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TMI Blog1976 (4) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... acked up the suggestion with a threat to handcuff Ghanshamsinh and put him in the police lock up. The appellant further demanded a bribe of Rs. 2,000/-. At first Ghan shamsinh expressed his inability to pay the amount. Ultimately at the intervention of Accused 2, the demand was scaled down to Rupees 1,000/- and it was agreed that out of the amount, a sum of Rs. 500/-would be paid on the following evening at the latest. Ghansham sinh was then allowed to go. He then talked about this deal to his cousin, Fatesinh. 2. On the following day, Ghanshamsinh went to Ahmedabad and contacted Shri R. R. Desai (P.W. 8), Inspector of the Anti-Corruption staff of Police and made a complaint which was recorded. Shri Desai then in the presence of Panchas, supplied a sum of Rs. 500/- in five currency notes of the denomination of Rs. 100/- each to Ghanshamsinh for use in the trapping the accused persons in the act of taking the bribe. The notes were smeared with anthracene powder and Ghansham sinh was directed to hand over the same on demand to the accused, and then signal to the raiding party. After settling the plan, the party came to Zinzuwada on July 12, 1968, Ghanshamsingh was sent ahead with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two counts, namely, one for an offence under Section 161, Penal Code and the other under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act and sentenced him to ' suffer rigorous imprisonment for two years on the latter count. No separate sentence under Section 161, Penal Code was inflicted. 5. Hence this appeal by special leave. 6. The mainstay of the prosecution case is the testimony rendered by Ghansharnsinh (P.W. 1) and Panch Mahendra (P.W. 4) and Police Inspector Desai. The first two are witnesses of the demand of the tainted currency notes and the acceptance thereof by the appellant from P.W. 1. Inspector R.R. Desai, P.W. 8, was the Head of the raiding party who recovered the tainted notes. 7. Examined under Section 342, Cr. P.C., the appellant while denying the demand of the bribe on the 11th July, 1968 from Ghansharnsinh, gave this account of what happened on the 12th July, 1968: ...the complainant Ghanubha Champubha and his companion came up to me. I asked Ghanugha as to why he had come....He informed me that his companion was related to the P.S.I., and that he had some work with him. He told me that he had accompanied him to show him the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the money was to be passed on to Mr. Joshi. The appellant, further, admitted that after the recovery of the money, when his hands were examined in the light of the ultra violet lamp, shining powder was found thereon. He expressed ignorance if the hands of Ghanshamsinh and Mahendra were also similarly examined. He expressed a desire to appear in the witness box and make a statement on oath. Subsequently, however, he did not do so, but examined one Naruba Dosubha (D. W. 1) in defence, who more or less supported the version of the appellant with regard to the receipt of Rs. 500/- by the appellant from P.W. Mahendra. 9. The trial Judge instead of appraising the evidence of the witnesses produced by the prosecution in the light of the admission made by the appellant in regard to the acceptance of money, rejected the prosecution case in toto against both the accused on grounds which were manifestly erroneous and unreasonable. Without there being any evidence, he came to the conclusion that Ghanshamsinh was a tool in the hands of one Parbhat Singh Jhala, Girasdar of Ahmedabad, who was inimically disposed towards all the members of Zunzuwada Police, including the appellant. He brushe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceipt of the tainted notes was admitted by the appellant himself. In the face of this admission, there was no justification for the surmise made by the trial Court, that the appellant, an experienced . Head-Constable could not be so stupid as to receive Rs. 500/- as a bribe in the presence of an unknown person. 13. Thus it had been indubitably established that the appellant, a public servant accepted a gratification that is a sum of Rs. 500/- which was not his legal remuneration, from Ghanshamsinh (P.W. 1). On proof of this fact, the statutory presumption under Section 4(1) of the Prevention of Corruption Act was attracted in full force and the burden had shifted on to the appellant to show [that he had not accepted this money as a motive or reward such as is mentioned in Section 161, Penal Code. 14. Mr. Keswani contends that the appellant had rebutted this presumption by bringing on record circumstances which militate against it. The first and the foremost of these circumstances, according to the Counsel, is that no complaint whatever against Ghanshamsinh in respect of the commission of an offence was under investigation with the police; that no F.I.R. had been lodged by any per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he would be arrested and paraded in handcuffs around the village. Evidence of P.Ws Ghanshamsinh and Fatesinh with regard to the summoning of Ghanshamsinh to the Police Station to answer a supposed charge of abduction, received assurance from the circumstance that on the 10th and 11th July, 1968, Bai Sati was in the police-station. 17. It is no doubt correct that the High Court has not disturbed the acquittal of Accused 1 on the ground that Ghanshamsinh's evidence with regard to the demand of the bribe by Accused 1 on the 11th, had not been corroborated by other independent evidence. The only effect of the acquittal of Accused 1, however, is that it cannot be now urged that Accused 1 had demanded any bribe from Ghanshamsingh on the 11th. But his acquittal does not in any case discount the fact or obliterate the evidence in regard to the fact that Ghanuba was called to the Police Station and was told by the appellant that there was a charge of abduction of Bai Sati against him. Nor does the acquittal of Accused 1 have the effect of exonerating the appellant of the demand of bribe on the 11th and again on the 12th. 18. As already noticed, the testimony of Ghanshamsinh both with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on does not require that the public servant must, in fact, be in a position to do the official act, favour or service at the time of the demand or receipt of the gratification. To constitute an offence under this section, it is enough if the public servant who accepts the gratification, takes it by inducing a belief or by holding out that he would render assistance to the giver "with any other public servant" and the giver gives the gratification under that belief. It is further immaterial if the public servant receiving the gratification does not intend to do the official act, favour or forbearance which he holds himself out as capable of doing. This is clear from the last Explanation appended to Section 161, according to which, a person who receives a gratification as a motive for doing what he does not intend to do, as a reward for doing what he has not done, comes within the purview of the words "a motive or reward for doing." The point is further clarified by Illustration (c) under this section. Thus, even if it is assumed that the representation made by the appellant regarding the charge of abduction of Bai Sati against Ghanshamsingh was, in fact, false, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is being the case, contends Mr. Keswani, the High Court was not in the event of the acquittal of Accused 1, competent to convict the appellant under Section 161 with the aid of Section 34, Penal Code. 26. The contention must be repelled. Firstly, the High Court has not convicted the appellant with the aid of Section 34, Penal Code. Secondly, although in the charge only Section 161, read with Section 34, Penal Code was mentioned, the language of the charge, could leave the appellant in no doubt that in addition to the vicarious charge under Section 161, read with Section 34. he was being charged with the commission of an offence under Section 161, simpliciter also. This was manifest from the words: "You Accused 2 directly accepted from Shri Ghan shamsinh Champublia Zala Rupees 500/-...." All the material circumstances appearing in evidence constituting an offence under Section 161, Penal Code simpliciter were put to him during his examination. This objection was not raised in any of the courts below at any stage. No prejudice has therefore, been caused to the appellant by this technical defect in the charge. In any case this irregularity stood cured under Section 537. Cri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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