Chandrakant Ratilal Mehta and Others Vs. the State of Maharashtra - Court Judgment

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criminal - appreciation of evidence - sections 120 b, 161 and 165 a of indian penal code, 1860 - appeal filed against conviction and sentence for offence punishable under section 120 b read with sections 161 and 165 a of indian penal code - complainant in corruption case is unfortunately relegated to position of an accomplice and is therefore required to be treated with a degree of caution and also required as of necessity to be corroborated - in corruption charges complainant is person who for purpose of securing benefit to himself agrees to do an unlawful act by way of offering illegal gratification as consideration for benefit - accused were acting in furtherance of conspiracy - offence punishable under sections 161 and 165 a follows a natural consequence as offering bribe to minister for securing favour for him was object of conspiracy - demand or request to do illegal act has emanated from members of public and it is public servant who has complained about illegality - complainant cannot be equated with position of accomplice - there is no reason why conviction cannot be based even on uncorroborated evidence of complainant - conspiracy has been established through direct and circumstantial evidence - accused persons had joined together for purpose of committing illegal act of bribing minister and getting detention orders revoked - sixth accused was relatively a small man therefore awarded with lighter sentence - conviction of appellants recorded by trial court under section 120 b read with sections 161 and 165 a are upheld - jail sentence to appellants set aside. - - 1. exceptional as it may seem, this set of appeals concerns the familiar situation of an approach being made to a minister that the law should be transgressed, the reward offered being a large sum of money. this case represents the out of the ordinary and deals with an outstanding home minister of the maharashtra government who displayed exceptional integrity and courage and went through the exercise of having the entire gang which included a senior lawyer, trapped; vaidya originally hails, was well-known to the complainant for several years. applications for review of those orders had been rejected and a representation in respect thereof which had been made to the home minister had also been unsuccessful. according to vaidya, his approach to the matter was that it was best to create the impression that he was going along with the plan and to trap the persons who were interested in such corrupt scheme so that an example could be made of such people once and for all, which would act as a deterrent in other cases. these machines were used obviously because of the fact that a concealed tape-recorder or microphone would have limited audibility and also considering that the possibility of failure of one of them. this was barely two years after the incident and the record shows that the audibility of the tapes was so poor that the transcript is quite worthless because there are more blanks than text. whether poor quality of tapes were used or whether the machines were of the usual low standard or whether the setting up and positioning of the machines and the microphones was incorrect are all matters of conjecture but the fact remains that this crucial evidence is not forthcoming. it is their case that the tapes have been deliberately suppressed and they relied on the admission of vaidya that he had heard the tapes when they were played which means that the recording had come out sufficiently well. whether the statements in the tapes would have helped the defence is purely a matter of conjecture and it is unnecessary to even debate on this issue because i am satisfied from the record that the tapes were not deliberately kept back but that they were not produced principally because they were of no value at all. such an inference would be permissible in case of deliberate suppression but it would certainly not hold good in a case where the undisputed position is that the tapes were not at all intelligible. if the machines were malfunctioning or the sound was muffled or the microphones were weak, the quality of the recording would have been defective and that apparently is what has happened. he has clearly deposed in detail of the manner in which accused no. itself in this case fits in perfectly with vaidya's deposition. the accused have undoubtedly denied that they had offered this amount to vaidya but the fact remains that it fits in so perfectly with the prosecution case and with the entire deposition of p. 6 that he desired to make a clean breast of everything possibly because he was overcome by remorse. in this case he was also an active political worker and he had explained how he moved up in polities and was well known to minister vaidya and other politicians. 6 leads very strong support to the prosecution case and virtually establishes the charges against the accused beyond all doubt. this case is a refreshing departure and kacker's evidence is clear, reliable and fits in completely with the prosecution case. i do need to take note of the fact that the complainant in this case happens to be no less a person than the home minister himself and, therefore, the investigative agencies could only be excepted to put forward a perfect performance. 29. dealing with the case-law on the point, the learned counsel contended in the first instance that a conviction based on an uncorroborated statement of a complainant in a corruption case is bad-in-law. with the introduction of section 165-a, the complainant is in no better position than an accomplice and, therefore, corroboration in material particulars is necessary. the accused and it is the public servant who has complained about the illegality. after analysing the decisions reported in 1952crilj547 :1952crilj547 :1958crilj976 :[1968]2scr641 :[1975]3scr453 :1975 cri lj 765, the supreme court enunciated the proposition that :it is necessary to understand that what has hardened into a rule of law is not that the conviction is illegal if it proceeds upon the uncorroborated testimony of an accomplice but that the rule of corroboration must be present to the mind of the judge and that corroboration may be dispensed with only if the peculiar circumstances of a case make it safe to dispense with it. ' 32. the present case in an exceptional one, where we have evidence of the complainant bhai vaidya which is letter perfect and which to my mind would prove the exception to the rule that in the face of such evidence corroboration would be unnecessary. 34. another interesting proposition was canvassed by the learned counsel appearing for the appellants which has its roots in the king's bench decision in the case of brannan v. bihar state, reported in 1956crilj1254 strongly disapproved of the situation whereby accused are tempted and drawn out by the prosecuting agencies to commit offences and are then sought to be prosecuted for the same. the circumstances on record do not support the defence version and it is only because of the non-availability of the tapes due to their poor condition that the accused are trying to take advantage of that circumstance and contend that had they been produced, the material contained therein would have supported the defence version. the facts of this case are, therefore, distinguishable and the principle laid down in the decision referred to supra would not hold good. in the same case, the supreme court held that the evidence of an accomplice cannot be accepted in any material particular in the absence of corroboration from reliable sources. advanced a strong plea that this is one of the few cases where a corrupt act of this type has been punished and that consequently a very deterrent sentence is called for.1. exceptional as it may seem, this set of appeals concerns the familiar situation of an approach being made to a minister that the law should be transgressed, the reward offered being a large sum of money. that the offer and the temptation to indulge in a corrupt practice emanates from the beneficiary of such dubious schemes, with the public official falling a prey to the incentive that is held out is the general pattern and it is equally common place to find an ever-willing response from the party in power. it is indeed unusual and in fact very rare to find a person of integrity who not only resists the attractiveness of the bribe but has the moral and physical courage to bring the culprits to book. this case represents the out of the ordinary and deals with an outstanding home minister of the maharashtra government who displayed exceptional integrity and courage and went through the exercise of having the entire gang which included a senior lawyer, trapped; and then withstood the rigorous of a protracted trial and all the counter attacks on him that this was a political ploy to project his image as a person of high moral fibre, and who saw the operation through successfully. this case presents an object lesson and is illustrative of how a single principled individual can withstand corrupt forces and successfully bring them to book. the conduct displayed by the then home minister mr. bhai vaidya is commendable and should serve as a pointer to all those men and women in public life who still live by principles and uphold the value system. 2. the present appeal along with the four companion matters viz. criminal appeal nos. 270, 271 and 275 of 1985, assail the correctness of the convictions and sentences awarded to the appellants by the learned special judge, greater bombay in special case no. 12 of 1980. the accused were put on trial before the special court, for offences punishable under s. 120b read with sections 161 and 165a, i.p.c. as also sections 165a read with s. 161, i.p.c. the learned trial judge found the appellants guilty of the charges and convicted and sentenced them to varying terms of imprisonment as also to fine. 3. the case in question has attracted a considerable amount of public attention at the relevant time. the complainant, mr. bhai vaidya as the then minister of state of home in the maharashtra government. one of his duties was to pass orders under the conservation of foreign exchange and prevention of smuggling activities act, 1974 (hereinafter referred to as 'cofeposa'), by virtue of his office, the power was also vested in mr. vaidya to revoke such orders that had been passed. the prosecution alleges that accused no. 6 who is a resident of pune from where mr. vaidya originally hails, was well-known to the complainant for several years. it is alleged that detention orders were passed against four person who were friends/relatives of accused no. 1 and that those orders had been passed in 1975 and 1976. the warrants could not be executed as the wanted persons were in dubai. applications for review of those orders had been rejected and a representation in respect thereof which had been made to the home minister had also been unsuccessful. 4. digressing here slightly, it needs to be pointed out, that the prosecution had originally charge-sheeted seven persons out of whom accused no. 7 diwanji was a solicitor. he had made an application to the court requesting that he should be granted pardon and examined as an approver against the remaining accused. at that stage the other accused also made similar applications and ultimately all the approver applications came to be rejected. original accused no. 2 had died by the time the trial commenced. original accused no. 3 who was the driver of the car had been discharged by the court on the ground that there was no material on the basis of which he could be included in the criminal conspiracy or in any of the offences. diwanji, original accused no. 7 finally pleaded guilty and he was convicted on his plea and fined rs. 25,000/- on each count. accused no. 7 had placed on record a detailed application as also requisite material in support of his plea that he was an elderly person suffering from a large number of medical complaints and consequently, prayed for leniency, which plea was accepted by the court. at the trial, therefore, only accused nos. 1, 4, 5 and 6 were the remaining contesting parties before the court. 5. the prosecution alleged that accused nos. 1, 4, 5 and 6 along with original accused nos. 2, 3 and 7 were parties to a criminal conspiracy to commit offences which consisted of an attempt to bribe the minister in order to get the four detention order revoked. the period in question covers the second half of december, 1979 and the beginning of january, 1980. accused no. 6 who was an old acquaintance of the minister approached him at pune on the 1st or 2nd of january, 1980 and informed him that he would get rs. 3 lakhs for cancelling the detention orders against the four accused. a memorandum was shown to him by accused no. 6 at that time and an offer was made that he would get rs. 3 lakhs if he revoked the detention orders against the four persons. the complainant mr. vaidya asked accused no. 6 to see him at bombay on 5th january, 1980 in the morning. 6. on 5th january, 1980 in the morning accused nos. 5 and 6 saw the minister in the office room of his residence at bombay. the offer of a bribe was repeated and the memorandum about the cancellation of the orders was given to him. this memorandum indicates that the detention orders were passed against syed ahmed bawamiya, sayed arif syed bawamiya, sayed murtaza gulam rasul and mohammed iqbal mohammad hanif sayed. the method suggested by accused no. 5 was that the money would be paid by accused no. 7, their solicitor to the complainant's solicitor. the complainant thereupon told accused nos. 5 and 6 to come with solicitor diwanji on 8th january, 1980. 7. the complainant informed what had happened to the director of the anti-corruption bureau and requested him to on 7th january, 1980. the director and his officers saw the complainant on 7th january, 1980 whereupon the complainant lodged his report against the accused on that day. a crime was registered on that report and the investigation was taken up by a police inspector attached to the a.c.b. the police made necessary arrangements for purposes of tape-recording the conversation that book place between the accused and the complainant on 8th january, 1980, and at the time of several subsequent meetings between the complainant and the accused. such meeting took place on 8th january, 1980, on the evening of 9th january, 1980, in the morning and evening and 10th january, 1980 in the morning and evening and on 11th january, 1980 in the morning. it is alleged that at these meetings the accused persons finalised their offer in respect of the payment of the bribe and the complainant gave them the impression that he would do their work viz. revoke the detention order in question in consideration of the payment of rs. 3 lakhs. the arrangement was also finalised whereby the accused were to bring the money on the evening of 11th january, 1980 and pay the same over to the complainant who would keep the revocation order ready for their perusal. 8. on the evening of 11th january, 1980 accused nos. 1 to 4 and 7 were present in the meeting. accused no. 2 brought a bag containing bundles of hundred rupees currency notes amounting to rs. 3 lakhs. he kept that bag near the minister's chair and on instructions the same was placed on the table. the minister was also shown the money which was wrapped in news-papers. accused nos. 1 and 7 saw the files and the proposed orders for cancellation of the earlier detention orders. the complainant thereupon gave the requisite signal and the police along with the panchas who were waiting outside rushed in and caught of the four accused. accused no. 3 who was the driver of the car, accused no. 6 who had come to the office of the complainant earlier and who was standing outside and accused no. 5 who was standing in the compound of the bungalow, were brought in by the police. a panchanama was immediately drawn up and the accused came to be arrested. 9. the brother of accused no. 1 had lodged a report at the agripada police station to the effect that accused nos. 1 and three other accused were missing with a large amount of cash on 11th january, 1980. the investigating officer collected that piece of evidence. on 21st january, 1980, accused no. 6 expressed the desire to make confession. he was taken before the learned magistrate who, after satisfying himself that the accused desired to make a confession and that the same was voluntary, took down the confession of accused no. 6. the a.c.b. thereafter filed a complaint against the seven accused out of whom only accused nos. 1, 4, 5 and 6 remained before the court at the time of the trial. the learned special judge accepted the prosecution evidence and convicted the four accused who have challenged their convictions through the present set of appeals. 10. the present appellants with whom we are concerned, viz. accused nos. 1, 4, 5 and 6 have denied their involvement in any of the offences with which they stand charged. to the limited extent that they are required to explain their presence, it is their case that there was some encroachment problem in relation to a property in pune belonging to accused no. 5 in connection with which they required government assistance and it was with this request that the meetings were held with the minister and it was in connection with this property transaction that the presence of the solicitor was required. the confession that is attributed to accused no. 6 is attacked principally on the ground that it was extorted under coercion and was not voluntary. on the other hand, it is contended that this confession was virtually put in the mouth of accused no. 6 with the sole object of building up a case. the defence was rejected and the four accused who have been convicted have assailed the validity of that conviction through the present set of appeals. 11. i have heard the appeals together as the defence of the different accused is more or less common. in so far as they have been convicted under a charge of conspiracy, the learned counsel have addressed me on behalf of their respective clients. they have referred in extenso to the evidence of the various witnesses and to the documentary evidence on record. the submissions canvassed by the learned counsel follows a pattern of some uniformity and i shall, therefore, deal with the entire case on merits in this judgment. the complainant in this case, bhai vaidya, as indicated by me earlier, was the minister of state for home with the government of maharashtra at the relevant time. he has narrated as to how accused no. 6 who runs a cycle shop at pune was a person known to him and that this accused had approached him with the request that he should revoke the detention orders passed against certain relations of accused no. 1 who at the relevant time were at dubai. he had also conveyed the offer of payment of rs. 3 lakhs for this favour. vaidya states that he had objected to accused no. 6 coming with a proposal of this type and that he got angry with him but accused no. 6 persisted with his request principally on the ground that it would be beneficial to accused no. 6 himself as he would also get something out of it. according to vaidya, his approach to the matter was that it was best to create the impression that he was going along with the plan and to trap the persons who were interested in such corrupt scheme so that an example could be made of such people once and for all, which would act as a deterrent in other cases. vaidya therefore kept up the impression that he was agreeable to the proposal and it was under these circumstances that he called these persons to meet him at bombay and told them to call their solicitor, accused no. 7 to come with the money etc. vaidya contacted the anti-corruption authorities who took down his complaint and arranged for the trap. it is material to point out that this is not a case in which a single isolated incident has taken place. the first meeting at vaidya's place at bombay was on the morning of 5-1-1980 at which accused nos. 5 and 6 were present. the second meeting was on 8th january, 1980 at about 7 p.m. at the same place when apart from accused nos. 4 to 7, the police and the panchas were also present in the premises but not at the meeting. on the previous evening i.e. on 7-1-1980, mr. khangulkar, dy. director, a.c.b.; mr. paranjape, dy. director, a.c.b., p.i. bhogle and p.i. sawant had held a meeting with the minister when the f.i.r. was recorded and the memorandum of revocation of the detention orders was prepared. the next meeting was on 9-1-1980 at about 9.30 a.m. at the minister's residence which was attended by accused nos. 5, 6 and 7 with the police and panchas around but reaming out of sight. on the evening of the same day another meeting took place which was attended by accused nos. 4, 6 and 7 and in order to create an atmosphere of reality, vaidya brought the files of the four detenus from mantralaya as the draft revocation orders were to be finalised. the police and panchas were not around at that time. on the morning of the next day i.e. on 10-1-1980 at 9.30 a.m. another meeting was held when the accused nos. 4, 6 and 7 were present. the police and panchas were not around. that very evening at 8.00 p.m. there was one more meeting attended by accused nos. 4, 6 and 7 but the police and panchas were present in the house on this occasion. on 11-1-1980 at 9.30 a.m. accused nos. 4, 5 and 6 and another meeting with the minister during which the police and panchas were around in the premises. 12. the final meeting was fixed on 5.30 p.m. on 11-1-1980. mr. vaidya has narrated in his deposition as to how all the accused were present, some in the minister's room and some others outside, and it was at this meeting that the bag was brought and the money was taken out and shown to him. after the same was placed on the table, vaidya had given the requisite signal by pressing the buzzer whereupon the raiding party raided his room, apprehended the accused and took charge of the money. 13. this prosecution rests heavily on the testimony of vaidya. the additional reason for this is because the anti-corruption authorities who necessarily had to comply with the requisite legal formalities involving an offence of showing favour in the course of his official duties, the consideration for such favour being an amount of rs. 3 lakhs, had to necessarily retain a record of the conversation pertaining to the offer and acceptance. this was not a case in which the demand had emanated from a public servant but was one of those in which the offer had come from the accused and the public servant had created an impression that he was agreeable to such offers. in these circumstances, what was material was that it be established that vaidya had been asked to revoke the detention orders even though the government had refused to do so on an earlier occasion and that the amount of money that was handed over related to this transaction. the police had gone through the elaborate efforts of placing not one but three tape-recorders in vaidya's room and had also set up elaborate system for operating them. this aspect of the matter assumes considerable importance because it was obvious that the prosecution desired to obtain a complete record of the meetings on tape right up to the completion of the trap. these machines were used obviously because of the fact that a concealed tape-recorder or microphone would have limited audibility and also considering that the possibility of failure of one of them. i have gone through the entire evidence in this case which is very voluminous and i noticed a high degree of vagueness with regard to this crucial aspect of the prosecution. for one thing there are reference from the police to the fact that on each occasion after the recording was done, the tape was sealed and later on the same tapes were opened and the balance part of it was used on the next occasion. there was no need to get down to this degree of thrift as the law is quite clear that tape-recorded evidence if it is to be acceptable must be sealed at the earliest point of time and not opened except under orders of this court. in 1982, one of the accused insisted on a transcript of the tapes and the prosecution was permitted to play the tapes for purposes of preparing the transcript and to reseal the same. this was barely two years after the incident and the record shows that the audibility of the tapes was so poor that the transcript is quite worthless because there are more blanks than text. it was in this background that the trial started in 1985 and that the prosecution decided not to rely on the tapes at all and this important piece of evidence was completely lost. whether poor quality of tapes were used or whether the machines were of the usual low standard or whether the setting up and positioning of the machines and the microphones was incorrect are all matters of conjecture but the fact remains that this crucial evidence is not forthcoming. 14. the learned counsel appearing on behalf of the appellants has stated that this circumstance be regarded as fatal to the prosecution. it is their case that the tapes have been deliberately suppressed and they relied on the admission of vaidya that he had heard the tapes when they were played which means that the recording had come out sufficiently well. if is for this reason that the learned counsel have contended very strongly that the police had obviously opened the seals at least at this time and resealed it. it is contended that the tapes contained a lot of material which had nothing to do with the prosecution case and which would have in terms established the defence of the accused that the meetings were in connection with some land transaction and that they have nothing to do with the detention matters. they have also also submitted that in law, an adverse inference must follow against the prosecution in so far as it will have to be held that had the tapes been produced, they would have gone against the prosecuting authority. 15. the learned a.p.p. has countered these arguments by pointing out that the defence never made any serious grievance before the trial court, when the tapes were not produced. he submits that it is due to the passage of time, the humidity and other factors that affected the quality of the tapes and that it was unfortunate that within a short period of two years the tapes had got affected and the audibility was destroyed in many places. mr. patil contended that these tapes along would have fully established the prosecution case beyond all doubt and that it was never the intention of the prosecution to keep them back. he submits that where valid reason is shown that no adverse inference can be drawn and further that the accused should not be allowed to derive any advantage on this on this score. 16. a scrutiny of the record does indicate that the tapes had deteriorated and the defence had not challenged this position. mr. patil, the learned a.p.p. contended that vaidya had listened to the tapes prior to their being sealed. this is difficult to accept because the police did not deposit these tapes with the court as they ought to have done right in the beginning and there was every scope for them to have opened the seals and edited the tapes. had the tapes been played before the court, therefore, the defence would have been entitle to cast serious doubt about their authenticity in all respects and under these circumstances, because of this one factor along their evidentiary value would have been minimal. whether the statements in the tapes would have helped the defence is purely a matter of conjecture and it is unnecessary to even debate on this issue because i am satisfied from the record that the tapes were not deliberately kept back but that they were not produced principally because they were of no value at all. 17. to my mind, the submission advanced by the learned a.p.p. deserved to be upheld in so far as it is the duty of the prosecution to produce all that material which is essential for purposes of unfolding the prosecution case. in a given case it is left to the discretion of the prosecutor to decide as to whether he wants to rely on all the evidence oral or documentary which has been collected by the investigating authority and one needs to take into account the fact that the trial court ought not to be burdened by material that is inconsequential or that which has suffered damage or deterioration and is, therefore, of no utility. the learned counsel for the appellants did capitalise on the fact that if material evidence such as the tapes is suppressed that an adverse inference should be drawn against the prosecution. such an inference would be permissible in case of deliberate suppression but it would certainly not hold good in a case where the undisputed position is that the tapes were not at all intelligible. what is overlooked by the learned counsel for the appellants is that undoubtedly the tapes recorders were placed in strategic positions but there is nothing on record to indicate that the end result of this exercise resulted in a quality of tapes which were 100% audible. if the machines were malfunctioning or the sound was muffled or the microphones were weak, the quality of the recording would have been defective and that apparently is what has happened. the non-production of the tapes is, therefore, of no consequence whatsoever. 18. the prosecution rests heavily in this case on the evidence of p.w. 1 bhalchandra sadashiv vidya, more popularly known as bhai vaidya. he was the minister of state for home and g.a.d. at the relevant time and admittedly he did possess the power to revoke the detention orders in question. his evidence is very elaborate running into as many as 47 pages. he was a senior politician at the relevant time being aged about 56 years and it has also come on record that he is a person from an academic background and a man of some status, and integrity. he has clearly deposed in detail of the manner in which accused no. 6 brought the proposal to him, how he initially tried to dissuade him and ultimately at the insistence of accused no. 6, he gave him the impression that he was willing to consider it. he mentions of the meetings that had taken place thereafter and what transpired at each of these meetings as also the persons who were present. the presence of solicitor diwanji is in fact a tell-tale circumstance because even though the accused have tried to explain that diwanji was a person dealing with property matters and that the purpose of the meetings was in order to finalise the problem relating to the encroachment on the lands of accused no. 5, the fact remains that diwanji was present in his capacity as a lawyer for purposes of approving and finalising the transaction relating to the revocation of cofeposa orders. he has pleaded guilty to the charges which is a circumstance which i cannot ignore and has got away with a fine. that apart, the prosecution has through p.w. 1 bhai vaidya, very cogently established every fact of its case stage by stage. vidya has stated that as soon as the transaction was finalised, he contacted that a.c.b. officers who took down his complaint and the f.i.r. itself in this case fits in perfectly with vaidya's deposition. apart from this, one needs to take note of the fact that the police officers and the panchas who are government officers in their own right have given elaborate evidence and they completely support everything that vaidya has pointed out on every material point. there was no reason for vaidya to have taken the unusual step of having reported the matter to the a.c.b. and it was quite absurd to suggest that if the transaction related to some other land matter that he would fabricate the entire version regarding the cancellation of cofeposa orders. from this point of view, therefore, regardless of the elaborate cross-examination and the attack made against vaidya that he had framed the accused with the sole object of getting political mileage by projecting himself as a paragon of virtue is without any foundation. 19. vaidya has deposed as to how the entire matter progressed from day to day and meeting to meeting, and in this regard the panchanamas that were drawn up on each occasion by the investigation officers support his version. quite apart from this, it is material to record that the various filed were brought by bhai vaidya from mantralaya which related to the cofeposa orders in question and there would have been no relevance to the bringing of these files to his residence if they were not connected with the subject matter of the meetings. quite apart from that, the prosecution has also produced the draft revocation orders, in respect of the cofeposa detentions and this would conclusively establish the correctness of vaidya's version. lastly, we have the most important aspect of the case viz. the fact at the final meeting, the accused had brought the amount of rs. 3 lakhs in cash in a bag and handed the same over to vaidya which bag has been seized and the currency in question produced before the court. the accused have undoubtedly denied that they had offered this amount to vaidya but the fact remains that it fits in so perfectly with the prosecution case and with the entire deposition of p.w. 1 that it completely corroborates his evidence. 20. i have heard the learned counsel at great length in this case because it is not only an important but unusual matter and the repercussions are far reaching. while vaidya deserves to be complimented for having refused to be corrupted and for having come out strongly against the persons involved, this court will also have to record that he has withstood the onslaught in cross-examination of a bevy of the top most counsel and has come out unscathed. under these circumstances, the acceptance of the evidence of p.w. 1 by the learned special judge cannot be faulted. i need to add here that the complainant in a corruption case is unfortunately relegated to the position of an accomplice and is, therefore, required to be treated with a degree of caution and is also required as of necessity to be corroborated. the complainant's evidence in this case passes all the tests prescribed by law and has, therefore, been rightly relied upon. 21. the next head of evidence which has been seriously attacked by the learned counsel for the appellants is the deposition of p.w. 2 b. v. nadkarni, former additional chief metropolitan magistrate who recorded the confession of accused no. 6 sayyed mohammed sayyed chand. on 21-1-1980 accused no. 6 was produced before mr. nadkarni as he had expressed the desire to make a confession. after putting the requisite questions to the accused and satisfying himself that he was acting voluntarily, he transferred the accused to judicial custody and gave him two days' time to reconsider the matter. the confessional statement of the accused was recorded on 23-24/1/1980 and the same is on record as exhibit 104. this is a verbatim recording of the confession of accused no. 6 to whom magistrate nadkarni put questions in english and accused no. 6 answered the same in english. nadkarni has pointed out that he observed all the requisite guidelines laid down by the high court in relation to the recording of such confessional statements and that the accused made the statement voluntarily and of his own free will. he has also pointed out that he had no doubt whatsoever at all times that the accused was not acting under any pressure. he has been elaborately cross-examined and that learned counsel for the appellants and his evidence has remained totally unscathed; the witness has admitted that he did notice some swelling on the feet of the accused near the ankle but that the accused himself stated that he had not been ill-treated or tortured which was why he did not do an elaborate physical examination nor did he send him for any medical treatment. 22. undoubtedly at a subsequent point of time this confessional statement has been retracted and it is the contention of the accused that the confession must be discarded on the ground that it was obtained through coercion and torture followed by intense panic. the inducement that is alleged to have been held out by the investigating agencies is that if the accused were to follow the instructions of the police and implicate the co-accused that it would benefit him and that it would, also assist in saving himself. to this extent, therefore, the value of the confessional statement is attacked. 23. i do not dispute the arguments advanced by the appellants' learned counsel that an accused who volunteers to make a detailed confession and that too one which seriously implicates himself and his colleagues is certainly something unusual. furthermore for an accused who is in custody, to suddenly volunteer to make such a confession would certainly attract a high degree of suspicion. under these circumstances the courts are invariably slow in accepting and relying upon confessions of this type barring the few unusual cases wherein the statement successfully passed all the requisite tests. the learned a.p.p. has heavily supported the findings of the learned special judge who placed reliance on his statement and he has contended that it is quite obvious from the tenor of the statement of accused no. 6 that he desired to make a clean breast of everything possibly because he was overcome by remorse. 24. accused no. 6 on his own admission was a man of ordinary means, his business being that of running a cycle shop. in this case he was also an active political worker and he had explained how he moved up in polities and was well known to minister vaidya and other politicians. as was inevitable, he decided to capitalise on his position and contacts and even spread the word around that he could get jobs done, obviously for a consideration. it was in these circumstances that he got mixed up with the effort that was directed towards revocation of detention orders which job he undertook in right earnest. the tenor of his confession indicates that he was used as a contact man in the first instance after which the parties came forward for open negotiations and the impression sought to be created was that since he was only a medium or a post-office in the transaction for apparently small consideration, that his actions should be viewed in the perspective of his being an agent. 25. the confessional statement (exhibit 104) runs into several pages and i have scrutinised it very carefully because a person of the status of accused no. 6 could never have made up or fabricated that entire statement which fits in literally to the letter, with the version of p.w. 1 bhai vaidya. this is of some consequence because it would have a bearing on the aspect of voluntariness. it is true that accused no. 6 was in custody at the relevant time but to my mind, after the operation had misfired, it was quite obvious that each of the accused was desperately trying to save his own skin and that this was the mode adopted by accused no. 6. i have referred to the fact that at the subsequent point of time each of the remaining accused expressed the desire to turn approver and it is, therefore, not at all surprising that accused no. 6 made the confession in question. the deposition of magistrate nadkarni satisfactorily indicates that the confession was voluntary, that it was recorded after observing all the necessary safeguards, that it has been correctly recorded and that it has been certified by no less a person than the accused himself that it represented correctly what he has stated. under these circumstances, the confessional statement in question has rightly been accepted and relied upon by the learned special judge. i am unable to find any ground on which the statement can be called into question more so because it completely fits in with the deposition of p.w. 1 bhai vaidya. the statement unequivocally sets out how the operation to approach the minister and to bribe him in order to get the detention orders revoked was planned and executed and the version is identical to that as deposed to by vaidya. apart from the corroboration to his evidence, a reference to which i have already made, this confessional statement of accused no. 6 leads very strong support to the prosecution case and virtually establishes the charges against the accused beyond all doubt. 26. p.w. 3 ashok brijmohan kacker was working as an income-tax officer in 1980 and had acted as a pancha in this case. he was an officer of some status and it is refreshing to note in this case that the police had taken the trouble to pick persons of a sufficiently responsible position to act as panchas. it is unfortunate that in many of these cases, the police pick virtually men of straw and that the integrity, intelligence and i.q. of the pancha is so low that they either turn hostile or disappear or give evidence that is absolutely worthless. this case is a refreshing departure and kacker's evidence is clear, reliable and fits in completely with the prosecution case. the defence did point out that his evidence should be treated as being virtually useless because he was never personally present during the meetings nor did he have any first hand information of what had transpired inside the minister's room and that, therefore, being a government officer he was obliged to sign whatever panchanamas were drawn up and to depose in support thereof. one cannot write off kacker's evidence so lightly because he provides a vital link to the prosecution story in so far as he was on the scene from the earliest point of time and was a witness to the meetings right upto the incident on the 11th when the trap was successful. the fact that he was not asked to remain inside the room even if he had to conceal himself, to my mind, does not make much difference because unlike in other trap cases we have in this ample corroboration to the complainant's evidence other than that of a pancha who is an eye witness. i need to mention that kacker's evidence indicates everything except the actual conversation that took place inside the room and is, therefore, of much utility in establishing the credibility of the prosecution case. 27. the prosecution has thereafter examined inspector sawant, the police photographer phadke, inspector nikam senior inspector bhogale for purposes of narrating the manner in which the investigation was carried out, the manner in which the tape-recordings were made as also the completion of the trap. this evidence, to my mind, is not of much importance and, therefore, does not merit any detailed consideration because it is mainly narrative in character. it does, however, lend complete support to the more important and material deposition and to the evidence of p.w. 1 the panchanams, the evidence of the pancha and the confessional statement of accused no. 6. in totality, therefore, it is supportive in character and assists the prosecution to the extent that it is almost without blemish. i do need to take note of the fact that the complainant in this case happens to be no less a person than the home minister himself and, therefore, the investigative agencies could only be excepted to put forward a perfect performance. in totality, therefore, the appreciation of evidence by the trial court and the acceptance thereof cannot be found fault with. 28. it is unnecessary for me to refer in detail to the evidence of the various police officers because that material is mainly repetitive and even though there has been very lengthy cross-examination, to my mind, the consideration of all that evidence by the learned special judge has been correct and the acceptance thereof cannot be faulted. they have indicated from the earliest point of time as to how the complaint was filed, the various persons who attended each of the meetings the manner in which the trap was planned, the procurement of the panchas, the tape-recording and the subsequent developments. the documents such as the various panchanamas etc. have also been considered by the learned special judge which again completely and fully fit in with all the aspects of the prosecution case as deposed to by the various witness. in totality, therefore, the finding of the learned judge that a charge of conspiracy under section 120-b of the i.p.c. stands established can hardly be found fault with. i need to mention here that each of the learned counsel who represented the different appellants sought to point out that the individual role as attributed to their respective clients even if accepted, was insufficient to establish any meeting of minds or bring home any conspiracy. this argument i am unable to accept after very careful consideration of the record. that the accused were acting in consort is established from the number of meetings that were held, the objective of the offer made to the minister was the revocation of the detention orders and the offer of the money was directly related to this. that one or more of the accused could had many other requests or petitions in relation to other matters with the minister is an irrelevant factor because the material before the court in this case establishes that as far as the meetings which are the subject matter of this charge go, that they were all directed towards the finalisation of an illegal act viz. to get the detention order revoked in consideration of payment of rs. 3 lakhs. towards that objective the various meetings were held and only one conclusion is possible from the presence and participation of the various accused namely that they were working towards achieving this. in all such conspiracies there will always be some accused who play a dominant role and some who are either supportive or mere participants with the others, but that would not in any manner diminish their liability. unless there was a clear meeting of minds and unless they were acting in consort, one cannot explain the repeated presence of the different accused and it would, therefore, be wrong as urged by the learned counsel, to separate the acts committed by each accused and to try and argue that their roles could be dissociated from the rest. once the association and consort is established, it is the cumulative effect that has to be taken cognizance of. to my mind, therefore, the findings of the learned special judge that the conspiracy charge is established cannot be disturbed. similarly, when it comes to a consideration of the liability for the offences under section 161 read with s. 165-a i.p.c., once it is established that the accused were acting in furtherance of a conspiracy, the offences punishable under these heads would follows as a natural consequence as the offering of a bribe of rs. 3 lakhs to the minister for securing a favour from him was the object of that conspiracy. 29. dealing with the case-law on the point, the learned counsel contended in the first instance that a conviction based on an uncorroborated statement of a complainant in a corruption case is bad-in-law. reliance was placed on the decision of the then judicial commissioner's court in goa, in the case of ismail ibrahim sayyed v. state reported in 1975 cri lj 1335, held that such uncorroborated evidence was insufficient for purposes of sustaining a conviction. in this regard, reliance was also placed on a leading case on the point decided by the supreme court i.e. pannalal damodar rathi v. state of maharashtra, reported in : 1979crilj936 wherein the supreme court had occasion to observe that after the amendment of the i.p.c. with the introduction of section 165-a, the complainant is in no better position than an accomplice and, therefore, corroboration in material particulars is necessary. 30. in this regard, a sharp distinction requires to be made in the present case. normally in corruption charges the complainant is the person who for the purpose of securing benefit to himself agrees to do an unlawful act by way of offering illegal gratification as consideration for that benefit. therefore, the law regards the complainant who has virtually turned traitor and come to the anti-corruption authorities as being in the position of an accomplice because his complaint to the police notwithstanding, he is under a contract to do an illegal act. that this is the only means of apprehending a corrupt public servant, may be the justification for proceeding with the plan but the fact still remains that the complainant is in the position of an accomplice and that his evidence is, therefore, tainted and requires corroboration. in this case, the facts are unusual and the position is distinguishable from all other corruption cases because the demand has never emanated from the public servant and because the complainant is not a member of the public. in this case the demand or the request to do the illegal act has emanated from the members of the public viz. the accused and it is the public servant who has complained about the illegality. it is true that the trap could not have succeeded without the public servant having agreed to be a party to the illegal act of accepting illegal gratification, but the distinction is that the position here is exactly the opposite to the normal run of corruption cases. to my mind, therefore, on these facts the complainant bhai vaidya cannot be equated with the position of an accomplice. as a witness, the quality of his evidence as also his general integrity being of a high order there is no reason why a conviction cannot be based even on his uncorroborated evidence. we do have, however, ample corroboration from the confession and the evidence of the remaining witnesses viz. the panchas and the police officers. the argument that the only corroboration on material particulars which could come from the tapes is non-available is fallacious. the panchas and the police officers have fully supported the prosecution case and their evidence is worthy of credit. 31. the learned counsel have also relied on the judgment of the supreme court in the case of dagdu v. state of maharashtra, reported in : 1977crilj1206 , wherein the supreme court had qualified the position in the following terms at p. 1211 (of cri lj) : 'though an accomplice is a competent witness and though a conviction may lawfully rest upon his uncorroborated testimony, yet the court is entitled to presume and may indeed be justified in presuming in the generality of cases that no reliance can be placed on the evidence of an accomplice unless that evidence is corroborated in material particulars, by which is meant that there has to be some independent evidence tending to incriminate the particular accused in the commission of the crime.' one needs to bear in mind the fact that the supreme court in that case did clarify that the uncorroborated evidence of the accomplice in question, happened to be of the co-accused who had turned approver and the court, therefore, felt that it is hazardous, as a matter of prudence to proceed upon evidence of a self-confessed criminal who in so far as his role of an approver was concerned, had to testify in terms of the pardon tendered to him. after analysing the decisions reported in : 1952crilj547 : : 1952crilj547 : : 1958crilj976 : : [1968]2scr641 : : [1975]3scr453 : 1975 cri lj 765, the supreme court enunciated the proposition that :- 'it is necessary to understand that what has hardened into a rule of law is not that the conviction is illegal if it proceeds upon the uncorroborated testimony of an accomplice but that the rule of corroboration must be present to the mind of the judge and that corroboration may be dispensed with only if the peculiar circumstances of a case make it safe to dispense with it.' 32. the present case in an exceptional one, where we have evidence of the complainant bhai vaidya which is letter perfect and which to my mind would prove the exception to the rule that in the face of such evidence corroboration would be unnecessary. in this case, however, apart from the f.i.r., evidence of the panchas and the police officers, the confession statement of the accused no. 6 provides the strongest form of corroboration. 33. dealing with the aspect of confession, the learned counsel for the appellants placed reliance on the decision of the supreme court in the case of sarvansingh ratansingh v. state of punjab, reported in : 1957crilj1014 . dealing with the provisions of section 164(3) of the cr.p.c. the supreme court had occasion to observe that the magistrate before whom an accused is produced for purposes of recording a confession must allow a longer period of time to elapse before recording that confession. the obvious reason for this was because regardless of what form of custody the accused is brought out from that he is still accessible to the investigating authorities and, therefore, in order to off set the possibility of the confession being the aftermath of coercion or inducement, the court was of the view that if sufficient time is allowed to elapse that the quality of the confession would stand considerably improved. one needs to read into the decision the converse position; the learned counsel in this case argued that accused no. 6 gave the confession under threats and inducement and, therefore, the same is not admissible as against him, since it was recorded after giving the accused no. 6 very little time to consider his position. the supreme court has not prescribed as to how much time should be given an in this case the learned magistrate put sufficient questions to the accused no. 6 who was then in judicial custody and there was absolutely no ground to believe that the confession was the result of any form of threat or inducement. therefore, the rule of caution as emerges from the aforesaid decision has in fact been followed in the present case. 34. another interesting proposition was canvassed by the learned counsel appearing for the appellants which has its roots in the king's bench decision in the case of brannan v. peek reported in 1947 all er 752. the decision centres round the situation where for purposes of arresting the accused who was a habitual gambler, the police officer visited an illegal gambling den and baited the accused by himself placing several illegal bets and the court summarised the position by disapproving of the desirability of a police officer being sent to commit an offence with the object of detecting offences committed by other persons. basically the court did not approve of the principle of setting a thief to catch a thief. our supreme court in ramjanam singh v. bihar state, reported in : 1956crilj1254 strongly disapproved of the situation whereby accused are tempted and drawn out by the prosecuting agencies to commit offences and are then sought to be prosecuted for the same. the supreme court observed at page 1263 (of cri lj) :- '...... it is one thing to tempt a suspected offender to overt action when he is doing all he can to commit a crime and has every intention of carrying through his nefarious purpose from start to finish, and quite another to egg him on to do that which it has been finally and firmly decided shall not be done.' 35 the learned counsel argued that in the present case the complainant has virtually, on his own admission, held meeting after meeting and induced the accused to come with the money on a false promise even though he never intended to revoke the detention orders and by such conduct the complainant has virtually tempted the accused into committing an offence. the learned counsel for the appellants contend that not only would this totally disqualify the accused from any credibility in the eye of the court but more importantly, that the accused cannot be held guilty of a criminal offence which the complainant has virtually induced them into. the fallacy in this argument is that the charge against the complainant that it was he who induced the commission of the offence is incorrect. in spite of his refusing, the accused insisted that he should show favour to them and that he should accept rs. 3 lakhs in consideration for the same and, therefore, there can be little dispute about the fact that the accused did not require any tempting but that it was their own persistence which led to their undoing. the principle enunciated by the supreme court is, therefore, not applicable to the facts of the present case. 36. a very unusual situation had arisen in the case of (lachaman das v. state of punjab, reported in : 1970crilj526 , wherein the accused was convicted of corruption charge on the uncorroborated statement of the complainant. in that case, the circumstantial and documentary evidence supported the defence version and the grievance made before the supreme court was that the high court had refused to consider this aspect of the matter while un-holding the conviction. the supreme court had acquitted the accused on the ground that the remaining material supported the defence version. the learned counsel for the appellants in this case contend very strongly that the circumstances in this case and in particular, the tapes that have been kept back or withheld by the prosecution fully and completely support the defence case, that the complainant stands alone and uncorroborated and, therefore, the conviction is liable to be set aside. this position is factually incorrect because the conviction in the present case is not based on the uncorroborated statement of the complainant. the circumstances on record do not support the defence version and it is only because of the non-availability of the tapes due to their poor condition that the accused are trying to take advantage of that circumstance and contend that had they been produced, the material contained therein would have supported the defence version. the facts of this case are, therefore, distinguishable and the principle laid down in the decision referred to supra would not hold good. 37. lastly, the learned counsel relied on the decision of the supreme court in delhi administration v. v. c. shukla reported in : 1980crilj965 in support of the proposition that a criminal conspiracy cannot be held proved unless there is direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence. the learned counsel submit that the mere fact that the accused at some time or the other have participated in varying degrees can never be construed as evidence of criminal conspiracy. in the same case, the supreme court held that the evidence of an accomplice cannot be accepted in any material particular in the absence of corroboration from reliable sources. 38. i need mention here that the conspiracy in the present case has been established through direct and circumstantial evidence which points to only one conclusion viz. that the accused persons had joined together for purpose of committing the illegal act viz. bribing the minister and getting the detention orders revoked. to this extent, therefore, on the facts of the present case, it cannot be contended that there was no meeting of minds. as regards the accomplice evidence, the position is that the complainant bhai vaidya can hardly be categorised as an accomplice on the special facts of the present case and more importantly, there is adequate corroboration in all material respects. 39. in this view of the matter, the findings of the learned special judge do not deserve any interference with and are accordingly confirmed. the conviction of the appellants also stands confirmed. 40. considering the fact that the incident pertains to the year 1980 and that a long period of time has now elapsed since the date of the commission of the offence, apart from which eight years have gone by since the trial was concluded and the accused were convicted, i thought it essential to hear the accused, on the question of sentence. to start with, i need to record that mr. patil, learned a.p.p. advanced a strong plea that this is one of the few cases where a corrupt act of this type has been punished and that consequently a very deterrent sentence is called for. he opposed any consideration of leniency and even submitted that this is one of the instances where lapse of time should not work to the benefit of the accused. he stated that the accused had been on bail both at the time of the trial and during the pendency of the appeal except for the initial period when they were retained in custody and that in these circumstances a deterrent jail sentence is called for. 41. the learned counsel appearing on behalf of the appellant pointed out to me on the basis of the certificates that each of the accused has advanced in years and that they are suffering from several ailments. they also advanced the plea that the trauma and the pressure of the trial and of the long period during which the appeal has been pending have only aggravated the mental and physical conditions of the accused persons. that they are suffering from a variety of ailments many of which are sufficiently serious, is established from the certificates produced before me and i do not need to recount in detail the description and nature of those infirmities. i have also seen the condition of the accused who were all present before me right through the rather protracted hearings of these appeals. the fact that they are all relatively sick persons is being recorded by me for a special reason. 42. mr. pawar, the learned counsel re-presenting some of the appellants placed reliance on a decision of the supreme court in the case of rameshwar dayal v. state of u.p. : (1971)3scc924 , wherein the supreme court was require to interfere in a case where the charges and the evidence were common but the court had awarded widely different sentences the different accused. the supreme court brought down the heavier sentences imposed and directed that all the accused should be treated on par and that there should be no variance in the quantum of sentence. relying on this judgment, mr. pawar, submitted that mr. diwanji, who had pleaded guilty to the charges was fined rs. 25,000/- on each count without any jail sentence being awarded to him. the present appellants had also applied for being treated as approvers as in the case of mr. diwanji but their applications were turned down and they had thereafter contested the matters. it was argued that merely because they had contested the matters that it was unfair on the part of the learned trial judge to have awarded the present appellants heavier sentences than what was given to the person who pleaded guilty. ms. kasle, on behalf of accused no. 1 relied on the decision of the supreme court in the case of b. c. goswami v. delhi administration : 1974crilj243 in support of her contention that the lapse of a long period of time, which in this case happens to be of 13 years and that suffering undergone by the accused should be construed as grounds for leniency. in goswami's case, the supreme court did take into account these factors as justification for imposition of a relatively light sentence. 43. to my mind, there is considerable substance in the submission canvassed by the learned counsel on behalf of the appellants, not so much with regard to the time factor but as regard the request that they must be treated on par with the original accused diwanji who had pleaded guilty and on whom a fine of rs. 25,000/- was imposed by the trial court. a perusal of the relevant orders will indicate that the only grounds which found favour with the court were the two-fold considerations of ill-health and advanced age. to my mind, if one were to scrutinise the roles ascribed to the present appellants, it will be seen that diwanji was the principal accused in the conspiracy and if at all any of the accused ought to have been severely punished it ought to have been him. the fact that he was a professional and a senior lawyer for that matter is an aggravating circumstance and to find that in a serious case he was the chief negotiator for the purpose of getting the minister to withdraw a detention order against a person accused of serious economic offences in turn for a large amount of money is something that would normally put his culpability on a much higher plane than that of the present appellants. the learned trial judge has taken note of the fact that accused no. 6 is a relatively small man and that he is running a little cycle shop at pune, and, therefore, awarded him a lighter sentence. that consideration to my mind is valid and does not require to be interfered with. 44. as far as the remaining appellants are concerned, having regard to the fact that they are convicted principally on the ground of being members of the criminal conspiracy, it would be just and proper as has been laid down by the supreme court in rameshwar dayal's case, to place them on par with the original accused diwanji to whom a fine of rs. 25,000/- alone was awarded on each count. i do not propose to uphold the jail sentence awarded to the appellants in so far as it would be improper to do so considering the fact that diwanji was not awarded any jail sentence. 45. the appeals are partially allowed. the conviction of the appellants recorded by the trial court under section 120(b) read with ss. 161 and 165-(a) of the i.p.c. are upheld. the learned trial judge has awarded a separate sentence under section 165-a read with s. 161 of the i.p.c. obviously on the ground that the charge of conspiracy is separately punishable. to my mind, on the facts of the present case, no separate sentence is called for under section 165-a read with s. 161 of the i.p.c. considering that the accused are convicted and sentenced for the composite charge under section 120(b) read with sections 161 and 165-a of the i.p.c. the jail sentences awarded to the present appellants are set aside. accused nos. 1, 4 and 5 are convicted under sections 120(b) read with 161 and s. 165a of the i.p.c. and they are sentenced to the imprisonment for the period already undergone and to pay a fine in the sum of rs. 25,000/- each in default rigorous imprisonment for six months. accused no. 6 is convicted of the offence punishable under section 120(b) read with sections 161 and 165-a of the i.p.c. and sentenced to imprisonment for the period already undergone and to pay a fine in the sum of rs. 5,000/- in default rigorous imprisonment for six months. 46. at the request of the learned counsel, the appellants are granted a period of 12 weeks to deposit the fine amount in the trial court. on expiry of the said period of 12 weeks, the bail bonds of the appellants to stand cancelled. appeals partially allowed. 47. order accordingly.