The State vs Varadarajan

David Annoussamy, J.—This is an appeal against the order of acquittal. The case of the prosecution was summarily as follows:

The accused is a Head Clerk in the office of the District Health Office, Tirunelveli at Palayamkottai. P.W.1 who was a Health Assistant in the

Shencottah Group in the same office was suspended by an order of the Health Officer for some grave negligence in the performance of his duty;

while so, the Head Clerk offered to help him to come out of the difficulty provided he gave him Rs. 1000; P. W. 1 paid Rs. 200 as part of that

amount and in the course of the payment in accordance with the trap arranged upon the information of P.E.1 the amount of Rs. 200 paid by P.W.1

was recovered from the accused. Thereupon, the accused was charged for an offence punishable u/s 161 of the I.P.C. and Section 5(2) read with

Section 5(1)(d) of the Prevention of Corruption Act, hereinafter referred to as the Act. The trial Court by judgment dated 30th December, 1978,

acquitted the accused of the offences. It is against that judgment that the appeal has been preferred by the State.

At the outset it is to be noted that ''the : charge proceeds on the basis that the offence punishable u/s 161 of the I.P.C. and the offence

punishable u/s 5(2) read with Section 5(1 )(d) of the Act are one and the same This is not the correct position of law. They constitute two different

offences. In fact, there are vast differences between the two, though both the sections are meant to curb corruption. In the first place, the offence

u/s 161 is punishable with imprisonment of either description for a term which may extend to three years, or with fine or with both, whereas an

offence u/s 5(2) read with Section 5(1)(d) of the Act is punishable with imprisonment which may extend to seven years and also with fine; there is

also a provision for minimum punishment of imprisonment of one year in the latter case. While determining the amount of fine for an offence u/s 5(1

)(d), the court has to take into consideration the amount or the value of the property which the accused person has obtained by committing the

offence, j whereas there is no such prescription while determining the fine u/s 161. Secondly, as per Section 5( l)(a) of the Act, if the offence u/s

161 has been habitual that fact has been made a separate offence called ""criminal misconduct"" which name applies also to the offence u/s 5(1)(d)

of the Act. The habitual offence u/s 161 I.P.C. and a single offence Bunder Section 5 (1)(d) of the Act are punishable in the same manner which

would again show that the offence u/s 5(1)(d) of the Act is different from one u/s 161 I.P.C. The abetment of of fence u/s 161 is punishable u/s

165-A, whereas abetment of offence u/s 5(1)(d) is not punishable under the Act. The attempt for an offence u/s 161 is punishable in the same

manner as the main offence itself, whereas the attempt of an offence u/s 5(1)(a) is punishable only with imprisonment which may extend to three

years or with fine or with both, whilest the punishment for J&P offence may be seven years of imprisonment with fine.

It is also to be noted that under the Act the law maker has also dealt with the offence u/s 161 in several other ways, in making the proof easy by

creating a presumption against the accused, in modifying certain rules in the Code of Criminal Procedure and also in providing that a statement

made by a person in any proceeding against the public servant for an offence u/s 161 to the effect that he offered or agreed to offer any

gratification shall not subject him to prosecution u/s 165-A of the Code. Therefore, Section 5(1 )(d) of the Act was not enacted in ignorance of

Section 161, without taking it into account. It was made purposely in order to complement Section 161, to meet the circumstances which would

not be covered by Section 161. It is far from being an unnecessary duplication with Section 161.

Looking at these provisions from a different angle one can see from the reading of Section 5(1)(d) as contrasted with Section 161, that an

offence u/s 5(1 )(d) may exist without any profit or benefit for another person, whereas Section 161 implies such a profit or benefit. Secondly, that

offence does not unnecessarily imply that another person suffers any monetary loss. The offence may occur by mere diversion of money which

otherwise would have come to the coffer of the State, or by depriving the State of the services or of the quality of services which it paid for. The

offence may thus occur without anybody paying out of his packet and yet the Officer gaining advantage to the detriment of the State by skilful

exploitation of the loopholes in the law and procedure.

Another difference is that u/s 161 I.P.C., mere acceptance is an offence whereas u/s 5(1)(d) of the Act, only obtainment is made an offence. In

the case of acceptance the initiative vests in the person who gives and in the case of obtainment the initiative vests in the person who receives. We

have seen earlier that the offence u/s 5(1)(d) may exist without another person being directly involved. This naturally excludes acceptance which

implies an active attitude by another person.

On the other side, the fact that the act of obtaining is essential for the offence, explains the insistence in Section 5(1 )(d) on the means used. The

means listed disclose on their part an active involvement in the accomplishment of the offence. Those means as per the Act are corrupt or illegal

means or by otherwise absuing his position as a public servant. The phrase ''corrupt and illegal means'' is also found in Section 162 of the I.P.C.

Though illegal means and means consisting of abusing the position as a public servant are quite clear and definite, the word corrupt does not

disclose easily its contours. It does not imply necessarily a bribe. There may be corrupt practices other than those of bribery. In fact, in the very

title of the Act, it is stated that it is enacted for more effective prevention of ""bribery and corruption"" making it clear that they are two different

concepts. The concept of corruption is wider in its ambit, but the prosecution has to show that the means used are corrupt.

The purpose of Section 5(1)(d) is also different from that of Section 161. After dealing with the habitual offences u/s 161 and u/s 165

respectively under Sub-clauses (a) and (b) of Section 5(1) of the Act, the law maker deals u/s 5(1)(c) with the act of the Government servant

dishonestly or fraudulently mis appropriating or otherwise converting for his own use any property entrusted to him. Section 5(1)(d) which comes

thereafter is to deal with the cases which could not have been covered u/s 5(1)(c), that is to say, the cases in which the money diverted is not State

money or has not yet become State money. Sub-clause (e) which comes at the end is meant to deal with the money in possession of a public

servant for which he cannot satisfactorily account. So, as per the Act, corruption can take place in four different ways, listed under sub-els, (a) to

(d) and when such acts of corruption could not be detected, a safety valve is provided under Sub-clause (e). This makes clear that in the scheme

of the Act, Section 5(1)(d) deals with a specific set of acts different from the ones contemplated u/s 161. Its scope is being lost sight of in merely

assimilating it to Section 161. The investigating machinery has the duty to ponder over the real scope of this clause in order to bring to book

several persons guilty of offences tinder that clause which for the time being are not dealt with, and thus make the Act fully effective. It is true that

the prostitution of offices for sordid motives contemplated in this clause is effected usually in an insidious manner which throws a challenge to the

investigation. But that is no reason for closing the eyes. If the hunt is unsuccessful, recourse can always be made to Sub-clause (e).

The above short analysis of the two provisions of law makes it clear that the offence u/s 161 I.P.C. and the offence u/s 5(1)(d) are two different

offences, their respective ingredients being not exactly the same. No doubt, the same set of facts may sometimes be punishable under both the

provisions, but it is not so in all cases. For establishing the offence u/s 5(1 )(d) the prosecution should clearly prove the prohibited means, and also

that the pecuniary advantage was obtained and not merely accepted. Therefore, it would not be proper in all cases where only an offence u/s 161,

I.P.C. if appears to have been committed to charge mechanically also for an offence u/s 5(1)(d) the Act. Courts also should be careful before

framing a charge in order to find out whether in the report filed by the police there is anything to infer that an offence u/s 5(1)(d) might have been

committed.

Now I shall reproduce the charge framed by the trial Court:

That you on or about 3rd day of October, 1976, at 9.40 A.M. at the Pottal (Maidan) near the Raman Temple, Palayamcottai, being the Head

Clerk, Office of the District Health Office, Tirunelveli at Palayamcottai, a public servant, directly accepted to the tune of Rs. 200/- from Thiru K.

Vadivelu, Health Assistant, Shencottal Group, Shencottai (under suspension from 17-7-1976), or favourable disposal of the disciplinary

proceedings against the said Vadivelu, a gratification other than legal remuneration as a motive or reward for doing official functions and you as a

public servant by corrupt or illegal means or by otherwise abused your position as such a public servant and thereby committed an offence

punishable u/s 161 of the I.P.C. and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act.

It is seen that the charge does not even contain a recital that the accused person obtained any pecuniary advantage. Secondly, the charge is too

vague regarding the means which would! have been made use of by the public servant. Therefore, it is obvious that in the present case there is no

prima facie case that the offence u/s 5(2) read with Section 5(1)(d) of the Act has been committed.

As far as the offence u/s 161 I.P.C. is concerned, the learned Public Prosecutor, who is appearing for the appellant in this case, would contend

that the case of the prosecution was satisfactorily proved, and that the trial Court misdirected itself in its approach while acquitting the accused. In

this connection, she placed before me two decisions Gian Singh Vs. State of Punjab, and State of Maharashtra Vs. Narsingrao Gangaram Pimple,

. The substance of the first decision is that the court while dealing with bribery cases, has to view the evidence in the light of the probabilities and

the intrinsic credibility of those who testify. The substance of the second decision is that where in a trap case the Judge magnified every minor detail

or omission to falsify or throw even a shadow of doubt on the prosecution evidence then, it would be the very antithesis of a correct judicial

approach to the evidence of witnesses in such a case, that if such a harsh touchstone is prescribed to prove such a case it will be difficult for the

prosecution to establish any case at all.

The learned Counsel for the accused contended that in the present case there was not a trap in the usual way and that there was a deliberate

temptation of the person. The learned Counsel cited a decision in Ramjanam Singh Vs. The State of Bihar, in which it was held that m a case

where the trap is not laid in the usual way for a man who was demanding a bribe but amounted to deliberately tempting a man to his own undoing,

there would not be an offence u/s 161 I.P.C. He relied on the same case as well as on many other well-known cases in support of his stand that in

the case of appeal against acquittal the appellate Court should not interfere when the view taken by the trial Court is a possible one.

With the principles laid down in these decisions in mind, I shall turn to the facts of the case. The offence of bribery was attempted to be proved

by the prosecution in two ways. First it was at the stage of the talk. In this case P.W.1 stated in the chief examination that he on his own initiative

approached the accused for help but in the cross-examination-he turned to say that it was the accused who called him and said that he would be in

a position to help him out of the difficulty. P.W.1 being a person who has arranged the trap against the accused, his evidence has to be scrutinised

with much circumspection and would require corroboration. The prosecution examined P. W.2 who is none other than the cousin brother of

P.W.1. He deposed regarding the second meeting between the accused and P.W.1 and he said that on that occasion the accused insisted on

immediate payment, at least an instalment of Rs. 200 out of the amount of Rs. 1000 initially asked for. The evidence of P.W.2 suffered from two

vices. First P.W.1 did not explain as to why, for a dealing which should normally remain secret, he has taken P.W.2 with him and it is also rather

difficult to believe that the accused has come out with this bold claim of money without ensuring first who was P.W.2 and for what purpose P.W.2

accompanied P.W.1. Secondly, P.W.2 deposed that he learnt about the trap and the recovery of money from the accused from the paper

published on the 3rd October, 1976, while the occurrence did not take place by that time. Therefore, as far as the talk and the agreement between

P.W. 1 and the accused regarding the bribe are concerned, the contradictions in the deposition of P.W.1 between his own assertions and the

unreliability of the deposition of P.W.2 led the trial Court not to believe the case of the prosecution regarding that aspect. I do not find anything

wrong in the conclusion arrived at by the trial Court.

As far as the recovery is concerned, the learned public prosecutor contended very strenuously that the fact of recovery was really proved and

that after the recovery of the amount the hands of the accused showed that he had manipulated the amount of Rs. 200 which were given by P.W.1

and which were smeared with appropriate powder. It is true that this aspect of the recovery is adequately proved. But the case of the learned

Counsel for the accused is that the seizures of the notes by the Investigating Officer was done much later and that such delay threw much doubt

about the veracity of the version of the prosecution. He relied for this purpose on the decision of the Supreme Court in Gulam Mahmood A. Malek

Vs. State of Gujarat, wherein it was held that the delay among other things in effecting recovery of the money would make the case of the

prosecution unacceptable. In the present case, the version of the prosecution is this on the appointed day P. W. 1 went to the residence of the

accused, stayed there for 10 minutes : then P.W.1 and the accused went to a restaurant and after taking meals the accused stated that they would

go to the office and for that purpose they boarded a bus; they got down near the house of the Personal Assistant to the District Health Officer

(P.W.4); while they were crossing an open space, on their way to the house of P. W.4, the accused demanded money and the money was handed

over to him; then they went to the house of P.W.4 and P.W. 1, gave a signal to the Investigating Officer ten minutes afterwards; the Investigating

Officer came ten minutes later and effected the seizure. In this case there is not only delay but there has also been change of place. P.W.1 and the

Investigating Officer (P.W.6) did not act as per the scenario contemplated earlier. As per the scenario the arrest and the recovery was to be made

immediately after the payment of money. It is also to be observed that as per the version of P.W.1 the accused was very impatient in his demand

of money and that when he met him for the second time with P.W.2 he was asked whether he had brought the money, but when he effectively

brought the money during the third stage as per P.W.1, the accused never asked whether he had brought the money. In view of the difficulty

expressed earlier by P-W4 in getting the money and in view of the insistence of the accused that he should bring the money so that he could help

him in one way or the other, normally the accused would have first ensured that he had brought the money before proceeding further in this matter.

It is also difficult to believe that the accused received the money in the open space while he had many occasions earlier to get the money from

P.W.1 especially when he was in his own house. Therefore the view taken by the trial Court that there was a sizeable element of doubt hovering

over the case of the prosecution cannot be reversed in appeal.

In the result, the appeal is dismissed. Appeal dismissed.