N Criminal Appeal No 250 of 1971
Appeal by special leave from the judgment and order dated the 1st July 1971 of the Gujarat High Court at Ahmedabad in Criminal Appeal No 33 of 1970
N N Keswani for the appellant
section N Anand and M N Shroff for the respondent
1054 The Judgment of the Court was delivered by SARKARIA J
The appellant in this appeal was Accused No 2 in the trial court
He was a Head Constable Jamadar posted at the relevant time in Police Station Zinzuwada
His co accused No 1 was a Police Sub Inspector posted in the same station
One Bai Satiwas alleged to have been abducted by Ghanshyamsinh alias Ghanuba
She was in the Police Station on the 10th and 11th of July 1968
Accused 1 recorded her statement and thereafter asked one Fateh Sinh PW 7 to bring and produce his cousin Ghanshamsinh
Fateh Sinh accordingly produced Ghanshamsinh before Accused 1 on July 11 1968
Accused 1 directed the appellant to take charge of Ghanshamsinh
The appellant did likewise and told Ghanshamsinh that if he wanted to get rid of the charge he should gratify the Sub Inspector
The appellant backed 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 2000 
At first Ghanshamsinh expressed his inability to pay the amount
Ultimately at the intervention of Accused 2 the demand was scaled down to Rs 1000 and it was agreed that out of the amount a sum of Rs 500 would be paid on the following evening at the latest
Ghanshamsinh was then allowed to go
He then talked about this deal to his cousin Fatehsinh
On the following day Ghanshamsinh went to Ahmedabad and contacted Shri R R Desai PW 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 Ghanshamsinh 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
Ghanshamsinh was sent ahead with the tainted money to the Police Station
On seeing Ghanshamsinh along with Panch Mahendra going to the residence of Accused 1 the appellant called him and took him to his office room in the Police Station
Ghanshamsinh informed the appellant that he had brought the money as agreed for payment to Accused 1
The appellant told him that Accused 1 being away he was the acting Station House Officer and the money should be paid to him adding that he would in turn pass it on to Accused 1 on his return
Ghanshamsinh then handed over those five currency notes to the appellant who accepted the same and placed them in the drawer of his table
All the three persons then came out of the room
The appellant locked the room
On receiving the agreed signal from Ghanshamsinh the police party rushed in and caught hold of the appellant by the hand
With the key found on the person of the appellant Inspector Desai unlocked the room and recovered the currency notes from the drawer of the appellant s table
The hands of the complainant Ghanshamsinh Panch Mahendra and the appellant were examined in the light of an ultra violet lamp
Such examination revealed anthracene powder on the hands of the appellant and Ghanshamsinh but no such powder was seen on Panch Mahendra
Shri 1055 Desai prepared the Panchnama
Certain police papers on the demand of Inspector Desai were produced by the Writer Constable Kansanbhai
These are 1 Statement dated July 11 1968 of Bai Sati recorded by Accused 1 2 Statement dated July 11 1968 of Koli Mana Jiva recorded by Accused 1 3 the writing sent by Police Sub Inspector Dasuda under Javak No 2991 dated July 10 1968 as per endorsement dated July 18 1968 to the Police Inspector Zinzuvada 4 The Statement of Bai Sati recorded by the Police Sub Inspector at Dasuda on July 10 1968
The Inspector seized these records
After completing the investigation the police sent both the accused under a charge sheet for trial before the Special Judge Surendranagar on charges under section 161 read with section 34 and section 165A of the Penal Code and under section 52 read with section 51d of the Prevention of Corruption Act
The trial Judge acquitted both the accused of all the charges levelled against them
On appeal by the State the High Court of Gujarat reversed the acquittal of the appellant and convicted him on two counts namely one for an offence under section 161 Penal Code and the other under section 52 read with section 51d 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
Hence this appeal by special leave
The mainstay of the prosecution case is the testimony rendered by Ghanshamsinh PW 1 and Panch Mahendra PW 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 PW 1
Inspector R R Desai PW 8 was the Head of the raiding party who recovered the tainted notes
Examined under section 342 Cr
PC the appellant while denying the demand of the bribe on the 11th July 1968 from Ghanshamsinh gave this account of what happened on the 12th July 1968  the complainant Ghanubha Champubha and his companion came up to me
I asked Ghanubha as to why he had come
He informed me that his companion was related to the PSIand that he had some work with him
He told me that he had accompanied him to show him the police station
I offered them seats and gave them water
I questioned the above person about his relationship with the Sub Inspector
He replied to me that he was the agnate of PSI Joshi and that he had come to hand over money to him as his son was sick and that the said money was sent by his family from Ahmedabad
I instructed him to approach his wife and give money to her
He told me that if he met her he would have to stop for the night so that he would not be able to attend the HL College in the morning
He told me to take the money and give it to PSI 1056 Joshi and that I should arrange for his transport to Ahmedabad in some motor truck proceeding there
He gave me Rs 500 in five G C Notes which are now before the Court at article 2
I placed them in a cloth purse and kept it in my drawer over the said application of Narubha exhibit 51
I offered them tea and asked them to wait outside
I also told him that I would arrange for his lift in the motor truck carrying salt to Ahmedabad
So saying we came out of the police station
I locked my room because in it are placed arms and ammunitions
I was leaving the Police Station and going to the hotel for placing an order for tea when two men held me by my two hands
They brought me in the compound of the Police Station
Other 3 4 men turned up and one Saheb from amongst them asked me to produce the money
I exclaimed What money I told him if the money that was required was the same which the cousin of PSI Joshi had handed over to me
The officer insisted that the money must be produced
I was then perplexed
He took the key from one of my hands and opened my room and took out the money
I was seated in the verandah and was not allowed to go inside
I then learnt that the said brother of the PSI was none else but Panch No 1
The Officer asked from me the papers of investigation against Ghanubha
I said that I had no such papers and that I had not made any such investigation against him
He then attached some papers from the Writer Constable Karsan Talshi
 Thus the appellant had admitted the acceptance of the tainted currency notes which were not his legal remuneration
In variance with the prosecution case he however alleged that this money was handed over to him by Mahendra PW 4 with the representation that he was a cousin of P section I Joshi who was then away 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 DW 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 PW Mahendra
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 Zanzuwada Police including the appellant
He brushed aside the evidence of Mahendra with the puerile observation that he as a trainee Press Reporter would be beguiled into 1057 getting this first class report of a sensational raid by acting as a panch witness in this raiding party at the instance of Mr Desai and in that event Mahendra would be too willing to accompany the raiding party and in that context would be under the intelligent thumb of police not by means of pressure but as a result of human inquisitive willingness induced in him
 The trial Judge further stressed the fact that Mahendra had accompanied the raiding party from Ahmedabad to Zunzuwada and had travelled in the police van for over three hours and this in his opinion was sufficient to show that the witness was not so much independent as he professed to be He further found it unbelievable that the appellant would accept the sum of Rs 500 as a bribe from Ghanshamsinh in the presence of a stranger Mahendra
The conclusions reached by the trial Judge had no foundation in evidence
They belonged to the realm of purespeculation
Apart from mere suggestions put to the prosecution witnesses in cross examination which were emphatically denied there was no evidence to show that Parbhat Singh Girasdar was in any way hostile or inimically disposed towards the appellant
There was no justification for the conjecture that Panch Mahendra was under the thumb of Inspector Desai and as such was an interested witness
We have examined the evidence of Mahendra and are satisfied that the High Court rightly found him a truthful and trustworthy witness who had no axe of his own to grind
The defence version to the effect that it was Mahendra who had actually passed on the tainted money to the appellant by holding himself out as a relation of the Sub Inspector was falsified by the circumstance that no anthracene powder was found on Mahendra when immediately after the recovery of the tainted notes his hands were examined in the light of ultra violet lamp while such powder was admittedly found on the hands of the appellant and Ghanshamsinh
This circumstance was deposed to by Inspector Desai PW 8 whose version on this point was not challenged in cross examination
Thus while DW 1 told a lie on this point this uncontroverted circumstance could not
The presence of Mahendra PW 4 at the time of the receipt 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
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 PW 1
On proof of this fact the statutory presumption under s41 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
Mr Keswani contends that the appellant had rebutted this presumption by bringing on record circumstances which militate against it
The 1058 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 FIR had been lodged by any person complaining of the abduction of Bai Sati against Ghanshamsinh or any other person
Our attention has been drawn to the statement of Bai Sati which is said to have been recorded by Accused 1 on the 11th January in which it is recorded that she had not been kidnapped or abducted by any person but had gone away from her father s house of her own accord
The second circumstance stressed by the Counsel is that Accused 1 has been acquitted of the charge of demanding a bribe directly or indirectly through the appellant from Ghanshamsinh
It is urged that the effect of the acquittal of Accused 1 is that the money passed on to the appellant on the 12th cannot be held to have been paid pursuant to any demand of bribe made by Accused 1 or by the appellant
The third circumstance pointed out by the Counsel is that Ghanshamsinh had a grudge against the appellant and a motive to falsely implicate him because the appellant had previously investigated a criminal case under section 324 Penal Code against the appellant who being aware of it would be least disposed to accept the amount as a bribe for himself or for the Sub Inspector
It is further contended that PWs Fatehsinh and Ghanshamsinh were persons of questionable antecedents and their evidence in the absence of reliable independent corroboration in regard to the demand and acceptance of the money as a bribe could not be safely accepted
We are unable to accept the contention that the presumption under section 41 of the Prevention of Corruption Act had been rebutted
While it is true that no report or complaint had been made or registered in the Police Station that Ghanshamsinh had abducted Bai Sati there was credible evidence on the record to believe that both the accused had asked Fatehsinh PW 7 to produce his cousin Ghanshamsinh in the Police Station in connection with the investigation of a charge of abduction of Bai Sati against him
Fatehsinh conveyed this message to Ghanshamsinh on July 10 1968
Consequently on July 11 1968 Ghanshamsinh was produced by Fateh Singh before the Police Sub Inspector at the latter s residence and thereafter Accused 2 the appellant took him into the Police Station and made him sit in his room
It was the appellant who then accused Ghanshamsinh of having abducted Bai Sati and warned him that in case he did not pay money to the Sub Inspector he would be arrested and paraded in handcuffs around the village
Evidence of PWs Ghanshamsinh and Fatehsinh 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
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 Ghanshamsinh on 1059 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
As already noticed the testimony of Ghanshamsinh both with regard to the demand of the gratification by the appellant and its payment to him on the 12th stood fully corroborated by the independent and reliable testimony of Panch Mahendra
Thus so far as the appellant is concerned the testimony of Ghanshamsinh having been fully confirmed by other trustworthy evidence could safely be acted upon
As regards the contention that the appellant was not in a position to show any favour or disfavour to Ghanshamsinh in connection with his official duties it may be noted in the first place that on the 12th July at the relevant time the Sub Inspector being away the appellant was actually incharge of the Police Station
This fact is borne out by the entry exhibit 47 in the Station Diary
On seeing Ghansham and Mahendra going towards the residence of the Sub Inspector the appellant called them and enquired from Ghanshamsinh if he had brought the money
Ghanshamsinh replied in the affirmative but hesitated to hand over the money to him saying that the Sub Inspector was not present
Thereupon the appellant represented that he was the PSI and that the money should be handed over to him adding that he would pass it on to the PSI on his return
Thereupon Ghanshamsinh paid the amount to the appellant saying that he should not be harassed any more and that the demand for the balance be mercifully dispensed with
The appellant while accepting the money assured Ghanshamsinh that he had nothing to fear so long as the appellant was concerned in that affair
Secondly this demand for payment and acceptance of the money by the appellant on the 12th July had to be appreciated in the context of the representation made by the appellant on the preceding day to the effect that if Ghanshamsinh would not pay the gratification he would be arrested handcuffed and paraded for the offence of abducting Bai Sati
The proof of the foregoing facts was sufficient to establish the charge under section 161 Penal Code
The mere fact that no case of abduction or of any other offence had been registered against Ghanshamsinh in the Police Station or that no complaint had been made against him to the Police by any person in respect of the commission of an offence could not take the act of the appellant in demanding and accepting the gratification from Ghanshamsinh out of the mischief of section 161 Penal Code
The Section 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 1060 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 Ghanshamsinh was in fact false this will not enable him to get out of the tentacles of section 161 although the same act of the appellant may amount to the offence of cheating also see Mahesh Prasad vs State of UPDhaneshwar Narain Saxena vs Delhi Admn
Indeed when a public servant being a police officer is charged under section 161 Penal Code and it is alleged that the illegal gratification was taken by him for doing or procuring an official act the question whether there was any offence against the giver of the gratification which the accused could have investigated or not is not material for that purpose
If he has used his official position to extract illegal gratification the requirement of the law is satisfied
It is not necessary in such a case for the Court to consider whether or not the public servant was capable of doing or intended to do any official act of favour or disfavour see Bhanuprasad Hariprasad Dave and anr
vs State of Gujarat and Shri Raj Singh vs Delhi Administration
In the light of what has been said above it is clear that the appellant has failed to rebut the presumption arising against him under section 41 of the Prevention of Corruption Act
It is true that the burden which rests on an accused to displace this presumption is not as onerous as that cast on the prosecution to prove its case
Nevertheless this burden on the accused is to be discharged by bringing on record evidence circumstantial or direct which establishes with reasonable probability that the money was accepted by the accused other than as a motive or reward such as is referred to in section 161
The appellant had hopelessly failed to show such a balance of probability in his favour
Thus the charge under section 161 Penal Code had been fully brought home to the appellant
The charge under section 51d read with section 52 also had been proved against him to the hilt
Clearly he had obtained the money by grossly abusing his position
Lastly towards the fag end in reply Mr Keswani attempted to assail the conviction recorded by the High Court on a ground which had not been raised in the courts below
The charge against the 1061 appellant was that he had committed an offence under section 161 read with section 34 Penal Code
No charge under section 161 simpliciter was separately drawn up against him
This 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
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 Ghanshamsinh Champublia Zala Rs 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 Criminal Procedure Code
For the foregoing reasons the appeal fails and is dismissed
VPS Appeal dismissed


Summary:
The appellant a Head Constable and the Sub Inspector of Police were charged with offences under section 161 read with section 34 and section 165A IPC and under section 52 read with section 51d Prevention of Corruption Act 1947
The appellant admitted the receipt of money and its recovery from him but stated that PWS 1 and 4 came to the Police Station that PW 4 claimed to be a relative of the Sub Inspector and that it was PW 4 and not PW 1 who gave him the money to be handed over to the Sub Inspector who was absent
The prosecution adduced evidence to show that the two accused arranged for the production of PW 1 at the Police Station in connection with the investigation of a charge of abduction of a woman that the Sub Inspector directed the appellant to take charge of PW 1 when he arrived that the appellant demanded a bribe from PW 1 to save himself from the charge as well as the indignity of being handcuffed locked up and paraded that a trap was set the next day when PW 1 paid the amount in the presence of PW 4 and that the amount was recovered from the appellant in a raid
The trial court acquitted both the accused but on appeal the High Court acquitted the Sub Inspector but convicted the appellant under section 161 IPC and section 52
Prevention of Corruption Act
In appeal to this Court the appellant contended 1 that PW 1 s evidence regarding the payment of gratification should not be accepted without independent corroboration 2 that the statutory presumption under section 41
Prevention of Corruption Act that the appellant accepted the gratification as a motive or reward such as is mentioned in section 161 IPC should not be drawn against the appellant because a there was in fact no complaint whatever against PW 1 in respect of the commission of the offence of abduction and b the effect of the acquittal of the Sub Inspector was that the money could not be held to have been paid to the appellant pursuant to any 161 demand of bribe and c that since the two accused were charged under section 161 read with section 34 on the acquittal of the Sub Inspector the appellant could not be convicted under section 161 simpliciter
Dismissing the appeal  HELD 1 The testimony of PW 1 stood fully corroborated by other independent and reliable testimony and hence could be safely acted upon
The defence version that it was PW4 who paid the money was falsified by the fact that no anthracene powder with which the notes used in the raid were smeared was found on PW 4 s hands
while it was found on the hands of the accused and PW1
1057E 1059B C 2a The mere fact that no complaint of abduction or of any other offence had been made or registered against PW 1 could not take the act of the appellant in demanding and accepting the gratification from PW 1 in the context of the threat by the appellant out of the mischief of section 161 IPC The section does not require that the public servant mustin factbe in a 1053 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 also 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
The last Explanation and Illustration c to the section show that the person who receives a gratification as a motive for doing what he does not intend to do or as a reward for doing what he has not done comes within the purview of the words a motive or reward for doing
When a public servant being a police officer is charged under section 161 IPC and it is alleged that the illegal gratification was taken by him for doing or procuring an official act the question whether there was any offence against the giver of the gratification which the accused could have investigated or not is not material for that purpose
If he has used his official position to extract illegal gratification the requirement of the law is satisfied
1059F 1060E Mahesh Prasad vs State of UP   Dhaneshwar Nariam Saxena vs Delhi Admn
  Bhanuprasad Hariprasad Dave and anr
vs State of Gujarat  and Shiv Raj Singh vs Delhi Administration   followed
In the present case on the day of the payment the Sub Inspector was away and the appellant was actually in charge of the police station
It was he who called PW 1 and asked if he had brought the money and when PW 1 replied in the affirmative but hesitated to hand over the money represented that the money should be handed over to him and that he would pass it on to the Sub Inspector and that PW 1 would have nothing to fear
1059C F b The only effect of the acquittal of the Sub Inspector is that it cannot be urged that the Sub Inspector had demanded any bribe from PW 1
It does not in any way discount the evidence that PW 1 was called to the police station and was informed by the appellant that a charge of abduction was against him and that the appellant demanded and received a bribe from him
1058H 1059B c The burden on the accused to displace a presumption is not as onerous as that on the prosecution to prove its case but the accused has to discharge it by adducing evidence circumstantial or direct which establishes with reasonable probability that the money was accepted by the accused other than as a motive or reward such as is referred to in the section
In the present casethe appellant had failed to show such a balance of probability in his favour
1060E G 3 The language of the charge shows that in addition to the charge under s161 read with section 34 the appellant was in substance also being charged under section 161 simpliciter
All the material circumstances appearing in evidence constituting an offence under section 161 were put to him during his examination under section 342 Cr
The objection that he could not be convicted under section 161 simpliciter was not raised in any of the courts below
No prejudice has therefore been caused to him because of this technical defect of there being no express charge under section 161 simpliciter and the irregularity if any is cured under section 537 Cr
PC 1061B D