Sindhi Nyalchand Kevalram and Others vs The State

Baxi, J.—The abovenamed appellants that is, Gan-gadas, Mohanlal and Nyalchand were tried by the Special Judge, Madhya Saurashtra

District,, for offences punishable Imder Section 161, I, P, O. Section 5 (2), Prevention of Corruption Act atuf Section 77 (2), District Municipal

Act read with Section 114, IPC The appellants Gangdas and Mohanlal accused Nos. 1 and 2, were employed by the Jefpur Municipality as octroi

duty collectors or nakadars. The appellant Nyalchand Kevalram, accused No. 3, is a merchant in Jetpur. According to prosecution, on 29-9-52 a

cart with 30 tins of vegetable ghee purchased by accused No. 3 from Dhoraji arrived at the Dak bungalow octroi post in Jetpur at about 8-30 or 9

p.m.

The accused No. 3 was there since afternoon. The accused No. 2 was on duty at this post and accused No. 1 was false there when the part

arrived. The accused No. 3 deposited Rs. 10/- and a tin of ghee at the octroi post and the cart was allowed to go into the city. No receipt was

however issued by the accused No. 2. Another Nakadar Bachu Kalyan, who was posted in the bazaar, stopped the cart and demanded receipt of

payment of octroi duty from the cartman Mamad. Mamad told him that there was no receipt. but one tin had been left at the octroi post and the

accused No. 3 was following him. Bachu therefore allowed the cart to proceed.

Shortly thereafter accused No. 3 arrived in the chowk and on being questioned by Bachu told him that he had left a tin at the octroi post. He also

stated that he had paid Rs. 10/-as a deposit as he had not enough money to pay the duty. After unloading the cart accused1 No. 3 returned to the

chowk and told Bachu that the accused Nos. 1 and 2 had joined hands and suggested that if Bachu also joined, no duty need be paid and accused

Nos. 1, 2 and Bachu might share whatever v.as paid by him. Accused No. 3 then went to the octroi post. Bachu thereafter went to Tapubhaj, a

municipal councillor, and related to him the conversation which he had with the accused No. 3. Tapubhai advised him to fall in with their plan.

Thereafter he went to Chunilal Kamdar, another councillor and chairman of the Octroi Committee. To him also tie related the conversation which

he had with accused No. 3 and Chunilal gave him the same advice. Bachu then returned to the chawk and the accused No. 1 came to call him.

Bachu, therefore, went with him to the octroi post and accused Nos. 2 and 3 were already there. Bachu was informed by accused No. 2 that Rs.

7-8-0 will) be paid by the accused No. 3, which will be shared between them and the octroi duty which would come to about Rs. 15/- should not

be charged.

Bachu was also promised that he would be paid his share in the next morning. Bachu did not immediately reply but went to Tapubhai and Chunilal

Kamdar and related to them what had happened and he was tola by them to report after the money was actually received by him. Next morning

i.e. in the morning of 30-9-52 accused Nos. 1 and 2 met Bachu in the town and accused No. 2 paid him Rs. 2-8-0 as his share of the bribe.

Bachu then went to Chunilal and told him about the payment. Chunilal thereupon sent him to the Chief Officer, and before that Officer, Bachu

produced Rs. 2-8-0 given to him by the accused and gave his statement which the Chief Officer recorded.

After some investigation by that officer on the same day the President of the Municipality, by his order dated 30-9-52, directed the prosecution of

all the accused, A meeting of the General Board was held on 11-10-52 to consider the question of the prosecution of the -accused and their

prosecution was resolved upon at this meeting. The President then passed the order dated 11-10-52 directing the Inspector Vrajlal Liladhar to

lodge a complaint. The complaint was then lodged before the Additional Sessions Judge at Gondal, who forwarded it to the Deputy

Superintendent of Police, Jetpur Division, for necessary action. On receipt of this complaint the Deputy Superintendent of Police registered and

investigated the offence and in due course submitted the chargesheet to the Special Court.

The defence of accused No. 1 was that he was not on duty nor present at the naka when the cart is alleged to have arrived, and he knew

nothing about the offence. The accused No. 2''s defence was that the cart never arrived at his post and must have been smuggled into the city by

some other route. Accused No. 3, while admitting that the cart had arrived at the post and that one tin and Rs. 10/- were deposited by him at the

octroi post and while admitting that Bachu had met him in the bazaar, said that in addition Rs. 10/- deposited by him he had paid Rs. 6/- more to

the accused No. 2 on the same night in full settlement of the municipal dues. He denied that he had paid any bribe to the accused No. 1 or 2 or

Bachu.

The learned Special Judge did not accept their defence and convicted all the accused u/s 77 (2), District Municipal Act. He also convicted the

accused Nos. 1 and 2 of offences punishable u/s 161, IPC and u/s 5 (2) read with Section 5 (1) (d), Prevention of Corruption Act, and he

convicted the accused No. 3 u/s 165 (A), IPC Accused No. 3 was also convicted u/s 5 (2), Prevention of Corruption Act read with Section 114,

IPC Accused Nos. I and 2 were each sentenced to three months'' rigorous imprisonment and to pay a fine of Rs. 50/-, in default to further

rigorous imprisonment for one month u/s 5 (2), Prevention of Corruption Act but no separate sentence was passed u/s 161, IPC or u/s 77 (2),

District Municipal Act.

The accused No, 3 was sentenced to three months'' rigorous imprisonment and a fine of Rs. 200/- in default to one month''s rigorous imprisonment

u/s 5 (2), Prevention of Corruption Act, read with Section 114, IPC and no separate sentence was passed on him u/s 165(A) and Section 77 (2),

District Municipal Act. The accused have preferred these appeals separately against their convictions and sentences.

Before we proceed to examine the case on merits, certain legal objections raised on behalf of accused Nos. 1 and 2 will have to be noticed first.

It was urged that the order dated 30-9-52, Ex. 23, by which the President sanctioned their prosecution was invalid. This objection was based on

the grounds: Firstly, it was not shown that the President had the power to remove the accused from their office and consequently he could not give

a valid sanction for their prosecution. Secondly, it was not shown that the facts constituting the offences were placed before the President before

he gave the sanction. Both these objections axe without substance.

The Chief Officer, Ex. 19, stated in para 15 of his deposition that under the rules framed under the District Municipal Act, the President can

appoint nakadars and dismiss them with the sanction of the General Board. No doubt the sanction of the General Board is required before a

nakadar can be appointed or removed but the actual power of appointment of the appellants or removal is with the President and consequently he

can sanction the prosecution. The second objection that the facts constituting the offence are not proved to have been placed before the President

is equally unsustainable.

The President''s order sanctions the prosecution of the three accused for smuggling goods, without payment of octroi duty, for taking and giving

bribe and for abetment."" The order no doubt does not state the particulars of the offences, but the sanction is not invalidated thereby for it is open

to the prosecution to prove by independent evidence that the sanction was in respect of facts constituting the offences charged against the accused.

In Biswabhusan Naik Vs. The State of Orissa, , the Supreme Court held that it was not necessary for the sanction under the Prevention of

Corruption Act to be in any particular form or in writing or for it to set out facts in respect of which it was given.

The desirability of such a course"" their Lordships observed, ""was obvious because when the facts are not set out in the sanction proof has to be

given ""aliunde"" that sanction was given in respect of the facts constituting the offence charged but an omission to do so is not fatal so long as the

facts can be and are proved in some other way.

Therefore in this case it has to be seen whether the prosecution proves that the sanction was given in respect of facts constituting the offence

charged against the accused. The prosecution. has proved that on 20-9-52 the Chief Officer recorded the statement of Bachu at about 11 a.m. He

visited the octroi post and inspected and impounded the account books maintained by the accused. He also recorded the statements of Tapubahi,

Mamad and accused No. 2. The order of the President refers to smuggling giving and taking of bribes and abetment, and this can only refer to the

offences, which the investigation had disclosed. The omission to mention the facts in the order does not therefore invalidate the sanction.

There is another angle from which the validity of the sanction may be considered. After the President passed his order, Ex. 23, a meeting of the

General Board was held on 22-10-52. The minutes of this meeting clearly show that the facts were fully placed before the meeting and discussed

by it and a resolution was passed giving formal sanction for the prosecution of the accused. In pursuance of this resolution the Chief Officer wrote

a letter to the President dated 11-10-52, Ex. 33, asking for orders that the Inspector should be instructed to file a complaint and the President

endorsed below this letter an order directing the Inspector to file a complaint.

The order does not mention the law under which the sanction was given nor the facts and the learned Assistant Government Pleader stated that the

order was passed under the District Municipal Act, But the order clearly relates to the present charges and there is no legal impediment in

construing this order as a sanction under the Prevention of Corruption Act also. The objection against the validity of the sanction on the ground that

the facts were not placed before the President therefore failed.

It was next urged on behalf of the accused No. 1 that he was not on duty at the time when the offence is alleged to have been committed and he

was not acting in the exercise of his official duty or doing any official act and thereafter he could not be convicted u/s 161, I P. C. The question

whether a public servant, who had discharged the duty entrusted to him and had become functus officio could not in the exercise of his official

functions show any favour or disfavour or render any service wag raised before the Supreme Court in Mahadev Dhanappa Gunaki and Another

Vs. The State of Bombay, , but was not decided.

But their Lordships expressed their approval of the view of the Allahabad, Lahore, Nagpur, Bombay and Orissa High Courts against this

contention in preference to the view of the Calcutta and Madras High Courts, and we hold that the accused though not on duty at the time can be

convicted u/s 161, I. P. O. and it cannot be said that he was not showing favour in the discharge of his official duties. Besides the charge states that

he conspired with the accused Nos. 2 and 3 to obtain gratification from the accused No. 3 as a reward for allowing the tins to be brought into

Jetpur without payment of octroi duty.

He can therefore be convicted for abetment u/s 165 (A), IPC even if his conviction u/s 161 may not be technically correct. Thia objection must

therefore be dismissed.

Turning to the merits, it is proved beyond doubt that the cart containing 80 tins arrived at the naka and was allowed to go into the city. This is

proved by the evidence of the cart-man Mamad, whose veracity cannot be doubted. The accused No. 2 examined Vajeshanker Vithal-Ji, Ex. 45,

to prove that on the night of 29-9-52 no cart had arrived at the naka up to 11-15 p.m. but his story has not been believed by the learned Special

Judge and we agree with him. Vajeshanker''s evidence is of a negative type and cannot be accepted against the positive assertion of Mamad.

Mamad is corroborated by Bachu Kalyan.

Bachu in his turn is corroborated by his conduct in going immediately to Tapubhai and Chunilal and also in going to Chunilal and to the Chief

Officer next day and giving the information to them, which was recorded by the Chief Officer and which is at Ex. 5 in the case. It is also proved

that octroi duty was not credited in the books of the municipality and therefore no dues were paid to that body, Mamad provea the presence of the

accused Nos. 1 and 2 at the naka when the cart arrived there.

The defence of ''the accused No. 2 that the cart was smuggled into the city by another route is also negatived by Mamad. The prosecution has thus

proved that 80 tins of vegetable ghee brought by the accused No. 3 were allowed to pass the naka by accused Nos. 1 and 2 without recovering

the octroi duty.

Bachu further proves that after un loading the cart the accused No. 3 met him and suggested that he should join in sharing the bribe which he

was prepared to pay if he was not forced to pay the octroi duty. There is of course no evidence to corroborate this statement but Bachu says that

accused No. 1 later came to him to take him to the naka. On this point he is supported by Tapubhai, who saw the accused and Bachu together.

Bachu further states that accused Nos. 1, 2 and 3 were at the naka and accused No, 2 told him that lie would pay his share of Rs. 2-8-0 next day.

This amount was according to Bachu paid in the morning by the accused Nos. 1 and 2.

On this point he is corroborated by his conduct in going to Chunilal Kumar and later to the Chief Officer. It was argued that Bachu was in the

position of an accomplice and therefore his evidence should not be accepted unless it was corroborated in material particulars. This is not a correct

view of Bachu''s position. He did not himself demand any bribe but was invited to join in the conspiracy and at every stage he took care to keep

his superiors informed of ita progress. It is impossible under the circums-l tances to regard him as an accomplice.

But if any further corroboration of his story is needed, the fact that 80 tins of ghee were smuggled into the city without payment of octroi duty

furnishes it and is sufficient to carry conviction.

The defence of accused No. 3 was that he had Tpaid Rs, 16/- in full settlement of the octroi duty at the naka. He admits having met Bachu and

having told him that he had deposit-ed Rs. 10/- and one tin at the naka. According to him he brought Rs. 6/- from his shop and paid them to the

accused No. 2 that very night in full settlement of the octroi duty. He had produced a Katcha mel in support of his contention. This account has

been found to be unreliable by the Special Judge. The entry is not found amongst the regular debit and credit entries.

Moreover it is difficult to understand whafi was the urgency in going to the naka, paying the duty and retrieving the tin at dead of night. His normal

conduct would be to wait over night and settle his account in the morning. No receipt was issued for the payment of the octroi duty. The accused''s

explanation is that the accused No. 2 assured him that he would bring the receipt In the morning. But this explanation is difficult to accept in view of

the fact that after his encounter with Bachu, who, according to him, bore him a grudge, and after showing so much zeal in paying off the municipal

dues that very night the accused did not insist upon obtaining a receipt at the time of payment.

Moreover neither the accused nor his partner made any movement in the morning for getting the receipt. In the evening he no doubt made an

application to the Chief Officer asking for the receipt but this application was made after inquiries were already started. His conduct in approaching

the Chief Officer directly on a small) matter without approaching the accused No. 2 in the first instance suggests that the application was made with

a view to create evidence in his favour. We are satisfied that the prosecution has proved that all the three accused committed the offences alleged

against them and they were properly convicted (9) It was next urged that the sentences were disproportionate to the amount of bribe paid by

accused No. 3. The learned Special Judge thought that a deterrent sentence was called for as the nakadars must be collecting a good deal by

receiving small amounts. Technically this amounts to taking into consideration the general bad character of the accused in awarding sentence, but

we are sure that the learned Special Judge only meant that smuggling of goods without payment of octroi duty was difficult of detection and

irrespective of the amount paid by way of bribe deserved deterrent sentence. At least that is how we view the sentences & hold that they are not

excessive. In the result the appeals fail & are dismissed and the convictions and sentences of the appellants are confirmed.

Shah, C.J.

I agree.