In Re: Varadadesikachariar

Panchapakesa Ayyar, J.—This is a petition by one Varadadesikachari to set aside his convictions u/s 161, Penal Code (in respect of two

counts) by the Sub divisional Magistrate, Tiruvallur, confirmed by the Sessions Judge of Chingleput on appeal. The facts are briefly these :

The petitioner, Varadadesikachari, aged 42, was living in Royapuram and was working as a Clerical Supervisor, Control Office, Return Stores

Depot, Alamadhi on a daily wage of Rs. 4.8.0. The workshop of the Return Stores Depot, Alamadhi, was under the control of a European Officer

by name Lt. C. J. Wince, who has been demobilised and has returned to England now. The petitioner used to put up papers for orders, to Lt.

Wince and was, in the eyes of illiterate coolies, like P. Ws 3 to 9, a man of great influence with that officer. Lt. Wince received an anonymous

petition against the petitioner which finally started the enquiry against the petitioner. The sum and substance of the charges against the petitioner is

that he being a public servant, in or about August 1946, accepted Rs. 100 (besides fruits for Rs. 5) from one R. K. Parasuraman, P. W. 5, as

illegal gratification, as reward for exercising his official favours to P. W. 5 and twenty-one other tentmenders of Bangalore group, viz., for

recommending to Lt. Wince their retention in their jobs at R. S. D, Alamadhi, despite a retrenchment discharge notice served on them ; and that on

22nd August 1946, he accepted a gold ring. M. O. 2 worth Rs. 35-7-6, from one Avadi Krishnan, P. w. 8, as illegal gratification, as a reward for

exercising his official favours to P. W. 8 and other tent-menders of the non Bangalore group, namely, for recommending to Lt. Wince their

retention in their jobs at R. S. D., Alamadhi, despite a retrenchment discharge notice served on them ; and that in the same month he accepted Rs.

10 from one C. Gangadaram, P. W. 9, through P. W. 3 as illegal gratification, as a reward for exercising his official favours to P. W. 9 viz, the

recommendation to Lt. Wince for his retention in his A Grade job at R. 8. D. Alamadhi, in spite of a notice retrenching him from A Grade and

subsequently entertaining him in the III grade. Both the Courts below have, after an elaborate discussion of the entire evidence, found that the

petitioner received the Rs. 100 and the gold ring and was guilty regarding the charges of illegal gratification on the first two counts, though they

gave him the benefit of the doubt regarding the third count as there was no independent corroboration of the evidence of the bribe-giver P. W. 9

who of course was an accomplice.

Mr. K. S. Jayarama Iyer, for the petitioner, did not seriously dispute the fact of the acceptance of the Rs. 100 and the gold ring by the petitioner

from P. Ws. 3 to 5, and 7 and 8 respectively. That fact was proved beyond all possibility of dispute, by the evidence of P. Ws. 3 to 8 and the

recovery of the ring from the petitioner. He only raised three contentions : The first was that the petitioner did not receive them as illegal

gratification, or bribe, but simply as ''mariyadas'', or honours rendered to him by the person benefited by his recommendation, who gave them

willingly, and even joyfully, out of gratitude for his recommending them. It is well known that modern law attaches little weight to euphemistic terms

used, or to the free will of the bribe giver. Thus, many illegal cusses imposed by and given willingly to a zamindar have been set aside even though

they are clothed in gorgeous terms as ""Kanikka"", or voluntary gift, nazars, marriage presents, etc. Many a payment has been hold to be illegal

gratification, though it has been joyously given to the corrupt officer and is called a gift given in gratitude, mamool, or by other euphemistic terms. A

bribe, as distinguished from an extortion, is always voluntary. The distinction between a bribe and extortion is roughly that between adultery and

rape. The essence of the matter is the real nature of the payment, to be gathered from the circumstances and under the general presumption

mentioned in Section 4 of Act II [2] of 1947. Section 4 says that, where in any trial of offences punishable u/s 161, Penal Code, it is proved that

an accused person has accepted or obtained for himself any gratification other than legal remuneration or any valuable thing from any person, it

shall be presumed unless the contrary is proved that he accepted or obtained it as a motive or reward as is mentioned in Section 161, Penal Code.

In this case, this petitioner did not prove anything to the contrary, and the evidence proved conclusively that the parties intended these gifts to be

only ""illegal gratifications"", as defined in Section 161, Penal Code. The age-long custom of giving and taking such bribes will only be a reason for

reducing the sentences. When the petitioner promised to recommend them, and when they gave the money and the ring, there was an implied

bargain for, and fulfilment of an illegal gratification transaction, despite the euphemistic term ""mariyada"" used. I, therefore, find against the first

contention.

The next was that the petitioner had merely recommended the tent-menders, the givers of the Rs. 100 and the gold ring, to Lt. Wince, and that

he had himself no power to retain the persons who made the gifts, or compel Lt. Wince to retain them and so would not be liable u/s 161, Penal

Code. Reliance was placed on a ruling of Jackson J. In re Venkiah 47 M. L. J. 662 : A. I. R. 1924 Mad. 851 : (1924) 26 Cri. L. J. 396. I have

looked into that ruling. It will not apply strictly to the facts of this case. Further, it is a ruling of 1924, long, before Act II [2] of 1947 has raised the

mandatory presumption referred to above. Reliance was also placed on a Bench ruling in Venkatarama Naidu v. Emperor, 1929 M. W. N. Cr.

143 : A. I. R. 1929 Mad. 756 : (1929) 30 Cri. L. J. 1055, The facts in that case are also not strictly applicable to the facts here. That is also far

earlier than Act II [2] of 1947 which has been enacted raising a mandatory presumption in view of the alarming increase in bribery in the country

during this horrible post-war epoch and the need to deal with such cases with a strong hand free from the cobwebs of technical defences regarding

absence of strict proof of motive, and acceptance of the gifts as mamool, mariyada, and other euphemistic terms dating from Hindu and Moghul

times. It is obvious that this petitioner was a panjandrum under Lt. Wince and believed to be able to influence him, and that he had made

recommendations only in his capacity as a supervisor entitled to make those recommendations, and not as an independent third party philanthropist

or Samaritan. Hence, he will be clearly liable u/s 161, Penal Code.

The last contention was that, considering the entire circumstances and especially the fact that these payments were willingly made and were not

stipulated for before the recommendations were made, and that these are the petitioner''s first offences, and date from 1946, and that the petitioner

has been dismissed from service, the sentences might be modified and a fine imposed instead The learned Public Prosecutor has no objection to

this. No doubt briery ought to be put down with an iron hand, as the learned Sessions Judge has rightly re marked. But each offender has to be

dealt with in the light of the facts in his case. After considering the entire circumstances, I modify the sentences of imprisonment and fine imposed

on the petitioner, and, seeing that the man has been dismissed from service for these very offences, impose a fine of Rs. 250, or, in default,

rigorous imprisonment for two months, on both the counts together. Time for payment of the balance of fine till 3 P. M on 14th August 1949.