The State vs Varadarajan

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 under S. 161 of the I.P.C. and S. 5(2)

read with S. 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 under S. 161 of the I.P.C. and the offence

punishable under S. 5(2) read with S. 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

under 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 under S. 5(2) read with S. 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

under 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, whereas there is no such prescription while determining the fine under S. 161. Secondly, as per S. 5(1)(a) of the Act, if the

offence under S. 161 has been habitual that fact has been made a separate offence called ""criminal misconduct"" which name applies also to the

offence under S. 5(1)(d) of the Act. The habitual offence under S. 161 I.P.C. and a single offence under S. 5(1)(d) of the Act are punishable in the

same manner which would again show that the offence under S. 5(1)(d) of the Act is different from one under S. 161 I.P.C. The abetment of

offence under S. 161 is punishable under S. 165A, whereas abetment of offence under S. 5(1)(d) is not punishable under the Act. The attempt for

an offence under S. 161 is punishable in the same manner as the main offence itself, whereas the attempt of an offence under 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 the 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 under 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 under S. 161 to the effect that he offered or agreed to offer

any gratification shall not subject him to *prosecution under S. 165A of the Code. Therefore, S. 5(1)(d) of the Act was not enacted in ignorance

of S. 161, without taking it into account. It was made purposely in order to complement S. 161, to meet the circumstances which would not be

covered by S. 161. It is far from being an unnecessary duplication with S. 161.

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

5(1)(d) may exist without any profit or benefit for another person, whereas S. 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 under S. 161 I.P.C., mere acceptance is an offence whereas under 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 under 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 S. 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 S. 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 S. 5(1)(d) is also different from that of S. 161. After dealing with the habitual offences under S. 161 and under S. 165

respectively under sub-clauses (a) and (b) of S. 5(1) of the Act, the law maker deals under S. 5(1)(c) with the act of the Government servant

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

thereafter is to deal with the cases which could not have been covered under 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-clauses (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, S. 5(1)(d) deals with a specific set of acts different from the ones contemplated under S. 161. Its scope is being lost sight of in merely

assimilating it to S. 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 under 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 under S. 161 I.P.C. and the offence under S. 5(1)(d) are

two different offences, their respective ingredients being not exactly the sane. 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 under 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 under S. 161, I.P.C. appears to have been committed to charge mechanically also for an offence under S. 5(1)(d) of 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 under

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), for 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 under S. 161 of the I.P.C. and S. 5(2) read with S. 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 under S. 5(2) read with S. 5(1)(d) of the Act has been committed.

As far as the offence under 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 white 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 testily. 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 in 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 under 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.

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.W. 1 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.