PETITIONER: MOHANDAS LALWANI Vs. RESPONDENT: THE STATE OF MADHYA PRADESH DATE OF JUDGMENT11/09/1973 BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ ALAGIRISWAMI, A. CITATION: 1973 AIR 2679 1974 SCR (1) 636 1974 SCC (3) 361 ACT: Indian Penal Code, s. 165-Appellant attempted to bribe the Chief Engineer to secure a contract-Trial Court acquitted but High Court convicted and sentenced the appellant- Whiether- High Court has power of review the entire evidence under s. 417, Cr. P.C. HEADNOTE: The accused-appellant was acquitted by the Special Judge, Bhopal, but convicted by the High Court under s. 165-A I.P.C., and sentenced to one year's rigorous imprisonment. The prosecution case is that on April 9, 1966, the Chief Engineer (Construction) of Heavy Electricals Ltd. was present in his office. The appellant-accused went there for an interview with two others. It is alleged that the accused-appellant offered a bribe of Rs. 3,000/- to the Chief Pngineer and requested him to give the contract for which tenders were submitted earlier by 4 contractors. On being refused, the appellant put back the currency notes in his pocket. P.W. 5, the Personal Assistant of the Chief Engineer, is alleged to have taken out the envelope containing the currency no-es from the trouser-pocket of the accused and thereafter, the Chief Engineer made a report to the Police and the accused and the report were sent to the Police Station. The First Information Report was prepared in the Police Station on the basis of the report (P-1) and a case was registered against the accused. A complaint about the occurrence. was thereafter filed in the Court of the Special Judge, Bhopal, by the Police. At the trial, the Chief Engineer, (P.W. 1) gave evidence in support of the prosecution and witnesses were examined by both sides. The trial Court did not believe wholly the prosecution case and gave the accused the benefit of doubt. On appeal, the High Court considered the evidence on record, and convicted ,he accused. In appeal before this Court, the appellant had assailed the judgment of the High court and had contended that there was no sufficient ground for the High Court to reverse the judgment of acquittal of the Trial Court. If two views, according to the counsel were possible in the matter, the view which was favourable to the accused, as had been taken by the Trial Court, should be adopted. Dismissing the appeal, HELD : (1) There is no cogent ground as to why the evidence of P.W. I should not be accepted. The witness had no animus against the accused. The witness even did not know the accused till the day of occurrence. There is no particular reason as to why P.W. I should falsely involve the accused in this case. (ii)The view taken by the Trial Court in rejecting the evidence of P.W. 1 was clearly unreasonable and the High Court had the cogent grounds to interfere with the judgment of acquittal passed by the Trial Court. Further, the High Court in reversing the order of acquittal considered the matters on record, including the reasons given by the Trial Court, as well as those aspects which could possibly be claimed by the accused to be favourable to him. [643B] Kanu Ambu Vish v. State of Maharashtra, A.I.R. 1971 S.C. 2256, referred to and distinguished. (iii)It is well settled that the High Court in appeal, under S. 417 of Cr. P.C., has full power to review at large the evidence on which the order of acquittal was founded and reach the conclusion that upon the evidence the 637 order of acquittal should be reversed. No limitation should be placed upon that power unless it be found expressly stated in the Code, but in exercising the power conferred by the Code, and, before reaching its conclusion upon fact, the High Court should give proper weight and considerations to the following matters :-(i), the views of the Trial Judge as to the credibility of the witnesses (ii) the presumption of innocence in favour of the accused (iii) the right of the accused to the benefit of any doubt and (iv) the slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. Therefore, from the matters on record and after considering the judgment of the trial court and the High Court, we are firmly of the opinion that the trial is not vitiated by any such infirmity as may call for interference by this Court. [643E] JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 45 of
1970.
Appeal by special leave from the, judgment and Order dated
February 4, 1970 of the High Court of Madhya Pradesh
(Jabalpur Bench) in Criminal Appeal No. 24 of 1967.
Hardayal Hardy, M. S. N. Nambudri and B. R. G K. Achar, for
the appellant.
Ram Paniwani and H. S. Parihar, for the respondent.
The Judgment of the Court was delivered by
KHANNA, J. This is an appeal by special leave by Mohandas
Lalwani against the judgment of Madhya Pradesh High Court
whereby the High Court reversed the judgment of acquittal of
the Special Judge Bhopal and convicted the accused appellant
under section 165A Indian Penal Code and sentenced him to
undergo rigorous imprisonment for a period of one year.
The Executive Engineer, Heavy Electricals Ltd. (hereinafter
referred to as HEL), Bhopal invited tenders for construction
of four BCC overhead tanks, each of one lakh gallons
capacity, by a tender notice published on December 23, 1965.
Four contractors, including the accused appellant, submitted
their tenders., Those tenders were opened on February 1,
1966. It was found that the tender of the appellant, who
had stipulated that he would use 18 tons of steel, was of
the lowest amount. The other three contractors bad
stipulated that they would use 24 tons of steel.
The case of the prosecution is that on April 9, 1966 PW 1
Shivnarain Wadhwa, Chief Engineer Construction of HEL was
present in his office. PW 5 Niranjanlal Shrivastava,
Personal Assistant to the Chief Engineer, was also present
there. A partition divides the office of the Chief Engineer
from the place where Shrivastava used to sit. At about
11.45 a.m. on that day, the appellant accompanied by two
others, came to PW Shrivastava. The appellant gave visiting
card P4 to Shrivastava and said that he wanted to see the
Chief Engineer. Shrivastava sent that card through a peon
to Chief Engineer Wadhwa. A short time thereafter on being
called by Wadhwa, the accused appellant accompanied by his
two companions went inside the office of Wadhwa. On arrival
there, the accused talked about big tender and stated that
as his tender was the lowest,
15-L382SupCI/74
638
the same should be accepted- The accused also handed over
copy P3 of letter dated April 8, 1966 which had been
addressed by him to the Executive Engineer in connection
with the above tender Wadhwa then told the accused that
according to the information received by him, the accused
had stipulated the use of only 18 tons of steel as against
24 tons stipulated by others. The accuse however, persisted
in saying that his tender was the lowest. Wadhwa then told
the accused that whatever he had to say in the matter, he
should tell the Executive Engineer and that he might also
hand over a copy of his letter to the Assistant Chief
Engineer. The two companions of the accused, then left the
office of Wadhwa, while the accused remained sitting there.
Wadhwa then told the accused also to go, but the accused
instead of going took out from the left pocket of his
trousers an envelope and presented it to Wadhwa. Wadhwa
could see that the envelope contained 100-rupee currency
notes. Wadhwa reprimanded the accused for doing something
wrong and at the same time he (Wadhwa) pressed the buzzer
for his Personal Assistant. Shrivastava PW then came inside
the office of Wadhwa. In the meantime, the accused had put
back the envelope containing currency notes in the pocket of
his trousers. On the arrival of Shrivastava, Wadhwa told
him that the accused had given him bribe. Wadhwa also asked
Shrivastava to take out the envelope from the pocket of the
trousers of the accused. Shrivastava then took out the
envelope containing currency notes from the trousers’ pocket
of the accused. There were thirty 100-rupee currency notes
in that envelope. Wadhwa then rung up R.C. Gupta (PW 3) who
is the Secretary and Vigilance Officer of HEL as well as
Chandra Shekhar Tiwari (PW 4), who is the Chief Security
Officer of HEL. The offices of Gupta and Tiwari are also in
the Administrative Building of HEL, in which building is
situated the office of Wadhwa PW.
The case of the prosecution further is that on the arrival
of Gupta and Tiwari PWs, Wadhwa narrated, the facts about
the offer of Rs. 3,000 by the accused to him as mentioned
above. The accused then expressed his apologies and stated
that he was sorry and ashamed for what he had done. The
accused also requested that he might be forgiven and that
otherwise he would lose his career as a contractor. When
the accused offered his apologies, Wadhwa remarked that if
the accused gave anything in writing, he would consider the
matter. The accused thereupon wrote something on a piece of
paper. As the writing was not found to be satisfactory, the
same was not accepted by Wadhwa and the paper remained with
the accused. Wadhwa then asked Shrivastava to take Lalwani
to his room. Wadhwa thereafter asked for the advice of
Gupta and Tiwari. It was then decided that the matter
should be reported to the police. Wadhwa thereupon called
Shrivastava and dictated to him report P1. In the report
the number of currency notes were also noted by Shrivastava.
The report was then signed by Wadhwa. The accused and, the
report were thereafter sent to police station Govindpura.
Formal first information report P8 was prepared at the
police station on the basis of report P1 and a case was
registered against the accused at
639
2.15 P.M. Complaint about the occurrence was thereafter
filed in the court of the Special Judge Bhopal by Town
Inspector Gurbir Singh on. May 20,1966.
At the trial, Wadhwa (PW 1) gave evidence in support of the
prosecution case as given above. Gupta (PW 3) and Tiwari
(PW 4) deposed about, the extra judicial confession of the
accused in the office of Wadhwa PW when they were called
there by Wadhwa PW on telephone. The prosecution further
examined Shrivastava (PW 5), according to whom, he was
called by Wadhwa and was told that the accused had offered
him bribe. The witness took out an envelope containing
currency notes of the value of Rs. 3,000 from the pocket of
the accused under the directions of Wadhwa- The witness
further deposed regarding the extra ‘ judicial confession
made by the accused after the arrival of Gupta and Tiwari
PWs.
The accused, in his statement under section 342 of the Code
of Criminal Procedure, admitted having met Wadhwa PW in his
office on April 9, 1966 and about his having handed over to
Wadhwa copy of letter P3. The accused also admitted that
the Personal Assistant of Wadhwa had taken out 30 currency
notes of Rs. 100 each from his pocket under the directions
of Wadhwa. The fact that Gupta and Tiwari were called on
telephone by Wadhwa was further admitted by the accused.
The other prosecution allegations were denied by the
accused. He denied having offered any amount to Wadhwa or
about his having made any confession after the arrival of
Gupta and Tiwari PWs. The accused further gave the
following version of the occurrence :
“On 7-4-66 1 had gone to the office of the
Executive Engineer Shri Karajgi. He was not
there. I learnt from the office that my
tender and the tenders of two or three persons
more sent to the Assistant Chief Engineer, and
there was remark on my tender that the
testimonials were not attached whereas I had
sent the same on the 21st. Therefore, I went
to the Chief Engineer on the sameday and told
him that my tender was the lowest and they
say, that the testimonials have not been sent.
On being asked by him I replied, ‘can bring
the testimonials’. Then I went to Delhi and
on 9-4-66 1 came with the testimonials and the
consultant Engineer and I had brought the
amount of security also. Then I went to the
office of the Chief Engineer on the 9th and
talked to him and showed my testimonials and
handed over the letter Exhibit P.3. For taking
out the papers I was required to take out
money also and after keeping money in my
pocket I showed the papers to him. I said ‘I
have brought the testimonials also. I have
brought the Engineer also.’ You discuss with
him and give final reply. ‘He replied’, Do
not talk to me. Speak to the Executive
Engineer. ‘I said’, There is corruption.
Otherwise why my certificates have been
removed from my tender? ‘Thereupon he began
to say, ‘I am not prepared to hear this much.’
Whereupon I replied, ‘You are Head of the
Depart-
640
ment. If you do not hear who will hear?’
Thereupon he replied,. ‘Do not talk anything
more with me?’ Whereupon I said, ‘Are you also
included in that corruption ?’ Thereupon, he
pressed the, buzzer. I had a hot talk with
him. My Engineer also told, him. Thereupon
he replied, ‘I am not prepared to hear
anything.’ Then my Engineer spoke in Sindhi
language, ‘He is not hearing I go downstairs
and I send any other person.’ At the same time
Wadhwa Saha ,threw away the testimonials and
said, ‘Where those persons have gone ?’
Whereupon I replied, ‘They have gone down-
stairs’. He questioned, ‘What did they say?’-
I replied, ‘They have not said anything.’
‘Then I put the testimonials in my pocket and
he pressed the buzzer.”
In defence, the accused examined one witness V. S. Asnani,
Consulting Engineer. According to this witness, he went
with the accused on the day of occurrence to Wadhwa PW. The
witness supported the version of the occurrence as given in
the statement of the accused under section 342 of the Code
of Criminal Procedure.
The trial court was of the view that Wadhwa PW was not
wholly reliable witness. As regards Gupta and Tiwari, it
was observed that they were interested witnesses.
Reference, was also made to some discrepancies in the
prosecution evidence as well as to the fact that there was
no mention in the first information report of the extra
judicial confession of the accused. The version given by
the accused, in the opinion of the trial court, could not
be said to be unreasonable. In the result the trial court
gave the benefit of doubt to the accused and acquitted him.
On appeal the High Court considered the evidence adduced in
the case by the prosecution and found the same to be
reliable. The High Court disagreed with- the trial court
that the prosecution evidence suffered from infirmities.
The defence version was rejected by the High Court as
unworthy of evidence. In the result the appeal was accepted
and the accused was convicted and sentenced as above.
In appeal before us Mr. Hardy on behalf of the appellant his
assailed the judgment of the High Court and has contended
that there was no sufficient ground for the High Court to
reverse the judgment of acquittal of the trial court. If
two views, according to the learned counsel, were possible
in the matter, the view which was favourable to the accused
and had been taken by the trial court should be adopted. As
against that, Mr. Ram Panjwani on behalf of the State
submits that the view taken by the trial court was clearly
unreasonable and there were good and valid grounds for the
High Court to interfere with the judgment of the trial
court. We find force in the submission of Mr. Ram Panjwani.
The prosecution in order to bring the charge home to the
accused has examined Wadhwa (PW 1). The witness gave
evidence in support of the prosecution case as reproduced
above and deposed about the offer of the envelope containing
currency notes by the accused to him. We have been taken
through the evidence of the witness and
641
find no Cogent ground as to why his evidence, should not be
accepted, The witness had no animus against the accused.
The witness even did not know the accused earlier and had
met him only once before on April 7, 1966 when the accused
had seen him in his office and had made some representation
regarding his tender. In the circumstances, we can discover
no particular reason as to why Wadhwa should falsely involve
the accused in this. case.
The trial court did not place much reliance upon the
testimony of Wadhwa because the witness admitted that
complaints had been made against him for showing favouritism
as well as for corruption and highhandedness. On some
occasions the witness also had to give explanation to
clarify some particular action. The accused also placed on
record letters and articles published in a local paper,
copies of which are D2, D3, D4 and D5. In this respect we
find that documents D2 to D5 contained general allegations
of irregularities in HEL. There were no allegations in
those writings against Wadhwa by name or by designation. As
regard$ the complaints made against Wadhwa, there is nothing
to show that the authorities concerned found substance in
any of those complaints. As things are, such complaints are
even made against senior officers who are very honest. In
the absence of’ material to show that substance was found in
any of the complaints made against Wadhwa, it would, in our
opinion, be not proper to infer that Wadhwa is a person of
doubtful integrity from the mere fact that sometimes
complaints were received against him. Another reason which
weighed with the trial court in not Placing much reliance
upon the testimony of Wadhwa was the fact that in answer to
a question relating to the details of the design of the
tanks in question, the witness replied that it was his
prerogative as Chief Engineer incharge of construction to
decide as to what he should do. The above answer would show
that the witness used inappropriate language in describing
his powers and functions. The answer might also reveal that
the witness had exaggerated notion of the authority vested
in him, but these facts would hardly warrant an inference
that Wadhwa PW is not a very truthful witness and the court
cannot place much reliance upon his testimony.
The conduct of Wadhwa immediately after the offer to him of
the envelope containing currency notes by the, accused lends
considerable support to his testimony. Wadhwa immediately
pressed the buzzer and called Ms Personal Assistant
Shrivastava PW. Shrivastava PW was then told by Wadhwa that
the accused had offered him bribe. Wadhwa also told
Shrivastava to take out the envelope containing currency
notes from the trousers’ pocket of the accused. Shrivastava
then took out the envelope containing currency notes from
the trousers ‘ pocket of the accused. The envelope was then
found to contain 30 currency notes of Rs. 100 each. The
evidence of Wadhwa in this respect is corroborated by that
of Shrivastava. PW. Shrivastava too had no animus against
the accused and it is not explained as to why Shrivastava
should falsely depose against the accused in this case.
It has been pointed out by Mr. Hardy that Wadhwa did not
mention in report P1 dictated by him that he had told
Shrivastava about the offer of bribe by the accused to him.
This omission appears to
642
have been due to the fact that Wadhwa did not give complete
details in the report dictated by him. As mentioned
earlier, there is nothing’ to show as to why Shrivastava
should falsely depose against the accused. The fact that
Shrivastava was a Personal Assistant of Wadhwa would hardly
justify rejection of his testimony, especially when Wadhwa
himself had no animus against the accused. In any case, it
is mentioned in report Pi and is also admitted by the
accused in his statement under section 342 of the Code of
Criminal Procedure that Shrivastava took out Rs. 3,000 from
the trousers’ pocket of the =used under the directions of
Wadhwa. There is nothing to show that the accused protested
against the taking out of the currency notes from his pocket
by Shrivastava under the directions of Wadhwa. If the
accused was an innocent person and had no guilty conscience,
he would in the normal course have flared up and not meekly
submitted to the recovery of currency notes from his pocket
by Shrivastava under the directions of Wadhwa. The conduct
of Wadhwa in directing Shrivastava to take out the envelope
containing currency,notes from ,the pocket of the accused is
in consonance with the prosecution case and. belies the
defence version.
The evidence of Gupta and Tiwari PWs regarding the extra
judicial confession. made by the accused after the arrival
of these witnesses lends further corroboration to the
evidence of Wadhwa. These two witness, who were senior
officers of HEL, had no enmity with the accused and nothing
has been brought out as to why they should make false
statements against the accused. It is true that Wadhwa made
no mention of the extra judicial confession of the accused
in the report sent by him to the police. This omission
might also have been due to the fact that Wadhwa did not
give full details in the report dictated by him. Be that as
it may, even if the evidence regarding the extra judicial
confession of the accused were excluded from consideration,
the other material on record, particularly, the testimony
and conduct of Wadhwa as well as the evidence of
Shrivastava, furnishes ample ground for basing the
conviction of the accused.
We are not impressed by the plea taken on behalf of the
accused that Rs. 3,000, which were recovered from his
pocket, had been brought by him for the purpose of
depositing security. The question of the depositing of the
security would have arisen only if and when the tender would
have been accepted. The amount of security in that event
would have to be deposited within 15 days of the date
directing the contractor to do so.
Argument has also been advanced on behalf of the accused
appellant that it was not a condition of the tender that the
contractor would use 24 tons of steel in the making of the
tanks in question.This may be so, but it would not make any
material difference so far as the present case is concerned.
The evidence of Wadhwa PW shows that he had learnt from the
Assistant Chief Engineer that as against the accused who had
stipulated to use 18 tons of steel, the other contractors
had stipulated to use 24 tons of steel. The accused, in the
circumstances, might have become apprehensive that his
tender in spite of
643
his lowest quotation might not be accepted. Necessity might
consequently have been felt by the accused to offer illegal
gratification with a view to secure a favourable decision in
the matter of the acceptance of the tender.
The view taken by the trial court in rejecting the evidence
of Wadhwa, in our opinion, was clearly unreasonable and the
High Court, in our opinion, had cogent grounds to interfere
with the judgment of acquittal of the trial court. We are
unable to find any infirmity in the appraisement of the
evidence by the High Court as may, induce us to take a
different view.
Reference on behalf of the appellant has been made to the
decision of this Court in the case of Kanu Ambu Vish v.
State of Maharashtra(1) wherein it was observed that the
High Court in reversing a judgment of acquittal should not
only consider all matters on record, including the reasons
given by the trial court in respect of the, order of
acquittal, but should particularly consider those aspects
which are in favour of the accused, and ought not also act
on conjectures or surmises. The above, dictum, in our
opinion, cannot be of much avail to the appellant because we
find that the High Court in reversing the order of acquittal
considered the matters on record, including the reasons
given by the trial court, as well as those aspects which
could possibly be claimed by the. accused to be favourable
to him.
It is well settled that the High Court in appeal under
section 417 of the Code of Criminal Procedure has full power
to review at large the evidence on which the order of
acquittal was founded and to reach the conclusion that upon
the evidence the order of acquittal should be reversed. No
limitation should be placed upon that power unless it be
found expressly stated in the Code, but in exercising the
power conferred by the Code and before reaching its
conclusion upon fact the High Court should give proper
weight and consideration to such matters as (1) the views of
the trial judge as to the credibility, of the witnesses; (2)
the presumption of innocence in favour of the accused, a
presumption certainly not weakened by the fact that he has
been acquitted at his trial; (3) the right of the accused to
the benefit of any doubt; and (4) the slowness of an
appellate court in disturbing a finding of fact arrived by a
judge who had the advantage of seeing the witnesses. We
have been taken through the judgments of the trial court and
the High Court and we find that the judgment of the High
Court is not vitiated by any such infirmity as may call for
interference by this Court.
Before we part with this case, we would like to observe that
as long as an impression exists that corruption is prevalent
and that unless one pays to somebody things are not done,
there would be always persons who would feel the urge to
offer bribe. Bribe would be offered not only to get an
undue favour but also to avoid unnecessary harassment and to
see that no obstruction or delay is caused in getting the
most legitimate work done. To prevent the repetition of
crimes. like
(1) A I. R. 1971 S. C. 2256.
644
the one of which the appellant has been found guilty, it is
necessary to inculcate a general feeling that things are
done in due course uninfluenced by extraneous
considerations. It would be unfortunate that, rightly or
wrongly, an impression were to exist that without payment of
illegal gratification, things would not be done. At the
same time, the position in law is that if one makes an offer
of bribe to a public servant, he would be guilty of the
offence under section 165A Indian Penal Code. The courts
are concerned only with the fact whether the person
arraigned as an accused before them is guilty of the offence
with which he is charged. The finding regarding the guilt
of the accused cannot be affected by any consideration of
the social and administrative milieu in which the offence is
committed. Once the guilt is proved, as it has been in the
case of the appellant, the law must take its course.
The appeal fails and is dismissed.
S.C. Appeal dismissed.
645