IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 23.12.2008 Coram The Honble Mr.Justice M.JEYAPAUL Criminal Appeal No.673 of 1998 P.Subburaj Appellant vs. State: Inspector of Police, C.B.I. (Crime No.R.C.71/87) Shastri Bhavan, Chennai-6. Respondent Prayer:- Criminal Appeal against the judgment and sentence dated 31.7.1998 made in C.C.No.18 of 1997 on the file of the Principal Special Judge for CBI Cases, City Civil Court Buildings, Madras. For appellant : Mr.Gopinath, Senior Counsel for M/s.K.Selvarangan For respondent : Mr.N.Chandrasekaran, Special Public Prosecutor for CBI. JUDGMENT
The accused P.Subburaj stood charged with offences punishable under old section 161 of the Indian Penal Code and under section 5(2) read with 5(1)(d) of the Prevention of Corruption Act, 1947. The Trial ended in his conviction under those two penal provisions. He was sentenced to six months rigorous imprisonment for offence under section 161 of the Indian Penal Code and rigorous imprisonment for six months and to pay fine of Rs.500/= for offence under section 5(2) read with 5(1)(d) of the Prevention of Corruption Act, 1947. Aggrieved by the above verdict of the Trial Court, the present appeal has been preferred by the accused.
Case of the prosecution:-
2. The accused P.Subburaj was functioning as Junior Assistant in the office of the Director of Accounts (Tamilnadu Postal Circle), Commander-in-Chief Road, Chennai. The complainant C.Natarajan (PW2) is a resident of Kadapperi Village in North Arcot District. He was badly in need of a job. He approached the accused P.Subburaj on 6.9.1987 through his friend to secure a job for him. The accused assured PW2 that he would secure a Nominal Muster Roll (NMR) job in the office of the Public Works Department at Vellore.
3. On 7.9.1987, as per the instruction of the accused, PW2 met him at Vellore. The accused, having requested PW2 to remain outside the office of the Public Works Department, went inside the office and came out and informed PW2 that appointment order would be issued to him in a couple of days. Even after lapse of twenty days, the complainant did not receive any appointment order.
4. The complainant met the accused on 4.10.1987. The accused demanded illegal gratification of Rs.4000/= from PW2 for arranging to despatch the order of appointment to him. PW2 expressed his inability to meet such a demand. Again on 12.10.1987, PW2 met the accused at Chennai. The accused demanded a sum of Rs.500/= to be paid to him in a couple of days and the balance after receipt of the order of appointment.
5. PW2 was not willing to pay the gratification of Rs.500/= demanded by the accused to secure an order of appointment. He proceeded to the office of the Central Bureau of Investigation at Chennai and gave a complaint, Ex.P2 to the Superintendent of Police, Central Bureau of Investigation, Chennai on 13.10.1987. The Inspector of Police, Mr.V.A.Mohan, PW5 registered a case in R.C.No.71 of 1987 based on the complaint given by PW2 under section 161 of the Indian Penal Code.
6. The independent witnesses Mr.Shankar and Mr.Somasundaram, PW3 were secured by PW5. PW3 is working as a Lower Division Clerk at the Regional Office of the Textile Commissioner, Shastri Bhavan, Chennai.
7. PW2 produced the trap amount of Rs.500/= as directed by PW5. A demonstration with the solution of Sodium Carbonate was done by PW5 for the aforesaid two witnesses. The trap currency notes were smeared with Phenolphthalein. On 13.10.1987 at about 5.10 pm, PW5, accompanied by the police party and PW2 and other trap witnesses, proceeded to the office of the accused at Commander-in-Chief Road, Chennai 600 105. P.Ws.2 and 3 went inside the office of the accused. Both of them came along with the accused to shamiana restaurant situate on the opposite side of the office in Commander-in-Chief Road. Pre-arranged signal was given by PW2. PW5 went inside the restaurant along with the police party. The accused started sweating. Mr.Shahul Hameed, Manager of the restaurant, PW4 was informed of the presence of the police sleuth in his premises.
8. Two separate solutions of Sodium Carbonate were prepared. The accused dipped his left and right hand fingers separately in the solutions as directed. The solutions turned pink in colour. The solutions, poured in two different bottles, M.Os.2 and 3, were packed and labelled. The currency notes of five numbers of hundred rupee notes accepted by the accused from the complainant were marked as M.O.1 series. The left side inner pocket of the shirt of the accused was dipped in a separate Sodium Carbonate solution prepared in a Tumbler. It also turned pink. It was preserved in two bottles, M.Os.4 and 5. The accused was taken to his room at Ellis Road, Anna Salai, Chennai from where recommendation letters were recovered under search list, Ex.P6. A bunch of applications, Ex.P9 series were also recovered from the room of the accused. The accused, who was arrested by PW5, was released on bail on the very same day. The Inspector of Police Mr.Ramesh, PW6 took up the investigation and having examined witnesses, laid final report under section 161 of the Indian Penal Code and section 5(2) read with 5(1)(d) of the Prevention of Corruption Act, 1947.
9. Disbelieving the version of the accused P.Subburaj, the Trial Court convicted and sentenced him as stated supra.
Receipt of Rs.500/= by the accused from PW2:-
10. PW2 has categorically stated that pursuant to the demand of Rs.500/= towards initial payment, he approached the Central Bureau of Investigation, who laid the trap and the trap money of Rs.500/= (M.O.1 series) was received by the accused. The evidence of PW2 was not shaken inspite of the searching cross-examination done by the accused. No motive was also attributed to him for coming out with such a version as against the accused. A villager, far away from the City of Chennai, could not have had any grouse as against the accused, who was employed in a Central Government Department and stationed in Chennai.
11. Mr.K.Somasundaram is found to be an official attached to the Regional Office of the Textile Commissioner, Shastri Bhavan, Chennai. He gives a graphic account of the demand of a sum of Rs.500/= by the accused from PW2 and the payment of the same by PW2 to the accused. The occurrence, which led to the arrest of the accused, took place in the shop of Shahul Hameed, PW4. The Sodium Carbonate solutions, M.Os.2 to 4 containing pink colour, in the background of the Chemical Analysis report, Ex.P12 would establish that the amount, M.O.1 series recovered from the accused was the amount used by the respondent police for the purpose of trapping the accused. The prosecution has established beyond reasonable doubt that PW2 paid a sum of Rs.500/= as initial payment as per the demand made by the accused. The learned Senior Counsel appearing for the accused/appellant did not advert to the payment of R.500/= by PW2 to the accused in the trap laid by the respondent police. The Trial Court has rightly come to the conclusion that in the trap laid by the respondent police, PW2, on demand, paid a sum of Rs.500/= and the same was accepted by the accused.
Offence under section 161 of the Indian Penal Code:-
12. Learned Senior Counsel appearing for the appellant would vehemently submit that old section 161 of the Indian Penal Code is not attracted in the instant case as the accused had not received the said amount in his capacity as public servant. It is his further submission that even as per the case of the prosecution, PW2 believed that the accused would use his political clout and secure a job for him and therefore, PW2 parted with a sum of Rs.500/= to him as advance. The visiting cards, Ex.P8 series would go to establish that the accused had acted in his individual capacity while holding out a promise that he would secure a job for PW2 and received a sum of Rs.500/= from him, he would further contend.
13. Learned Special Public Prosecutor for CBI Cases would submit that the last limb of section 161 of the Indian Penal Code would make it clear that when a public servant accepts gratification as a reward for rendering a service with any State Government or with any public servant, he is liable to be punished for offence under the old section 161 of the Indian Penal Code. He has further submitted that the accused, being a public servant, attempted to influence a Government official in the State Government and in the said process, he had received initial payment of Rs.500/= from the accused. Further, he would submit that there arises a presumption under section 4 of the Prevent of Corruption Act, 1947 that the amount accepted by the accused is nothing but a gratification as a reward as mentioned in section 161 of the Indian Penal Code. Therefore, he would submit that the Trial Court has rightly convicted the accused for offence under section 161 of the Indian Penal Code.
14. Old Section 161 of the Indian Penal Code reads as follows:-
“Public Servant taking gratification other than legal remuneration in respect of official act Whoever, being or expecting to be a public servant, accepts or obtains, or agrees to accept, or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in exercise of his official functions, favour or disfavour to any person, with the Central or any State Government or Parliament or the Legislature of any State or with any local authority, Corporation or Government Company referred to in Section 21 or with any public servant, as such, shall be punished with imprisonment of either description for a term which may extend to three years,or with fine, or with both.”
15. To attract the offence under old section 161 of the Indian Penal Code, the following ingredients will have to be satisfied:-
1. The accused shall be a public servant or he should be expecting to be appointed as public servant;
2. He should accept or agree to accept from any person any gratification whatsoever;
3. The said gratification should have no connection with his legal remuneration;
4. The said gratification should have been accepted or obtained as a motive or reward; and
5. Such gratification should have been received
a) for doing or purporting to do any official act; or
b) for showing or forbearing to show, in exercise of his official functions, favour or disfavour to any person or
c) for rendering any service or disservice to any person with the Central or any State Government or with any local authority or Corporation or Government Company or with any public servant.
16. The prosecution pitches the third limb rather than the first and second limbs of section 161 of the Indian Penal Code. It is not the case of the prosecution that gratification was received by the accused to do any official act nor is it the case of the prosecution that the accused received any bribe to do any favour to PW2 in exercise of his official function. The prosecution comes out with a case that the accused approached a public servant in the office of the Public Works Department at Vellore for doing service to the accused in his capacity as public servant.
17. If the prosecution fails to establish that the accused had not acted in his capacity as a public servant, while receiving a sum of Rs.500/= being the trap amount, the charge under section 161 of the Indian Penal Code levelled as against the accused would fall to the ground. There is evidence galore that the accused went along with PW2 to the office of the Public Works Department Vellore and came out and informed PW2 that the order of appointment was ready and the same would be despatched in a couple of days.
18. Firstly, PW2 would say that he was informed that the accused had political clout and therefore, he would secure a job for him. It is not his version that he was informed by his acquaintance that the accused, being a public servant, had the capacity to wield influence.
19. The prosecution also failed to examine any of the public servants in the office of the Public Works Department, Vellore to bring home the point that the accused influenced anybody in that office in his capacity as public servant. The various visiting cards, Ex.P8 series would strengthen the case of the accused that he had not acted in his capacity as public servant while holding out a promise to PW2 that he would secure a job for him and also receiving the amount of Rs.500/= from him.
20. In a similar case in S.KRISHNAMURTHY (1960 MLJR (Criminal) 248), this court, relying upon the ratio laid down by Wanchoo, J in STATE OF ADJMER (NOW RAJASTHAN) v. SHIVJI LAL ((1959) MLJ (CRL.) 589), held that the mere fact that a person takes money in order to get a job for another person somewhere would not by itself necessarily be an offence under section 161, Indian Penal Code unless all the ingredients of that section are made out. In other words, if the prosecution miserably fails to establish that the accused accepted gratification in his capacity as public servant while doing some services to a person with the public servant, the accused cannot be hauled up for offence under section 161 of the Indian Penal Code.
21. In DALPAT SINGH v. STATE OF RAJASTHAN (AIR 1969 SC 17), the accused Police Officer extorted money from the villagers not intending to show any official favour to those persons. The villagers too did not expect any official favour from the accused. The payments were made solely with a view to avoid being ill-treated or harassed by the police officers. It was held therein by the Supreme Court that in the absence of an element of motive of a particular kind referred to in section 161 of the Indian Penal Code, the facts complained of do not constitute offence under section 161 of the Indian Penal Code. To raise presumption under section 4 of the Prevention of Corruption Act, 1947, the prosecution should prove, at the first instance, that the accused, being a public servant, accepted gratification.
22. The learned Special Public Prosecutor for CBI cited the authorities in V.D.JHINGAN v. STATE OF UTTAR PRADESH (AIR 1996 SC 1762), MADHUKAR BHASKARRAO JOSHI v. STATE OF MAHARASHTRA ((2000) 8 SCC 571) and STATE OF ANDHRA PRADESH v. R.JEEVARATNAM ((2004) 6 SCC 488).
23. In all those three cases, it was established that the accused, being a public servant, demanded bribe and received the same for doing an official favour. In the instant case, nothing has been shown by the prosecution that any official favour was shown by the accused to anybody while receiving the sum of Rs.500/= from PW2. The materials on record would clinchingly show that the accused had acted in his individual capacity and not as public servant. Presumption under section 4(1) of the Prevention of Corruption Act, 1947 would be drawn only where the prosecution proves that the accused, in his capacity as public servant, received bribe to do service to a third party with a public servant. Therefore, the aforesaid three authorities pronounced by the Supreme Court do not apply to the facts and circumstances of this case. In view of the above, the court comes to the conclusion that no case has been made out as against the accused for offence under the old section 161 of the Indian Penal Code.
Offence under section 5(1)(d) of the Prevention of Corruption Act, 1947:-
24. The learned Senior Counsel appearing for the accused would vehemently submit that nothing is on record to show that the accused abused his position as a public servant to attract the offence under section 5(1)(d) of the Prevention of Corruption Act, 1947. There is material to show that the accused had acted in his individual capacity and not as a public servant. Therefore, the offence under section 5(1)(d) of the Prevention of Corruption Act, 1947 is not attracted to the facts and circumstances of the case, he would further submit.
25. The learned Special Public Prosecutor for CBI would contend that the fact that the accused, being a public servant, approached another official working in the office of the Public Works Department Vellore, would go to show that he had abused his position as public servant, having holding out a promise to PW2 to secure a job for him and received bribe of Rs.500/=. Therefore, he would contend that the prosecution has established that the accused committed an offence under section 5(1)(d) of the Prevention of Corruption Act, 1947.
26. It is apposite to refer to section 5(1)(d) of the Prevention of Corruption Act, 1947 which reads as follows:-
“5.Criminal misconduct in discharge of official duty:- (1) A public servant is said to commit the offence of criminal misconduct
…. ……
(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage;”
The following ingredients will have to be satisfied to attract the offence:-
(1) The accused shall be a public servant;
(2) He should have abused his position as a public servant;
(3) He should have obtained for himself or for any other person any pecuniary advantage; and
(4) such pecuniary advantage shall be tainted with corrupt or illegal means or by otherwise.
27. In the instant case, the prosecution has established that the accused was a public servant. He received a sum of Rs.500/= which was the trap money used by the respondent through PW2. The prosecution should primarily establish that the public servant abused his position while obtaining pecuniary advantage.
28. As already pointed out, it is not the case of PW2 that he approached the accused on being informed that he was wielding his position as public servant to secure a job. The consistent case of PW2 is that the accused had political influence which would easily secure him a job. The visiting cards seized and produced by the prosecution would also establish that the accused had political affiliation. None of the officials from the office of the Public Works Department, Vellore was examined to show even remotely that the accused approached anyone of them in his capacity as public servant or wielded influence abusing his position as public servant. Further, it is not as if the office of the Public Works Department or the officials working therein were controlled by the office of the Director of Accounts (Tamilnadu Postal Circle) wherein the accused was working as Junior Assistant. Therefore, there is no material to show that the accused misused his official position to make an attempt to secure a job for PW2.
29. In Dalpat Singh’s case referred to above, it has been categorically held that extortion of amount from the villagers by the police officers in the Rajasthan Armed Constabulary not intending to show any official favour to the villagers, would not constitute an offence under section 5(1)(d) of the Prevention of Corruption Act, 1947.
30. The learned Senior Counsel appearing for the accused/appellant cited a ratio laid down down by the Supreme Court in STATE OF GUJARAT V. M.P.DWIVEDI (1972 CRI.LJ 1247). That was a case where a Lecturer working in a Government College was appointed as a Examiner by the University. The charge as against him was that he accepted gratification of Rs.500/= for showing favour to a candidate in the Physics Practical Examination. The Supreme Court has held that the act was committed by the Lecturer of a Government College when he was holding a different position which was not that of a Government Servant. Therefore, receipt of gratification from a student in his capacity as an Examiner in Gujarat University and not in his capacity as public servant would not amount to misusing his official position as public servant as adumbrated under section 5(1)(d) of the Prevention of Corruption Act 1947, it has been declared.
31. Placing reliance upon the aforesaid ratio, the Supreme Court in STATE BY SPECIAL POLICE ESTABLISHMENT v. D.KRISHNAMURTHY (1996 SCC (CRI.) 102) has held that if abuse of the position as a public servant is lacking in the prosecution case, the offence under section 5(1)(d) of the Prevention of Corruption Act, 1947 would not be attracted.
32. Relying upon the ratio laid down by the supreme Court in THE STATE OF GUJARAT v. MANSHANKAR PRABHASHANKAR DWIVEDI AND ANOTHER (1972 CRI.LJ 1247), the Andhra Pradesh High Court, in RAMAKRISHNA RAO v. STATE (1981 MLJ 104), has held that collection of money from third parties by an employee of Port Trust promising them to secure shops in other Departments would not amount to abuse of his position as public servant. It has been held therein that the said employee of the Port Trust has acted in his individual capacity while collecting money holding out a promise to secure job in other Departments.
33. I am in respectful agreement with the authority pronounced by the Andhra Pradesh High Court in the aforesaid case placing reliance upon the ratio laid down by the Supreme Court in THE STATE OF GUJARAT v. MANSHANKAR PRABHASHANKAR DWIVEDI AND ANOTHER (1972 CRI.LJ 1247).
34. There is evidence galore to establish that the accused has not misused his position as Government servant but acted in his individual capacity. No evidence also is forthcoming from the side of the prosecution to bring home the point that the accused ever ventured to misuse his position with the official of the Public Works Department, Vellore in order to extract money from PW2. Further, a close reading of section 4 of the Prevention of Corruption Act, 1947 would reveal that no presumption can be raised as adumbrated therein as far as offence under section 5(1)(d) of the Prevention of Corruption Act, 1947 is concerned.
35. In view of the above facts and circumstances, it is found that the Trial Court has misdirected itself in interpreting the ingredients of the offence punishable under section 161 of the Indian Penal Code and section 5(1)(d) of the Prevention of Corruption Act, 1947. The prosecution has failed to establish that the accused committed offences punishable under section 161 of the Indian Penal Code and section 5(1)(d) of the Prevention of Corruption Act, 1947. The accused/appellant has made out a case for acquittal.
36. In the result, the Criminal Appeal stands allowed. The judgment of the Principal Special Judge for CBI Cases in C.C.No.18 of 1997 dated 31.7.1998 is set aside and the accused is found not guilty of the offence punishable under section 161 of the Indian Penal Code and section 5(1)(d) of the Prevention of Corruption Act, 1947 and consequently, he is acquitted of those two charges. Fine amount, if any, paid by the accused shall be refunded forthwith. Bail bond executed by the accused/appellant shall stand cancelled.
23.12.2008.
Index: Yes.
Internet: Yes.
ssk.
To
1. The Principal Special Judge
for CBI Cases,
City Civil Court Buildings,
Madras.
2. The Inspector of Police,
C.B.I., Shastri Bhavan,
Chennai-6.
M.JEYAPAUL, J.
ssk.
P.D. JUDGMENT IN
Crl.A.No.673/1998
Delivered on
23.12.2008.