State of Maharashtra Vs. Ramdas Shankar Kurlekar and anr. - Court Judgment

Excerpt:
indian penal code, 1860 - section 161 r/w section 5(1) of the prevention of corruption act, 1947 - no agreement to do an act in consideration of bribe - mere acceptance of money - not sufficient - must have nexus with the agreement - charge against main accused not proved - charge against abettor - cannot be said to be proved.;unless the tacit agreement as envisaged in section 161 of the ipc and 5(1) of prevention of corruption act, 1947 to do an act in consideration of the bribe, has been proved by circumstantial evidence. mere acceptance of an amount, even through trap, will not be sufficient to sustain a prosecution. bribe money found out in the possession of the accused during the trap must have some nexus with the earlier agreement between the parties even tacity or by any necessary implications or the demand by the accused. it has come out in evidence of accused no. 1 that the accused no. 2 went along with p.w. 1 in the car to receive the amount. here charge against the accused is only as an abettor. in that circumstances if charge against main accused is not proved, charge against the abettor cannot be said to be proved. - section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - 1 was not satisfied with this amount. 1 stated in his evidence that he was dealing in an item based on a method recommended by dr. his evidence has to be tested in the background of how bad the situation which was brought to the life of malhotra couple by the acts of respondent no. 1, and how badly they want to take a revenge against the respondents. the court has observed that the question and answers were not clearly recorded in the tape. 1 did not make any demand when the complainant went to him with money on 29-9-77 and the complainant' went back after the trap was found unsuccessful. the words 'like last time we go somewhere .are in the voice of the complainant. some tape,'according to the lower court was not clearly audible. it is not safe to rely upon mr. attempts for tape recording of conversation failed, independent corroboration of the evidence of p. therefore in the light of the above discussions, we find that the prosecution has failed to establish that the respondent no. 2 was trapped and notes were recovered from his pocket whether it can be safe to conclude that he demanded and accepted the money, as an illegal gratification for doing a favour or disfavour. visiting a hotel like horizon is itself shows the status of the party. this is clear from the phrase in the exercise of his official functions'.and no doubt to obtain a bribe as a motive or reward for another's conduct, would not fail within section 161 though it might be an abetment of that offence or cheating.t.k. chandrashekhara das, j.1. this is an appeal filed by the state of maharashtra against the acquittal of the respondents ramdas shankar kurlekar (accused no. i) and bhalchandra dattatraya kasodkar (accused no. 2) by the impugned order dated 8th and 9th of august 1984 by special case no. 29 of 1980 on the file of the court of special judge for greater bombay. the respondent no. 1 was charged for the offence punishable under section 5(2) read with section 5(1)(d) of the prevention of corruption act 1947 and under section 161 of the i.p.c. and respondent no. 2 was charged for the offences under section 5(2) read with section 5(1)(d) of the prevention of corruption act 1947 and section 109 and 265-a read with section 161 of the i.p.c.2. the charge against the first respondent in short was that while he was employed as chief inspector, food and drugs administration, bombay division, bombay, was holding the charge of the post of assistant commissioner (advertisement) at head quarters, bombay, attempted to obtain a sum of rs. 2000/- and accepted the sum of rs. 1500/- on 8-8-1997 and 29-8-1977 as part payment through respondent no. 2 as gratification other than legal remuneration, for showing a favour or disfavour in exercise of official function to one mr. malhotra in the matter of prosecution against smt. malhotra under the provisions of drugs and magic remedies (objectionable advertisements) act, 1954 vide c.r.no. 71/77 for allegedly releasing leaflets containing objectionable matter used by smt. malhotra and on 3-10-1977 attempted to obtain balance of rs. 500/- through the respondent no. 2.3. the allegation against the respondent no. 2 in short was that while he was employed as drug inspector, intelligence branch, food and drug administration, bombay division attempted to obtain a sum of rs. 2000/- and accepted the amount of rs. 2000/- in all in the aforesaid dates as part payment for and on behalf of the respondent no. i as gratification other than legal remuneration as a motive to do official acts or showing favour in the official function of respondent no. 1, in the matter or prosecution against smt. malhotra wife of mr. malhotra, and aided and abetted the respondent no. i to commit the-offences referred to above.4. the court below by the impugned judgment acquitted the first respondent for the reason that the allegations against him has not been proved. the second respondent also was acquitted by the court below on the ground that since first respondent was acquitted of the offences and charge against second respondent was only abetment of committing offence by the first respondent. the charge against the second respondent is not sustainable.5. the prosecution story goes thus: mr. m. b. malhotra was the chief executive of ramon services pvt. limited and an associated company figurette cosmetics pvt. ltd. drawing a salary of rs. 10,000/- per month. he had started a business of manufacture and sale of certain instruments for the development of male organ, which was a mail order business. this business was carried out in the name of his wife mrs. malhotra. the respondent no. i was the chief inspector, food and drugs administration, bombay division and he was holding charge of assistant commissioner (advertisement), head quarters, bombay at the relevant time whereas the respondent no. 2 was working under respondent no. i as a drug inspector, intelligence branch, food and drugs administration, bombay. the a respondent no. 1 and his staff along with the police officers went to the house of mr. & mrs. malhotra on 4-8-1977 and seized certain leaflets and booklets connected with the business of mr. malhotra. it was alleged that there was some objectionable matter in the leaflets and booklets distributed by them during the course of their business which was styled as 'ultranorm'. as the result of this seizure a case was registered against mrs. malhotra under the provisions of drugs & magic remedies (objectionable advertisements) act, 1954. certain articles were also seized from the residence of malhotra couple. mr. malhotra was arrested and released on bail later.6. on 5-8-1977 mr. malhotra contacted the respondent no. 2 on telephone and asked for a meeting with him in the office. mr. malhotra met the respondents on 8-8-1977. at that lime he-enquired about the objectionable matter in the pamphlets so that he could remove that matter while reprinting the pamphlets. it is the case of the prosecution that at the meeting the respondent no. 2 told mr. malhotra that they should meet in the evening along with respondent no. 1. the respondent no. 2 then went to mr. malhotra's office at 6.00 p.m. on that day. mr. malhotra then took the respondent no. 2 to his house for picking up mrs. malhotra. the respondent no. 2 asked to mr. malhotra at that time as to what amounts he is offering to respondent no. 1 for making the case against mrs. malhotra mild. the respondent no. 2 was suggesting as to whether it is rs. 1000/-, rs. 1500/- or rs. 2000/- mr. malhotra picked up his wife and went along with the respondent no. 2 to the residence of respondent no. 1. they took respondent no. 1 with them and went to hotel horizon at juhu. while these four persons having dinner at hotel horizon, malhotra offered rs. 1000/- to the respondent no. 1. the respondent no. 1 was not satisfied with this amount. he insisted that mr. malhotra should, pay to him rs. 2000/-. the respondent no. 1 told the respondent no. 2 to accept rs. 1000/- when malhotra told him that he did not have any more money with him at that time, and respondent no. 2 then accepted that amount. on 23-8-1977 the respondent no. 2 went to the office of mr. malhotra on which day he had paid respondent no. 2 rs. 500/- more for handing over to respondent no. 1. then respondent no. 2 told him that their work would not be done unless the balance of rs. 500/- was paid to respondent no. 1. all along mr. & mrs. malhotra were pleading to respondent no. 2 to persuade respondent no. i to satisfy with this amount of rs. 1500/-. the respondent no. 2 had promised to speak-to mr. malhotra on telephone after having talk with the respondent no. 1.7. on 24-8-1977 mr. malhotra contacted, a minister of the maharashtra state and narrated; the entire story to him. the minister asked him to' go home and wait there. at 6.00 p.m. on that day mr. dabholkar, assistant commissioner of police, inspector sawant and inspector parulekar of the anti-corruption bureau came to the residence of mr. malhotra. they recorded mis complaint exh.28 and a crime was registered and the investigation was taken up by the officers! thereafter the above police party had made several attempts to trap the respondents 1 and 2 in their telephone conversation with mr. & mrs. malhotra. those conversation were tape recorded. attempts were made on 2/3 occasions to make payments to the respondents with notes to which anthracene powder was applied. however there was no demand for payment on those occasions. ultimately on 3-10-1977 mr. malhotra went to the office of respondent no. 1 with five notes of rs. 100/- each to which anthracene powder was applied. mr. malhotra went out of the cabin of the respondent no. 1, after having talk with him. there was no demand by the respondent no. 1 at that time also. however, the respondent no. i told the respondent no. 2 to go with mr. malhotra and accept whatever amount was being offered by mr. malhotra. the respondent no. 2 then went with mr. malhotra in his car towards hotel copper chimney. panchas and the members of the raiding party followed mr. malhotra's car in another car. mr. malhotra had suggested to the respondent no. 2 that the payment can be made when they are having snacks and tea in a hotel. they went to a hotel copper chimney. the panchas heard the talk from another table in the hotel. the respondent no. 2 refused to accept the amount there because of the crowd.8. mr. malhotra and the respondent no. 2 then left the hotel and went in the car towards sayaji mill compound. the respondent no. 2 demanded the money at that time and mr. malhotra paid him rs. 500/-. he handed over the notes to which anthracene powder was applied. respondent no. 2 got those notes and put in his front pocket of his shirt. the respondent no. 2 left the car and went towards jayesh medical store. mr. malhotra came out of the car and gave the agreed signal to the raiding party who was following them all along. the members of the raiding party went behind the respondent no. 2 and caught him in the medical store. the respondent no. 2 threw away the notes on a chair in the store when he was caught by the police. his hands and pockets were examined under ultra-violet rays and traces of anthracene powder were noticed on his hands and the pocket. other articles in his pocket and also had traces of powder which were seized. after the investigation is over, government sanction was obtained and the charge-sheet was filed against the respondents in the trial court.9. before the court the respondent totally denied the charges. the explanation of respondent no. 1 is that mr. malhotra had lost his job because of the raid on his house and the publicity given to the case in the newspaper. in fact the respondent no. 1 was prepared to help mr. malhotra within the legally permissible limit. he was not prepared to go beyond or to do any favour outside the law. his further case is that mr. & mrs. malhotra was taking revenge against him.10. the respondent no. 2 also took up a stand that the case against him emanates out of revenge and he did not demand or accept any bribe from mr. malhotra on behalf of respondent no. i. according to him mr. malhotra, handled the notes marked with anthracene powder and then gave him a cigarette packet in the hotel copper chimney. he then shook hands with him when he went away from the car. mr. malhotra threw the notes on the chair in the medical store while the raiding party caught him.11. we have closely examined the judgment of court below and perused the evidence, both oral and documentary. we also heard the learned a.p.p. mr. maheshpurkar for the state and mr. chari, learned counsel for the respondents in great detail. we find no grounds to interfere with the order of acquittal, entered by the trial court..12. mr. malhotra p.w. no. 1 stated in his evidence that he was dealing in an item based on a method recommended by dr. chartham, a marriage counsellor of u. k. this item was for the development and increasing the size of the male organ. he was running a company named 'ultranorm' for selling these items. it was a mail order business carried on by mr. malhotra in the name of his wife. he was working as the chief executive of ramon services pvt. ltd. and he was getting a salary of about rs. 10,000/- per month. he learnt from his wife that on 4-8-1977 that some officers of the food & drugs administration wanted to meet them. he went to his house and saw the respondent no. 1 and other officers at his residence. the respondent no. 1 informed him that there was some objectionable matter in the leaflets, which was using forgetting orders during the course of his business. there were some police officers with the respondent no. 1. they seized the leaflets and articles found in the house under a panchanama. a case was registered against mrs. malhotra, and she was released on bail in due course.13. mr. malhotra further deposed that he was required to pay bribe forgetting his wife released on bail and also for getting the dates of hearing from court to some persons. according to mr. malhotra he went to the office of respondent no. 1 on 8-8-1977 to enquire about the objectionable words in his pamphlets. the respondent no. 1 did not give any reply to him, but respondent no. 2 said that they should meet in the evening. the respondent no. 2 came to mr. malhotra's office at 6.00 p.m. and then they went to the residence of mr. malhotra for picking up mr. malhotra. the respondent no. 2 spoke to mr. malhotra when the driver of the car had gone to call mrs. malhotra that when the amount offering should be rs. 1000/-, rs. 1500/- or rs. 2000/-. the respondent no. 2 said that the respondent no. 1 would make the case against his wife mild and save her from harassment. after mrs. malhotra came down, all of them went to the residence of the respondent no. i when the respondent no. 2 went to call the respondent no. 1, mr. malhotra spoke to his wife about the demand. he then kept rs. 1000/- in a packet. after the respondent no. 2 came with respondent no. 1 all of them went to hotel horizon at juhu in their car. mr. & mrs. malhotra were liquor permit holders. all of them had drinks in the permit room except the respondent no. 1, who had apple juice. during the course of the dinner mr. malhotra took out the envelope containing rs. 1000/- and kept it on the table between the respondents. mr. malhotra told them that the envelope contained rs, 1000/-. then the respondent no. 1 went to the toilet. the respondent no. 2 said at that time that the respondent no. i would not accept less than rs. 2000/-. mrs. malhotra told the respondent no. 1 on his return that he should accept rs. 1000/- as they did not have more money. it is said that the respondent no. i became angry and demanded rs. 2000/- for making the case mild. the amount of rs. 1000/- was picked up by the respondent no. 2 at the instance of the respondent no. i when mr. malhotra told him that he did not have more money at that moment. mr. malhotra said that he could make a further payment if they insisted on it. they went back after the dinner was over. mr. malhotra produced exhs. 18 to 26 the bills from the hotel horizon.14. prosecution relied on the meeting of the parties in the horizon hotel to prove the demand and acceptance of the amount by the respondents. the prosecution has produced the hotel bills exh. 18 to 26 as corroborative materials. exh. 18 is the liquor bill in the name of mr. malhotra. exhs. 19 and 20 are the memorandum about the liquor supplied to the parties, which are in the name of one mr. pareira. it is rather suspicious that when mr. and mrs. malhotra was having liquor permits why those liquor bills showed the name of mr. pareira. the bills exhs. 21 to 23 shows that there were four persons in the party. if mr. pariera also joined then total members of the party must be five. therefore these bills do not corroborate their visit to the hotel horizon when the deal was stuck. it has to be concluded that the demand of rs. 2000/- and acceptance of rs. 1000/- on 8-8-1977 at the hotel horizon is on a shady premises. the learned a.p.p. mr. maheshpurkar tried to impress upon us about the rediscount circumstances that malhotra couple was landed because of the raid and seizure of pamphlets from their residence, and this respondent no. 1 will be able to save them from that situation and in that circumstances malhotra's evidence regarding the visit of hotel with the accused has to be believed. we cannot accept this content because the corroborative evidence is lacking in this case. moreover mrs. malhotra was already prosecuted and fined and though no question of making the case against her mild. further, prosecution was not able to show any provisions of law or rule that respondent no. 1 has the authority to approve the pamphlets. the learned a.p.p. brought to our intentions the evidence of mr. malhotra contacting respondent no. 2 and cite the telephone conversation between them which spell out the roll of respondent no. i in this case. we examined that circumstance also.15. the case of mr. malhotra is that he tried to contact the respondent no. i over telephone in an attempt to record the conversation in tape and to bring out the complicity of respondent no. 1 into the offence. mr. malhotra deposed in his evidence that on 23-8-1977 he made a telephone call to respondent no. 1 and the reply of respondent no. 1 was that he would contact later. mr. malhotra says that respondent no. 1 also told him that he would come to his office at 1.00 p.m. when the respondent no. 2 came to the office at 12.45 p.m. and he told him that respondent no. 1 would not do his work unless the balance of rs. 1000/- was paid. mr. malhotra's evidence shows that he then told the respondent no. 2 that he did not have rs. 1000/- at that time and the he would pay rs. 500/- after he received his salary. it is the evidence of mr. malhotra that since respondent nos. 1 and 2 did not contact till the next day he made a complaint to the minister mr. leon d'souza on 24-8-1977 about the incident. we cannot accept the evidence of mr. malhotra without any other corroborating evidence. his evidence has to be tested in the background of how bad the situation which was brought to the life of malhotra couple by the acts of respondent no. 1, and how badly they want to take a revenge against the respondents. although mr. malhotra was trying to trap the respondent no. 1 desparately with the help of the minister. this was demonstrated by several frustrated attempts made by them in recording telephone conversation be tween the respondents and the complainant.16. according to mr. malhotra on 25-8-1977 the police officers came to him with panchas and a radio mechanic. mr. malhotra was informed by the police that they wanted to verify the truthfulness of his complaint by having a record of the telephone conversation between him and the respondent. the panchas and mr. & mrs. malhotra were given a demonstration showing that the tape was to be used was blank. also they were tutored by the police about the procedure of taping the conversation. procedure as deposed by mr. malhotra is, first the voice of panchas will be recorded in the beginning. then mr. & mrs. malhotra ring up to the office of the respondents 1 and 2 and had a conversation with whoever was available. the voice of the panch was recorded at the end of the tape. the tape was played back to the witnesses and it was shown that the conversation was properly recorded. then the cassette was sealed in a packet under the signatures of the panchas. on 25-8-1977 the first conversation on telephone was recorded on tape. on that day in the presence of panchas and police officers he had a talk with respondent no. 2. the conversation was about whether respondent no. 2 has paid the amount to respondent no. 1 and whether respondent no. i will wait for the balance of rs. 500/- till he got his salary and the reply of respondent no. i was that they would meet afterwards. then mr. malhotra invited them for drinks and the reply of respondent no. 2 was that he did not know the programme of the respondent no. 1. this tape was produced before the court, and was played. the court has observed that the question and answers were not clearly recorded in the tape. the lower court has pointed out that in this conversation no money was referred. only thing which mr. malhotra asked the respondent no. 2 as to whether he gave him that but the answer of respondent no. 2 was in the affirmative. the trial court therefore observed that with this conversation it is not clear whether mr. malhotra was asked about rs. 500/- which is alleged to have been paid by him to be handed over to the respondent no. 1. the lower court has noticed in the conversation referring to the draft of pamphlet also. the tape also revealed that whenever mr. malhotra tried to indicate about the amount of balance, the reply of respondent no. 2 was only na. na. and they will meet afterwards etc. as rightly pointed out by the court below that if one goes by the conversation of tape, article 7, it appears that the witness was referring to one thing and the respondent no. 2 was giving answer to another thing. it has come out in the evidence that on 26-8-1977 since mr. malhotra did not receive any telephone call from the respondent no. 2, he went to his office but respondent no. 1 was not there and he had some talk with respondent no. 2 only. another attempt of recording the conversation between the respondents and mr. malhotra at vile pane railway station was awayed; but had not been carried out as respondent no. 2 had cancelled the appointment and then next arrangement of taping the conversation was on 9-9-1977.17. this tape was marked as article 13 on side b. the same procedure also followed before the conversation was taped. the voice of panchas were first recorded and kept in the purse of mrs. malhotra. thus they went to bandra office of respondent no. 1. the tape recorder was started before they went to the office of the respondent no. 1. mr. malhotra spoke to the respondent no. 1 about the promise to clear the balance of rs. 500/- and the reply of respondent no. 1 was that their work should be done first and then they would see about. this conversation, according to the trial court belied the contention of the complainant that the respondent no. 1 has taken up a stand that unless he received the entitle amount of rs. 2000/-, the complaint's work would not be done by the respondent no. 1. it is the case of mr. malhotra that when this conversation was re corded, the police officer who is a colleague of respondent no. 1 was present at the time of conversation but there was no explanation from the prosecution why this police officer was not examined. the lower court also found that the part of the tape recorder could not be heard and the part of the transcript furnished to the court was incorrect. the lower .court has rejected this on the ground that the recorded tape docs not corroborate the case of the complainant. .it is the case of the p.w. no. 1 that he met the respondent no. 1 and mr. nagwade in his office on 2/3 occasions between 1 7-7-77 to 27-7-77. they had a detail discussion about the contents of the draft and respondent no. 1 asked them to submit the amended draft and exh. 33 is the amended draft and exh. 32 is the covering letter of the draft. it is come out in evidence that the respondent no. 1 then asked the complainant to come to his office on 29-7-77 for collecting the approved draft. to their great surprise, according to this evidence, on 28-7-1977 when mr. & mrs. malhotra came back to their home at 1.30 p.m. they found that the respondents and some other police officers were present in the office. the respondent no. 1 seized some rent receipts and documents from the house. mr. malhotra de posed that on seeing the respondents in their house he thought lint they had come for collecting balance of rs. 500/- what disclosed from the evidence of p.w. no. 1 is that both parties are trying to trap each other. estrangement between the parties were so severe, that no prudent officer would enter to any bargaining with p.w. no. 1 this ends again at the root, of the prosecution case of demanding the bribe by respondents.18. on 29-9-1977 another attempt of taping the conversation was made, in the conversation, complainant had asked accused no. 2, whether he was to come to his office for payment of balance. respondent no. 2 told him to come to the office at 3.00 p.m. when the accused no. i was there. therefore it was decided that a trap should be laid for the accused. a tape recorder was kept in the complainant's brief case. currency notes covered with anthracene powder were kept in the packet of the complainant. complainant then went to the accused no. 1's office after starting the tape recorder. the complainant then told the accused no. 1 that he had brought the balance of rs. 500/- and that he was willing to pay. accused no. 1 then told not to worry about it and they will see about it later. the complainant stated further that he asked whether accused no. 1 would send accused no. 2 to collect the money. though accused no. 2 was called there he was not available. they had a discussion about the draft. in the meantime accused no. 2 came there. there was no talk to money after that. however accused no. 1 further told the complainant to come on 3-10-1977 for approving the draft. this tape article 9 was heard in the court. the complainant's voice was heard without the voice of ringing of the telephone and without the notice of the voice of the operator; the complainant however was unable to explain this position. however. a reference to the balance in the voice of the complainant is. heard on the tape. the accused no. 2's answer to that is that about which balance he was referring to. the complainant however repeatedly made references to the balance in hint, but apparently the accused no. 2 did not understand what the complainant was saying. he was simply saying 'na, na, na' implying thereby that he understood what the complainant said then the talk was about the draft which was discussed with mr. nadgauda. from the further conversation in the para, it appears that the complainant tried to fix up an appointment. there is nothing further relevant on the tape.19. the complainant stated that on the same day another trap was laid for the accused. he went to the office of the accused no. 1 on 29-9-1977 with a tape recorder. it was recorded on article 13 which was heard in the court. the material words in the voice of the complainant in that tape recorder are to the effect that mrs. malhotra was blaming him because he had not paid the balance of rs. 500/-, to the respondent no. 1. there are some inaudible words in the tape after that. that accused no. 1 made a statement to the effect that the police were not concerned with it. then he stated that he had already told the complainant that they were interested in clearing his pamphlets. after hearing this tape, trial court has observed that there was no reference to money. the lower court has observed that there is no reference to money from the accused no. 1's reply. he has denied the correctness of the complainant's substantive evidence point to point. on going through the evidence we are afraid whether such type of evidence could be relied upon for inferring that there was a demand of money by respondent no. 1. the lower court has after going through this tape recorded evidence has found that it is clear that accused no. 1 did not make any demand when the complainant went to him with money on 29-9-77 and the complainant' went back after the trap was found unsuccessful.20. another trap was also laid for the accused on 3-10-1977. the complainant went to the office of the accused no. 1 with the tape recorder in his brief case. he started the tape recorder before entering the office. accused no. 1 told him that he had given the draft to mr. deshpande at the bandra office for legal opinion. the complainant has stated that he asked the accused no. 1, why not meet in the evening as we met last time. the accused no. 1 stated that he was busy-in the evening. the complainant then suggested to the accused no. 1 that they should go out for tea. the accused no. 1 told him that he just had his lunch. the accused no. 1 said that the accused no. 2 would go with him for tea. then he offered tea from the government canteen to the complainant. the accused no. 2 went out and then came back within two or three minutes. the complainant closed his brief case for taking out his papers and then he had kept it open for recording the conversation on the tape recorder. the tape used by the complainant at that time was played back in the court, as article 2, side 1. the relevant para of the conversation was recorded. the words 'like last time we go somewhere ...' are in the voice of the complainant. the next words 'dekhenge . . fir . . .' are in the voice of the accused no. 1. the trial court has observed that the word does not amount to an admission on the part of the accused no. 1 to the effect that he went with the complainant to hotel horizon and accepted the bribe of rs. 1000/-. it is the case of the complainant that the accused no. 1 instructed the accused no. 2 to go with the complainant and collect the balance. this part of the conversation is not at all recorded on the tape. though the panchas were directed to remain as near the complainant as possible, so that they can hear the conversation between the complainant and the accused, the panchas should have remained near the door of the cabin of accused no. 1. they were not at that place. they did not hear the alleged instructions given by the accused no. 1, to the accused no. 2. it is the case of the complainant that one mr. annappanwar was present when the accused no. 2 suggested to him that he and the accused nos. 1 and 2 should meet in the evening. but mr. annappanwar was not examined to corroborate the complainant's testimony on this point. it is significant to note that the complainant admitted that the trap laid for payment of rs. 500/- to the accused no. 1 on 8-9-77,9-9-77,29-7-77 and 3-10-77 that the accused no. 1 did not demand any bribe on these occasions: the trial court was critical about the admissibility of tape recorded conversation between the parties. it had pointed out certain tape recording, cannot be accepted on evidence at all. it has seen in certain tape after the conversation, certain video music was heard, which lost its credibility as suspected to be tampered with. some tape,' according to the lower court was not clearly audible. we are not very much bothered about those defect. even the other evidence on record show that each party are preying each other and trying to single out after trap laid against each other. it is not safe to rely upon mr. malhotra's evidence to come to the finding that respondent no. 1 had demanded rs. 2000/- from him.21. it has come out that the case registered against mrs. malhotra was 3 petty case punishable with a small fine. mrs. malhotra however pleaded guilty in that case and was fined rs. 200/- only. as rightly observed by the court below that it was therefore improbable that a bribe of rs. 2000/- could have been demanded for making a mild case milder. it is admitted by the complainant that the bribe money had nothing to do with the accused no. 1, approving his draft pamphlet. he has specifically admitted that the bribe was demanded and paid only for the purpose of making the case against his wife mild.but this version has been contradicted by the witness at a later stage saying that the bribe was to be paid for approving the amended draft pamphlet. this fact is not mentioned in the f.i.r. exh. 28. this contention coupled with admissions made by the complainant in para 215 of his deposition that the accused no. 1 never demanded any bribe from him during any part of the conversation with him. he further stated that the accused no. 1 did not even suggest or give a hint of a demand of bribe. we therefore confirm the view of the lower court that the only motive for making this complaint for taking revenge against accused no. 1 for the raid conducted by the accused in his house which has been given wild publicity about the nature of the business carried on by mrs. malhotra and because of the publicity he was hurt and he had to resign his job. attempts for tape recording of conversation failed, independent corroboration of the evidence of p.w. no. 1 was absent. motive of p.w. no. 1 is to spite the respondents glaring. therefore in the light of the above discussions, we find that the prosecution has failed to establish that the respondent no. 1 demanded and accepted a bribe of rs. 2000/- from mr. malhotra and the order of the trial court in acquitting the respondent no. 1 fully justified and hereby confirmed.22. now the question is whether there is any justification in acquitting accused no. 2 in this case. the lower court has taken a short cut and acquitted the accused no. 2 that the charge against accused no. 2 is only for abetment and when the charge against accused no. 1 was not proved or established then the charge against accused no. 2 is not maintainable. on these premises the accused no. 2 has been acquitted by the court below. the learned a.p.p. shri maheshpurkar on behalf of the state has submitted that this conclusion was wrong. according to him there are enough evidence independently to implicate the accused no. 2 in this case. let us examine whether those materials available in this case to implicate accused no. 2.23. before the accused no. 2 was trapped there was conversation between mrs. malhotra andi accused no. 2 and the tape recorded conversation made on 28-7-1977 is in article 10. this conversation was recorded on 28-7-1977 when the anti corruption bureau came to their house. it was recorded in the conversation as mrs. malhotra saying to accused no. 2 about her problem that because of that case her husband lost his job and having no business and they have already agreed all demands of accused no. 1, and she sought the accused no. 2's help. in reply to this accused no. 2 appears to have told her that he could not meet respondent no. 1 but he will see him at his residence as he is not coming to the office. accused no. 2 further stated that he will go on that day or on the next day and then discuss. the conversation again continued as mrs. malhotra asking to accused no. 2 whether he had given the packet to accused no. 1. the answer of the accused no. 2 appears to be that, accused no. 2 did not turn up as he was not in the office. then mrs. malhotra expressed her anxiety to the effect that accused no. 2 might be thinking that they might not have given the money. to this accused no. 2 said 'na. na,' then mrs. malhotra said that even though they could not afford they, agree that they will pay you, no problem. then again accused no. 2 said 'no. no. no. ' there is no question of this one. he will see him personally. this taped conversation cannot be relied upon because it appears that mrs. malhotra was calling for accused no. 1 the voice of the panch was recorded at 1.22 p.m. the witness was heard to be speaking at 2.30 p.m. the telephone-operator informed her that the accused no. 1 was not available. the lower court has expressed a genuine doubt about the reliability of the tape. the ' tape was admittedly blank between the conversation between mrs. malhotra and the accused no. 2. no reasonable explanation was given fop-further! conversation recorded on the tape. this further conversion could not have been recorded on the tape unless the tape was taken out of the sealed cover and then mrs. malhotra made another attempt to contact the accused no. 1 on the telephone.24. the lower court has discussed upon another circumstances regarding another conversation between her and the accused no. 2 which was taped on 5-9-1977. it is marked as tape article 11 which was played in the court. it is with regard to the payment of rs. 500/- to accused no. 1 and in the tape it was agreed to talk to accused no. 1. this conversation was recorded on side 2 of the tape. the lower court has noted that some music was heard on the tape. but mrs. malhotra was unable to explain as to how the music was heard on the tape. her first explanation was that mr. malhotra was probably being played in the office of the accused. then she stated that radio of her residence was kept near the tape at that time. the lower court has rightly observed that it was improbable that the police would have allowed the radio to be played when they recorded the conversation between mrs. malhotra and the accused no. 2. we have noted these defects in the tapes and expressed our doubt the veracity of the evidence on the recorded conversations on these tapes. tampering is bound to suspect when music was heard before and after recording the conversations. no plausible explanation is forthcoming from the witness. at this juncture we note the decision of the supreme court, in : 1973crilj228 in r.m. malkani v. state of maharashtra. as held by the trial court the last factors which the supreme court has laid emphasis in accepting a tape recorded conversation as a piece of evidence were completely lacking in the present tapes produced before the court. there is a grave suspicion in the mind of this court that there was likelihood of tampering. therefore, we have seen that there are hardly any materials to implicate the respondent no. 2 in the tape recorded conversation.25. now we come to the trap of accused no. 2. on 3-10-1977 when he came out from the cabin of accused no. 1, accused no. 2 followed him. accused no. 2 told him that he would wait downstairs while he was taking the letter from mr. naggauda, which was addressed to him. thereafter mr. malhotra and accused no. 2 went to his car. they sat on the rear side. mr. malhotra suggested to accused no. 2 that they would go to his house but accused no. 2 wanted to get to worli at an early hour. on the way mr. malholra took the accused no. 2 for tea to the copper chimney hotel. from there mr. malholra suggested to accused no. 2 whether the money should be handed over in that place. accused no. 2 refused to accept the money because there are several persons. however, mr. malhotra ordered a packet of cigarette at the instance of accused no. 2 and he told the accused no. 2 to keep that packet. they went out after finishing tea. this conversation has been proved by p.w. no. 4 vijaya gharat who was a member of trap. nothing has come out to disbelieve this witness. lower court has wrongly rejected this part of his evidence.26. both of them resumed their journey in the car after leaving the hotel. the car was stopped at near sayaji mill compound, worli, at the instance of accused no. 2. according to mr. malhotra, at that time accused no. 2 demanded the money. he gave rs. 500/- treated with anthracene powder to the accused no. 2. the accused no. 2 accepted those notes and keep them in the left pocket of his bush shirt. accused no. 2 got down from the car, crossed the road and went away. mr. malhotra gave the signal as prearranged by removing his wrist watch and keeping it in his pocket. the raiding party which was all along following them came there and mr. dabholkar told mr. malhotra to wait in the car. he waited there for three hours.27. it is the evidence of p.w. no. 4 punch that after accused no. 2 getting down from the car and went across the road. accused no. 2 entered jayesh medical stores. the raiding party was following him. mr. dabholkar followed the accused no. 2 and told him that he was police officer. then accused no. 2 took out the bundle of notes from his left pocket of the bush shirt and threw it. the note's were removed with his left hand. the bundle of notes was thrown on a chair which was behind the counter and near the writing table. it has come out in the evidence that traces of anthracene powder were found in the fingers, and palm of accused no. 2's hands, the inner side of the pocket of his bush shirt, the cigarette packet found in this pocket and on the handle of the bag that was carried by the accused no. 2. the currency notes were checked with the pre-trap panchanama and it was found that those notes were the same. article 15 is the notes and article 19 is the hag and article 20 is the note book. at that time mr. malhotra was called to the medical store. his clothes and hands were examined. anthracene powder was seen on the fingers and palm of his right hand. the powder was seen on the inner side of the pocket in which the notes were kept. mr. malhotra's wrist watch was found in his left pocket. therefore the traces of the powder were found on the strap of the watch.28. the trap arrangement has also spoken by the witness p.w. no. 4 panch. he stated that on 9-9-1977 he was told to remain with mr. and mrs. malhotra and to watch what was happening. he kept away from them when mr. & mrs. malhotra went to the office of the accused. however he did not go near the cabin and he did not see mr. and mrs. malhotra entering any particular cabin. he remained in the varandah. mr. malhotra went on the office of the accused no. 1. after some time accused no. 2 and mr. malhotra went in malhotra's car. he was following the car of mr. malhotra in another car. the witness was stating every minute details of event that had happened while they follow the malhotra's car. he stated that mr. dabholkar was only 4/5 feet away from the accused no. 2, when he entered the medical shop. the distance between the counter in the shop and the road is only one foot. the flap of the counter was at one end. the accused no. 2 opened the flap and went behind the counter. mr. dabholkar followed him through the open flap. he and other panch went behind the counter after mr. dabholkar. the chair was on the opposite side of the table from the flap. the distance between the flap and the table was 4 feet. mr. dabholkar gave a challenge as soon as he put forward his hand to catch the accused no. 2. the notes were lying folded on the chair. they were not scattered.29. p.w. no. 3 mr. champaklal is the partner of the firm which owns janata medical store. he stated that there was no money with the accused. the money in dispute was found on the chair behind the counter. some police constables and other persons had entered the shop behind the, accused no. 2. he also spoke about the examination of the accused's hand with ultra-violet lamp. this witness though declared hostile, stated that according to him, the money could have come and fallen on the chair only if the accused no. 2 had thrown it. in his opinion, the notes could not have been fallen on the chair in any other way. he admits that he was afraid of accused no. 2 as he might cause some damage to him if he gave evidence against him. the facts remained is that even p.w. no. 3 deposed that he threw the notes on the chair on examining the materials in this case there is sufficient evidence to hold that the trap was successful and the money was thrown by the accused no. 2 on seeing the police officer mr. dabholkar, p. w. no. 8 in the chair of the medical stores. we find sufficient evidence that trap against respondent no. 2 has been validly proved by corroboration of independent witness.30. therefore, now we have to come a most important stage of the case. merely because accused no. 2 was trapped and notes were recovered from his pocket whether it can be safe to conclude that he demanded and accepted the money, as an illegal gratification for doing a favour or disfavour. throughout, the prosecution case is that the money was received by respondent no. 2 on behalf of the respondent no. 1. there was no evidence that respondent no. 2 was in his official capacity to do any help to p.w. no. 1 or p.w. no. 2. we have already rejected the contention of the case of the prosecution that the demand of bribe of rs. 2000/- and acceptance of the amount of rs. 1500/- by accused no. 1. as noted earlier, this has been rejected on two grounds, namely inconsistency regarding the purpose of the bribe pleaded and proved by the prosecution. at one stage the prosecution witness says that the bribe was sought to be given to make the case against mrs. malhotra, p.w. no. 2 mild. at another stage of the evidence it has been stated that to clear the pamphlets. secondly the case of the prosecution that mr. and mrs. malhotra could make out only rs 1500/- and the balance of rs. 500/- could not be paid. it is quite unbelievable taking out the status of the party to make the amount of rs. 2000/- available for payment to the accused no. 1. it has come out in evidence that p.w. nos. 1 and 2 are sophisticated persons and leading affluent life and moving in high circle of the society. visiting a hotel like horizon is itself shows the status of the party. it is in this context we have to examine his inability to pay rs. 500/ more to the accused as tried out to make out by the prosecution.31. the learned a.p.p. shri maheshpurkar contented that even though the charge against respondent no. 1 was only abetment, it has proved in this case that he has committed a full-fledged offence under section 161 of the i.p.c. he submits that since the trap has been proved beyond all reasonable doubt, it has to be held that he has demanded and accepted the amount of rs. 500/-which was found out in his pocket at the time of the trap. therefore in the circumstances he submits that even though charge has been framed as the one for abetment in the trial it has proved that he has committed an offence under section 161, i.p.c. it is permissible under law to change the charge by the court as necessary materials were available with the court during the trial and warranting such change of charges.32. in the context, it is worthwhile to note the submissions of mr. chari, the learned counsel for the respondent no. 2. he contended that in a criminal case it is impermissible to alter a charge at the time of trial. he submits that a great prejudice is caused to the accused if the charge is altered in the midst of a trial. we do not think that shri maheshpurkar is fully right in his contention. even though a court can alter a charge with the available material, if a prejudice is caused to the accused by altering the charges then it is not permissible for the trial court to change the charge. we find in this case that accused was charged for only aiding and abetting the commission of offence by respondent no. 1. by changing the charge into one under section 161 of i.p.c. definitely a prejudice will be caused to him,; he was not in a position to mould his defence, which will be the underlying principle of alteration of charge. as we noted earlier in order to sustain a charge under section 161, ipc the prosecution should prove that in his official capacity the respondent no. 2 has demanded a bribe and accepted it in consideration of something done by him in his official capacity. therefore the contention of shri maheshpurkar has to be rejected. 33. we have to accept the contention of shri chari that the respondent no. 2 is only charged for abetment and if the other accused namely respondent no. 1 is acquitted such charge is not maintainable against the abettor as is held by the supreme court in a decision reported in central bureau of investigation v. v.c. shukla reported in : 1998crilj1905 . the 'supreme court in paragraphs 50. and 51 held thus :-50. undoubtedly for a person to be guilty thereunder it is not necessary that the offences mentioned therein should have been committed pursuant to the abetment. since 'abetment' has not been defined under the p.c. act we may profitably refer to its exhaustive definition in. section 107 of the indian penal code. as per that section a person abets the doing of a thing when he does any of the acts mentioned in the following three clauses :-(i) instigates any person to do that thing, or(ii) engages with one or more other person or persons in any conspiracy for the doing of that thing. ... or,(iii) intentionally aids, by any act or illegal omission, the doing of that thing.so far as the first two clauses are concerned it is not necessary that the offence instigated should have been committed. for understanding the scope of the word 'aid' in the third clause it would be advantageous to see explanation 2 in section 107, i.p.c. which reads thus :whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act. it is thus clear that under the third clause when a person abets by aiding, the act so aided should have been committed in order to make such aiding an offence. in other words, unlike the first two clauses the third clause applies to a case where the offence is committed.34. mr. maheshpurkar a.p.p. for the state tried to argue that the trap against accused no. 2, has been proved, and therefore finding entered by the trial court in acquitting respondent no. 2 was not sustainable. we do not agree to this submission. even if trap is accepted as proved, accused no. 2 could not be implicated in the case because it has not come out in evidence that accused no. 2 has got any nexus with the approval of the pamphlet or to make the case mild against p.w. no. 2, and for that he received the money. it is true that accused no. 2 is an assistant of accused no. 1, who had accompanied accused no. 1 in the raid of the house of p.w. nos. 1 and 2. therefore merely because the money treated anthracene powder was found in the possession by a public servant will not amount to an offence either under section 161 of i.p.c. or under section 5(1) of the prevention of corruption act 1947. as observed by the court below the offence against accused no. i has not been proved and the charge against accused no. 2 was only for abetment. in this context an off quoted decision, of this court is worth to be referred. in emperor v. bhagwandas kanji reported in : (1907)9bomlr331 , it has been held thus :-it is necessary to consider therefore what were the essentials in this case to be proved to constitute an offence under section 161, that section requires proof that an official has obtained as a motive or reward for official conduct - an illegal gratification for himself or another. that other may or may not be an official and therefore may be wholly unconnected with the official conduct. the conduct which is contemplated as the consideration for the bribe must be that of the official obtaining it. this is clear from the phrase in the exercise of his official functions'. and no doubt to obtain a bribe as a motive or reward for another's conduct, would not fail within section 161 though it might be an abetment of that offence or cheating. it is also profitable to quote in this context decision of the supreme court also reported in : air1977sc666 in trilok chand jain v. state of delhi, it has been held thus (at page 258 (of cri lj)) :-it is true that in law the incapacity of the government servant to show any favour or render any service in connection with his official duties does not necessarily take the case out of the mischief of these penal provisions. nevertheless it is an important factor bearing on the question as to whether the accused had received the gratification as a motive or reward for doing or forbearing to do any official act or for showing any favour or disfavour in the exercise of his official functions. this question as to whether the government servant receiving the money had the requisite incriminating motive is one of fact. could it be reasonably said in the circumstances of the instant case that the money was handed over to the appellant or received by him as a movie or reward such as mentioned in section 161. 35. p.w. no. 1 and p.w. no. 2 never had a case that respondent no. 2 independently asserting his authority or to hold out to do some help to the p.w. no. 1 and 2 in his official capacity and in consideration whereof he was demanding the amount of rs. 500/-. unless the tacit agreement as envisaged in sections 162, ipc and 5(1) of prevention of corruption act, 1947 to do an act in consideration of the bribe, has been proved by circumstantial evidence. mere acceptance of an amount, even through trap, will not be sufficient to sustain a prosecution. bribe money found out in the possession of the accused during the trap must have some nexus with the earlier agreement between the parties even tacitly or by any necessary implications or the demand by the accused. it has come out in evidence of accused no. 1 that the accused no. 2 went along with p.w. no. 1 in the car to receive the amount. here charge against the accused is only as an abettor. in that circumstances if charge against main accused is not proved, charge against the abettor cannot be said to be proved.36. therefore, we are of the view that, though we disagree to the reasons stated in the trial court's judgment, to acquit the respondent no. 2, we arc in full agreement with trial court, with its conclusions.in the result, appeal fails and it is dismissed. respondents are on bail. they need not surrender. their bail bonds are cancelled and sureties stand discharged.