Judgment:
1. These two appeals can be decided by this common judgment as they arise out of one and the same case in which two appellants-accused No. 2 and accused No. 1, respectively, were tried and convicted for offences u/S. 161 read with S. 34 of the Indian Penal Code as also under section 5(1)(d) read with S. 5(2) of the Prevention of Corruption Act, 1947. Upon conviction, on each count each of the appellants was sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 1,000/-, in default to suffer further rigorous imprisonment for six months. The substantive sentences of both the appellants were directed to run concurrently.
2. The Appellant (Orig. accused No. 2) in Criminal Appeal No. 786 of 1986 Vilas Phulchand Mutha, is a Field Officer and Development Officer in the employment of the United India Insurance Company Limited having its Divisional Office at Pune. The United India Insurance Company Limited is a subsidiary Company under the General Insurance Corporation of India which was established by a Statute in the year 1970. This appellant-Mutha was, at the material time in the year 1982, the Field Officer attached to the area in and around Narayangaon in District Pune. The Village Rajuri, Taluka Junnar, District Pune also was within the field activity of the appellant-Mutha as a Development Officer. The appellant (Orig. accused No. 1) in Criminal Appeal No. 788 of 1986 was, at the material time and in the same material period, a Veterinary Officer-in-charge of the Veterinary Dispensary at Narayangaon. He also used to visit, in the course of his duties as the Officer-in-charge of the Dispensary at Narayangaon another similar Unit at Rajuri, Taluka Junnar, which was attended to by a Veterinary Assistant. At the material time, the Veterinary Assistant at Rajuri was one Arjun Thombare P.W. 5.
3. The prosecution case is that the father of the present complainant, upon whose complaint proceedings in this case were initiated, is an agriculturist of Rajuri. The complainant and his father are the members of a large joint family. A substantial number of cows of Jersey Hosstein and Cross Breeds as also some cross breeds had been purchased by taking loans from the Maharashtra State Co-operative Land Development Bank, Pune. The complainant's father is an illiterate person. A loan of Rs. 8,000/- was sanctioned to him by the said Bank for the purchase of two cows. The provision for appropriate insurance in respect of these two cows had also been made. The proposal for insurance accompanied by necessary certificate from the Veterinary Officer regarding the health of the two cows had been submitted to the United India Insurance Company Limited. The necessary premium for each of the two cows was fixed at Rs. 90/- per annum and policies were issued for a period of one year for each of the two cows. One of the cows was bearing insurance No. 113. The cow in question died all of a sudden on 20th July 1980 and a report about its death was made by the complainant on behalf of his father-owner to the Veterinary Officer and he was requested to carry out the post-mortem examination and also to issue certificate in regard to the death of the cow and its cause. It appears that the animal died due to the development of certain acute Tympanites. The certificate of death was issued by accused No. 1 Dr. Suryavanshi to the Bank directly, at Junnar. The other required certificates were obtained by the complainant from the society as also from the Sarpanch. The certificate regarding the cremation of the dead cow was also obtained. The policy of insurance in respect of this cow was admittedly in possession of the Bank. Inasmuch as the loan for the purchase of it had been taken from the said Bank. Upon all these documents being forwarded by the Bank to the Insurance Company, the claim form was sent which properly filled in by the complainant's father and then it was submitted to the Insurance Company through the Junnar Branch of the Bank. This was done some time in the month of July 1980.
4. The claim for receiving the amount of money for which the animal had come to be insured remained a distant dream for the complainant and his father since for at least about two years they had not heard anything from the Insurance Company. Then on the 27th July 1982 accused No. 1 Dr. Suryavanshi sent a word to the complainant's father at Rajuri through the Veterinary Assistant Arjun Thombare P.W. 5 to the effect that the amount of the insurance money in respect of the dead cow had been, as per the claim made, received and that he should therefore, make it convenient to meet accused No. 1 at Narayangaon. Upon receiving this word from accused No. 1 through Arjun Thombare and as further directed, the complainant on behalf of his father met accused No. 1 at Narayangaon. Now it appears that accused No. 2 the Field Officer-Mutha of the United India Insurance Company Limited, whose area of operation as Development Officer is Narayangaon and around it, is actually a resident of Pune. It is while living at Pune that he attends to his work as Development Officer in the area in and around Narayangaon by visiting Narayangaon once every week, on Saturdays. The Field Officer-accused No. 2 Mutha has not set up any independent office with independent accommodation at Narayangaon. It is an admitted position that insurance of live-stock being one of the activities of the insurance company and this being predominantly rural area, accused No. 2 Mutha was thus intimately connected with accused No. 1 Dr. Suryavanshi as the Veterinary Officer at Narayangaon. Therefore, he virtually made or turned the residential house of accused No. 1 Dr. Suryavanshi into his office for conduct of his work and business as the Field and Development Officer.
5. As per message and as directed, the complainant-Khandu Hadavale contacted accused No. 1 Dr. Suryavanshi at his house on 31st July 1982. The accused No. 2 Mutha was also present at that time. According to the prosecution, upon Khandu Hadavale meeting accused No. 1, the latter informed him that his cheque of moneys from the Insurance Company had been received and he wanted to know from him whether he was in need of that amount or not. Upon his reply that he did require the amount of insurance, accused No. 1 told him then that for receiving the cheque Khandu would have to pay Rs. 100/- to accused No. 1 and Rs. 300/- to accused No. 2 Mutha. Khandu represented that he had no money to pay to them. He further represented that as his moneys were blocked up in other operations and activities such as the sinking of a well he would be in a position to make the payment but that the cheque should be delivered to him at that time. The accused No. 1 and apparently accused No. 2 also declined. Khandu was asked to bring the money first. Unwillingly Khandu said that he would arrange for and bring the amount by 7th of August 1982. He told accused Nos. 1 and 2 that he would be calling upon them accordingly.
6. When Khandu accordingly visited accused No. 1 at his house at about 11-00 a.m. on 7th August 1982 in the morning, accused No. 2 Mutha was also present there. On coming inside the house of accused No. 1, accused No. 1 had been standing outside while the complainant went there. This was done under a proper plan for the trap, for after parting the company with accused Nos. 1 and 2, on 31st July 1982 the complainant contacted the Anti-Corruption Bureau at Pune and it was there that the plan to trap accused Nos. 1 and 2 while receiving the bribe, of course if they demanded the same, was to be carried out. As such when Khandu went to meet accused No. 1 at his house at Narayangaon on 7th August 1982, he was accompanied by the panch witness Arun Karmalkar. When accused No. 1 was greeted on the Ota of his house by complainant Khandu accompanied by the panch Arun Karmalkar, accused No. 1 directed them to go inside and sit there. Accused No. 2 was also found sitting there along with some other persons. The accused No. 2 inquired from them as to whether the work had been done, which necessarily meant an inquiry as to whether the amount agreed to be paid had been brought. Upon an answer in the affirmative, accused No. 2 also told Khandu that the cheque to be delivered to him was ready and therefore, he would accompany him up-stairs. Khandu Hadavale then introduced Arun Karmalkar as his relative and both of them accompanied accused No. 2 upstairs. In between, accused No. 1 came inside. It appears that the cheque to be given to the complainant could not be readily traced and accused No. 2 had to take the assistance of accused No. 1 in locating it. Accused No. 1 had also thereafter went up-stairs and it was he who took out the cheque from the cupboard. He handed over the cheque to accused No. 2 and accused No. 2 handed over the cheque to Khandu in his extended hands while Khandu himself took out the marked currency notes treated, with anthracene powder from the chest pocket of his shirt and put them to the right hand of the accused No. 2. Thus the action of handing over the currency notes by Khandu to the accused No. 2 and accused No. 2 handing over the cheque of Rs. 3,210/- to Khandu was a simultaneous one. On receiving the amount Khandu Hadavale and Arun Karmalkar came down the stairs accompanied by accused No. 1 who also instructed them that the cheque should be encashed at the Maharashtra State Co-operative Land Development Bank. Assuring him that the cheque would be presented in the said Bank, Khandu Hadavale and panch witness Arun Karmalkar came out of the house and gave the prearranged signal for the raiding party which was waiting-in hiding at some distance. The Police Inspector Mahamuni, other panch witnesses and members of his staff all rushed into the house of accused No. 1 and from there to the upper floor. Khandu Hadavale was directed to remain waiting outside while panch Arun Karmalkar was taken along with them. The treated currency notes were found to have changed hands from accused No. 1 to the accused No. 2 by the raiding party when the raiding party reached upstairs of accused No. 1's house. The currency notes were seized by following the usual procedure by tracing the hands of accused Nos. 1 and 2. The procedure for tracing the presence of anthracene powder in ultra-violet light on the clothes of accused Nos. 1 and 2 was gone through and a panchanama of the entire proceedings was drawn up. This was the second panchanama, the first panchnama having been drawn up at the Anti-Corruption Bureau Office at Pune on 7th August 1982. After necessary investigation, accused Nos. 1 and 2 came to be chargesheeted.
7. It would be appropriate, as some specific reference has been made to refer to the wording of the charge in detail. The charge is that on the 7th August 1982 accused Nos. 1 and 2 in furtherance of the common intention of both of them at the house of accused No. 1 at Narayangaon and both of them being public servants, demanded a bribe of Rs. 100/- and Rs. 300/- for accused No. 2 and that having so demanded, also received the amount of Rs. 400/- in all, by way of a bribe as illegal gratification other than legal remuneration for both of them as a motive or reward for issuing death certificate in respect of the cow and for delivering the cheque of Rs. 3,210/- issued by the United India Insurance Company Limited and that this act amounted to their commission of an offence punishable under section 161 of the IPC and under S. 5(1)(d) read with S. 5(2) of the Prevention of Corruption Act, 1947.
8. The charge was also thus framed. Both these appellants-accused pleaded not guilty to the charge. I would at the appropriate time refer to the stand taken by them in their examination under Section 313 of the Cr.P.C. carried after the close of the prosecution as also in detailed written statement filed by each of them. Suffice it to say presently that while receipt of the amount of Rs. 400/- by accused No. 1 to accused No. 2 Mutha from the hands of the Complainant Khandu Hadavale was not disputed, the contention advanced was that it was not either in respect of the issuance of the death certificate in respect of the cow by accused No. 1 Dr. Suryavanshi nor was it by way of a bribe for performing by accused No. 2 of the official act of delivering the cheque of Rs. 3,210/-, to the complainant which accused No. 2 had carried from the Divisional Office at Pune and which Divisional Office was the one which had drawn the said cheque on 30th June 1982. The contention was that inasmuch as there were several defects in the claim made by the complainant's father against the Insurance Company since the claim had been apparently made beyond the prescribed time since there had been delay in reporting the matter and since several other procedural delay (Sic) remained incomplete, the Insurance Company had declined to act upon the claim made. It was therefore suggested or suggestively contended that the complainant had sought the help of both the accused Nos. 1 and 2 in the matter of getting his claim of insurance settled. It was contended that inasmuch as the Pune Office of the Company had declined to act upon the claim, the accused No. 2 had represented that he would see that the claim was properly settled at the Head Office of the Insurance Company at Bombay and for making trips to Bombay, accused No. 2 would be required to spend money and the money so spent would be made good when the claim was eventually allowed and the claim amount was paid. It was therefore, submitted that it was when the claim was thus allowed upon the 'great efforts' of accused No, 2 at the Bombay Head Office and when accordingly a cheque for the amount of Rs. 3,210/- was finally handed over by the accused No. 2 to the complainant Khandu Hadavale, a legitimate demand for Rs. 100/- on account of the work done by the accused No. 1 and Rs. 300/- on account of the work done by accused No. 2 was made and the said amount was willingly paid by Khandu Hadavale. This fact, it was submitted by the accused persons, had been immediately disclosed also by both of them to the Police Inspector Mahamuni as soon as he had rushed into the house of accused No. 1 and inquired from both of them-accused Nos. 1 and 2 as to whether they had received bribe from Khandu Hadavale. On that premises, therefore, both these accused claim entitlement to a clean acquittal.
9. This defence did not find favour with the learned Special Judge of the trial Court. Upon consideration of the evidence of Khandu Hadavale, the panch witness Arun Karmalkar, Veterinary Assistant Arjun Thombare and the Administrative Officer Shri Vaidya of the United India Insurance Company Limited, Divisional Office, Pune, the learned trial Judge was satisfied that there was no such work which accused No. 1 had done and which could not be called as work done in the course of official duty and for which he would legitimately claim entitlement for some payment from Khandu Hadavale under an agreement also. A similar finding was also recorded by the trial Court in respect of Rs. 300/- claimed and received by accused No. 2 Field and Development Officer Mutha. The trial Court found and held that this defence was entirely an afterthought. Upon the evidence it was found that the accused No. 2 as the Field Officer did not have to and in fact did not do anything by way of making trips to Bombay inasmuch as there was no Head Office of the said Insurance Company at Bombay. The Head Office of the United India Insurance Company Limited was found at Madras. At Bombay there is only a Regional Office. The final settlement of the claim and orders in that behalf as also the issuance of the cheque for the amount of Rs. 3,210/- had also taken place at the Insurance Company's Divisional Office at Pune. It was therefore, found that both accused Nos. 1 and 2 has simply for that purpose of delivery of the cheque of Rs. 3,210/- to Khandu Hadavale and as consideration for not withholding such delivery, demanded and received the illegal gratification of Rs. 100/- and Rs. 3,00/- respectively. The delivery of the cheque to the complainant Khandu Hadavale, it was held, was an official act to be performed by accused Nos. 1 and 2 who were public servants and who had to do it as a part of their official function. The trial Court, therefore, convicted both these accused on the two abovesaid counts and awarded sentences to them as abovesaid. The present appeal, therefore, taken exception to the conviction and sentence as stated above against appellants-accused Nos. 1 and 2.
10. The conviction of both the accused stands challenged by both the learned counsel, apart from their contentions above the reasonability or the explanation offered in defence upon several aspects of the prosecution case, factual as also legal. This may be briefly enumerated in the first instance. The first one is that accused No. 1, though he was undisputedly a public servant within the meaning of S. 21 of the Indian Penal Code had not even, as per the prosecution evidence, acted as such in the performance of any of his duties as a Veterinary Officer. While it was not disputed that he had sought to be paid a sum of Rs. 100/- by the complainant Khandu Hadavale, that payment had nothing to do or not connected with any act which could be said to be concerned with his official functions as being official act. A similar contention is being advanced by accused No. 2. Actually he challenged, as was done in the trial Court, even the fact that he was in the eye of law, a public servant at all. His next submission is that on the assumption that he was such a public servant being an employee of the General Insurance Corporation which was constituted by an Act of Parliament, even then the payment of Rs. 300/- which he had sought from Khandu Hadavale had no connection whatsoever or is concerned with his performance of duties as Development Officer under the United India Insurance Company Limited. Whatever, according to him, he had done in regard to securing a settlement of the claim of Insurance made by the complainant's father, was entirely unconcerned and beyond the pale of his activity as a Field Officer. In short, his contention was that whatever he did in regard to settlement of the complainant's claim, was a matter of agreement between him as a private individual and the complainant and, therefore, apart from the legitimacy of the demand made by him for Rs. 300/- from the complainant, he would in law not be a public servant either under the provision of S. 161 of the IPC or under Section 5(1)(d) of the Prevention of Corruption Act which also specifically deals with public servant. It was contended that as Field Officer or Development Officer of the General Insurance Corporation, he did not come into operation and picture at all in the prosecution story. It is also the contention of the accused that some kind of assistance to the complainant, that is, his father, became necessary and was as such sought by him for several reasons which were not disputed on the premise that the cow in question had been purchased by obtaining a loan from the Bank, and also that the animal had come to be duly insured after compliance with necessary formalities. It was submitted by the accused that in regard to the presentation of a claim under the policy of insurance, there had been a multitude of defects such as that the intimation about the death of the animal had not been given in time, the claim form had not been duly submitted within the prescribed period and such other defects were there. It was for the purpose of claim of the amount of insurance under the policy, after getting over all or duly explaining and rectification of these defects that the complainant could succeed. It was exactly on this basis that the complainant who was neither well versed nor experienced nor in a position to make several trips to Pune and at Bombay at the Head Office of the Insurance Company had sought to rely upon the usefulness of accused and the help which accused No. 2 had promised to give to the complainant in the matter of settlement of his claim dispute in the face of all such defects, the removal of which were exactly sought by the complainant and this had, therefore, nothing do with the performance of duties by accused No. 2 as a Field and Development Officer as such. It was also submitted that eventually when on the 7th August 1982 the complainant approached accused Nos. 1 and 2 at the house for receiving the cheque, it was the handing over of the cheque of Rs. 3210/- which had taken place first and it was the payment of Rs. 100/- to accused No. 1 and Rs. 300/- to accused No. 2 in all Rs. 400/- which had taken place only thereafter. The submission therefore, was that this could not have been a case where handing over of the cheque of Rs. 3,210/- could be said to have been withheld as such by the accused persons. These specifically are the submissions made and the contentions advanced and the same now be looked into in some detail with reference to the evidence.
11. The assessment of the prosecution evidence need not be made at its fullest in regard to the acceptability of the preliminary facts and circumstances. The evidence of the complainant is that his father had purchased two cows by taking loan of Rs. 8,000/- from the Maharashtra State Co-operative Land Development Bank. It is also not disputed that two animals had duly come to be insured. Insurance policies also had been issued by the United India insurance Company Limited of which accused No. 2 is an employee as Field and Development Officer. The area of operation of accused No. 2 was Junnar Taluka, Pune District and probably his headquarter for the said operation was located at Narayangaon. The complainant has admitted that accused No. 2 did not have his own office, that he used to sit in the house of accused No. 1 in connection with his work and that he used to visit Narayangaon every Saturday of the week. Accused No. 1 Dr. Suryavanshi, it is not disputed, was the Veterinary Officer-in-charge of the veterinary Dispensary at Narayangaon. His residence is also at Narayangaon in a wada like building having a ground and the first floor. It was in cupboard on the first floor of accused No. 1's residence that the accused No. 2 used to keep his papers connected with his work.
12. On 20th July 1980 one of the cows insured under the policies died. The evidence of Khandu Hadavale shows that a report was promptly made to the Veterinary Officer-accused No. 1 at Narayangaon on 21st July 1980. Accused No. 1 reached Rajuri and performed autopsy. He prepared his report for which the complainant deposes, he was paid Rs. 100/-. It appears from the evidence of the Administrative Officer Shri Vaidya that the accused No. 1 as a public Servant, an employee of the State Government, is duly bound to perform autopsy when requested so to do by the owner of an animal. It is also disclosed from the evidence that accused No. 1 cannot claim anything more than Rs. 10/- as his fees. Accused No. 1 denied that he demanded and received Rs. 100/- by way of his fees from the complainant. The complainant had stated and quite frankly admitted that for this payment he had no doubt not obtained any receipt from accused No. 1. At the same time, it is to be appreciated from the testimony of the Administrative Officer Shri Vaidya P.W. 3 of the United India Insurance Company limited that for the autopsy so performed it is the Insurance Company which makes payment of his fee to the Veterinary Officer. Vaidya admitted in his cross-examination that in the event of such payment of fees being not made by the Insurance Company, it is open to the Veterinary Officer who performed autopsy to claim his fees from the owner of the animal. In the present case, it is not the contention of accused No. 1 that any payment had been made to him by the insurer for the autopsy performed by him on the complainant's animal. It is, therefore, not conceivable that he had done this work of performing the autopsy gratis. There was, therefore, no reason to disbelieve the testimony of the complainant Khandu Hadavale that for purpose of the autopsy he had duly paid fees of accused No. 1, whether Rs. 10/- or whether Rs. 100/-. That was the only part which was played by accused No. 1 in the matter of the entire claim of insurance and that after performing of that act, the argument further advanced was, that the accused No. 1 had no further part which remained to be played or which could be played by him officially in the matter of settlement of the claim of insurance. Therefore, this is one of the submissions which is required to be considered and I will advert to the same at the appropriate stage. The complainant stated that the report of the autopsy performed by the accused No. 1 had been directly sent by him to the bank from which the loan for the purchase of the cow had been taken by the complainant's father. The other formalities in regard to the making of claim under the policy of insurance had been, according to him, complied with and eventually papers in that connection reached United India Insurance Company Limited at its Divisional Office at Pune. However, a large number of defects had remained and a number of procedural formalities had also apparently remained to be complied with and indication to that effect comes from the testimony of P.W. 3 Administrative Officer Shri Vaidya of the Insurance Company. He had stated that when the Insurance Company receives the claim form, a scrutiny is made and if the claim form is found to be complete in all respects, the amount of claim is paid in accordance with the report of the Veterinary Officer and his certification about the value of the animal etc. Duplicate vouchers are then prepared and sent to the concerned parties as well as to the Bank, if it is concerned, which has advanced loan to the owner of the animal for the purchase. Vouchers duly signed, are called back from the customer and then final cheque for payment of the amount of insurance is issued. The cheque is sent directly to the customer or through bank if the bank had advanced loan for the purchase of the said cow. Exh. 12 is a cheque dated 10th June 1982 drawn on the Union Bank of India by the Divisional Office of the United India Insurance Company Limited at Pune. The cheque along with 10 more cheques had been handed by the Divisional Office to the accused No. 2 Mutha for being delivered to the concerned parties, these being from Narayangaon area. It is therefore, a consistent piece of prosecution evidence that after the raid in question, when the cupboard in which accused No. 2 used to keep his papers documents, etc., in the house of accused No. 1, was searched, seven more cheques were found. That these cheques had been entrusted to him for delivering them to the concerned parties and were as such in his possession is a fact which the accused has squarely admitted. Founded upon these facts and circumstances, the contention advanced by accused No. 2 is that this work of delivering the cheques to the concerned customers was not a part of his official duty and, therefore, accused No. 2 claimed Rs. 300/- payable to him by the complainant in consideration of the accused No. 2 in handing over the cheques to him, cannot be styled and termed, much less accepted by this Court, as illegal gratification received by accused No. 2 in the performance of his duty in law or for the lawful purpose or lawful duty as such. This would be the second contention which should be taken into account.
13. However, it must also be appreciated at the very outset that throughout the cross-examination of the complainant, the suggestions which had been tried to be made to him and the arguments also appeared to have been advanced accordingly in the trial Court were by reason of several defects in the claim, delay in informing the fact of death of the cow, the delay in handing over the claim form and the omissions which were not complied with, with several other procedural formalities had resulted in the claim under the policy of insurance being rejected out-right by the Divisional Office. Upon the evidence of Shri Vaidya, P.W. 3, they would have to be found and held as entirely unsustainable and untrue. Not even a suggestion was made to Shri Vaidya that the Divisional Office at Pune in which he was an Administrative Officer had communicated to the complainant on being enquired at any time that the claim for payment under the policy was being rejected for want of several reasons. Added to this is the circumstance that according to accused No. 2 upon the Divisional Office at Pune having declined to honour the claim it had become necessary to secure a settlement of the claim by approaching the Head Office of the Company. The Head Office, it was tried to be suggested, is at Bombay and the same is also on the false premise and assumption on which accused No. 2 appears to have laboured. For Shri Vaidya P.W. 3 has made it clear that the Head Office of the Company is not at Bombay but is at Madras. Then the error was tried to be corrected by a further suggestion that the claim once rejected by the Divisional Office at Pune can be urged before the Regional Office at Bombay and, therefore, in order to help the complainant accused No. 2 was required to make trips to Bombay at his cost which he had incurred and which the complainant had to pay by way of reimbursement upon the claim being finally settled. This premise also stands falsified. It was found that it was the Divisional Office at Pune which was the final authority to settle the claim and would issue a cheque for Rs. 3,210/- as per Ex. 12.
14. Though I have made observations in regard to the evidence which has been discussed so far, what transpired after the death of the cow and preferring of the claim may now be considered. Shri Vaidya has stated quite clearly and thereby indicating that there was no bar or limitation as such and the non-compliance on the part of the complainant for reporting the death of the animal or preferring the claim within a prescribed period, was not a matter of hard and fast rule. It was always a matter of discretion to be exercised by the Insurance Company in the matter of entertaining and settling of claims inspite of such defects. The claim of insurance in this case had been entertained and also allowed by the Divisional Office in spite of such defects. Shri Vaidya has stated that the intimation of the death of the cow in question which died on 20th July 1980 and on which autopsy was performed on 21st July 1980, was received by the Insurance Company on 22nd July 1980. The claim made was incomplete and all the requisite documents were supplied, formulated and complied with only by May 1982. It was thereafter in July (Sic) 1982 that the cheque Ex. 12 came to be issued. The cheque dated 30th June 1982 when issued had come, along with 10 other cheques to be handed over to accused No. 2 for being delivered to the complainant and the other customers, but on which date as such is not ascertainable with exactitude. Suffice it to say that the evidence is that on 27th July 1982, the accused No. 1 Veterinary Officer Dr. Suryavanshi sent word to the complainant, that is, to his father at Rajuri. The word was that accused No. 1 wanted the complainant to meet him at Narayangaon on 31st July 1982. Uncontroverted testimony of Arjun Thombare P.W. 5 who was the Veterinary Assistant attached to the Dispensary at Rajuri is that on 27th July 1982 or a day before accused No. 1 had been to Rajuri, he asked the witness to inform the complainant that his cheque of insurance claim in respect of the dead cow had been received and he should therefore, go over to Narayangaon. Necessarily, therefore, accused No. 2 had come to be entrusted with the cheque Ex. 12 for being delivered to the complainant some time before 27th July 1982. P.W. 5 Arjun Thombare accordingly gave the message to the complainant. Admittedly, the complainant then went to Narayangaon and met accused No. 1 at his house. Accused No. 1 told him that the cheque for payment under the policy of insurance had come to be issued and had also been received, meaning thereby that it was received by accused No. 2. Accused No. 1 enquired whether the complainant was interested in receiving the cheque and the money thereunder. The complainant informed that he was very much interested and requested that the cheque be accordingly handed over to him. It was thereupon that accused No. 1 said that for receiving possession of the cheque-which had not however been shown to him as such, he would have to pay Rs. 100/- to him (accused No. 1) and Rs. 300/- to accused No. 2. The complainant Khandu Hadavale expressed his inability to pay such a huge amount much less promptly at that time. He was, therefore, asked to come back and bring the amount on the next Friday, that is, on 7th August 1982. The complainant said that he accordingly went back. He was, however, wondering as to why any amount was claimed by both the accused simply for delivering the cheque to which he was clearly and legitimately entitled from the Bank. Even after considerable borrowing and pawning he was unable to collect the amount. He therefore consulted the village Sarpanch Nathaji Gopal Kanse and it was Kanse, who, according to the complainant, told him that this was a demand which was nothing less than demanding bribe for handing over of the cheque. He therefore, advised the complainant to go and report the matter to the Anti-Corruption Bureau at Pune. It has, therefore, to be appreciated that the idea of making a complainant to the Anti-Corruption Bureau was borne not in the mind of the complainant but it was provided to him by the Sarpanch of the village. This has to be stated for the purpose of making a point clear : that the complainant had no axe to grind against these two persons. In fact it was also not the suggestion of the accused persons that there was any prior illwill and/or enmity in existence between them and the complainant.
15. The complainant therefore, approached Anti-Corruption Bureau Office at Pune on 6th August 1982 and his complaint was then recorded by P.I. Mahamuni as per Ex. 11. This complaint provides sufficient corroboration to the evidence of the complainant which has been discussed so far.
16. The complainant was asked again by the Anti-Corruption Bureau Police to come on the next day. There the preparation for laying the trap against the accused persons was made. The evidence in this behalf is consistent. No specific exception to the same has been taken on behalf of the accused and it may, therefore, be safely concluded that the evidence of complainant, the two panchas Arun Karmalkar and Ganesh Gaikawad, the P.I. Mahamuni on this point is consistent. All of them proceeded from Pune to Narayangaon in the morning of 7th August 1982. The complainant had been provided with currency notes of the amount of Rupees 400/- treated with anthracene powder. He had been given specific instructions not to touch them unless an occasion arose to hand them over to the accused persons and when an occasion would arise he should touch and take out these currency notes only if and when demand for payment amounting to Rs. 100/- and Rs. 300/- would be made by accused Nos. 1 and 2. Upon the amount being paid to the accused persons, a pre-arranged signal was to be made by the complainant to the raiding party which would then rush to the house of accused No. I and thereafter take charge of the further proceedings. The fact that the complainant met accused Nos. 1 and 2 on 31st July 1982 at the house of accused No. 1 is not disputed by either of the parties. It is also not disputed by the accused that the complainant had connection with the payment of the amount of insurance claim. It is further not disputed that the complainant had been told that his claim had come to be settled. According to the complainant, it was represented to him by accused persons that the cheque in question had been actually received by them also. The suggestion to him in cross-examination however was to the effect that he had been not only told that the claim had been sanctioned and the cheque had also been issued but also that it was still to be received by accused No. 2 or for that matter accused No. 1 or both till the date of their meeting on 31st July 1982. It is the contention of both the accused persons that they only represented or conveyed to the complainant on 31st July 1982 that the claim had been sanctioned, that the cheque had also been issued by the Insurance Company but that they had yet to receive the cheque actually, that is, in physical possession thereof though they had expected the same to receive. As already noted, this must appear to be false having regard to the uncontroverted evidence of Veterinary Assistant Arjun Thombare P.W. 5 to the effect that the message which accused No. 1 had told him to be passed on to the complainant was that the cheque had actually been received and it was in connection with the same that he was to meet accused No. 1 at Narayangaon on 31st July 1982. It, therefore, becomes very clear that by 31st July 1982, accused No. 2 had actually come to collect the cheque Ex. 12, amongst others for being delivered to the complainant. It was because that cheque was in his possession that he had gone from Pune to Narayangaon on 31st July 1982. When the complainant had gone to meet accused Nos. 1 and 2 at Narayangaon upon receiving the message through Arjun Thombare P.W. 5, accused No. 2 was in possession of the cheque to be handed over to the complainant. The delivery of the cheque therefore was detained or withheld only until such time as the accused Nos. 1 and 2 would be paid a certain amount. The evidence of the complainant Khandu Hadavale in this behalf must appear to stand fully corroborated by the panch witness Arun Karmalkar P.W. 2 also. He had also stated that he had accompanied the complainant to Narayangaon from Pune, after all instructions had been given to him and to the complainant at the Anti-Corruption Bureau's Office at Pune. Corroborating the complainant, he has stated that two of them visited the office of accused No. 1 and found accused No. 1 standing in the court-yard wearing a night Pyjama and banian. Accused No. 1 had asked them to sit inside the house. Accused No. 2 was also sitting there. The accused No. 2 had then enquired from the complainant as to what had happened to the work which was already agreed upon. The complainant replied that it had been done. The complainant also enquired whether the cheque had been brought whereupon the accused replied in the affirmative. The cheque was kept on the first floor of the house. The accused No. 2 went to the upper floor to bring the cheque and apparently accused No. 2 could not find the cheque and called accused No. 1 who was inside the house. Accused No. 1 went upstairs on being called by accused No. 2. The complainant also went upstairs accompanied by the panch witness whom he had introduced to both accused Nos. 1 and 2 as his relative, to avoid any suspicion or embarrassment. On coming up-stairs accused No. 1 asked complainant whether the amount had been brought. Thus the demand for money had been made in the first instance by accused No. 2 and thereafter by accused No. 1 also. When the complainant replied in the affirmative, accused No. 2 told him that the cheque had been given and it was drawn on the Land Development Bank on its Ale Phata Branch. The accused No. 2 stretched his hand to demand the amount from the complainant. The complainant removed the four marked currency notes from his left chest pocket. He held the cheque offered by accused No. 2 by his left hand and with the right hand he passed an amount of Rs. 400/- in the form of the currency notes to accused No. 2. From this part of the narration neither the complainant nor the panch witness has been dislodged in any manner the sequence is clear; to show that the exchange of the currency notes and the cheque from one to the other simultaneous and was so ensured as to make one feel that the accused persons were-at all-not willing to part with the cheque until the amount demanded by them was actually given in their hands. The cheque in question was delivered to the complainant by the accused persons only when the currency notes reached the other end i.e. the accused.
17. Then again there is no dispute and no exception has been taken in the arguments advanced before me as regards what happened thereafter. The complainant and the panch Arun Karmalkar came down-stairs with the cheque and they made the pre-arranged signal whereupon P.I. Mahamuni rushed into the house of accused No. 1 with the panchas and his staff. The arrival of the police, their rushing inside the house of accused No. 1 and what has happened thereafter is not disputed. However, the specific submission is that according to accused Nos. 1 and 2 and as put forth in their written statement Exhs. 51 and 52, P.I. Mahamuni, immediately upon entering the house, enquired from both of them as to whether they had accepted bribe from the complainant. It is the defence of both these accused that they had replied that they had received Rs. 100/- and Rs. 300/- respectively from the complainant and also explained that it was in consideration of the assistance which they had rendered to the complainant and for which assistance the complainant had agreed to make payment to them of the respective amounts. Therefore, they contended that P.I. Mahamuni had at that very moment found that they had not received by way of bribe as such, Rs. 100/- and Rs. 300/- respectively. It was a payment to them for the labour which they had put in and not by way of any bribe. Indeed, if this was the purpose for which the payment had been made to them by the complainant and if it was really not in the nature of bribe or illegal gratification, then most naturally these accused would have made such a representation but it was not made. Not the slightest suggestion has been made to P.I. Mahamuni or to the panch P.W. 2 Arun Karmali that such a representation was made and explanation offered by accused Nos. 1 and 2 to the P.I. Mahamuni, the moment he entered the house. No suggestion was put to him whether he had not made an enquiry from the accused as to whether they had received any bribe and for that they had then offered such explanation also. Therefore, what is now being contended in the written statement is an afterthought.
18. On facts and in regard to the amount of Rs. 100/- and Rs. 300/- admittedly received by accused Nos. 1 and 2 the case put by accused No. 1 may be considered. This is partly through his own statement and the written statement. The first suggestion which is made by him is that in the whole matter of claiming the amount of insurance for the dead cow, this accused had no official part to play except conducting the autopsy on the animal on 21st July 1980. He has not disputed that he carried out autopsy and directly sent the report to the Bank from which the complainant's father had taken loan for the purchase of the two cows. At the same time, a suggestion was made to the complainant that the purpose of official act of accused No. 1 was confined to his carrying out the autopsy and that the accused No. 1 had therefore, no concern whatsoever and had left the complainant thereafter. It is also suggested to the complainant in cross-examination that the complainant finding that his claim for the amount of insurance had stood unattended, undecided and unsettled for a long time, he had been requesting accused No. 1 to take interest in the matter and he had also been requesting accused No. 1 to lend him assistance to see that the claim was properly and expeditiously settled. It, therefore, becomes necessary to see what other part would be played by accused No. 1 in the matter of securing the amount under insurance policy. Indeed there was none and, therefore, there was also no question of rendering any assistance whatsoever to the complainant. It is also not suggested that assistance of kind A or B or of one or the other kind had been rendered in actuality by accused No. 1 in the period between the forwarding of the claim form to the company's office of the insurance company and the drawing of a cheque of the insurance company in favour of the complainant's father. Therefore, what very clearly appears is that it was only when accused No. 2, in all probability informed accused No. 1 that the cheque to be delivered to the complainant had been received by him, that the cheque had been entrusted to him (to accused No. 2) for being delivered to the complainant's father, that this accused as also accused No. 2 realized that they stood to make a fast buck by declining to deliver the cheque to the complainant until he greased their palms.
19. So far as accused No. 2 is concerned, his premise is that there had been a failure on the part of the complainant to report the fact of death of the animal within 12 hours and there had also been a failure to make a claim within 14 days from the occurrence. There were several defects in the claim form. Certain documents which were required had remained to be appended and, therefore, the claim had come to be rejected by the Divisional Office. That the Divisional Office rejected his claim is itself a patent falsehood as can be seen from the evidence of the Administrative Officer Shri Vaidya P.W. 3. The suggestion to the complainant was that inasmuch as the settlement of the claim at the Pune Divisional Office was a closed chapter, the resort had to be made to the Head Office of the Insurance Company at Bombay to get the claim sanctioned. I have already noted that it is a false statement and therefore, a false representation to the complainant that the Head Office of the Insurance Company at Bombay had to be approached and that several trips would have to be made to the Head Office. The Head Office of the Insurance Company is at Madras and not at Bombay as earlier noted and the suggestion that the claim was required to be settled at any rate by the Regional Office at Bombay was also nipped in the bud by the Administrative Officer Shri Vaidya P.W. 3 for Vaidya has made it clear that the entire claim fully complete in all respects was ready for consideration in the month of May 1982, that the claim was duly scrutinised and decided to be allowed and payment made. This was in the month of May 1982 and accordingly, after obtaining vouchers duly signed in advance, the cheque was issued on 30th June 1982. This cheque, as again noted earlier, has been drawn by the Divisional Office of the Insurance Company at Pune and not by any Regional Office of the Insurance Company at Bombay. Therefore, the claim was settled at Pune only which falsifies in toto the stand taken by accused No. 2 that he had agreed to assist and render help to the complainant in the matter of settlement of insurance claim by making trips to Bombay Office for that purpose and that the complainant had then agreed to reimburse him in respect of such expenditure as he would make for securing sanction to his claim from the Bombay Office. All that is thus only a rank falsehood. The whole exercise of accused No. 2 in explaining why this amount of Rs. 300/- was demanded and received on 7th August 1982 must therefore fail. It must also, therefore, be concluded that it was for no other purpose except demanding payment in consideration of the cheque being handed over to the complainant that a demand for Rs. 100/- and Rs. 300/- respectively made by accused Nos. 1 and 2.
20. Learned Counsel for accused No. 1 submits that if it be accepted by the Court that it was the official duty of accused No. 1 only to perform autopsy he had not only performed autopsy on 21st July 1980 but, it is also assumed, the complainant had also made in that behalf then the payment to accused No. 1, which must have been for assistance rendered extraneously to his official duty as Veterinary Officer. As has been earlier seen, there is nothing to show that accused No. 1 had done anything in the nature of a private individual's assistance to the complainant in the settlement of his claim. Not only this, one of the observations which must be made against accused No. 1 is that while he could lawfully claim only Rs. 1O/- as fees for performing autopsy, he had claimed Rupees 100/- from the complainant and over and above this, he demanded money from the complainant on 31st July 1982 and actually accepted it on 7th August 1982. This was necessarily and inevitably a matter which was detrimental to his position as a public servant, i.e. the Veterinary Officer in-charge of the Dispensary at Narayangaon. May be it was not the truth, but what was tried to be impressed upon the complainant was that accused No. 1's position had gone a long way in securing settlement of the claim by the Insurance Company because officially, in view of his position as the Veterinary Officer, he was not connected with the settlement of the claim and it was for this purpose gratification was demanded.
21. As far as accused No. 2 is concerned, the argument advanced was also that he was not a public servant at all. One heed only refer to the provisions of S. 161 and S. 21 of the IPC which specifically defines a 'public servant'. Clause 12 of S. 21 of the IPC reads as under :
'Every person who -
(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;
(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government Company as defined in S. 617 of the Companies Act, 1956.'
United India Insurance Company Limited is one of the Companies which was acquired by the General Insurance Corporation of India. This Corporation came to be formed as a result of a Statutory Legislation namely, General Insurance Business (Nationalisation) Act, 1972. Rules were framed under this Act. R. 1(3) of the said Rules makes it clear that the said Rules are to apply to every person appointed to any post under the General Insurance Corporation of India or its subsidiary Company. The case of accused No. 2 clearly falls under this second category of the company being an employee of a subsidiary company. Therefore, under R. 1(3) of the said Rules framed under General Insurance Business (Nationalisation) Act, 1972 being applicable to the accused No. 2, he becomes a public servant under Clause 12(b) of S. 21 of the IPC.
22. Even so, the further submission of learned counsel Smt. Agarwal for accused No. 2 was that inasmuch as the complainant had sought his assistance in the matter of settlement of his claim of insurance in respect of the dead cow, such help which accused No. 2 had rendered was clearly help as a private individual. And therefore, since it was a matter of such help, it was entirely unconcerned and unconnected with the performance of his official duties as a Field Officer or a Development Officer of the Insurance Company. It was argued by Smt. Agarwal that the prosecution had failed to show that it was one of the duties of accused No. 2 to collect from the Divisional Office at Pune the cheques payable to the customers of the Insurance company who were residing within the area of his operation as a Field Officer. She argued that if such duty was done or could have been performed by accused No. 2, then even if it were to be assumed that accused No. 2 had received a gratification of Rupees 300/-, it was not in consideration of his duty or forbearing to do anything in the exercise of his official duty as a Field Officer. On facts, I have already observed, accused No. 2 had absolutely done nothing for the complainant to have his claim settled at Bombay. Therefore, accused No. 2 had in fact absolutely done nothing by way of assistance, as a private individual, which was render able or was actually rendered to the complainant.
23. All that accused No. 2 was, therefore, called upon to do was to deliver the cheque Ex. 12 to the complainant. This was one of the 11 cheques which had been entrusted to him which fact he admits. Even so, the argument is that his agreeing to do the work of delivering the cheques to the customers of his Insurance Company could not be termed as 'official act' and as such the provisions of Section 161 of the Indian Penal Code would not be applicable. This submission, in my opinion, is entirely incorrect.
24. In the State v. Shamrao Navji Patil : (1956)58BOMLR355 , this Court had occasion to consider what constituted the doing of an act in official capacity as distinguished from purely private capacity. It was held by the Special Judge who first heard and decided the case that the official act 'must be part of his duty for which he is paid'. The learned Special Judge also held that illegal gratification 'can only be applied in respect of a part of the duty for which the accused is already paid and for which the accused cannot demand any payment from others.' On both the points this Court held that the findings recorded by the learned Special Judge were entirely wrong. It was true that where the act has no concern with his official function a public servant does not commit an offence under section 161 of the Indian Penal Code by demanding, receiving or attempting to receive any valuable thing as gratification for doing that act. This Court observed that 'The words of S. 161 of the Indian Penal Code are plain and clear and it is impossible to impose thereon any restrictions of the nature suggested by the learned Special Judge. Referring to still earlier decision of this Court in Indur Advani v. State of Bombay, : AIR1952Bom58 , the Court observed that :
'where a public servant obtained a bribe for himself upon a representation that favour would be shown to the giver in the discharge of his official functions, the public servant was guilty of an offence under S. 161 of the Indian Penal Code, notwithstanding the fact that it was not within his power to show favour. It is clear from that case that even though the public servant, who was charged with having committed an offence under S. 161 of the Indian Penal Code and who was ultimately convicted by this Court, was in the exercise of his authority as public servant not competent to do the act for the doing of which he accepted gratification, the Court held that he had still committed an offence under S. 161 of the Indian Penal Code.'
The observations of Chainani, J. (as he then was) were usefully quoted as under :
'The Act in respect of which the bribe is paid must, however, be an official act and the favour or disfavour must be shown in the exercise of official functions. The official 'act' or official 'functions' referred to in the section obviously mean an act or functions which public servant can perform in his official capacity and not in the capacity of a private citizen. The act, for doing which the bribe is received or paid must, therefore, have some connection with the office which the public servant receiving the bribe is holding or must be one in regard to which the person giving the bribe can reasonably believe that it could be performed by the public servant receiving the bribe.'
Both these observations, in my opinion, apply more than squarely to the case of the accused Nos. 1 and 2. After conducting the post-mortem examination on the dead cow and submitting his report to the Bank accused No. 1 thereafter did nothing which was in the nature of performance of any of his official acts as Veterinary officer. Even so, his connection with the matter of complainant's claim for money due under the policy of insurance continued all the same, more for the reason that the complainant had admittedly kept requesting him to take interest in his case in the matter of settlement of the claim. It was to him that the complainant had kept making grievances that his claim was not being expeditiously settled by the Insurance Company. It was this connection which was not the function of accused No. 1 as a Government Servant being Veterinary Officer but was only to carry out the post-mortem on the dead cow, that answers the requirement of 'some connection with the office which the public servant receiving the bribe is holding' which is the observation in Indur Advani's case, quoted above, though accused No. 1 as Veterinary Officer did not have to do anything further in the matter once he had performed the autopsy. This was a case where the complainant as a person giving the bribe could reasonably believe that the work of securing expedition in the matter of settlement of his claim would also be performed by accused No. 1. It is, therefore, clear that the provisions of Section 161 of the Indian Penal Code as also of Section 5(1)(d) of the Prevention of Corruption Act both became applicable to the case of the appellant-accused No. 1, he being a public servant as defined under Section 21 Clause 12(b) of the Indian Penal Code and the definition of a public servant as given in Section 2 of the Prevention of Corruption Act being applicable to the use of the word 'public servant' in that Act.
25. The observations in the State v. Shamrao's case : (1956)58BOMLR355 wherein the decision in Indur Advani's case 1952 Cri LJ 925 was relied upon apply with equal force to the case of appellant-accused No. 2 because as the Field or Development Officer in the employ of the United India Insurance Company Limited and being therefore a public servant, he was concerned with the insurance of live-stock in the area around Narayangaon including Rajuri and that the complainant was led to believe that he was the officer who was ultimately responsible and could, therefore, secure the settlement of claim, that is, to secure for him the payment under the insurance policy. That being exactly the connection between the appellant's office as held under the Insurance Company and the role performed by him as the carrier of the cheque from Pune for delivering it to the complainant at Rajuri, this part of the work was necessarily one which was made to appear as being concerned with his office as a Field Officer and the Development Officer and hence a public servant. The act, for doing which the bribe is received or paid must have 'some connection' as required in the light of the decision in Indur Advani's case which has application therefore to the case of appellant accused No. 2 also. It is for these reasons that the conviction of accused No. 1 as recorded under section 161 of the Indian Penal Code as also under section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act will have to be duly and without hesitation affirmed. It is accordingly affirmed. The view taken in State v. L. D. Kanchan reported in 1988 M LJ 1127 : 1989 Cri LJ 697, where the employees of a Nationalised Bank were treated as public servants within the meaning of Section 21(12)(b) of the Indian Penal Code may also be usefully referred to.
26. That brings me to the last question as to the sentence awarded to the accused. Each of them has been sentenced only to suffer rigorous imprisonment for one year and to pay the fine of Rs. 1,000/- in default to suffer further rigorous imprisonment for six months. This sentence becomes either excessive or not called for, according to both the learned Counsel, only for the reason that a period of about four years had come to pass since they were tried and convicted in the Court of Special Judge, Pune. Both the learned Counsel for appellants-accused Nos. 1 and 2 also laid some stress on the fact of the dismissal from service of both these appellants. This, as has to be found-in every case of conviction under section 161 of the IPC and under section 5 of the Prevention of Corruption Act which is an entirely inevitable consequence. A public servant found guilty of taking bribe and illegal gratification or criminal misconduct under the Prevention of Corruption Act can never aspire to continue in service and the Government as an employer also would not continue him in service after his conviction. The dismissal of both the appellants from service would not have any effect whatsoever on the quantum of punishment to be awarded but at the same time it cannot also be a factor which would lead to take a lenient view in the matter of awarding sentence. It is from that point of view that the sentence as awarded to the appellants accused does not also appear to be either harsh or excessive nor for any special reason does it require to be watered down. The same would also have to be affirmed.
27. In the result, both these appeals Nos. 786 of 1986 and 788 of 1986 by the Appellant No. 2-Vilas Phulchand Mutha and Appellant No. 1-Dr. Rajendra Vithalrao Suryavanshi respectively, must fail. I affirm the conviction and sentence as awarded by the trial Court. The appellants-accused have been on bail during the hearing of these appeals. They are now directed to surrender to their bail within a period of two months of this order. Both the appeals stand dismissed.
28. Appeals dismissed.