[2008] 16 S.C.R. 447

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BALIRAM S/O IRRAPPA KAMBLE A

II.

STATE OF MAHARASHTRA (Crl. Appeal No.1130 of 2001)

NOVEMBER 20, 2008 B

[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM

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SHARMA, JJ.]

Prevention of Corruption Act, 1988 - ss. 7 and 13(1)(d) rlw s. 13(2) - Demand of illegal gratification - Complaint- Trap c arranged - Participation of two independent witness in the trap

- Recovery of treated currency from the accused - Conviction by courts below - On appeal, held: Prosecution has established the case of demand as well as acceptance of bribe money - The Anthracene Powder Test gives D considerable support to the prosecution version.

~ Appella.nt-a Minimum Wages Inspector (Agriculture) , '

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was alleged to have demanded illegal gratificatin from PW-1 (Comp1ainant) for dropping action for not maintaining register with regard to seriice conditions of E his yearly servant. On 20.7.1989, since PW-1 had no money, he wa$ asked to come on 27.7.1989. On 27.7.1989, he made a complaint about the demand. A trap was

arrnged. In 'he trap, when the treated currency notes recovered from the pocet of the appellant and his pocket F --r. and his hancs were put to Anthracence Powder Test, it went against the appellant.

Special Judge held that prosecution proved demand of bribe money, offer of tainted money by PW-1, acceptance of tainted money by the appellant and G

recovery of the tainted money. The appellant was convicted u/ss. 7 and 13(1)(d) r/w s. 13(2) of Prevention of Corra.tption Act, 1988. High Court upheld the

447 H

A conviction. Hence, the present appeal.

Appellant contended that there was no demand of bribe, as the tainted money was. thrust on him; and that after the case against the compl.ainant was closed on ; , 8

26.6.1989, there was no occasion for making any demand ...

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Dismissing the appeal, 'the Court

HELD: The evidence of the witnesses clearly establishes not only ttie demand, but also the'acceptance C of bribe money. The.Anthracene Powder test conducted

lnds considra.ble' support,~~ the

0 p~secutin version. _The making of demand of bribe money is established from the fa_cts_ tht on ~0.7.1989, PV\1.-1 (complainant) had gone to tile office of appellant, who deman.ded Rs.100/- from D him. Since PW-1 had no mone.y with him o'n that day he promised to come later. Appellant asked PW-1 to maintahi the register and--asked him to.come•on.27.; i .. 1989. Thereafter, PW-1 contacted Deputy SR (PW-11)and told him about the demand.t The complaint was. recorded as E Exh.16; Two independent witnesses were called from the Accounts Department of Zilla Parishad. They , were apprised of the demand of bribe ... Trap was .thereafter arranged. The fact that in Exh.18 there is:an endorsement, is a clear indication that the. case against PW-1 .. was to F continue, falsifies the stand of the .appellant. that no proceeding was continuing. [Paras 4 .and 6] [454-8-D;

456-B]

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State Represented by Inspector of Police1 Pudukottai, T.N .. v. A Parthiban 2006-(11) SCC 473, :relied on.•~ 11.

G 'l ·• I~ 1' lo, • , , !". ' . t I , t . Case Law Reference: . ' J • ' -Cf ' ' t .. ,..

J ... ,. • --' '200G'(11) sec 473 Relied on. Para 5 ....

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CRIMINAL APPELLATE JURISDICTION : Criminal Appeal , H No. 1130 of 2001.

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BALIRA.M S/O IRRAPPA KAMBLE v. STATE OF 449 ..

MAHARASHTRA ... --+ From the final Judgment and Order dated 15.2.2001 of the A High Court of Judicature at Bombay, Bench atAurangabad in Criminal Appeal No. 303 of 1990.

Arun R. Pednekar and V.N. Raghupathy for the Appellant.

Ravindra Keshavrao Adsure for the Respondent.

"' 't . The .Judgment ofthe Court was dellvered by

DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to the judgment of a learned Single Judge of tre Bombay High Court upholding the conviction of the appellant for offence c punishable under Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 (in short the 'Act').

The learned Special Judge; Osmanabad, convicted the appellant and sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.1,000/- with default stipulation.

2 .. Prosecution version as unfolded during trial is as

~ )· follows:

The appellant was appointed as a Minimum Wages Inspector (Agriculture), in the month of June, 1984, by the E Deputy Commissioner of Labour, Aurangabad. At the relevant' time he was serving at Osmanabad. The appellant visited the land belonging to complainant, Shivaji Bandu Padwal which is situated at village Upala, taluka .and district Osmanabad on 22nd of April, 1989. In fact, this land stands in the name of the F . --r . wife and two sons of Shivaji Padwal in the revenue record.

Laxman Kadam (PW-5) was in the employment of Shivaji Pad"Val on yearly basis. He was present in the field at the relev.ant time. Appellant made enquiry with regard to his service conditions. Laxman Kadam (PW5) told that his yearly salary G was fixed at Rs.3,000/-. He did not supply necessary -t information with regard to holidays and hours of the work. He was not aware about. the register to be maintained by the employer with regard to yearly servants.

The appellant issued a notice dated 24.4.1969 to Shivaji H

A. Padwa1 (P\/Y-1) and asked him to see. him in his office in connection with ser\tiee conditions of his yearly servant. Shivaji Padwal{PW-1) did not respond to the said-n9tice'. Thereafter, appellant issued another notice on 25 .5 .1989 to Sh ivaji Padwal and asked him to see him in his office wi.th required registers. s However, Shivaji Padwal did not respond to the second notice.

sivaji Padwal visited the office of the appellant or:11.e.1'9a9 and 15.6.1989. However, appellant was not present in the offiee.

ad. therefore, ShivajJ Padwal could :nqt see_ appellant-. .

Shivaji Padwal went. to the office, of the appellant on.

C 22.6.1989. He met acQused in the office at 'about 2.00 p.m.

Appell.ant made enquiry with Shivaji°Padwal and ased him. whether he had maintained register with regard to service conditions of his yearly servant Laxman Kadam, Shivajl Padwal told appellant thathe had riot majntained a register. t:f owever; D he prqmised him to keep the 'register in future arid produce the

same before him .. for" the 'purpose 'ofllispection. 'lfis the prosecution's case that appellant demanded Rs.100/- from S .. ivaji Padwa~ for dropping the, action. for .nofmaihtaining the register. Shivaji Padwal had no money that day and therefore E promised him to pay Rs.1001:- later. ··· . ..., . . . .

On 20.7.1989, Shivaji Padwal went to the office of the. appellant. Appellant demanded Rs.100/- fr9rrl him. Shivajf Padwal (PW1) had no money with him that day, however, he promised appellant to fulfil his demand. Appellant akeg Shivaji F Padwal (PW 1.), to maintain register 'and a$ked him to come on 2i7.1989:0n 27:7.19'8~ at 10.30 a.in. Shivaji Pdwa1 (pW-

1) went to 'the office of Anti Corruption .Bure.au arid contacted Dy. S. P: 'Shetkar (PW 11) and told. him' a pout the demar}d, of appellant for illegal gratification. Shetkar (PW'."11}.recorded, the, G complaint Exh. 16 lodged'by Shivaji Padwal (PW-1). Dy. SP.

Slietkar (PW.1,1) immediately called two'. ind¢pemdent panchas, namely; Kasfiinafh Gore (PW-:-2) , and Madhukar kµlkami fom the.Accounts Departmenfof Zilla.Parishad. In re$ponse io the

.. re9uisition,. Ka.sinat, h .G9re {PW-~) ad,, Madhu.kar Ku.lkarni H -~peared in the office of the Anti Corruption Bureaµ. Shetkar

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BALIRAM S(O IRRAPPA KAMBLE v. STATE OF 451

MAHARASHTRA [DR. AR~JIT PASAYAT, J.}

apprised them about the complaint of Shivaji Padwal. Shetkar A (PW-11) then arranged a trap. Shivaji Padwal presented one currency note of denomination of Rs.50/- and five currency notes of denomination ofRs.10/'-. The currency notes were treated with anthracene powder. Shetkar (PW-11) told Shivaji Padwal

and two panchas ab.out the properties of anthraeene powder. a He told them that if treated currency notes are seen by naked. eye in ordinary light, the currency notes do not emit any lightor shining. He further told them that if the treated currency note is examined in the light of ultraviolet lamp, the treated currency notes emit a particular colour or shining. He gave a c demonstration with the help of an ultraviolet lamp. He gave usual instructions to the members of the raiding party. Treated currency notes were kept in the right side pant pocket of Shjvaji Padwal. Complainant Shivaji Padwal (PW-1) was asked to offer the treated currency notes to appellant only on demand.

P.anch Kash.inath Gore was asked to accompany $hivaji D Padwal. Panch Madhukar Kulkarni was. asked to accompany the members of the raiding party. A deta.iled. pre-trap panchanama Exh .20 was prepared.

. . .$hivaji Padwal (PW 1) .and Kashinath Gore (PW 2) went E to. th~ offic~ .of appellant at 3.45 p.m. 011 27. 7.1989. Appellant was nqt present in the office. Shivaji Padwal and Pan ch Kashinath Gore contacted Dy. S.P; Shetkar (PW 11) and told him that accused was not present in the office. Shetkar (PW-

11) asked them to wait in the office of appellant and accordingly F both of them returned to the office of the appellant. After some time, appellant came to the. office and occupied his chair.

Shivaji Padwal (PW 1) and panch Gore (PW-2) sat on the Bench. Shivaji Padwal (PW-1) opened the topic. Appellant asked him whether he had brought the money. hivaji Padwal G replied in the affirmative. Appellant then took out Exh. 18 and made endorseme.nt. Appellant put his signature (Exh. 17).

Thereafter, Shivaji Pad\f!al took out the treated currency notes from his right side pant pocket and. offered the .treated money to the appellant. The appellant accepted the treated money with H

A his, right; hand. Appellantcounted_the gurrency notes by both the

hands and kept the currency notes in the right-sidepocet'of his pant,.· · ,. \' --

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,· After delivery of the tainted money, .Shivaji Padwa.tgave. sig.nal to the mmbers of the raiding party . ..The mernbers of he 8 raiding party immediately entered_ the. office of the appellant. •

Police Head .. Constable. Mane immediately caught bpth tlJe hands of the appellant. On enquiry, appellant told Shetkar (PW-:

11) that currency.notes were in the right side pocket of_ his pant.

Shivaji PadwaL was asked to go outside .the office .and c accordingly he went outside the office. Inspector, Gaedade who was member of the raiding party put on the ult_raviolet lamp and in the said light hands of all the members of the 'raiding party including two panchas and Shetkar (PW-11) wee examined. 'f Anthracene powder was not seen on the hands of the members D of the raiding party .. Thereafter, bot~ the ands of accused were examined in the light of.ultraviolet lamp. Antnracene. Powqer was found on both the hands of the appellant. In the light of ultraviolet lamp, the finger tips of both the hands of th~ appeUant. emitted a particular shining. Shetkar (PW-11) then asked panch E Madhukar.Kulkarni to take-out the treated cur(ency notes from the right .side pocket-of the pant of the appellant and in response to theinstructions, Panch Madhukar Kulkarni took out the treated currency notes: The treated currency. notes and the inner portion of the right side pant: pocket of theappellant were F examined in the light of ultrayi_o1et lamp. The treated currency notes and the inner portion of the right side pant pocket of the appellant emitted a shining. A.currency note of.den9mination of Rs2/"l.which was found in the right side pant pocket of the accused was also recovered_and was exami.ned in the light, of G ultraviolet lamp. the currency note of s.2/- emittd, ashihJng.

However, anthracenepowder was not noticed on the remaining . three currency note.s of Rs.2/- which were found -kept inside the fold of the upper currency note of denomination of Rs.2/- which emitted the shining. All the articles were attached undec H panchnama. -The document i.e. Ext:i. 18 ori, which-appel!ant hacf -

BALIRAM S/O IRRAPPA KAMBLE v. STATE OF 453

MAHARASHTRA [DR. ARIJIT PASAYAT, J.]

~ -1 made endorsement was also attached from the custody of the A appellant. Complainant Shivaji Padwal was called inside the office. His right hand and inner portion of his right side pant pocket were examined in the light of the ultraviolet lamp. The finger tips of his right hand and inner portion of the right side pocket of his pant emitted shining. A detailed post trap B

j panchnama Exh. 21 was prepared. ...t .,

Dy. S.P. Shetkar lodged FIR, Exh.39 on 28.7.1989. On the basis of FIR Exh.39 crime No.29/1989 was registered under Section 7, 13(1)(d) read with Section 13(2) of the Act. Dy. S.P. c Shetkar (PW-11) carried out the investigation of the crime. After obtaining the sanction (Exh.37) from Dy. Commissioner of Labour, Aurangabad, Shetkar submitted charge sheet on 31.12.1989. Learned Special Judge, Osmanabad, framed charge (Exh. 10) against the appellant, who pleaded not guilty D to the charge and claimed to be tried.

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In order to prove the guilt of the accused, prosecution examined 11 witnesses. The appellant accused put forth the plantation theory. According to him, Shivaji Padwal forcibly inserted treated currency notes into his right side pant pocket E on 27.7.1989. He offered resistance to Shivaji Padwal at that time. In the process of resistance, the anthracene powder was transmitted to the finger tips of both his hands.

The learned Special Judge held that the prosecution F -t proved the demand of bribe money, offer of tainted money by PW 1 and acceptance of tainted money by the appellant and recovery of tainted money from the person. Accordingly, he was convicted.

The stand of the appellant before the High Court was that G 1

money was thrusted on him and there was no scope for making any demand. The relevant dates are 24.4.89, 25.5.89, 1.6.89 and 15.6.89. That being so, the complaint which was filed on 27.9.89 appears to be ma/a fide and which is apparent from the fact that the raid was made on 27.7.89. The endorsement H

A on Exh.18 on 26.6.89 has not been established to have been .. done by the appellant. After the case was closed on 26.6.89, there was no occasion for making any demand. ,_

3. Learned counsel for the respondent on the other hand

)... l 8 supported the judgmen~ of the High Court.

4. So far as the stand that there was no demand made, E as noted above on 20.7.1989, PW-1 had gone to the office of -r ......

appellant who demanded Rs.100/- from him. Since PW-1 had I

no money with him on that day he promised to come later. l c Appellant asked PW-1 to maintain the register and asked him

to come on 27.7.1989. Thereafter, PW-1 contacted Deputy SP (PW-11) and told him about the demand. The complaint was \ recorded as Exh.16. Two independent witnesses PW 2 and one Madhukar Kulkarni were called from the Accounts Department I D of Zilla Parishad. They were apprised of the demand of bribe.

Trap was thereafter arranged.The fact that in Exh.18 there is an endorsement, is a clear indication that the case was to r

continue, falsifies the. stand of the appellant that no proceeding ~ was continuing. ' .__ E I 5. So far as the question regarding no demand is

concerned, this Court in State Represented by Inspector of ""° Police, Pudukottai, T.N. v. A. Parthiban (2006 (11) SCC 473) observed as follows:

F "5. The stand that respondent could not have been simultaneously convicted for offences relatable to Section <

~ 7 and Section 13(2) read with Section 13(1)(d) of the Act, as held by the High Court is clearly unacceptable. Section )- 71 IPC provides the complete answer. The same reads G as follows:

"71. Limit of punishment of offence made up of .tseveral offences. - Where anything which is an roffence is made up of parts, any of which parts is

H itself an offence, the offender shall not be punished

BALIRAM S/O IRRAPPA KAMBLE v. STATE OF 455

MAHARASHTRA [DR ARIJIT PASAYAT, J.]

with the punishment of more than one of such his A offences, unless it be so expressly provided.

Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or 8 punished, or

where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence,

the offender shall not be punished. with a more severe punishment than the court which tries him could award for any one of such offences."

Xx xx xx

8. Every acceptance of illegal gratification whether preceded by a demand or not, would be covered by Section 7 of the Act. But if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall under section 13(1)(d) of the E Act. The act alleged against the respondent, of demanding and receiving illegal gratification constitutes an offence both under Section 7 and under Section 13(1)(d) of the Act.

The offence being a single transaction, but falling under two different Sections, the offender cannot be liable for double F penalty. But the High Court committed an error in holding that a single act of receiving an illegal gratification, where there was demand and acceptance, cannot be an offence both under Section 7 and under Section 13(1)(d) of the Act.

As the offence is one which falls under two different G sections providing different punishments, the offender should not be punished with a more severe punishment than the court could award to the person for any one of the two offences. In this case, minimum punishment under Section 7 is six months and the minimum punishment H

under Section 13( 1 )( d) is one year. If an offence falls under both Sections} and 13(1)(d) and the court wants to award qnly the minimum punishment, the.n the punishment would b " • e.one year. - . - .

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6. The evidence of the witnesses dearly establishes not only the demand, but also the acceptance. The anthracene powder test conducted lends considerable support to the prosecution version. + "'

7. Above being the position, there is no merit in this appeal C which is dismissed accordingly.

K.K.T.

Appeal dismissed.

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