Karsanbhai Manchubhai Patel Vs. State of Gujarat - Court Judgment

Excerpt:
- - 7. thereafter, the complainant as well as the members of the raiding party proceeded in the government jeep car towards adajan. it may be mentioned that normally a person would not demand money in the presence of a stranger and naturally he would like to know about the person who was accompanying the giver. 1 along with the complainant and in order to see that there would not be any doubt with regard to the person who accompanied the complainant, he told the accused that said person was his friend and accordingly the accused must have been satisfied. it may be stated that the complainant has clearly stated as to what had happened when they entered the house of the accused. the story as deposed by the complainant as well as the panch no. the fact that those notes were lying on the cot on the right hand side of the accused clearly indicates that the defence tried to be made out by the accused is not probable at all. it may be stated that the complainant had not specifically stated a particular day or date, but he had clearly stated that after two to three days from the date of making application by his wife, he had gone there. it is clearly brought out from the cross-examination of the complainant that he had gone to the office of the accused between 2.00 p. it may be stated that before the complainant could meet any other person if the accused met him and if he gave him a promise or assurance for giving employment to his wife naturally he would have liked to go to the place of the accused. the fact that the accused welcomed the complainant by saying 'naginbhai' clearly discloses that not only the accused was knowing the name of the complainant, they had developed further closeness in the absence of which he could not have addressed him with proper name and welcomed him to his house. all these things clearly indicate that the story as deposed by the complainant is quite natural and true. in the said case it is held that 'the two tests required to be satisfied by the prosecution to prove the presence of anthracene powder are therefore (1) that no powder was detected with the naked eye and (2) that when ultra violet light was focussed there was emission of light blue fluorescent light. , submitted that this cross-examination of the complainant clearly discloses that the complainant had not gone to the office of the a. 1. however, it is interesting to note that so far as the present complainant is concerned, he is not a member of either of the society and therefore, he is not directly involved in the said dispute. thus where a public servant who receives illegal gratification as a motive for doing or procuring and official act whether or not he is capable of doing it or whether or not he intends to do it he is quite clearly within the ambit of section 161, i.b.s. kapadia, j.1. the present appeal is filed by the appellant who is convicted by the learned special judge, surat in special case no. 3 of 1983 for the offences under section 5(2) read with section 5(1)(d) of the prevention of corruption act, 1947, as also for the offence under section 161 of the indian penal code and is sentenced to undergo r.i. for one year and fine of rs. 200 / - in default to undergo further r.i. for two months for the offence under section 5(2) read with section 5(1)(d) of the prevention of corruption act, 1947. no separate sentence is awarded for the offence under section 161 of the indian penal code. the aforesaid order was passed by the learned special judge on 28-2-1984.2. the appellant-accused was charged for the offence under section 161 of the indian penal code as also for the offence under section 5(2) read with section 5(1)(d) of the prevention of corruption act, 1947, on the allegation of demanding and accepting gratification other than legal remuneration of the amount, of rs. 500/- from the complainant naginbhai v. lad on 25-3-1983 at the residence of the accused at b/6 gita nagar society, adajan, surat, as a motive of reward for doing official act as supervisor, city primary education committee, surat municipal corporation, for securing employment as primary school teacher for urmilaben, wife of the complainant for showing favour to the complainant for the purpose of helping the complainant in securing the employment as primary school teacher for his wife urmilaben, and for committing misconduct for obtaining for himself the amount of rs. 500/- as gratification other than legal remuneration by corrupt or illegal means or by otherwise abusing his position as public servant.3. the prosecution case in short can be stated as under:urmilaben, wife of the complainant was holding qualification of teaching tailoring and she was qualified for the post of primary school teacher. the surat primary education committee intended to recruit primary-school teachers and some of the primary school teachers to teach tailoring to the students and therefore, public notice dated 28-1-1981 was issued in the 'gujarat mitra' daily, surat. urmilaban submitted her application on 10-8-1981 in the office of the surat primary education committee. two to three days after the submission of the application by urmilaben, the complainant naginbhai lad, husband of urmilaben went to the office of the said committee to inquire about the application. the accused was serving as education inspector under the surat primary education committee and his office was also in the same building. when the complainant naginbhai went to that office and when he inquired about the application submitted by urmilaben from the accused, the accused had a talk with the complainant and he told the complainant that detailed talks about securing the service cannot be done in the office , and that the complainant should see him at his (accused) residence at b/6 gita nagar society, adajan, surat. as per the said talk the complainant went to the residence of the accused on the same day in the evening when accused told the complainant not to worry about securing the service and that urmilaben would be taken up in service, but the complainant will have to do something for him i.e. the complainant will have to grease the palm of the accused and the complainant agreed to that.4. thereafter interview call was received by urmilaben and her interview was taken on 22-11-1982 and she received the appointment order on 15-2-1983 directing her to attend the school no. 70 at surat. accordingly, she joined the service on 21-2-1983. on 1-3-1983 the complainant was going to his house and the accused met him near the sign-board of adajan and the complainant thanked the accused for securing a job for his wife urmilaben. accused inquired about the money as per the previous talk and the complainant told that he may just tell the figure. accused then took the complainant to his home at gita nagar society, adajan, and told that the wife of the complainant had got service and that was because of his efforts as also because of the favour of his boss and, therefore, the complainant will have to pay rs. 3,000/- to the accused. the complainant requested for reducing the amount, but ultimately the accused told that if the complainant had no money, he may give instalment of rs. 500/ - and told the complainant to pay the amount of rs. 500/- on 14-3-1983. the complainant paid the amount of rs. 500/- to the accused on 14-3-1983 at the house of the accused as gratification other than legal remuneration.5. on 24-3-1983 in the evening the complainant was returning home and the accused again called him at adajan patia and took him to the house of the accused and told complainant that he (accused) was in need of money as holi festival was approaching nearer and demanded the instalment of rs. 500/ - and told the said amount be given at about 8.00 p.m. on the next day i.e. 25-3-1983.6. it is further the case of the prosecution that the complainant did not want to pay up the amount as demanded by the accused and therefore, he pondered over the matter at night and then ultimately decided to lodge a complaint. on 25-3-1983 at about 5.00 p.m. the complainant went to the office of the anti corruption bureau, surat and lodged the complaint (ex. 12). police inspector shri mahendrakar of the acb then called two panchas from the office of the prant officer and thereafter as usual proceeded with the investigation. the complainant had disclosed the details about his complaint and produced the amount of rs. 500/- to be given to the accused as bribe money. p.i. mahendrakar then told the p.s.i. shri pawar to deal the notes with anthracene powder to make experiment of ultra violet lamp. the number of the currency notes produced by the complainant were noted down in the panchnama. p.s.i. pawar then showed the currency notes in ordinary light and then under the rays of ultra violet lamp, but no specific marks were seen. he then took out the bottle containing the anthracene powder from the cupboard and applied the said powder on both the sides of the five currency notes of the denomination of rs. 100/- each and then showed them under ordinary light, but no specific marks were seen. thereafter the said notes were shown under the rays of ultra violet lamp and light blue fluorescent light was seen on the said currency notes and also the tips of the fingers of p.s.i. shri pawar. according to the instructions of the p.i. mahendrakar, p.s.i. pawar folded the said currency notes and put them in the left side bush-shirt pocket of the complainant. the complainant was instructed to go to the house of the accused and to give the currency notes to the accused only when accused would demand and not to touch the currency notes and to touch them only when the accused would demand money. panch witness dinesh kumar dhirubhai chaudhari was instructed to accompany the complainant to the house of the accused. the second panch witness was instructed to remain with the members of the raiding party and the members of the raiding party were given instruction to remain nearby the house of the accused. the complainant was instructed that after the accused would accept illegal gratification, he should make gesture of coughing and then to come out to spit and give signal. p.s.i. pawar washed his hands with soap and water and then showed his hands under the rays of ultra violet lamp, but no marks were seen. similarly, hands of all the persons were seen in the light of the ultra violet lamp, but no specific marks were seen.7. thereafter, the complainant as well as the members of the raiding party proceeded in the government jeep car towards adajan. the jeep car was halted on jajira road at some distance from the house of the accused. the complainant and panch witness dineshkumar chaudhari then proceeded ahead. the house of the accused is situated in the gita nagar society and is the last house in the row of houses. the complainant and the panch no. 1 dineshkumar chaudhary went to the house of the accused when the accused was sitting on a cot in the room and he welcomed the complainant by addressing him as 'naginbhai'. the complainant and the panch witness dineshkumar then sat on the other cot and the accused asked about the panch witness who had accompanied the complainant and the complainant told that he happened to be his friend. accused then called for water and the complainant and the panch witness dineshkumar took water.8. accused then asked the complainant about the money and the complainant told that he had brought it and the complainant took out the anthracene powdered currency notes of rs. 500/- from the left side pocket of his bush-shirt with his right hand and gave them to the accused and the accused took the currency notes with his right hand and then put them in the left hand, opened the fold and saw then and rolled them with his both hands and then put them on the bed-sheet which was on the cot towards his right: hand. the complainant thereafter made noise of coughing and came out to spit and then returned and sat on the cot. immediately thereafter the p.i. shri mahendrakar and the panch no. 2 mohmad nifir ismail and other raiding party members went in the room.9. p.i. mahendrakar gave his identification as p.i. of the a.c.b. he then asked the name of the accused and thereafter the hands of the accused were seen under the rays of ultra violet lamp and on the tips of the fingers of both the hands of the accused light blue fluorescent light was seen. before that hands of panch no. 2 as also the members of the raiding party, except the hands of the complainant and the accused, were seen under the rays of ultra violet lamp, but no specific marks were seen. rays of ultra violet lamp were also focussed on the currency notes which were lying on the cot towards the right hand side of the accused and light blue fluorescent light was seen on the currency notes. the panch no. 1 dineshkumar under the instructions of p.i. mahendrakar picked up the currency notes and counted them and verified the numbers and the numbers of the said currency notes tallied with those mentioned in the first part of the panchnama. the hands of the complainant were also seen under the rays of ultra violet lamp and on tips of fingers and thumb of right hand light blue fluorescent light was seen. such light was also seen on the bed-sheet where the currency notes were put by the accused. thereafter, detailed panchnama was prepared. thereafter statements of the complainant and both the panchas and other members of the raiding party were recorded and after investigation charge-sheet was filed.10. it may be stated that when the accused was asked about the charge he pleaded not guilty of the said charges. the accused submitted his written statement at ex. 33. after the prosecution witnesses were examined the further statement of the accused under section 313 of the cr. p.c. was recorded. the accused also examined five defence witnesses.11. the accused had admitted that at the relevant time he was serving as education inspector under the surat primary education committee and that he did not know that advertisement was given and applications were invited and urmilaben had submitted application for the post of primary teacher and that she was called for interview and was appointed as primary teacher. the accused also denied that the complainant had met him in the office and then he had called the complainant at his house. he had also denied that he had called the complainant and took him to his house and accepted the amount of rs. 500/- on 14-3-1983 and had again called the complainant on 24-3-1983 and demanded and accepted rs. 500/- at his residence on 25-3-1983.12. the accused further contended that head clerk naginbhai, harjivan patel, president of premji nagar society and ramanbhai patel, superintendent have got false case filed against him and because of the instigation by the said three persons the complainant had deposed against him. it is also contended by the accused that the panch witness had deposed against him at the instance of harjivanbhai and the p.i. mahendrakar. it is admitted by the accused that the administrative officer is appointing and removing authority. it is stated in the written statement (ex. 33) that on 25-3-1983 the complainant alone had come to his house and that after entering the house he had shaken hands with the complainant and at that time the complainant tried to place currency notes in his hands but he withdrew his hands and therefore, currency notes fell on the cot and the complainant immediately went out and called the police and police came inside his house. he further stated that the panch no. 1 was not with the complainant at that time and that he had not demanded or accepted illegal gratification.13. in this case, with a view to bring home the charges the prosecution has let the evidence of the complainant, p. w. 1 (ex. 10), dineshkumar d. chaudhary, p. w. 2 (ex. 15), karsanbhai p. patel, dy. administrative officer, p.w. 3 (ex. 18), ramanlal amaidas patel, office superintendent, p.w. 4 (ex. 28), c. a. mahendrakar, p.i. (a.c.b.), p.w. 5 (ex. 30). the accused had examined defence witness ishwarbhai j. patel, chairman, gita nagar society, d.w. 1 (ex. 36), dhyabhai p. patel, talati-rander, d.w. 2 (ex. 38), maganbhai balubhai, neighbour of p.i. mahendrakar, as d.w. 3 (ex.42), rameshchandra p. joshi, d.w.4 (ex. 43) and gunvantbhai c. desai, d.w. 5 (ex. 44) for the purpose of showing the muster roll to the effect that n. v. lad was serving with hansa tools of batliboi and company at the relevant time.14. it may be stated that the aforesaid witnesses have been cross-examined at great length by the defence counsel and their cross-examination covers even the minutest point. after critically scrutinising the entire evidence on record as also after considering the defence version the learned special judge has passed the aforesaid order of conviction and sentence.15. mr. k. j. shethna, senior advocate appearing for the appellant-accused had argued this appeal at length and he has taken us through the entire evidence on record. he read the entire evidence with us. mr. shethna submitted that the evidence of the complainant is not believable on the point of motive or reward; that the complainant's evidence on the point of application of the anthracene powder as also the alleged demonstration cannot be accepted; that the complainant's story regarding demand and acceptance of bribe by the accused also cannot be accepted; that reading the evidence of the complainant as a whole it becomes clear that he was an accomplice and therefore, his evidence cannot be accepted without independent corroboration on material points; that the complainant had no capacity to pay and that even his brother from whom he brought the amount had also no capacity to pay; that the accused is working as a supervisor-cum-inspector while the powers of appointment were with the surat primary education committee and therefore, the accused was not competent to help the complainant and his wife in getting employment as a teacher in any manner and therefore, also he had not committed any offence and particularly the offence under section 161 of the indian penal code and therefore, no presumption of accepting the amount as motive or reward can be attracted.16. so far as the evidence of the complainant is concerned, it fully supports the prosecution case. it is submitted by mr. shethna that the story of the complainant regarding demand of bribe before acceptance on the day of incident cannot be accepted. it may be mentioned that normally a person would not demand money in the presence of a stranger and naturally he would like to know about the person who was accompanying the giver. in the present case a question was put by the accused to the complainant when he found another person i.e. the panch no. 1 along with the complainant and in order to see that there would not be any doubt with regard to the person who accompanied the complainant, he told the accused that said person was his friend and accordingly the accused must have been satisfied. therefore, it cannot be said that this part of the story as deposed by the complainant cannot be accepted.17. it is also submitted by mr. shethna that the manner in which the amount was accepted is also doubted. it may be stated that the complainant has clearly stated as to what had happened when they entered the house of the accused. the complainant had given the details as to which clothes were put on by the accused, how they were welcomed. he further stated that after making inquiry about the person who was accompanying the complainant the accused offered them water and thereafter he demanded money by asking 'whether you have brought money' and the complainant told 'yes'. thereafter there is detailed version about the manner in which the amount was given to the accused. that part of the story of the complainant has been fully corroborated by the panch no. 1 dineshkumar. the story as deposed by the complainant as well as the panch no. 1 regarding the manner in which the amount was accepted appears to be quite natural. looking to the clothes which were put on by the accused at the relevant time there was no question of putting the currency notes in his pocket as he was not wearing either bush-shirt, shirt or a pant but he was wearing lungi and sandow. this aspect requires to be considered in the light of the defence which is raised by the accused. according to him, the complainant came alone, shook hands with him and immediately thereafter he wanted to give the notes which the accused did not accept and therefore, said notes were fallen on the cot. it may be stated that when a person enters the room and when he is welcomed by the person sitting there on the cot, there is no question of shaking hands, but for shaking his hands the person who was sitting on the cot would get up and while giving shake hands, he would at least stretch his hands to some extent. therefore, when the currency notes were tried to be given naturally they would have fallen down on the floor and not on the cot. the fact that those notes were lying on the cot on the right hand side of the accused clearly indicates that the defence tried to be made out by the accused is not probable at all. thus, on these points we do not agree with the submissions made by mr. shethna.18. mr. shethna further pointed out that the story of the complainant that the accused required the complainant to do something for him, does not appear to be probable. he submits that application was submitted by the complainant's wife on 1-8-1981 and according to the complainant after two to three days he went to the office of the surat primary education committee and met the accused there when accused asked him to go to his (accused) house. this part of the complainant's version has been challenged by mr. shethna on the ground that the appellant's duty as an education inspector was to go out and the inspectors are required to maintain diary for their day to day work and a copy of such diary is produced at ex. 24. the accused wanted to probabilise his version that he was not available in the office of the date on which according to the complainant he met the accused. it may be stated that the complainant had not specifically stated a particular day or date, but he had clearly stated that after two to three days from the date of making application by his wife, he had gone there. it is, therefore, possible when the application was made on 10th, that he must have gone there either on 13th or 14th. when that is so, we have to take into account the question whether the theory of going and meeting the accused by the complainant can be totally ruled out. we have perused the entries made in the diary at ex. 24. it is clear from the entry of 14th that at 4.00 p.m. the accused was in the office. it is clearly brought out from the cross-examination of the complainant that he had gone to the office of the accused between 2.00 p.m. and 5.00 p.m. if that be the position, his version on the contrary is supported by the diary produced by the accused. thus, this part of the reference story that the complainant did not meet the accused at all cannot be accepted. on the contrary, the complainant's version is that he did not remember the shift in which he was working at the relevant time. with a view to pin him down the accused had examined one gunvantbhai, as defence witness no. 5 at ex. 44, who deposed that the complainant on the relevant day was working in the first shift which started from 7.30 a.m. and over at 3.30 p.m. it is also made clear in the cross-examination of the complainant that it takes about 45 minutes from pandesara i.e. from his factory to the office of the accused, on cycle. when that is so, the complainant could have certainly reached the office of the accused latest by 4.30 p.m. thus, the version of the accused that the complainant could not have come or that the accused could not have met, cannot be accepted.19. mr. shethna, during the course of argument has also pointed out that how is it that the complainant knew the accused when he went to the office of the accused. according to the accused, the complainant was knowing one naginbhai in the said office. when that is so, according to mr. shethna, if at all the complainant wanted to make inquiry about the application submitted by his wife, he would have gone to said naginbhai. prima facie, his argument appears to be attractive, but if we consider it from the point of probabilities, it cannot be accepted. it may be stated that before the complainant could meet any other person if the accused met him and if he gave him a promise or assurance for giving employment to his wife naturally he would have liked to go to the place of the accused. the question as to how the complainant knew the accused becomes totally immaterial particularly in view of the subsequent development of the prosecution story. if at all there was no talk and the accused had never met the complainant, it must be inferred that without any previous talk with the accused the complainant abruptly imagined the entire story and filed a complaint, and went to the house of the accused with currency notes of rs. 500/- smeared with anthracene powder. but such inference cannot be drawn on the facts of the case. the fact that the accused welcomed the complainant by saying 'naginbhai' clearly discloses that not only the accused was knowing the name of the complainant, they had developed further closeness in the absence of which he could not have addressed him with proper name and welcomed him to his house. further, as per the prosecution version after ascertaining as to who was the person accompanying the complainant the accused inquired about the amount. this also pre-supposes that there must have been some previous talk in absence of which the accused could not have asked the complainant whether he had brought the amount or not. it may also be stated that the complainant is residing in aradhana society while the accused is residing in gita nagar society. if at all the accused had not met the complainant, how the complainant was to know about the residential address of the accused. all these things clearly indicate that the story as deposed by the complainant is quite natural and true.20. it may be further stated that the version of the complainant before the trap is corroborated by the complaint given by him at ex. 12. if at all nothing had happened how he could have described the entire version of the accused demanding rs. 3,000/-, the complainant giving the accused first instalment of rs. 500/- and the accused accepting the first instalment of rs. 500/- etc. this also corroborates the version of the complainant. under the circumstances it cannot be said that the version of the complainant is not believable.21. it is further submitted by mr. shethna that alleged talk between the complainant and the accused had taken place in the month of august, 1981 and thereafter the wife of the complainant was interviewed, she was appointed as a primary school teacher and she took charge on 21-2-1983 and till then the complainant did not meet the accused nor vice versa. he submits that under these circumstances the version of the complainant should not be accepted. it is necessary to recall that at the time when the promise/ assurance was given by the accused to the complainant regarding securing a job for the wife of the complainant, what was stated by the accused was that the complainant has to do some thing. it might be that the accused being an education inspector or supervisor could not have helped the complainant in any manner in getting employment for his wife. still however, after getting appointment when for the first time the complainant met the accused at the sign-board of village adajan the complainant thanked the accused for getting the job for his wife and thereupon the accused asked the complainant about money and asked him to accompany him to his house. it may be that the accused had not in fact helped the complainant in getting a job for his wife. whether the accused could have helped the complainant or not becomes totally insignificant because the accused made the complainant to believe that because of his (accused) efforts and because of the efforts of his boss that the complainant could secure a job for his wife and on that count he wanted amount of rs. 3,000/- as a reward. possibly till the accused met the complainant on 1-1-1983 accused himself might not have been knowing about the appointment of the complainant's wife as primary teacher. it was only for the first time when the accused met the complainant that he demanded money and that too after the complainant thanked him for securing a job for his wife. therefore, the time gap between august, 1981 and march, 1983 does not in any way weaken the prosecution case or it does not reflect intrensic infirmity in the prosecution story, as submitted by mr. shethna.22. the next submission of mr. shethna is with regard to the amount of rs. 500/- given on 14-3-1983. the complainant had deposed to that effect and he had been fully cross-examined on this point. according to the complainant he brought the said amount from his brother. though the complainant was working as a turner since 8 years with hansa tools of batliboi and company, his salary in the year 1981 was only rs. 600/-and at the time of incident there was lock-out in his factory. however, the complainant had made it clear that he had borrowed an amount of rs. 1500/- from his brother and rs. 500/-he had brought and rs. 500/- he had kept at his residence. thus, the complainant had already clarified as to how he brought the amount of rs. 500/- to pay the first instalment to the accused. thus, merely because the complainant had no capacity to pay the amount it cannot be said that his version of paying the first instalment of rs. 500/- to the accused cannot be accepted when he specifically stated that he had taken loan of rs. 1500/- from his brother. mr. shethna for the purpose of challenging the version of the complainant that he had brought the amount from his brother, as pointed out from the cross-examination of the complainant that his brother had salary of rs. 525/- per month. it is true that the complainant's brother was having the said salary at the relevant time, but once when the elder bother demands some amount he (complainant's brother) would have managed to give the amount as elder brother normally would demand for some amount when there was dire need. therefore, merely because the complainant's brother was having salary of rs. 525/- per month at the relevant time, it cannot be said that the complainant's version about borrowing the amount from his brother cannot be accepted. there is no other material evidence to show that the complainant had no money to part with. under these circumstances we do not find any merit in the submission of mr. shethna on the point of complainant's capacity to pay the amount.23. the evidence of the complainant as also other witnesses on the point of anthracene powder has been challenged by mr. shethna on the ground that though after the trap before the hands of the accused, hands of the complainant, the currency notes as also the place where the currency notes were lying, were seen under the rays of ultra violet lamp, they were not seen in the ordinary light and therefore, that part of the prosecution version cannot be accepted. mr. shethna in this connection has placed reliance on the judgment of this court in the case of ambalal motibhai patel v. state, (1960) 1 guj lr 113: (1961 (1) cri lj 50) wherein justice v.b. raju speaking for the bench has observed as under (at p. 52 of cri lj):. the main test is the emission of light blue fluorescent light under the influence of ultra violet rays. it is therfore, essential for the prosecution to prove that there was light blue emission of light under the influence of ultra violet light. it is not sufficient for the prosecution to prove that under the ultra violet light witnesses saw stains of white powder or even that under the ultra violet light they saw some sparking or some shimmering....in the said case the witnesses have already spoken about stains of white powder and not as required in the said jugment. in the said case it is held that 'the two tests required to be satisfied by the prosecution to prove the presence of anthracene powder are therefore (1) that no powder was detected with the naked eye and (2) that when ultra violet light was focussed there was emission of light blue fluorescent light.' on reading the said judgment it is clear that for mathematical proof or scientific proof both the said tests might be necessary, but when one of the tests namely, when ultra violet light was focussed there was emission of light blue fluorescent light, is complied with and the witnesses found accordingly, it can be said that the said test has been substantially complied with and therefore, it cannot be said that there was no anthracene powder on the currency notes, on the bed-sheet spreaded on the cot, on the tips of fingers and palm region of the hands of the accused and on the tips of fingers of the complainant. under the circumstances ratio laid down in the said judgment has been substantially complied with and therefore, the aforesaid authority would not help the accused in any manner.24. mr. shethna after referring to the version of the complainant in the cross-examination that he did not go to the office of the a.c.b. in the morning, he was pondering over the matter and in the evening he went to the office of the a.c.b. and at that time his son who aged 3 to 4 years was ill and that he did not lock his house when he went to the office of the a.c.b., submitted that this cross-examination of the complainant clearly discloses that the complainant had not gone to the office of the a.c.b. on that day. it may be stated that the version of the complainant on this point is fully corroborated by the panch witness. even the accused himself while explaining the stains on the tips of his fingers stated that when the complainant came to his house he was alone and he shook his hands with him and when the complainant tried to give the currency notes, he (accused) took away his hands and therefore, the notes fell on the cot. this version of the accused indicates that the complainant had gone to the house of the accused. when that is so, it pre-supposes that he must have gone to the office of the a.c.b. as there was no purpose in going to the house of the accused without filing a complaint and without making proper preparations for the trap of the accused. under these circumstances we do not find any force in this submission of mr. shethna.25. after reading the evidence of the defence witnesses mr. shethna submitted that dineshchandra and other panch witnesses were selected from the office of the prant officer where one gamanbhai ukabhai, deputy mamlatdar was serving. said gamanbhai ukabhai was residing in the same society in which p.i. mahendrakar is residing. it may be stated that the evidence of mahendrakar, p.i. was also read and it is clear from his evidence that specific question regarding knowledge about gamanbhai ukabhai, but he denied to have known said gamanbhai. at the relevant time house of mahendrakar, p.i. was under construction. according to the defence version the house of gamanbhai ukabhai was already constructed and he was in neighbourhood of mahendrakar. still mahendrakar denied to have any relationship with said gamnbahi ukabhai.the question whether p.i. mahendrakar had any relation with said gamanbhai is totally immaterial because p.i. mahendrakar asked the prant officer to send two persons to work as panchas. it is therefore, clear that said gamanbhai had no say in the matter. still however, with a view to cloud the honesty of dineshchandra a shelter is taken through gamanbhai ukabhai that as he was working as deputy mamaltdar and as he was the neighbour of p.i. mahendrakar said two persons were selected to act as panchas. once when the prant officer had called two persons in his chamber and asked them to act as panchas and when they agreed to do so, there was no question of having any selection through gamanbhai ukabhai. panch witness dineshchandra has fully supported the prosecution case and as discussed above, the evidence of the complainant on the point of demand and acceptance of bribe on 25-3-1983 has been fully corroborated by the independent panch dineshchandra. thus, assuming that the evidence of the complainant is that of an accomplice even then there is independent corroboration to the material part of his version on the point of demand and acceptance of the bribe by the accused from the complainant on 25-3-1983.26. mr. shethna has also relied on what is stated by karsanbhai f. patel, p.w. 3, who was acting administrative officer at ex. 18. in the cross-examination he stated to the effect that ramanbhai told him that even the supervisors in their office are misbehaving and it will be known within a week. ramanlal, p.w. 4 (ex. 28) who was working as supervisor in the office in which the accused is working, has spoken in his examination in chief about sanction to prosecution. karsanbhai in his cross-examination has stated that naginbhai narsibhai, who is working as head clerk and ramanlal amaidas, who is working as supervisor are members of the union which is led by ishwarbhai and that the accused is not the member of the said union, but he is member of some other union and that there is rivalry between the unions and because of the said rivalry the accused has been falsely involved in the case. it may be that there is rivalry between two unions, but how the complainant who is working as a turner in a factory would oblige the union leaders, particularly when his wife has already secured a job as primary teacher, therefore, this evidence on the point of rivalry between two unions is brought out in the cross-examination of the witnesses only with a view to throw some mud on the clear and cogent evidence led by the prosecution to prove the case.27. similar allegations have been made in the defence with regard to dispute relating to right of passage. according to the accused there was some dispute regarding right of passage between his society i.e. gita nagar society and the premji nagar society when the accused was leading his society while one harjivanbhai govindbhai patel was leading the premji nagar society. evidence is also brought on the record regarding the alleged dispute between the societies through the defence witness ishwarbhai, d.w. 1. however, it is interesting to note that so far as the present complainant is concerned, he is not a member of either of the society and therefore, he is not directly involved in the said dispute. similarly, p.i. mahendrakar is also not a member of either of the society because he is residing in mahalaxmi society. under the circumstances evidence brought on record on the point of dispute between the societies also would not help the accused in any way in probabilising his version.28. it is the case of the accused that because of the rivalry in the union nagaindas and ramanlal instigated the complainant and therefore, he had given evidence against the accused. it may be noted that there is no enmity between the complainant and the accused and as stated above, the complainant had no concern whatsoever with any of the unions under the circumstances though evidence about rivalry between two unions and/or dispute between the aforesaid two societies is brought on record, unless there is some evidence connecting the complainant with such dispute it cannot be said that the complainant has become instrumental in any manner in falsely involving the accused in the present case.29. it may be stated that gunvantbhai, d.w. 1 has proved the prosecution case with regard to the complainant's presence at the factory in the first shift on the relevant day.30. mr. shethna has further submitted that in this case presumption under section 4 of the prevention of corruption act, 1947, would not be available because there will not be offence under section 161 of the indian penal code in which a person is to be convicted. he further pointed out that the accused is a supervisor and it was not his official duty to appoint the primary teachers nor was it his duty to assist the authorities in appointing such teachers and therefore, he cannot be convicted for the offence under section 161 of the indian penal code. the law laid down by the supreme court on this point is very clear in the judgment delivered in the case of mahesh prasad v. state of uttar pradesh, air 1955 sc 70 : (1955 cri lj 249).the view taken by the supreme court in this case has been followed in the following cases:(1) dhaneshwar narain saxena v. delhi administration, air 1962 sc 195 : 1962 (1) cri lj 203; (2) bhanuprasad hariprasad dave v. state of gujarat, air 1968 sc 1323 : (1968 cri lj 1505); (3) shiv raj singh v. delhi administration, air 1968 sc 1419 : (1969 cri lj 1); (4) chaturdas bhagwandas patel v. state of gujarat, air 1976 sc 1497 : (1976 cri lj 1180).it would be suffice to refer to the first judgment air 1955 sc 70 : (1955 cri lj 249) which is clear on this point. in the said case to reject the argument that section 161 of the indian penal code will not be attracted because the appellant though employed in the railways was not himself a person who was in a position to give a job to the complainant nor is it shown that he had any intimacy or influence with any particular official who could give a job. after referring to section 161, ipc it is observed by the supreme court as under (para 3) (at pp. 71-72 of air 1955 sc 70) :--to constitute an offence under this section it is enough if the public servant who receives the money takes it by holding out that he will render assistance to the giver 'with any other public servant' and the giver gives the money under that belief. it may be that the receiver of the money is in fact not in a position to render such assistance and is even aware of it. he may not even have intended to do what he holds himself out as capable of doing. he may accordingly be guilty of cheating. nonetheless he is guilty of the offence under section 161 of the indian penal code. this is clear from the fourth explanation to section 161, i.p.c. which is as follows:a motive or reward for doing'. a person who receives a gratification as a motive for doing what he does not intend to do, (or as a reward for doing what he has not done) comes within these words.thus where a public servant who receives illegal gratification as a motive for doing or procuring and official act whether or not he is capable of doing it or whether or not he intends to do it he is quite clearly within the ambit of section 161, i.p.c.this authority is complete answer to the argument of mr. shethna. hence it is not necessary to deal with the aforesaid authorities which confirms the principle laid down in the aforesaid case air 1955 sc 70 : (1955 cri lj 249).31. it is also pointed out by mr. shethna that once when it is the case of the prosecution and particularly the complainant that the trap was arranged at the time of giving the second instalment; that first instalment was already given and that before that there was a talk regarding demand of the bribe, it is all integrated story and therefore, if the court does not accept even the earlier part of the story and though there might be sufficient evidence regarding acceptance of bribe on the date of trap, even so conviction cannot be recorded. in this connection mr. shethna has placed reliance on the judgment of the supreme court in the case of hari dev sharma v. state (delhi administration), air 1976 sc 1489 : (1976 cri lj 1176). it is true that when it is an integrated story of paying the bribe by instalments the entire version should be established and if there is any infirmity for not believing the earlier part of the story, as per the said ruling, conviction cannot be recorded even though there might be sufficient evidence on the point of acceptance of bribe on the day of the trap. however, in the present case as stated above there is sufficient evidence regarding earlier part of the story. there is also corroboration thereof. we do not doubt the story of the complainant particularly when it is corroborated by the f.i.r. lodged by the complainant at ex. 12. in that view of the matter the said authority would not be helpful to the appellant-accused.32. in view of the above discussion we do not find any merit in any of the submission made by mr. shethna on behalf of the appellant. hence the appeal on the point of conviction deserves to be dismissed.33. on the point of sentence mr. shethna submits that there are certain developments which have taken place after the judgment was delivered by the learned special judge. he submits that the appellant at present is suffering from liver cirrhosis and that he had also heart trouble and he is not able to move in normal manner. mr. shethna therefore, submits that in view of these special facts some sympathy should be shown to the appellant on the point of sentence. in support of his submission mr. shethna has produced a certificate issued by dr. surendra r. agarwal, m.d. on 18-11-1991 certifying that the appellant is suffering from cirrhosis of liver with portal hypertension, that he had super added hepatitis and that he had gone for lepatic coma. said certificate issued on the letter-head of dr. agarwal is kept on record.34. in view of these special facts and circumstances, mr. shethna ultimately submitted that appellant's sentence should be reduced to 3 month's r.i. and that fine be increased to rs. 20,000/-. mr. shethna had earlier also submitted that in the facts and circumstances of the case there should be no sentence of imprisonment. according to mr. s. t. mehta, learned addl. p.p. the sentence should be reduced to six month's r.i.35. it may be stated that corruption is rampant and it is a social evil and hardly there would be any walk of life where there is no corruption. hence to curb and/or eradicate corruption, sentence of imprisonment is a must. under these circumstances sentence of imprisonment cannot be substituted by payment of increased fine only otherwise the people would think that even after committing offence of corruption and even after conviction one can avoid entering the gates of jail by paying heavy fine. however, in view of the special facts and circumstances of the care as stated above, we are of the view that order of sentence should be modified to the extent that instead of r.i. for one year and fine of rs. 200/- in default further r.i. for two months for the offence under section 5(2) read with section 5(1)(d) of the prevention of corruption act, 1947, the accused should undergo r.i. i for three months and fine of rs. 20,000/- in default to undergo further r.i. for six months.36. accordingly, the appeal stands partly allowed. the order of conviction passed by the learned special judge, surat, in special case no. 3/83 is hereby confirmed. the order, of sentence is modified to the extent that instead of r.i. for one year and fine of rs. 200/- in default further r.i. for two months for the offence under section 5(2) read with section 5(1)(d) of the prevention of corruption act, 1947, the appellant-accused is ordered to undergo r.i. for three months and fine of rs. 20,000/- (rupees twenty thousand only) in default to undergo further r.i. for six months. the appellant-accused is ordered to surender forthwith.