Palania Pillai and Another vs State

Arunachalam, J.—The Appellant Palania Pillat and K. Rasheed Ahmed were tried in C.C. No. 11 of 19995 on the file of the IX Additional Special Judge for offense punishable u/s 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and Section 161 I.P.C. The second Appellant was charged with the aid of Section 109, I.P.C. Both the Appellants were founded guilty as charged and charged and both of them were sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/-, in default to undergo rigorous imprisonment for three months for the offence under the prevention of Corruption Act. No separate sentence was imposed in respect of the offence u/s 161 I.P.C.

The facts leading to the conviction of the two Appellants need narration. The Appellants will henceforth be referred to as A-l and A-2 respectively. A-1 at the relevant time was the Junior Engineer, Madras Telephones, Mambalam External. A-2 was the Phone Inspector, Madras Telephones, attached to the same office. P.W.2, Murugesan, a resident of West Jones Road, Saidapet, was a finance broker, carrying on his business under the name and styles of "Sivasankar Agencies". Sivakami, the daughter of P.W.2, was suffering from several ailments inclusive of skin disease, throat infection and ulcer in her stomach. In view of the sickness of his daughter, P.W.2, wanted to have a casual telephone connection for a period of 60 days. The need for the request of a casual telephone connection was to facilitate emergency calls being made to the Doctor as and when necessary. P.W.2, therefore, sent his application Ex.P.2 dated 11.9.1984 to the Deputy Area Manager (South), Madras Telephones. Along with Ex.P.2, P.W.2 enclosed a medical certificate Ex.P.3 issued by the Skin Specialist, affirming the need for frequent medical advice and medical care either in person or over the telephone. P.W.2 went over to the Office of the Deputy Area Manager (South), Madras Telephones, on 15.9.1984. He was then directed to deposit a sum of Rs. 920/- within 15 days. A demand notice was also issued to him. On 21-9-1984 P.W.2 deposited Rs. 920/- in cash, as advised. Even after such deposit, the casual telephone was not installed. Hence, on 29-9-1984 P.W.2 got in touch with the Office of the Deputy Area Manager (South) over the Telephone. He was then informed that the casual telephone connection had been sanctioned even on 22.9.1984 and the telephone number allotted to him was 446001. He was also directed to get in touch with the Assistant Engineer, Telephone Exchange, Mambalam, for further details. Hereunder at or about 12 Noon on 29-9-1984 P.W.2 contacted the Office of the Assistant Engineer, Telephone Exchange, Mambalam, over the telephone. His call was answered by P.W.6 V.J. Niyasudden, the Assistant Engineer. P.W.6 informed P.W.2 that no communication had been received from the Office of the Deputy Area Manager. P.W.2 again got in touch with the office of the Deputy Area Manager (South) and learnt that even on 22.9.1984 a communication by registered post as well as by telex had been forwarded to P.W.6. Again P.W.2 contacted P.W.6 over the telephone and furnished this information. P.W.6 promised to look into the records and in case on advice note had been received, he would direct further action. P.W.6 noted in Ex.P. 13, a scribbling pad, about the casual connection enquiry, made by P.W.2 on 29-9-1984. P.W.6, on verification, found that his Office had received the advice note Ex.P. 14 from the Deputy Area Manager (South) even on 27.9.1984 for providing a casual telephone connection immediately for 60 days from the date of installation, to P.W.2. P.W.6 thereafter contacted A-1, the Junior Engineer, at or about 2 P.M. over the telephone and directed him to provide a casual telephone connection immediately at the residence of P.W 2, in view of the sanction accorded by the Deputy Area Manger.

It is the further case of P.W.2 that on 29.9.1984 at or about 4 P.M., A-2 contacted him at his residence and introduced himself as the Telephone Inspector. He told P.W.2 that a telephone connection had been sanctioned to him and his visit was to inspect the place and fix the location of the telephone to be installed. A-2 also told P.W.2 that A-1 had sent him and that both A-1 and A-2 were the main persons responsible for providing a telephone connection at the residence of P.W.2. A-2 also informed P.W.2 that there were complications in immediately providing a telephone connection which could be overcome, if P.W.2 agreed to pay Rs. 300/- as bribe. In the event of the payment of the bribe amount intended for both the accused, it was possible to install the telephone even on Monday (1-10-1984). In the event of non- payment of bribe as demanded there was bound to be delay in installing the casual telephone connection. A-2 also informed P.W.2 that both he and A-1 intended to meet P.W.2 at his residence at 12 Noon on 1.10.1984 when the telephone connection would be given and that P.W.2 should keep Rs. 300/- ready for payment as demanded. The evidence of P.W.2 does not indicate his reaction to the demand made by A-2 and his part of the conversation with the latter.

P.W.2 was unwilling to pay any bribe to the accused as demanded and, therefore, at 9.15 A.M. on 1-10-1984 he went to the C.B.I. Office and met the Superintendent of Police (not examined). The Superintendent of Police directed P.W.5 Y. Chelladurai, Inspector of Police S.P.E, C.B.I., Madras, to take necessary action forthwith. Ex.P.4 the complaint preferred by P.W.2 to the Superintendent of Police C.B.I, on 1-10-1984 bears the endorsement of the Superintendent, directing P.W.5 to register a case and take necessary action. P.W.5 registered Crime No. 60 of 1984 on Ex.P.4 for an offence u/s 161 I.P.C. and prepared the printed First Information Report, Ex.P. 12. P.W.5 questioned P.W.2 with regard to Ex.P.4, the Complaint preferred by him. On being questioned by P.W.5, P.W.2 agreed to co-operate with the investigation. P.W.5 directed P.W.2 to get Rs. 300/- and come back to his office within 20 or 25 minutes. After P.W.2 left, P.W.5 made arrangements to get at P.W.3, a lower Division Clerk in the Office of the Director of Inspection, situated at Shastri Bhavan and Raman (not examined) a cashier in the office of the Joint Director of Field Publicity, situated in Shastri Bhavan. P.W.5 contacted his informants over the telephone and enquired about the antecedents of the accused. At or about 10 A.M. P.W.3 and Raman met P.W.5 at his Office. Sometime later P.W.2 also joined them. P.W.5 introduced P.W.2 to P.W.3 and Raman. He directed P.W.2 to narrate the details of his complaint to both the witnesses, which was accordingly done by P.W. 2. When questioned by P.W.5, P.W.2, stated that he had brought Rs. 300/- and handed it over to P.W.5. The sum of Rs. 300/- was in the denomination of two hundred rupee notes, one fifty rupee note, one twenty rupee note and three ten rupee notes. P.W.5 noted the number of the currency which are M. Os. 1 to 7. P.W.5 smeared phenolphthalein powder on both sides of the currency notes and gave them to Raman (not examined) and asked him to count the notes. P.W.5 asked Raman to dip his fingers in the Sodium Carbonate solution kept ready in a glass tumbler. When Raman did so, the liquid which was colorless, turned pink. P.W.5 explained the significance of the phenolphthalein test to P.Ws. 2, 3 and Raman. Later P.W.5 searched P.W.2 and found in his possession a sum of Rs. 3/- a hand kerchief and a bunch of keys. Thereafter M. Os. 1 to 7 treated with phenolphthalein powder, were placed inside the shift pocket of P.W. 2, with the direction not to touch the currency notes till a demand was made by the accused. P.W.2 was also directed to give a signal by wiping his face with a kerchief in the event of the acceptance of the money by the accused. P.W.3 was directed to accompany P.W.2 and observe all the happenings. A mahazar Ex.P.5 was prepared incorporating all these details and the number of the currency notes M. Os.1 to 7. P.W.3 and Raman attested Ex.P.5.

4-A. On the direction of P.W.5, P. Ws.2 and 3 went in advance on a motor cycle to the house of the former. A little later P.W. 5 along with other Officers and Raman went over to the house of P.W. 2 in a police van. when P.Ws. 2 and 3 reached the residence of P.W.2 at or about 11.30 A.M. they found 4 or 5 linemen already engaged in the work of providing a telephone connection. P.W.5 and others hid themselves at some distance. By about 12 Noon the linemen hadfmished their job. At or about that time both the accused reached the house of P.W.2 and met the latter, who was. seated in the main hall in the company of P.W.3. A-2 introduced A-1 to P.W.2. A-1 went over to the toilet and A-2 started reading the newspaper. A little later A-1 returned to the hall. A little later A-1 returned to the hall. A-1 had a hand kerchief in his hand. A-1 asked P.W.2 to give the money. P.W.2 asked A-1 "How much money?" A-1 replied that P.W.1 cold pay as told by A-2. P.W.2 told A-1 that A-2 had asked for Rs. 300/- and that Al must accept Rs. 200. However A-1 replied that P.W. 1 could pay as told by A-2. P.W.2 told A-1 that A-2 had asked for Rs. 300/- and that A-1 must accept Rs. 200/- However, A-1 replied that P.W.3 must pay the amount specified by A-2. P.W.2 then removed Rs. 300/- form his shirt pocket, and handed over to A-1. A-2 asked A-1 to count the currency, which was promptly done by A-1. After counting, A-1 kept-the currency notes in his right hand along with his kerchief, M.O.8. P.W.2 after passing off the currency notes to A-1, gave the pre-arranged signal by wiping his face with his kerchief. Immediately P.W.5 and his party entered the hall. P.W.5 introduced himself as well as Raman to both the accused. He questioned the first accused as to whether he had received "the money". On hearing this question, A-1 appeared to shiver out of panic. P.W.2 was sent out of the hall. P.W.5 then prepared Sodium Carbonate solution and directed A-1 to dip his right hand fingers in it. A-1 on doing so, the colorless solution turned pink. The change in coloration as pointed out to the witnesses and the accused and the liquid was poured into two clean glass bottles which were closed, sealed and stamped. The signatures of the witnesses were also taken on the bottles. M. Os. 9 and 10 are those two bottles. P.W.5 again prepared a fresh solution of Sodium Carbonate and directed A-1 to dip his left hand fingers. On doing so, the liquid became pink. M. Os. 11 and 12 are the two bottles which contained the solution which turned pink on the second occasion.

P.W.5 asked A-1 to produce the money to which he replied that the money was on the table. P.W5 took the money from the table, verified the numbers of the currency and found them to tally with the numbers already noted in Ex.P.5 P.W.5 seized M. Os. 1 to 7. For a third time Sodium Carbonate solution was prepared in which M.0.8 the Kerchief of A-1 was dipped. The solution turned pink and the liquid was poured into two clean bottles, as done earlier, and were closed, sealed and stamped. These bottles are M Os. 13 and 14. Exs.P.7 and P.8 contain the specimen impression of the seal used, in which the signatures of the witnesses were also obtained, xxx xxx xxx xxx xxx xxx [Narration of facts omitted - Ed.]

After completing investigation P.W.7 laid the charge sheet against the accused before the Special Court on 29.3.1985.

When the accused were questioned u/s 313 of the Code of Criminal Procedure by the trial court, to afford them an opportunity to explain the circumstances appearing against them in evidence, they denied a major portion of the prosecution version. They stated that even on 29.9.1984 at their office P.W.2 agreed to give Rs. 300/- as donation to the Union Conference and in pursuance thereof on 1.10.1984 P.W.2 himself gave the amount as donation, at his residence. They stated that they did not demand any bribe and they did not accept any money as bribe. A.1 also filed certain documents to be read as part and parcel of his statement.

The accused examined D. Ws. 1 to 3 to substantiate their version D.W.1 Sreetharan is the Junior Engineer in the Mambalam External Unit No. 1. He has deposed about the maintenance of the Tell-Tale sheet Ex.D.1 and entries made therein referable to the movements of A.2 on 29.9.1984. xxx xxx xxx xxx xxx xxx [Narration of facts omitted - Ed.]

The trial court, on an appreciation of the oral and documentary evidence placed before it by the prosecution and the defense, accepted the prosecution case, rejected the defense version and convicted and sentenced the Appellants as stated earlier.

The point for consideration in this appeal is whether the prosecution had established its initial onus of the accused having received the bribe money, and if it be so, whether the defense had by preponderance of probability, displaced the presumption u/s 4(1) of the Act, so as to cast a doubt on the truth of the prosecution case and the probability of Rs. 300/- having been paid voluntarily by P.W.2 as a donation for the Union Conference? In effect it has to be considered, whether the guilt of both the Appellants had been established beyond doubt, on the totality of the evidence placed before Court?

Sri N.T. Vanamamalai, the learned Senior Counsel appearing for the first Appellant (A.1) and Sri N. Natarajan, the learned Senior counsel appearing for the second Appellant (A.2) contended that the demand alleged to have been made by A.1 had not been established beyond doubt. Ex.D.1 the Tell-tale Sheet, taken along with Ex.D.2 would be sufficient to erase the alleged story of demand on the evening of 29.9.1984. They vehemently argue that Exs.D.3 to D.5, the counterfoils of the donation tickets allegedly containing the signatures of P.W.2 should not have been rejected by the trial Judge, especially when D.W.2 who was present when P.W.2 obtained the donation tickets had depressed about his having seen P.W.2 signing in those donation tickets-They would further contend that once the defense was able to demonstrate before the Court that the admitted signature of P.W.2 found in the complaint Ex.P.4 and other prosecution records prima facie tallied with Exs.D.3 to D.5 the onus was on the prosecution to disprove that possibility by examining a Handwriting Expert. Mr. Natarajan submitted that there was no abuse of authority and in the normal way in an expeditious pattern,'' telephone connection was given to P.W.2, which perfectly synchronized with the defense placed before the Court He would also punt out that P.W.3 had not deposed about the demand made by A.2 on 1.10.1984 and this coupled with non-recovery of any money from A.2 would be sufficient to exculpate him from the crime.

Mr.N.T. Vanamamalai, submitted that the in, stallation of the telephone was done and the work completed even before the money was paid and the last act of giving connection alone remained and for all practical purposes, the work had reached a point beyond recall and, therefore, the ingredients of the offence were not attracted. He further submitted that the alleged demand had not been corroborated and P.W.2 must be assumed to have a grudge, since the linemen had not come to his house till he left for the office of the Superintendent of Police, Vigilance and anticorruption, in the morning of 1.10.1984. D.Ws.1 to 3 are Government servants and their evidence cannot be discarded merely because they worked in the same Department, as the Appellants. In conclusion, he submitted that both the Appellants, on the totality of the evidence, were entitled to the benefit of doubt.

Per contra, Thiru B. Sriramulu, the learned Counsel appearing for the Respondent, contended that P.W.2 was an utter stranger to the Appellants and he had no animosity whatsoever against them. According to him, the Appellants had taken advantage of the situation in which P.W.2 was placed requiring an urgent telephone connection. The contents of the First Information Report Ex.P.4 fully corroborated the present version of P.W.2. The Appellants having gone to the house of P.W.2 at or about 12 Noon on 1.10.1984, was a powerful circumstance, which strongly corroborated the evidence of P.W.2 since in Ex.P.4, the earliest document, P.W.2 has stated that A.2 had informed him that he in the company of A.1 would go over to his residence at or about 12 Noon on Monday (1.10.1984) to receive the demanded amount and simultaneously give the phone connection. He would submit that Section 4(1) of the Act contemplated a legal presumption contra distinguished from Section 114 of the Indian Evidence Act, which related to factual presumption. He would also contended that if, in fact, P.W.2 had agreed to buy the donation tickets even on the morning of 29.9.1984 as alleged by the accused, there was no need for P.W.2 to get in touch with P.W.6, the Assistant Engineer, after 12 Noon on 29.9.1984 and P.W.6 informing A.1 at or about 2 PM. about the allotment of a casual telephone connection to P.W.2, which had to be executed. He pleaded for rejection of Exs.D.1 to D.5, since they had not been proved by the persons, who had maintained them, while supporting the reasons given by the trial Judge, for rejection of those documents, as sustainable. Both the counsel referred to the Law laid down by the Supreme Court, which will be referred to at the relevant context.

After the arguments were concluded on 6.10.1989 and judgment was reserved, on my careful comparison of the signatures of P.W.2-found in Exs.D.3 to D.5 (disputed) and his admitted signatures in Exs.P.2, P.4 and in his deposition in Court, I was of the opinion that it was better that a Handwriting Expert offered his opinion regarding the admitted and disputed signatures of P.W.2 to facilitate arriving at a safe conclusion with regard to the identity of the signatures in Exs.D.3 to D.5, which formed the sheetancher of the defense case. On 24-10-1989 I heard the defense counsel as well as the counsel for the Respondent and basing my view on the principle of law laid down by the Apex Court in The State (Delhi Administration) Vs. Pali Ram, I directed that the disputed writings of P.W.2 in Exs.D-3 to D-5 and the admitted writings of P.W.2 in his court deposition, Exs.P-2 and P-4 be forwarded to the Handwriting Expert attached to the State Forensic Laboratory for comparison and opinion. Accordingly, the aforementioned documents were sent to the Handwriting Expert, who by his reported dated 4-12-1989, offered his opinion. On 7-12-1989 on the plea made by the learned Counsel for the defense as well as the prosecution, I directed issue of summons to A.S. Ramu, Scientific Assistant Grade-I, Forensic Science Department, Madras-4, to appear before Court will all necessary material to give evidence in respect of his opinion offered in D.O.C. No. 359 of 1989 dated 4-12-1989 and T. No. 7220/89 DOC. 359/89, dated 4-42-1989, on 13-12-1989. I also directed the Office to take Xerox copies of the opinion of the Expert and furnish those copies to the prosecution as well as the accused on or be-, fore 11-12-1989.

On 13-12-1989 the Expert was examined in Court and both the parties were afforded an opportunity to question the Expert. [Discussions of depositions of witness omitted -Ed.]

After the recording of the evidence of the Court Witness, I again heard the submissions of the prosecuting and the defense counsel. They referred to me, passages from "Hand-writing and Thumb-print Identification and Forensic Sciences by H.R. Hardless, 1970, Edition as well as from Media''s "Treatise on Hand-writing Identification and Finger Prints". They also referred to certain decisions of the Supreme Court on the acceptability or otherwise of the opinion of the Hand-writing Expert, while drawing my attention to the relevant recorded evidence.

As far as the evidence of the Handwriting Expert is concerned, the law is settled that such opinion evidence, cannot be stated to be conclusive. The Court is competent to compare the disputed and admitted writings, even without examining an Expert to satisfy itself from its own observations, to arrive at conclusions; but, as a matter of prudence and caution, it was always better to have the opinion of an Expert, to facilitate the scrutiny of those signatures, through the eyes of the Court. It will be relevant at this stage to quote the observations of the Supreme Court in Fakhruddin v. State of Madhya Pradesh (A.I.R. 1967 S.C. 1326 at Page 1328, paragraphs 10 and 11):

Evidence of the identity hand-writing receives treatment in three sections of the Indian Evidence Act. They are Sections 45, 47 and 73. Handwriting may be proved on admission of the writer, by evidence of some witness in whose presence he wrote. This is direct evidence and if it is available the evidence of any other kind is rendered unnecessary. The Evidence Act also makes relevant the opinion of a hand-writing expert (Section 45) or of one who is familiar with the writing of a person who is said to have written a particular writing. Thus besides direct evidence which is of course the best method of proof, the law makes relevant two other modes. A writing may be proved to be in the handwriting of a particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an expert competent to the comparison of handwritings on a scientific basis. A third method (Section 73) is comparison by the Court with a willing made in the presence of the Court or admitted or proved to be the writing of the person. ''Both u/s 45 and Section 47, the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case the Court must satisfy itself by such means as are open that the opinion may be acted upon. One such means open to the Court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one not to become an handwriting expert but to verify the premises of the expert, in the one case and to appraise the value of the opinion in the other case. This comparison depends on an analysis of the characteristics in the admitted or proved wirings and the finding of the same characteristics in large measure in the disputed writing. In this way the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert''s opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the tow writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness.

While on the topic of appreciation of the evidence of Expert,- it will be relevant to refer to the observations of the Supreme Court in two of its pronouncements. In Bhagwandas Vs. The State of Rajasthan, , the Supreme-Court took the view that where the opinions of the author were neither shown to have been given in regard to circumstances exactly similar to those in the particular case before Court; nor were they put to the medical witness, it was not a satisfactory way of disposing of the evidence of the witness to discredit it on the ground that the Doctor was a comparatively young man and his statements did not accord with the opinions expressed in the books.

Similarly, in Sunderlal Vs. The State of Madhya Pradesh, the Supreme Court observed as follows:

The conviction of the accused by the High Court was mainly based on passages from the text book of Modi on Medical Jurisprudence and Toxicology and those passages had not been ''put to Dr. Dube when he was in the witness box with the result that the High Court was not right in coming to the conclusion adverse to the accused by merely relying upon those passages. It is the referee evidence that before reliance can be placed on authoritative text books by either party to attack the evidence of an expert, it would be necessary to draw the attention of the expert to those passages and furnish him an opportunity to explain the same.

xxx xxxxx xxxx xxxxx xxxxx

[Discussion on evidence omitted -Ed.]

23.... P.W.6 informed P.W.2 that he had not received any communication from the Deputy Area Manager, in respect of the casual telephone connection to P.W.2. This answer of P.W.6 necessitated P.W.2 telephoning the Office of the Deputy Area Manager, Mamabalam, over again, which resulted in his being informed, that even on 22.9.1984, by registered post and telex P.W.6 had been notified about this casual telephone connection. P.W.2 accordingly informed P.W.6, who promised to verify the records and inform him.

This part of the evidence of P.W.2 is fully and completely corroborated by the evidence of P.W.6, the Assistant Engineer. P.W.6 has deposed that at or about 1 P.M. on 29.9.1984 one Murugesan (P.W.2) contacted him over the telephone and enquired him about the allotment of a casual telephone connection in his favour. He promised to verify the records and take action, if allotment had been made. P.W.6 has made a note of his conversation with P.W.2 on 29.9.1984 in Ex.P.13, which is his scribbling pad. On verification of records P.W.6 noticed, that even on 27.9.1984 advice with regard to the temporary telephone connection for P.W.2 had been received by his Office. The relevant advice note has been marked as Ex.P. 14. The details in the advice note, Ex.P.14, have also been incorporated by P.W.6 in his note Ex.P.13. Thereafter at 2 P.M., he got in touch with the first Appellant over the telephone and directed him to take further steps to give a casual telephone connection at the residence of P.W.2 xxx xxxxx xxxx xxxxx xxxxx [Discussion on evidence omitted -Ed.]

P.W.2 has been extensively questioned on this portion of the defense case. He has categorically denied that the signatures found in Exs.D.3 to D.5 were his. According to him, he did not go to the Office of A.1 on the morning of 29.9.1984 and, therefore, there was no scope for his having talked with the Appellants or D.W.2. The evidence of P.W.2 certainly must be true for if as stated by the accused he had already met them at or about 9 A.M. on 29.9.1984 and told P.W.2, that already a telephone connection in his favour had been ordered by the Area Manager, there was no need for him to have contacted P.W.6 to find out the position regarding his application. As soon as he knew from the Office of the Area Manager, that allotment had been made, he had got in touch with P.W.6 once at 12 Noon and again at 1 P.M., as suggested by the office of the Area Manager. The evidence of P.W.2, as stated earlier on this aspect, is not only corroborated by the oral evidence of P.W.6, but also by the documentary evidence produced as Ex.P.13. That the evidence of P.W.2 must be true is further strengthened by the evidence of P.W.6 that he had informed Al over the telephone at 2 PM on 29.9.1984 about the allotment of a telephone connection to P.W.2 with a direction to him to take further action. The statement of A.1 that he was so informed by P.W.6 only at 4.30 P.M. cannot be accepted. If the prosecution case of A-2 having met P.W.2 at 4 P.M. on 29.9.1984 is acceptable, as already found, the case of A-1, as though he knew about this telephone,'' connection only at 4-30 P.M. is not entitled to acceptance.

Further the defense evidence is completely divergent to the stand taken by the accused when they were examined u/s 313, Code of Criminal Procedure. A-2 has accepted the statement of A-1 and had prayed the Court to treat the statement of A-1 as his, as well, along with the additional circumstance of his not having visited the house of P.W.2 on the evening of 29.9.1984, proved by the telltale sheet Ex.D.1. A.1 had stated that he made a demand from P.W.2 for donation of Rs. 300/- for the Union Conference, which was readily acceded to by the latter. Thereafter A-2 wrote the name of P.W.2 in three tickets, which fact was known to D.W.2 and Iswaran (not examined). P.W.2 told him that he would pay later, when the telephone connection was to be given. He directed A-2 to carry out the work relating to P.W.2''s telephone on the next day. He also directed D.W.3, who went for work in P. W.2''s house, to collect the donation. Then he admits having received Rs. 300/-from P.W.2 which was a donation and not bribe. The evidence of D.W.2 is that the donation was asked for by A-2 and not by A-1. If, in fact, A- I had asked D.W.3 to collect the donation, there was no need for him to visit the house of P.W.2 at 12 Noon on 1.10.1984. The very visit of A-1 and A-2 at 12 Noon on 1.10.1984 taken in conjunction with the averments in Ex.P.4, confirmed, by the substantive evidence of P.W.2 in Court, leads to the only conclusion, that in pursuance of the demand made by A-2 for a bribe on 29.9.1984, both the Appellants went to the house of P.W.2 at 12 Noon on 1.10.1984, and accepted if. It may not be possible generally, to reject the defense only because it was inconsistent, but when the defense was palpably false, in the background of onus cast on them, these conclusions become inevitable. The foundation of the defense is shattered, since it is palpably false. The prosecution on its own merit, satisdefence, had established its case beyond reasonable doubt against the Appellants.

Before closing the consideration of the defense case, the evidence of the Handwriting Expert, examined by me, will have to be considered. The evidence of the Expert is categorical that the person who had written S-1 to S-15 had not written Q1 to Q-3.1 have carefully perused the evidence of the Expert and I am satisfied that the reasons given by him are acceptable. I am not taking the evidence of the Expert as conclusive, to arrive at a conclusion, but I have taken his opinion to lend assurance to my own study of the admitted and disputed signatures. A close look at the admitted and disputed signatures with a magnifying glass certainly shows that the author of Q-1 to Q-3 could not be P.W.2. The way in which the first four letters "Muru" have been written in D-3 to D-5 portrays a mechanical imitation. Even the first letter ''S'' is patently at variance, so also the penultimate letter ''A'', and the letter ''g''. It is, of course, true that the Expert has been cross-examined on the several movements, pen lifts, pen pressure, pen score, hesitation symptoms etc. The answers given by the Expert, on the differences pointed out to him as natural Variations, to my mind, is certainly acceptable. I am unable to agree that P.W.2 himself had sought to forge his signature, by writing differently, in Exs.D.3 to D.5. When I consider the case law placed before me, I will refer to the authoritative text books, on Handwriting and Finger Prints with specific reference to the passages brought to my notice by the learned Counsel for the Appellants. Suffice to say that I am satisfied that P.W.2 had not signed Exs.D.3 to D.5 and the case of the defense that P.W.2 had signed those documents on 29.9.1984, has to be rejected, outright.

While considering Exs.D-3 to D-5, the trial Judge had taken note of the documents filed along with the statement of A-1. Those documents show that A-1 had functioned as President of the Southern Division between 1978 and 1984. It may, therefore, be taken that A-1 was taking an active interest in the Union activities. However, as rightly pointed out by the trial Judge, there is no material placed before the Court to hold that A-1 had a leading role in organizing the All India Conference at Madras between 12th and 16th October, 1984. As stated earlier, we do not have any evidence from the signatories, who were office bearers, found in those documents as having authorized the Appellants to collect donation. It may be that the defense need not have to prove its case by strict standards of proof, as is expected of the prosecution, but, at the same time, when a partial onus is thrust on them; the defense must basically inspire confidence, as probable. That inspiration is not forthcoming in the defense trotted out in this case, xxxxx xxxxx xxxxx

In paragraphs 16 and 191 have already considered four of the cases relating to the appreciation of evidence of hand-writing experts. Two other cases have been cited on this aspect, which I will presently refer to.

In State of Andhra Pradesh Vs. Sree Rama Rao, the Supreme Court while considering Section 45 of the Indian Evidence Act, regarding relevancy of opinions of experts held, that the evidence given by experts of handwriting can never be conclusive, because it was after-all opinion evidence. In that case the Supreme Court, sans the evidence of the two experts, who contradicted themselves, arrived at the conclusion that the evidence given by the attesting witnesses, the scribe and the Appellant, was wholly satisfactory to prove execution of the document by the Respondent and that the said evidence did not really need to be corroborated by the opinion of experts. On facts, in this appeal, P.W.2, having denied his signatures in Ex.D.3 to D.5 and the evidence of D.W.3 having been rejected, and my comparison of the admitted and the disputed writings of P.W.2, having been found to ensure in favour of the prosecution, the evidence of expert has played only a minor role, in helping me to arrive at my conclusions. Further, the expert evidence has not been considered, for proof of the prosecution case, but only to the limited extent of the defence case being probable by preponderance.

In Ram Narain Vs. State of Uttar Pradesh, the Supreme Court held that the opinion of the handwriting expert given in evidence was no less fallible than any other expert opinion, but such opinion was worthy of acceptance if there was internal and external evidence relating to the writing-in question supporting the expert''s view. The question in each case calls for determination on the Court''s appreciation of evidence. Ultimately the facts unfurled in each case, would dictate to the Court, the weight that could be attached to the evidence of expert in the light of its own observation relating to the admitted and the disputed writings. As I have already held, on reasons assigned by me that P.W.2 had not written Exs.D-3 to D-5, no further discussion on the export''s evidence would be necessary. However, reference to text-books cited by Sri. N.T. Venamamalai need mention. H.R. Hardless in his book "Handwriting and Thumb-print Identification and Forensic Science, 1970 Edition, has stated at page 2 that a competent expert assigns reasons for his opinion in a report. The reasons are specific and not mere generalities and the points of similarity or dissimilarity marked and indicated in the photographs are both apparent and appealing to laymen. An expert''s opinion is accepted by a Court when the reasons given are both apparent and conditioner At page 10 the Author has stated as follows:

These persons are unaware of the fact that variations in the signatures of the same person must exist in the forms of corresponding letters. A human hand is not a printing machine to give exactitude in regard to forms of letters on all occasions and under different occasions.

On these passages it was argued that the expert has not specifically dealt with the similarities and the opinion being general would be of no probative value. Further, in view of the human hand not being a printing machine, allowances should have been given by the expert on the features like pen pressure, pen score, pen lifts, hesitation, quality of paper etc. As I have discussed earlier, me expert has been cross-examined and I am satisfied, that he has offered his opinion, in the background of these features and the variations pointed out by the defense between the admitted and the disputed signatures, Were only natural.

Mehta in his book on "Handwriting Identification and Finger prints" has stated at page 38 that the pen pressure of a forged writing is usually not smooth and it shows a varying density due to the constant interruptions in movement and speed. At pages 47, 48, 51 and 52 the Author refers to the writing habits viz.,

(1) The movements of writing;

(2) The pen position;

(3) The pen pressure;

(4) The shading;

(5) The relative positions of the letters;

(6) The formation of the letters;

(7) The alignment;

(8) The spacing;

(9) The variations;

(10) The slant;

(11) The arrangement;

(12) The style;

(13) The condition of the strokes;

(14) The size and proportions; and

(15) The general execution.

The Author states that these are the other technical reasons which are advanced by the experts. Though the expert has been questioned in general on these aspects, specific passages from the Authors had not been brought to his notice to furnish him an opportunity to explain his opinion on that basis. The expert has stated in his evidence that the characteristics in the handwriting in Exs.D-3 to D-5 differed significantly from the standard handwriting, which included among other things the five categories suggested by the defense. The expert has also answered that he had noticed all the chateristics, though he had not specified them in the report xxxx xxxx xxxx.

I am satisfied that the dissimilarities noticed by him in the admitted and the disputed writing would be sufficient to hold against defense. To arrive at my conclusion on dissimilarities, the Expert''s opinion was to some extent helpful and the findings against the accused are not based solely on the evidence of the expert. Therefore, the discussion on expert''s evidence need not have to detain us any more.

The Supreme Court has considered the presumption u/s 4(1) of the Prevention of Corruption Act and the essentials to be proved in several of its pronouncements. The consistent view is that to raise the presumption u/s 4(1) of the Act, the production has to prove that the accused had received gratification other than legal remuneration. When it was shown that the accused had received a certain sum of money, which was not his legal remuneration, the condition prescribed by the section was satisfied and the presumption must be raised. Further the mere receipt of money would be sufficient to raise the presumption On the onus cast on the accused, the Supreme Court has held that the burden of proof lying upon the accused u/s 4(1) of the Act would be satisfied if he established his case by preponderance of probability, as is does by a party in civil proceedings. It was not necessary that he should established his case by the best of proof beyond reasonable doubt. Useful reference could be made in the following decisions:

(1) V.D. Jhangan Vs. State of Uttar Pradesh,

(2) C.I. Emden Vs. State of Uttar Pradesh,

(3) The State (Delhi Administration) Vs. Pali Ram, Man Singh Vs. Delhi Administration,

(4) R. Poova Gounder in re. (1983 L.W. (Crl.) 7)

On the need and the nature of corroboration required for demand and acceptance of illegal gratification, the Supreme Court in State of U.P. Vs. Dr. G.K. Ghosh, observed that in a case of offence of demanding and accepting illegal gratification, depending on the circumstances of the case, the Court may feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the police officers even if the trap witnesses turned hostile or were found not to be independent. When Deciding such evidence, if there was circumstantial evidence, which was consistent with the guilt of the accused and not inconsistent with his innocence, there should be no difficulty in upholding the prosecution case.

In Kishan Chand Mangal Vs. State of Rajasthan, the Supreme Court while dealing with the circumstantial evidence in a bribery case, where the complainant had died prior to the commencement of the trial, observed that the visit of the accused to the factory of the complainant-demand of bribe by the accused from complaint-visit of complaint and raiding party to the house of the accused-accused asking complainant whether he brought money-the latter taking out the currency notes from his diary and giving the same to the accused-accused keeping them under pillow of his cot-recovery of currency notes and numbers tallied with memorandum ^already prepared-events subsequent to prior demand, remaining unexplained by accused-it could not be said that there was no evidence of prior demand-accused could not be said to be unwilling victim nor a fence sitter. In the same case the Supreme Court held, that so-called inner variations between the evidence of those two witnesses (mahazar witnesses) and omissions of trivial details, would not cause any dent in the testimony of those two witnesses. The case on hand will be covered by this decision with the additional circumstances of the availability of the evidence of the complainant himself, who has been examined as P.W.2.

In Prakash Chand Vs. State (Delhi Administration), considering Section 8 of the Indian Evidence Act and the necessity for corroboration of the evidence of the trap witness, the Supreme Court observed that where circumstances justified it, a Court may refuse to act upon the uncorroborated testimony of a trap witness. On the other hand, a Court may well be justified in acting upon the uncorroborated testimony of a trap witness, if the Court was satisfied from the facts and circumstances of the case that the witness was a witness of truth. However, in Pannalal D. Rathi v. State of Maharashtra (A.I.R. 1979 S.C.C. 426) , the Supreme Court held that there could be no doubt that evidence of the complainant should be corroborated in material particulars. After introduction of Section 165-A of the Indian Penal Code, making the person, who offers bribe, guilty of abetment of bribery, the complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon.

In a later case reported in 1980 2 S.C.W.R. 161 (Hazharilal v. State), the Supreme Court observed that there was no rule of prudence which had crycstalised into a rule of law, nor indeed any rule of prudence, which required that the evidence of such officers should be treated on the same footing as evidence of accomplice and there should be insistence of corroboration.

In State of Gujarat Vs. Raghunath Vamanrao Baxi, the Supreme Court had the following observations to make:

... In appreciating oral evidence, the question in each case is whether the witness is a truthful witness and whether there is anything to doubt his veracity in any particular matter about which he deposes. Where the witness is found to be untruthful on material facts that is an end of the matter. Where the witness is found to be partly truthful or to spring from tainted sources, the Court may take the precaution of seeking some corroboration, adequate and reasonable to meet the demands of the situation, but a court is hot entitled to reject the evidence of a witness merely because the are government servants, who, in the course of their duties or even otherwise, might have come into contact with investigating officers and who might have been requested to assist the investigating ''agencies. If their as-association with the investigating agencies is unusual, frequent or designed, there may be occasion to view their evidence with suspicion But merely because they are called into associate themselves with the investigation as they happened to be available or it is convenient to call them, it is no ground to view their evidence with suspicion. Even in cases where officers who, in the course of their duties, generally assist the investigating agencies, there is no need to view their evidence with suspicion as an invariable rule.

The net result of the law laid down by the Supreme Court, is to the effect, that depending on the facts of each case the need for corroboration of the trap witness or the attesting witness may have to be decided and any need for corroboration, cannot be universally relegated to a strait jacket formula On facts, the evidence of P. W, 2 is not only true, but has also been corroborated in material particulars by the evidence of P.W.3, whose presence at the time of trap, has been accepted by the Appellants. The contests of the First Information Report also corroborate the oral evidence of P.W.2. The actual passing of money by P.W.2 to A.1 has been noticed by P.W.5, as well. I have no hesitation in accepting the evidence of P.W.2 which is corroborated in material particulars, by the evidence of P. Ws.3 and 5 and the other circumstantial evidence.

The Supreme Court in Jotiram Laxman Surange Vs. State of Maharashtra, held as follows:

Held, that the accused could be rightly convicted u/s 5(1)(d) and Section 161 Penal Code as the circumstances found against the accused were (1) that he informed complainant that his name was entered in the records although he kept the entries open and his plea that he did so for demanding money for Small Savings Certificates was wrong, (ii) No receipt was given by the accused to the complainant for the amount received (iii) along with the amount he did not ask for an application signed by the complainant for purchase of certificates which was an essential thing, (iv) On the very first occasion when the accused was asked by his superior authorities he did not put forward the acclamation that the alleged sum was received by him for ''purchase of certificates (v) the sum was accepted not in the office or in the house of accused but at the house of a third person (vi) there was nothing on the record to show that there was any enmity between the accused and the complainant.

In this Appeal, we have the following circumstances:

(1) A.2 had informed the complainant that a casual telephone connection had been allotted to the latter and that complication in immediately providing telephone connection could be overcome by payment of bribe of Rs. 300/- for him and A.1 which could lead to the installation of phone even on 1.10.1984:

(2) The Statement of A.2 to P.W.2 that the non-payment of bribe as demanded would entail a delay in the installation of the casual telephone connection;

(3) The Statement of A.2 that both A.1 and A.2 would visit the house of the complaint on 1.10.1984 to receive the demanded amount and simultaneously give the phone connection;

(4) The presence of the Appellant on 1.10.1984 at 12 Noon, at the residence of P.W.2 in pursuance of a prior arrangement and acceptance of Rs. 300/- by A.1 from P.W.2.

(5) On the very first occasion when A.1 was questioned by P.W.5, he did hot put forth an explanation, as though the alleged sum was received by him as a donation for the Annual Conference;

(6) Not having intimated their higher authorities about the receipt of Rs. 300/- as donation, by the Appellants, though they had received a copy of Ex.P.9, the seizure mahazar, which contains the details of Rs. 300/- having been paid by P.W.2 as a bribe; and

(7). There was nothing on record to show that there was any enmity between the accused and the complainant.

These circumstances flinchingly connect the Appellants with the crime and more so when the defense has been rejected as complete after thought.

A Division Bench of the Sumanlal Shivlal Gheewala Vs. The State of Gujarat, while considering the scope of Section 161 of the Indian Penal Code, held that amount received by a public servant from the complainant, for doing an official act, even if received as contribution to Flag Day Fund, the case filed u/s 161 I.P.C, and the conviction u/s 161 read with Section 5(2) of the Prevention of Corruption Act were justified. If a public Servant insisted upon a particular payment, which did not amount to a legal remuneration as consideration for discharge of his duties, he did commit an act amounting to an offence, even though it was found that he had received the amount not for his personal purpose, but for a charitable purpose. Discharge of duties, which are of public nature, cannot be refused and any payment as a condition precedent cannot be imposed, however laudable the cause may be.

On facts, 1 have held that the defense case of Rs. 300/- having been paid as donation for the Conference was not entitled to credence. The case law put forth before me by the Appellants does not help them. The evidence extracted in detail by me certainly indicate that the Appellants had acted in unison and it will not be possible to exclude either of them from the charges framed against them. The judgment of the Trial Court convicting the Appellants as charged is perfectly justified, and needs no interference. The sentence imposed is only the minimum sentence, which has to be unhesitatingly" sustained. The appeal fails and it is dismissed.