the accused also was subjected to examination in the light of the ultra violet lamp. In the briefcase in the centre compartment anthracene powder was found. Thereafter the post trap panchanama was prepared in the presence of panchas. After completion of the post trap panchanama raiding party and both the panchas along with accused proceeded to the house of the accused at Kalyan. His house was searched in the presence of panchas. Except box of Super Staple Pins nothing incriminating was found and the box of Super Staple was seized. After completing investigation, and recording the statements of various witnesses sanction was sought to prosecute the accused and after obtaining sanction, chargesheet was filed before the Court.

The accused has totally denied the charges. But he admitted in his 313 statements that Pareira is the Secretary of Unit Owners Association of Govind Udyog Bhavan Industrial Estate. He admitted that in Gala No. 236, Pareira was manufacturing staple pins. He also admitted that he had inspected the said unit on 5.2.1987. But he denied receipt of Rs. 300/- from Pareira. He also denied securing staple pin box from Pareira. He admits that he inspected Gala No. 247 of the complainant. He asked the complainant to produce documents like permission from Directorate of Industries and sanction from M.S.E.B. According to him the complainant did not show any of these papers. The accused had then inspected machineries installed in Gala No. 247. On that day only document which showed by the complainant to the accused was electricity bill. The accused had denied that he informed the complainant that there was any defect in the wiring. According to him in fact the complainant was carrying on business of manufacturing high carbon wires in that gala illegally. After having completed these works, while the accused was sitting on the chair the complainant offered Rs. 200/- as bribe to cover up these illegalities. According to accused he refused to accept this amount and warned the complainant that he does not tolerate such illegal activities, on that date, he told the complainant about requirement of payment of inspection fee. The accused admitted that he had informed the complainant that in case the complainant was offering the fee, he was in a position to issue a receipt immediately. Complainant, however, did not pay inspection fee to him. As inspection fee was not paid, accused served intimation of inspection fees on the complainant. Thereafter, the accused left Gala No. 247. This is what happened according to accused on 6.2.1987.

Further defence of the accused is that Mr. Pareira met him on the stair case while he was proceeding to Gala No. 248. Pareira asked the accused about the notice issued on 6.2.1987 about inspection of Gala No. 247 to the complainant. In reply, the accused informed him that under provisions of Indian Electricity Rules, 1956, the complainant was obliged to pay the inspection fees. Mr. Pareira then told the accused that the complainant was his friend. He also told the accused that there must be some misunderstanding on the part of the complainant and that must be cleared. He further informed the accused that he was intervening as a friend of the complainant and Secretary of the Society. He told the accused that he had convinced the complainant and asked the accused to accompany him to Gala No. 247. This was how, according to the accused, he went to Gala No. 247 along with Pareira on 10.2.1987. Further defence of the accused is that on coming to Gala No. 247, he found that complainant and his workers were there, Bhalerao was not there. When he entered Gala No. 247, the complainant didn''t speak anything to him. The accused was in a hurry to visit urinal and hence, he kept his briefcase over the stool and visited the urinal. As the accused was carrying on inspection work on that day, he had to take out various papers from the briefcase. For this reason, his briefcase was in unlocked condition. This much facts were admitted by the accused.

In order to appreciate further case of the defence in this case, it is better to extract relevant portions of Statement u/s 313 of Cr.P.C. of the accused recorded by the Court below :

When I entered Gala No. 240 Pareira also followed me there. I kept my briefcase over the table which was outside and by the side of the cabin which is in that Gala. I then entered the cabin and enquired with the Accountant about the papers, which were necessary for the inspection. Those papers were to be verified. The Accountant replied that the Master was not present, would come after short time and would show papers to me. He asked me to sit down for some time. I then came out of the cabin of Gala No. 240. I saw Pareira standing near my briefcase with electricity bill in his hand.

Pareira showed me the electric bill and showed me that it was bill for gala No. 247, He further informed me that I should keep the receipt ready and he would come within short time with the inspection fees Rs. 15/-. He then went out of Gala No. 240. I took the briefcase in my hand and went to Cabin No. 240. After entering the cabin I kept the briefcase over the table. I opened it and with the help of both the hands I took out receipt book, carbon paper, diary and other official papers from the briefcase. I also took out the pen. I took out the receipt book and carbon papers from the central compartment of the briefcase by using my both hands. I then pulled down the lid of the briefcase. I then kept all the articles which I had taken out from the brief case and electricity bill given by Pareira over the briefcase, I then lifted the briefcase in same condition and kept it over my thighs for the purpose of preparing the receipt. I kept carbon papers in the receipt book for the purpose of preparing the receipt and started preparing the receipt. I then opened the diary to the page of which there was entry about Gala No. 247. Thereafter I completed the receipt and signed it at the bottom. Immediately thereafter the people from ACB entered into cabin of Gala No. 240. One person then held my hands over my shoulders and directed me to keep quite and informed me that they were from ACB. I therefore, sat still. They then took possession of my briefcase and the office papers. Thereafter, people from ACB took out Rs. 615/- from the briefcase. At that time, I came to know that the said amount of was in the briefcase. I have no idea as to who kept that amount in the briefcase behind my back. I do not know when that amount was kept there. Further I want to add that Paria, Pareira and other Gala holders, who take electricity illegally from the office of the society and water pump have joined hands together and have fabricated this false case against me. Their aim is to see that their illegal business can be continued. I have not demanded any bribe or accepted it except demanding inspection fees.

Before going to the evidence of this case, I have to dispose of one preliminary objection raised by Mr. Sabnis, Senior Counsel appearing for the appellant. He submits that the entire trial is vitiated because of the misjoinder of charges framed against the accused. He pointed out that total 14 charges were framed against the accused. According to him this is quite illegal and hit by Section 219 of Cr.P.C. If the trial was conducted beyond the limits stipulated in that Section, the whole trial will be vitiated because the section is mandatory. Mr. Sabnis cited a decision in support of his argument in Keshavlal Tribhuvandas Panchal v. Emperor AIR 944 Bom. 306. It is true that in this decision, it has been held that the Section 234 of Old Code corresponding to Section 219 of Cr.P.C. is mandatory. The argument of the learned counsel though appears to be attractive on first impression, but when we go into the nature of the charges, in this case, it can be seen that it is only one and the same kind of offence is involved in this case. The learned Counsel has led emphasis only in the form of charges as prepared by the court below. It is to be noted that the accused was charged under Sections 5(1)(2) and 5(1)(d) of the Prevention of Corruption Act along with u/s 161 of Cr.P.C. If the accused was charged only u/s 161 and these 14 charged were framed then, of course, there may be some substance in the contention of the counsel for the appellant. But here as the appellant was also chargesheeted for the offence under Sections 5(1)(2) and 5(1)(d) of the Prevention of corruption Act, it can be treated only the one offence. It is needless to say that Section 5(1) and Sub-section (d) of Prevention of Corruption Act deals with repetitions of offences. Section 5(1)(d) of Prevention of Corruption Act reads as under :

Criminal misconduct in discharge of official duty-(1) a public servant is said to commit the offence of criminal misconduct :

(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant obtains for himself or for any other person any valuable thing or pecuniary advantage....

If the public servant is in the habit of taking bribe from the public then as elucidated in the charges framed by the Court below, the instances of bribe taking has to be mentioned. Therefore, viewing in this perspective though structurally charges were appeared to be 14 in number, in fact it is only one and the same kind of charge.

However the learned counsel for the appellant raised this objection only at appealable stage. The objection, if any, about the joinder or misjoinder of charges, must be taken at trial stage itself. At the appellate stage it cannot be raised for the first time. This was so held by the Supreme Court in Mangaldas Raghavji Ruparel and Another Vs. The State of Maharashtra and Another, . The Supreme Court in Para 5 of the said decision has observed thus :

As regards the second point it is sufficient to say that it was not raised before the Magistrate. Section 537(b) of the Code of Criminal Procedure provides that no judgment, conviction or sentence can be held to be vitiated by reason of misjoinder of parties unless prejudice has resulted to the accused thereby. For determining whether failure of justice has resulted the Court is required by the Explanation to Section 537 to have regard to the fact that the objection had not been raised at the trial. Unless it is so raised it would be legitimate to presume that the accused apprehended no prejudice. The point thus fails.

The learned A.P.P. Mr. I.S. Thakur contended that this objection has to be overruled because the appellant has not shown any prejudice that was caused to him in the trial if all these 14 charges framed against him. Factually those allegations contained only one and the same kind of charge and the Trial Court in an attempt to give more clarity and specificity, must have divided the allegation in several charges. In view of the above discussion, the preliminary objection raised by the counsel for the appellant has to be overruled. The learned A.P P. also submits that unless the accused shown to have prejudiced by the misjoinder of charges, his objection will not be sustainable. He also cited a decision of the Supreme Court in Willie (William) Slaney Vs. The State of Madhya Pradesh, . In para 13 of the said decision, it is observed thus :

Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the assumed a hearing, a refusal to allow him to defend himself, a refusal to explain the nature of the charge to him and so forth.

These go to the foundations of natural justice and would be struck down as illegal forthwith. It hardly matters whether this is because prejudice is then patent or because it is so abhorrent to well-established notions of natural justice that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land, because either way they would be struck down at once.

Other violations, will not be so obvious and it may be possible to show that having regard to all that occurred no prejudice was occasioned or that there was no reasonable probability of prejudice. In still another class of case, the matter may be so near the border line that every slight evidence of a reasonable possibility of prejudice would swing the balance in favour of the accused.

In view of the above discussion the preliminary objection raised by the counsel for the appellant has only to be overruled. I do so. After having disposed of the preliminary objection, I have to examine the argument of the learned counsel, for the appellant on merits. He submits that the case of the prosecution has to be viewed in the background that the appellant was transferred and posted there only six months before the commission of the offence and he being strict and sincere officer, an organized trap has been led against him at the instance of the Association of the Gala Owners and Mr. Pareira, the Secretary of the Society has taken lead for this. He submits that the trap and related events cannot be believed to be probable in the light of this background. The preponderance of the probability is more in favour of the defence taken by the appellant. This submission of the learned counsel will be examined later.

The learned counsel further submits that presumption u/s 4(1) of Prevention of Corruption Act will not apply in this case since there is no proof of accepting the bribe in this case. lie submits that all the witnesses examined in this case are not independent witnesses. P. W. 4 Pareira, P. W. 6 Adajnia and P. W. 7 Dawda are all the accomplices who were alleged to have given bribe to the accused. Therefore, their evidence cannot be taken as corroborative evidence for the offence committed by the appellant, even though the counsel for the appellant did not attack the trap as such and recovery of anthracene powdered currency notes were taken possession from him was denied. According to appellant''s counsel, it is clear case of planting and in view of the defence taken by the accused, story spoken by him is more probable than the story tried to be proved by the prosecution. He submits that unless there is clinching evidence to corroborate the prosecution case, the conviction u/s 161 is not justified. He cited decision of the Supreme Court in M.K. Harshan v. State of Kerala (1990) 11 SCC.720. In this case, Supreme Court could state that in view of conflicting version of the prosecution witnesses about recovery of tainted money from the drawer of the table, the Supreme Court called for clinching evidence to corroborate the prosecution case. In Para 8 of the Judgement, Supreme Court held thus :

...Mere demand by Itself is not sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification. Unfortunately, on this aspect in the present case we have no other evidence except that of P. W. 1. Since P. W. 1''s evidence suffers from infirmities, we sought to find some corroboration but in vain. There is no other witness or any other circumstance which supports the evidence of P. W. 1, that this tainted money as a bribe was put in the drawer, as directed by the accused....

From the above observation of the Supreme Court, it can not be construed that the Supreme Court has laid down a principle that a testimony of the member of the raiding party in all circumstances is liable to be rejected. What could be conceived of the above decision is that, a testimony of a witness can also be accepted, even if he is member of the raiding party if his evidence inspires confidence. In this juncture, it is also profitable to refer to a decision of the Supreme Court Ramesh Kumar Gupta Vs. State of Madhya Pradesh, . It is held that corroboration of circumstantial evidence will be sufficient and it need not be by independent witness alone. The relevant portion of the said decision reads as :

Now coming to the nature of corroborating evidence that is required, it is well settled that the corroborating evidence can be even by say of circumstantial evidence. No general rule can be laid down with respect to quantum of evidence corroborating the testimony of a trap witness which again would depend upon its own facts and circumstances like the nature of the crime, the character of trap witness etc and other general requirements necessary to sustain the conviction in that case. The Court should weigh the evidence and then see whether corroboration is necessary. Therefore, as a rule of law it cannot be laid down that the evidence of every complainant in a bribery case should be corroborated in all material particulars and otherwise it cannot be acted upon whether corroboration is necessary and if so to what extent and what should be its nature depends upon the facts and circumstances of each case.

Therefore, short question arises in the appeal is whether the prosecution has succeeded in establishing that the accused has demanded the bribe and accepted the same from the complainant or whether there are any contradictions and Conflicts, in the version of prosecution witnesses.

First of all, in this case, we have to examine the evidence of P. W. 4 John Alex Pareira, admittedly he is not in the raiding party. He is the Secretary of the Gala Owners Association in Govind Udyog Bhavan. He says that on 5.2.1987 the accused came to visit these units. He had come for annual inspection of electric wiring behalf of P. W.D. The accused had given signed inspection card as notice of inspection. He signed the notice in his presence and gave it to him. On the strength of that notice, P. W. 4 allowed him to enter into the factory. He inspected the wiring. He noticed that wiring was defective. Except pointing out the electrical connection was defective, the accused was not able to point out what exactly the defect was. P. W. 4 promise the accused that he would rectify the defects within 2 or 3 days. Then accused replied "it was nothing like that, if you pay me Rs. 600/- I would manage it". P. W. 4 replied he cannot pay Rs. 600/-. He may be given concession as being Secretary of the Society he can persuade the other members to pay Rs. 600/- and he may be allowed to pay Rs. 300/-. Accordingly, the accused agreed to take Rs. 300/- from him and at that time, P. W. 4 paid him Rs. 300/-. He further deposed that nobody was present while giving Rs. 300/- to the accused. Then accused prepared his inspection report and handed over it to him, Afterwards, he demanded staple pin box. That box contains 20 boxes of small sized staple pins. The value of that entire package is Rs. 25/-. The accused took that package and went away. While leaving unit, the accused again told him that he should try to see that the other members pay Rs. 600/- to him. Thereafter, he went way. It may be sufficient to note the fact that when the house of the accused was searched by the police and recovered these staple pins.

It is the further case of P. W. 4 that accused again visited on 6.2.1987. He visited on that date to Unit No. 247 of Kantilal Paria, P. W. No. 3. Accused told him about the defect found out in Gala No. 247 of Kantilal Paria. On 10.02.1987 at about 1.30 p.m. the accused came to him. Accused asked him whether he had conveyed his demand to other members. P. W. 4 replied in the affirmative. Then accused asked him to accompany him to Gala No. 247 and he accompanied the accused to Gala No. 247. It may be noted that in Section 313 statement the case of the accused was that P. W. 4 told him that he will accompany him to Gala No. 247. Therefore, presence of P. W. 4 at Gala No. 247 on 10.2.1987 was admitted by the accused also. When they reached Gala No. 247, the complainant Kantilal Paria and his workers were there. Paria offered two stools for them to sit. They sat down. The accused then kept briefcase on the stool and went to bathroom. Within 2/3 minutes he came out. The bathroom was very close by. After accused returned from the bathroom, Paria informed him that he had kept kept his demand ready. In the meantime, Paria ordered three cold drinks. Three cold drinks arrived. The accused and Paria and P. W. 4 consumed it. At that time, Bhalerao P. W. 5 was standing there nearby and P. W. 4 identified him in the Court, after taking cold drinks, P. W. 4. accused, complainant and Bhalerao came to Varandah. Then accused told Paria to hand over Rs. 615/- to P. W. 4. Then all of them proceeded again. The accused entered into Unit No. 248. P. W. 4 Paria and Bhalerao stood outside of the door of the Unit. After half an hour, the accused came out of that unit and went to unit No. 250 and the other members including P. W. 4 stood near Unit No. 250. The accused came out after 4/5 minutes. Then accused again came near Unit No. 247. There also accused informed Paria, the complainant to hand over Rs. 615/- to P. W. 4. At that time, Bhalerao was also there. Then all of them went ahead upto Unit No. 243. There accused asked P. W. 4 to take money from Paria and told Paria to give money to P. W. 4. The accused asked Paria to proceed for his work after handing over the money to P. W. 4. Paria took out Rs. 600/- by his right hand from his left hand chest pocket and handed them over to P. W. 4. P. W. 4 accepted that amount by his right hand, Paria then took out Rs. 15/- from left pocket of his trousers by his left hand and handed them over to P. W. 4. P. W. 4 accepted that amount also by right hand. After handing over the money, Paria went to downstairs. Thereafter, P. W. 4 and accused went to Unit No. 240. They went to cabin of Unit No. 240. After sitting down in the cabin, accused demanded money from P. W. 4. P. W. 4 handed over money of the amount of Rs. 615/- to the accused. After handing over the money, P. W. 4 went out of this cabin and P. W. 4 says that he do not know what the accused did with the money. After coming out of the cabin, he saw police, Bhalerao and he informed them that he has handed over money to the accused. At that time accused was in Unit No. 240. Police and Bhalerao entered Unit No. 240 and P. W. 4 went for his own work. In the cross examination the evidence of P. W. 4 was attempted to be shaken. But his evidence that he had paid Rs. 300/- to the accused on 6.2.1987 and thereafter he had paid on 10.02.1987 to the accused Rs. 615/- treated with anthracene powder which was handed over by Paria in Gala No. 240 has been proved. As pointed his presence in the company of the accused on 10.2.1987 cannot be ruled out and this gives enough assurance in his evidence. The learned counsel for the appellant submits that his evidence cannot be accepted as he is accomplices in one of the charges framed in this case. I cannot accept this submission. P. W. 4 fully corroborate the evidence of P. W. 5.

P. W. 5 is pancha of both Pre and Post trap panchanama. On 10.2.1987 he started with police in the police van to Mulund (W). The complainant, other panch, Naik and four Police Officers and about 4 Police Constables were in the van. The van stopped near Santoshi Mata Temple at Mujund (W). All of them got down from the van. Complainant Paria and P. W. 5 started ahead of the remaining members of the raiding party who were walking behind them at the distance of 7 to 8 fts. Paria went to Gala 247. Govind Udyog Bhavan. They reached there at 11.50 a.m. Paria and P. W. 5 sat waiting for the accused in factory of Paria. At about 1.30 p.m. accused and one person came into that factory. P. W. 5 identified that person as P. W. 4 Pareira in Court. Then the complainant Paria welcomed accused by saying hallo. After these greetings, Paria informed the accused that the money which he had asked for is ready. On hearing this, the accused kept his briefcase on a stool and went to bathroom. The learned counsel for the appellant submitted that this version of the complainant that the accused kept his money ready was uttered according to P. W. 4 after his coming from the bathroom and according to P. W. 5 complainant uttered these words before the accused had gone to the bathroom. According to me this minor contradiction will not affect the credibility of the witnesses. Whether it is after or before going to the urinal is immaterial. The fact that the complainant had uttered these words was proved by these witnesses. The accused had placed briefcase on a stool before going to the bathroom was admitted by the accused too in his statement. After coming out from the bathroom and on consumption of cold drinks, P. W. 5 followed complainant, P. W. 4 and accused and that they reached Varandah. Then according to P. W. 5, accused asked Paria to pay Rs. 615/- to Pareira and he also spoke that the accused was telling Paria that he will take money from Pareira thereafter. P. W. 5 also narrated the details of the visits of accused in different units and ultimately in his evidence he says that when the accused started coming out from Gala No. 250 and proceeded to 247, he was asking the complainant to hand over Rs. 615/- to Pareira. He also says that when Pareira and complainant followed the accused, he also followed them and in between Gala Nos. 247 and 243 accused told the complainant to pay Rs. 615/- to Pareira and accused asked Pareira to take that money. Then complainant took out marked currency notes from his left side chest pocket by his right hand and took out Rs. 15/- from his left pocket of the pant by his left hand and handed over that amount to Pareira and Pareira accepted that amount by his right hand. Thereafter accused and Pareira went to Gala No. 240 and P. W. 5 was waiting in Varandah which was out side of Gala No. 240. After about 5 minutes, Pareira came out of the Gala and told him and two constables who were standing behind that the accused had demanded money and he had given that amount to the accused and he has accepted the same. Therefore, this evidence of P. W. 4 and 5 to the effect of demanding and accepting the bribe by the accused has been proved without any doubt. As observed by the Court below no circumstances has been made out by the defence to disbelieve these two witnesses. As I observed earlier, Pareira is not a member of the raiding party and his evidence is completely corroborated by P. W. 5.

The learned counsel for the appellant criticised the evidence of P. W. 5 that it is unbelievable that the accused accepted the bribe in the presence of P. W. 5. He also cited a decision of the Supreme Court in G.V. Nanjundiah Vs. State (Delhi Administration), , P. W. 5 never claimed that accused accepted the bribe in his presence. He says that the money was handed over to P. W. 4 by the complainant at the direction of the accused. P. W. 5 says that he was moving around within hearing distance of the complainant, accused and P. W. 4. Therefore, there is nothing unnatural in believing the evidence of P. W. 5. His evidence is fully corroborated by P. W. 4. The decision cited by the Counsel for the appellant has no application in the facts of this case.

The learned counsel for the appellant has explained and demonstrated in Court how the fingers of the accused got stained with anthracene powder. He explained as to how the fingers of the accused got stained with anthracene powder by demonstration using the box before me. According to him, the amount was planted in the box while he had gone to bathroom in Gala No. 247. The amount was planted in the middle chamber of the box. Further it is submitted that Paria, as per instructions given by the accused on 6.2.1987 that he had to pay Rs. 15/- as inspection charges and while entering Gala No. 247 of Paria, the accused was under the impression that Paria is going to hand over that Rs. 15/- as inspection charges and for that purpose he has put his right hand to take out receipt book and a. pen from the central chamber of the briefcase and a pen and the accused got his fingers stained with anthracene powder. According to him, accused has put his both hands in the central Chamber of the bag for taking these articles and thus fingers stumbled on currency notes which were already there treated with anthracene powder and that is how his fingers of both the hands were got stained with anthracene powder. It has come out in the evidence of Investigating Officer that receipt of Rs. 15/- was already written and signed bY the accused. It is unbelievable even without payment of Rs. 15/- by Mr. Paria, how the receipt came to be written and signed by the accused and moreover, the way in which the learned counsel demonstrated the manner in which the accused put his hands in the central Chamber of the briefcase, it was never possible to think that how his left fingers got stained with anthracene powder. Why he had put his left hand into the box. It is impossible to believe that unless one hold the notes in his fist it is quite improbable to have anthracene powder on the thumb of the right hand and all other fingers till the bottom of the fingers. Another aspect of the matter is that P. W. 4 and 5 has spoken in their evidence that the accused was asking the complainant about figure of Rs. 615/-. Relying upon the statement made by P. W. 5 in cross-examination, where he said that in between Gala Nos. 247 and 243, accused told Paria to pay Rs. 615/- to Pareira and P. W. 5 in his cross-examination stated that he was remembering all the facts narrated by Mr. Rouf before or after the trap contained in the panchanama.

It is worthwhile to note that the following circumstances which were proved in this case has completely ruled out the case of defence of planting of anthracene powdered currency notes in the briefcase of the appellant as stated by him u/s 313 statement.

(i) The briefcase was in an unlocked condition when the accused went to urinal in Gala No. 247.

(ii) The traces of anthracene powder on the right thumb of the accused and four finger tips of the left hand unless he holds the notes in his hands, there cannot be any chance to have the anthracene powder on the thumb of the right hand. It strongly indicates that he was holding in his right hand the notes which was treated with anthracene powder.

(iii) If he put his hand in the middle chamber of the briefcase to take out his pen and receipt book as suggested by him, one would not use his left hand to take out the same material from out of the briefcase. Traces of anthracene powder on the tips of four fingers of his left hand caste a serious doubt on the defence story.

(iv) The anthracene powder traces pointed out on the handle of the briefcase which shows that after his hand was stumbled upon the anthracene powdered currency notes, he must have held the handle of the briefcase. It may be noted that he was walking here and there from different galas, after he took the cold drinks from Gala No. 247. He had no case that before he entered into Gala No. 247, he had an occasion to open the box. Therefore, the anthracene stains on the handle of the briefcase must have been fainted from his hand when he lifted the briefcase after his hands were stained with anthracene powder. The manner in which he had inserted his hands inside the middle of the chamber of the briefcase, as stated by him in defence, the handle of the briefcase is not likely to be tainted with anthracene powder.

(v) It is inconceivable when his fingers stumbled on the anthracene powder treated currency notes he didn''t feel that he was touching the notes and that he did not take out it from his brief case and throw it away, if really the notes were planted as suggested by him.

(vi) The writing of the receipt and is kept ready even before the amount was received from the complainant.

(v) It is unbelievable that from 1.30 p.m. till the end while he was visiting different galas he didn''t open the briefcase and take out the pen or other papers from it.

These circumstances has totally ruled out the defence of planting of the notes in the briefcase.

The written and signed receipt in the prescribed form has been attached under the post trap panchanama. It is therefore, evident that the receipt was written and signed by the appellant, in the absence of payment of Rs. 15/-. In the ordinarily course, an officer who is supposed to receive the amount would not write a full fledge receipt before receiving the amount. It is un-understandable what was the hurry to write the receipt before payment. The defence is that the receipt was written and signed and kept with him in order to pass it on to the complainant Paria when he pays money. This story of the appellant does not stand to reason. Unless the amount is received, the officer like appellant will not prepare the receipt and sign it. This circumstance of the case assures confidence and corroborate the prosecution case. This is one of circumstances, writ large the culpability of the appellant. Preponderance of probability of the defence case has been completely demolished with this strange conduct of the accused. All the above circumstances, on the other hand, overwhelmingly prove the guilt of the appellant.

As rightly pointed out by the Trial Court, the prosecution has proved beyond doubt the guilt of the accused and the conviction entered by the Court below against the appellant is justified. No interference is therefore called for. In the result the conviction entered by the Court below is confirmed.

Coming to the question of sentence, the appeal is pending since 1990 and the offence was alleged to have been committed in Feb., 1987, more than 10 years has elapsed after commission of the offence. Therefore, at the distance of such long time, it is not proper to send the petitioner to jail. In view of this the appellant is sentenced to undergo imprisonment for the period which he has already undergone and also directed to pay a fine of Rs. 3,000/- in default and 3 months R.J.

In the result, appeal is partly allowed and partly dismissed. The conviction of the appellant ordered by the Court below u/s 161 of I.P.C. and Section 5(7) r/w 5(2)(d) of the Prevention of Corruption Act, is confirmed.

The sentence awarded by the court below is set aside and instead the appellant who is present in the Court is sentenced to undergo simple imprisonment for a day till the rising of the Court and he is also directed to pay fine of Rs. 5,000/- within 3 months from today and in default R.I. for three months. He is on bail. His bail bond will be cancelled and sureties discharged on payment of fine as aforesaid.