JUDGMENT
H.H. Kantharia, J.
1. The appellant-accused was tried by the Special Judge, Thane in Special Case No. 1 of 1980 for offences punishable under section 161 of the Indian Penal Code and section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947 and by the impugned judgment and Order dated 31st January, 1981 was convicted for the said offences. He was sentenced to suffer rigorous imprisonment for 6 months for an offence punishable under section 161 of the Indian Penal Code and also for 6 months rigorous imprisonment for an offence punishable under section 5(1)(d) read with section 5(2) of Prevention of Corruption Act. The substantive sentences were ordered to run concurrently.
2. Dr. Laxman Gogate (P.W. 5) was at the relevant time working as Civil Surgeon at Civil Hospital, Thane. It is the prosecution case that as Civil Surgeon he was also entitled to private practice and one of his duties was to attend to the employees of the Government and the public sector Corporations and semi-Government bodies and counter-sign the medical certificates brought by such employees for having taken medical treatment from private medical practitioners. While counter-signing such certificates it was his duty to see that the medical certificates by the private practitioners were correctly issued. Further, it was the prosecution case that Dr. Gogate was entitled to charge fees for countersigning such certificates. The appellant was working as Junior Clerk under Dr. Gogate. It was one of the duties of the appellant, as per the instructions of Dr. Gogate, to look after the work of getting such certificates counter-signed by him and he (appellant) was also instructed to collect fees for and on behalf of Dr. Gogate from such patients.
3. Complainant Rasul Shaikh (P.W. 1) was a motor vehicle driver in the employment of the Maharashtra State Road Transport Corporation and was at the relevant time attached to Thane depot. On 14th January, 1978 at about 11.30 p.m. there was an accident in which he was involved and had received serious injuries. He took medical treatment from Dr. Ravika Deshpande, (P.W. 6) of Sangli and Dr. Sidlingappa Jevur (P.W. 4) of Jat. He could not resume his duties till 15th May, 1978. However, on 21st February, 1978 he sent two certificates; one issued by Sassoon Hospital, Pune and the other issued by Dr. Deshpande, to the Depot Manager, Thane. On 5th May, 1978 he received a letter from the Divisional Controller, of the Maharashtra State Road Transport Corporation asking him to obtain counter-signatures on the said certificates from the Civil Surgeon, Thane. The complainant, therefore, went to Civil Hospital, Thane on 16th May, 1978 after obtaining one more certificate from Dr. Jevur. He met Civil Surgeon Dr. Gogate at Thane Civil Hospital and requested him to counter-sign the certificates. According to him, Dr. Gogate told him that he would have to pay his fees and then directed him to see the appellant. Complainant Shaikh, therefore, saw the appellant in his office room. On seeing the papers, the appellant was alleged to have told complainant-Shaikh that he would have to pay Rs. 125/- i.e. Rs. 100/- for the Civil Surgeon and Rs. 25/- for himself (appellant) and thereafter he would do the needful in the matter. Shaikh expressed his inability to pay such large amount and said that he could at the most pay Rs. 125/- or Rs. 30/- as he was on leave without pay for about 4 months. However, the appellant insisted upon the payment of Rs. 125/- and asked the complainant to go to Civil Hospital before 1.00 p.m. on 18th May, 1978 and that he would make the necessary arrangement for getting counter-signatures on the certificates thereafter. In the meanwhile, complainant Shaikh contacted Inspector Mandanal Tasgaonkar (P.W. 10) of the Anti Corruption Bureau, Thane and lodged his complaint against the appellant. Accordingly, on 18th May, 1978 a trap was arranged after completing all the formalities and a sum of Rs. 125/- was recovered from the appellant as a result of the said successful trap.
4. The defence of the appellant as can be seen from his statement recorded under section 313 of the Criminal Procedure Code and the cross-examination directed to the various prosecution witnesses was that as a Junior Clerk working in the Civil-Hospital, Thane he was entrusted with the work of attending to employees of the Government and Corporations and collect fees as directed by the Civil Surgaon as his private fees. While denying that on 18th May, 1978 he accepted Rs. 125/- as bribe from complainant-Shaikh, he contended that there were standing instructions given to him by Dr. Gogate to collect Rs. 125/- as his private fees. His specific case was that on 18th May, 1978 after complainant went to him and told him that he had brought the amount he saw the Civil Surgeon in his chamber and told him that the complainant had come with an amount of Rs. 125/- as his fees and that the certificates issued by Dr. Deshpande and Dr. Jevur appeared to be prima facie false certificates as the period of treatment mentioned therein was overlapping. Thereupon Dr. Gogate told him that he should accept Rs. 125/- from the complainant and then he would counter sign the certificate issued by Dr. Deshpande and Dr. Jevur. His further specific case was that Dr. Gogate used to tell him different fees for different patients and as per his (Dr. Gogate) instructions he (appellant) used to collect the amounts. He also contended that it was not a part of his duties to collect the fees from various private patients of Dr. Gogate but merely because he was working under the Civil Surgeon he had to obey his directions. His case against the complainant was that he had frankly told the complainant that two certificates issued by Dr. Deshpande and Dr. Jevur were bogus and therefore the complainant was slightly annoyed with him. In short, the defence of the appellant was that he was totally innocent and that he had been made scape-goat in following the directions of his superior officer.
5. Now, since the appellant has admitted that an amount of Rs. 125/- was recovered from him, there is no need of repeating the entire prosecution case and the only point that arises for my consideration is whether, in the facts and circumstances of the case, the defence of the appellant is reasonable and probable exonerating him of the presumption that can be raised against him of having accepted bribed money under section 4 of the Prevention of Corruption Act, 1947.
6. It is pertinent to note that except the bare word of complainant-Shaikh that the appellant demanded Rs. 125/- meaning Rs. 100/- for the Civil Surgeon and Rs. 25/- for himself, there is nothing in the evidence that the appellant actually did so. It is no doubt true that complainant Shaikh in his deposition clearly stated that the appellant had demanded Rs. 100/- for the Civil Surgeon and Rs. 25/- for himself but in the back-ground of the entire case, it would be hazardous to rely upon his uncorroborated testimony. Arvind Katdare (P.W. 2) who had accompanied the complainant at the time of the appellant accepting Rs. 125/- has not stated that there was such a talk between the complainant and the appellant that an amount of Rs. 100/- was meant for Civil Surgeon and Rs. 25/- for the appellant. Mrs. Belose, learned Additional Public Prosecutor, vehemently urged that normally when the bribed money is accepted it is not expected of the person taking a bribe to specify as to how the bribed money was to be appropriated and it was enough that the appellant asked the complainant whether he had brought the money which evidence prosecution witness Katdare had clearly given. I do not for a moment suggest that the submission of Mrs. Belose is entirely baseless but regard being had to the peculiar facts and circumstances of this case I am rather slow in accepting the absolutely non-corroborated testimony of the complainant. In Panalal v. State of Maharashtra, the Supreme Court observed as under:—
“There could be no doubt that the evidence of the complainant should be corroborated in material particulars. After introduction of section 165-A of the I.P.C. 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.”
7. In the instant case, the record shows that were no fixed standard rates by which Dr. Gogate was accepting fees from his private patients, although Dr. Gogate stated that he was charging Rs. 25/- per certificate to counter-sign which statement I am not prepared to accept as a gospel truth in the absence of production of any rules on the record in that behalf. A possibility, therefore, cannot be altogether ruled out that the amount of Rs. 125/- which the appellant had demanded from the complainant was meant for Dr. Gogate. In any case, I am not inclined to take a risk of accepting the uncorroborated testimony of the complainant in this regard. A reasonable doubt lurks in my mind whether the case put by the complainant may be true or may not be, and that being so, the appellant is entitled to the benefit of the said doubt.
8. But that apart, the defence put up by the appellant also appears to be quite reasonable and probable. As stated above, there is nothing on the record to show as to under what rules and/or directions from the Government a public servant like Civil Surgeon Dr. Gogate was entitled to charge fees for counter-signing certificates brought to him by the employees of the Government and the State Public Sector Corporations who took treatment from private practitioners. But assuming for the sake of argument that the evidence of Dr. Gogate that he was entitled to charge such fees is true, the evidence read as a whole is not free from doubt as to what exact fees Dr. Gogate was charging for countersigning each certificate. He stated in his evidence that he used to charge Rs. 25/- for countersigning one certificate. So long as the present case is concerned, although the complainant had met him, he had not clarified to the complainant as to what fees he had to pay. If rates of fees to be charged by Dr. Gogate were fixed, nothing prevented him from telling complainant Shaikh that he would be required to pay Rs. 25/- per certificate. The evidence given by Dr. Gogate in examination-in-chief that he was charging Rs. 25/- for counter signing one certificate does not appear to be quite consistent with his very first sentence in the cross-examination where he stated that in each individual case he was telling the appellant as to how much fee was to be charged, He also admitted in cross-examination that the rule of issuing receipts to the Government servants was not strictly followed and he had instructed the appellant to issue receipts if demanded. Further, the record shows that the defence examined Viswanath Joshi (D.W. 1) who was required to pay Rs. 75/- to Dr. Gogate for countersigning two certificates, on 18th April, 1978 Viswanath Joshi has given such evidence in clear terms but Dr. Gogate, when suggestions were made to him in the cross-examination in this behalf, deposed that it was not true that he had told Joshi that he would have to pay Rs. 75/- as his private fees and that said Joshi did pay to him Rs. 75/- on that day. There is no reason why Viswanath Joshi has to give false evidence against Dr. Gogate. All this goes to show that there were no fixed rates according to which Dr. Gogate was charging fees to his private patients for counter-signing medical certificates and therefore it would not be unreasonable to accept the defence of the appellant that he had accepted Rs. 125/- from complainant- Shaikh as per the directions of Civil Surgeon Dr. Gogate. In the background of such facts and circumstances of the case, I am of the view that the defence of the appellant is quite reasonable and probable which should be accepted in a case like this where the standard of proof is not the same as one which the prosecution is expected to discharge beyond reasonable doubt. It is enough if the defence is reasonable and probable which in my judgment in this case it is very much so. The Supreme Court in the case of V.D. Jhingan v. State of U.P., had observed that the burden of proof lying upon the accused under section 4(1) of the Prevention of Corruption Act will be satisfied if he establishes civil proceedings and that it was not necessary that he should establish his case by a preponderance of probability as is done by a party in civil proceedings and that it was not necessary that he should establish his case by the test of proof beyond a reasonable doubt. In another case of Man Singh v. Delhi Admn, the Supreme Court was of the view that it was sufficient if the accused offers probable explanation or defence and strict standard of proof of his defence was not necessary.
9. In this view of the matter, the appellant is entitled to a reasonable doubt that very much exists in this case whether he had demanded and accepted the tainted money of bribe. The appeal accordingly succeeds. The conviction recorded against the appellant by the learned Special Judge, Thane, and the sentence inflicted on him are, therefore, quashed and set aside. He is acquitted of the offences punishable under section 161 of the I.P.C. and under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act. He is on bail. His bail bond stands cancelled.