Manohar vs State of Maharashtra

J.R. Vimadalal, J.—This is an appeal by an accused who has been convicted and sentenced by the Special Judge, Parbhani, of offences u/s 5 (2) read with section 5 (i) (d) of the Prevention of Corruption Act, 1947, as well as u/s 161 of the Indian Penal Code.

The accused was at the material time a public servant employed in the capacity of the Talathi of Kansur village at Pathri Tahsil of Parbhani district, and the prosecution case is that he accepted a sum of Rs. 100 as a motive or reward for effecting the necessary entries in the mutation register, in which the name of Janardan and his nephew were substituted for the name of Janardan''s father who was dead. According to the prosecution, a few days before the actual payment, Janardan had gone to the accused and had requested him to effect an entry in the mutation register, an application in respect of which had already been filed by him with the accused. According to the prosecution, the accused told Janardan that it was not possible for him to effect the change unless he was paid a sum of Rs. 100 and, after protesting that that amount was excessive, Janardan ultimately agreed to pay the same to him, The prosecution story is that Janardan then took a specimen of the application which had to be made by Janardan as well as his nephew, and an application which was written out according to that specimen (exh. 6) was thereafter filed by Janardan with the accused. Janardan then went and approached the anti-corruption authorities and, after the usual formalities in regard to the chemical treatment to the currency notes, the police party and two panchas as well as Janardan left in a police van and got down from the van a mile away from the place of residence of the accused. It is the case of the prosecution that Janardan accompanied by the two panchas then went up to the house of the accused which was on the first floor of a building, and Janardan asked the accused whether his work was done, whereupon the accused demanded the sum of Rs. 100 and stated that the work would be done the following day. According to the prosecution, Janardan thereupon took out the currency notes which had been chemically treated and handed them over to the accused in the presence of the panchas, and then came out and gave the agreed signal, whereupon the police party arrived and all the notes were found on the person of the accused. The defence of the accused is that he accepted the amount, not as a bribe, but as money which was to be deposited by Janardan in the post office, since in those days Talathi''s were recovering amounts for small savings and postal deposits from people who came to them. In view of the fact that the receipt of the currency notes in question is admitted by the accused, it becomes unnecessary to discuss the evidence relating to the details of the trap in the present case. The area of dispute in the present case is very narrow and the questions which I have to consider are only two viz., (1) whether the accused accepted the said sum of Rs. 100 as a bribe for his own benefit as a motive or reward for effecting the necessary entries in the mutation register; and, (2) if the answer to the first question is in the negative, whether the accused accepted the said sum of Rs. 100 from Janardan for being deposited in the post office as a motive or reward for effecting the necessary entries in the mutation register. In my opinion, in either of these two cases, the accused would be guilty of the offence u/s 161 of the Indian Penal Code which is one of the two offences with which he has been charged. As far as the offence under the Prevention of Corruption Act is concerned, I find that the charge is defective insofar as, departing from (he words of the statute itself, it is restricted to the accused having by corrupt or illegal means obtained a pecuniary advantage for himself. The words ''''or for any other person" which occur in section 5 (i) (d) of the said Act are not to be found in the second charge in the present case. The position, therefore, is that, if the first of the two questions formulated by me above is answered in the negative, the second question will not arise at all in regard to the charge under the Prevention of C irruption Act and the accused would have to be acquitted in respect of the offence which is the subject matter of that charge.

[His Lordship after considering the evidence of Janardan in regard to the actual payment to the accused on July 30, 1959, proceeded as follows] : Even this evidence of Janardan is not entirely inconsistent with the version of the accused, insofar as it does not make it clear that the amount was demanded as a bribe by the accused for his own personal benefit, and does not rule out the possibility that it was de minded fir a public purpose viz., to augment the deposits with post offices. I have, therefore, come to the conclusion that the prosecution has not proved that the accused had demanded the said sum of Rs. 100 as a bribe, or that it was paid to him as a bribe for his personal benefit.

That, however, does not get rid of the difficulty in the way of the accused in the present appeal. Even if the said sum of Rs. 100 was. as the accused himself has said in his statement u/s 312 of the Code of Criminal Procedure, accepted by him for the purpose of augmenting deposits in post offices, if that money was taken by him as a motive or reward for effecting the necessary changes in the mutation register desired by Janardan, it would still be an offence u/s 161 of the Indian Penal Code which is the subject-matter of the first charge, as an amount received for that purpose by way of gratification other than legal remuneration would be within the his chief of that section on a plain reading of section 161 itself. The demand by a Patel who was a public servant that the order of suspension passed against a certain person subordinate to him would be cancelled on their agreeing to pay a sum of Rs. 300 towards the repair of the village temple was held in the case of Imperatrix v. Appaji (1896) I L B 21 Bom. 517 to amount to an offence u/s 161 of the Indian Penal Code, though the payment was by no means for the benefit of the accused himself in that case. Jardine J. delivering the judgment of the Division Bench in the said case observed (at pp. 520-521) :

...The plain words exclude the defence that the benefit bargained for was to go to somebody else, and also exclude the notion that an officer is protected if he agrees to let his official acts be swayed by the motive of accepting a gratification to be used professedly for advancing some public, not private, object, such as charity, science, or religion. That kind of motive is different to the desire of private lucre: but it may easily lead to oppression, and the subject in the pursuit or enjoyment of a right ought not to be hampered by any thought of pleasing the officer by promising a subscription of any kind, however laudable. Nor ought an officer to be affected in his duty to the Crown in dealing with a subject by such a consideration.

A case which is perhaps nearer home is that which came up before a Division Bench of the Patna High Court in B. K. Sen v. Rajeshwari (1944) I L R 24 Pat. 138. in which the demand by a clerk to put up to the Sub-Divisional Officer applications for renewal of gun licence if the applicant made some investment in a war loan was held to be an offence u/s 161 of the Indian Penal Code. I have, therefore, no hesitation in holding that if the demand that Janardan should pay Rs. 100 for being deposited in the post office was not independent of the work for which Janardan had approached the accused, but was a motive or reward for the accused doing that work, the accused has still committed an offence u/s 161 of the Indian Penal Code. In my opinion, the circumstance that the demand was made when Janardan applied to the accused for effecting the necessary entries in the mutation register is in itself the strongest possible circumstance to prove that the demand for Rs. 100, even if it be for deposit in the post office, was not independent of the work for which Janardan applied to the accused. Moreover, the evidence to which I have already referred also shows that the effecting of the necessary entries, and the demand and payment of the amount, were not independent, but that the amount was demanded and paid as a motive or reward for effecting the entry in the mutation register for which Janardan had applied to the accused, and it is unnecessary for me to repeat that evidence.

In the result, I hold that the prosecution has, by the evidence which it has led in the lower Court, proved that the accused accepted the said sum of Rs. 100 by way of gratification other than legal remuneration as a motive or reward for doing the official act of effecting changes in the mutation register and he has, therefore, rightly been convicted of the offence u/s 161 of the Indian Penal Code. I confirm his conviction of that offence, though on different grounds, and sentence him in respect of that offence to the same sentence as the Special Judge has imposed upon him for the offence u/s 5 (2) read with section 5 (i) (d) of the Prevention of Corruption Act of which also he had found him guilty.

On the second charge, as framed, however, in the view which I have taken above, the accused must be held to be not guilty, and he must be acquitted of the same.

The learned advocate on behalf of the accused sought to raise the contention that the sanction given in the present case was invalid, in so far as it was not given by the Collector himself in accordance with section 6 of the Prevention of Corruption Act, 1947. In support of his contention, the learned advocate for the accused relied on the decision of a single Judge of this Court in the case of Shridhar Mahadeo v. State 1968 Mh. L J 103= (1968) 71 Bom. L R 433. but I am afraid that decision has no application to the facts of the present case. As pointed out by the learned Special Judge in the Court below, under Rule 26 of Appendix D to the Bombay Civil Services Classification and Recruitment Rules, the Assistant Collector, who, it is not disputed, is also the Sub-Divisional Officer, had the power to appoint Talathis. The mere fact that the Collector also had that power u/s 7 (4) of the Maharashtra Land Revenue Code, 1966, cannot lead to the conclusion that the Sub-Divisional Officer was not a person who was competent to appoint and, therefore, also to remove Talathis, in view of the express power conferred upon him by Rule 26 to which I have already referred. In my opinion, therefore, the learned Special Judge was right in rejecting the challenge to the validity of the sanction in the present case.

I, therefore, set aside the conviction of the accused on the charge u/s 5 (i) (d) read with section 5 (2) of the Prevention of Corruption Act but confirm his conviction u/s 161 of the Indian Penal Code.

The accused to surrender within two weeks.