TMI Blog1954 (5) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... an application, praying, that the latter might recommend him to draw 50 gallons of liquor and 2 seers of Ganja from the bonded warehouse and godown, in view of the Holi festival that was approaching. The accused, it is said, recommended only 8 gallons of liquor and 4 chhataks of Ganja and while making the recommendation he asked Ghammanlal to pay the bribe which he had already promised to pay, at the rate of 5 per cent, upon the total amount of contract for the shops. It may be stated here that the excise shops had been put up to auction about a fortnight before, on the 8th of March 1948 and though Ghammanlal had offered higher bids for some of these shops, his bids were not accepted on the complaint of the accused, that he was a habitual defaulter in the matter of payments, and a big shop for which he had offered bid to the extent of ₹ 32,000/- was knocked down to another person at a much lower price. On the 23rd March 1948 Ghammanlal went to Meerut to draw liquor from the warehouse. Here he met his friend one Balwant Singh who, being acquainted with the appellant's demand for bribe from Ghammanlal, advised him to contact the Anti-Corruption Department and make a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him to pay ₹ 48/8 on different counts. Ghammanlal paid ₹ 48/- to the accused which the latter accepted and kept the notes on the window-sill. Ghammanlal then went outside and gave a signal to those who were waiting there and the whole party came immediately rushing into the room. Mr. Burney after disclosing his identity picked up the currency notes from the widow-sill and noted down the statements of Ghammanlal as well as of the accused. The house of the appellant was searched but nothing incriminating was found. On the same day Burney submitted a report about the trap to the District Magistrate. 3. After the police investigation was complete, the accused was sent up for trial under Section 161 of the Indian Penal Code and the case was tried by Mr. Srivastava, a First Class Magistrate of Meerut. The accused pleaded not guilty to the charge and denied having ever demanded or accepted any bribe. His defence in substance was, that Ghammanlal was on inimical terms with him. Because of the complaint which the accused had made against him to the Excise Officer and Assistant Excise Commissioner he was not allowed to offer bids for the big shops at the auction sale which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration of the entire evidence, came to the conclusion that the prosecution failed to prove the guilt of the accused and on this finding acquitted him. Against this order of acquittal, the State of U. P. preferred an appeal to the High Court under Section 417 of the Criminal Procedure Code. The appeal was heard by a Bench consisting of Shankar Saran and Desai, JJ. The learned Judges allowed the appeal. The order of acquittal was set aside and the accused was convicted under Section 161 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for 18 months. The High Court refused to give a certificate to the accused under Article 134(c) of the Constitution, but this court granted him special leave and that is how the matter has come before us. 5. Two points have been taken before us by Mr. Gopal Singh who appeared in support of the appeal. The first contention is, that there was no proper or valid sanction obtained for prosecution of the accused in the present case, as is required under Section 6 of the Prevention of Corruption Act and consequently the initiation of the proceeding was illegal and without jurisdiction. The other contention raised is, that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Commissioner, has been examined as a witness for the prosecution and he proves another document 'to wit' Ex. P. 11 which purports to be the draft of the letter of which Ex. P-10 is a copy. This draft, according to the witness, constitutes the original order of Excise Commissioner and contains his signature. The witness says: On the paper marked Ex. P-11 there is the signature of the Excise Commissioner below the word 'approved' . We are not sure that this is quite the proper way of according sanction; for the 'approval' might be merely of the correctness of the draft. But at the same time we do not want to be too technical and we would hold therefore that the sanction was in fact given by the Excise Commissioner. 8. The other point raised by the learned counsel for the appellant seems to us however to be of considerable substance. As the Privy Council pointed out in the case of --'Gokul Chand Dwarkadas v. The King', the burden of proving that the requisite sanction has been obtained rests on the prosecution, and such burden includes proof that the sanctioning authority had given the sanction in reference to the facts on which the proposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned counsel on both sides and on a careful perusal of the records we are constrained to hold that the learned Judges of the High Court did not keep these rules and principles of administration of criminal justice clearly before them and that their judgment is vitiated by non-advertence to and misappreciation of various material facts transpiring in evidence and the consequent failure to give due weight and consideration to the findings upon which the trial court based its decision. 10. The essence of an offence under Section 161 of the Indian Penal Code is the obtaining or acceptance, by a public servant, of a gratification other than legal remuneration as a motive or reward for doing or forbearing to do an official act or for showing or forbearing to show any favour or disfavour to any person or for rendering any service or disservice to him. The first question that requires consideration is, with what motive or as reward for what act, was the sum of ₹ 48/- paid as illegal gratification by the complainant and accepted by the accused. The complainant's story, as told before the Magistrate, is, that the accused demanded from him, as bribe, 5 per cent. of the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts of this case, there could be no occasion at all either for demand of bribes by the accused or for promise of payment of the same by the complainant. 12. As regards payment of 5 per cent, of the contract money by the complainant, we think that the point was not pressed by the complainant with any amount of seriousness. It is to be noted that the bribe which, according to the prosecution, the complainant actually paid to the accused was not on account of the licences at all. The trial court held definitely that the accused could not possibly have demanded a bribe for anything done by him in regard to the Excise licences; because far from rendering any service to the complainant in this connection he did positive disservice to him. Mr. Saksena, the Assistant Commissioner of Excise, who was examined as a defence witness, stated in his deposition that he was present at Meerut when the auction of the Excise shops took place. The accused complained to him against four Thikadars including the complainant and his brothers, saying that they were habitual defaulters and undesirable persons. The witness got this fact verified by the Naib Tahsildar and in spite of Ghammanlal's ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er se' improbable in the appellant's demanding bribes from Ghammanlal for the recommendations he made regarding the supply of liquor, whether the story which the complainant told in this respect is true or false can be determined only on a proper examination of the evidence, that the prosecution has adduced on the point. The trying Magistrate pointed out in his judgment that in the first statement (Ex. P-3) made by Ghammanlal to Mr. Burney just after the accused was arrested, he stated that the accused demanded from him 8 annas per gallon of liquor recommended on the 23rd of March 1948. There was ₹ 24 owing to the accused on account of 48 gallons of liquor previously recommended and ₹ 7/8 for 12 chhataks of Ganja. These would make a total of ₹ 47/8. Nothing was said about any payment being demanded or promised on account of Excise licences. In his statement made on the 13th April 1948 before the police under Section 162, Cr. P. C. (Exs. D-5 and D-6) Ghammanlal stated as follows : The Excise Inspector prohibited him from bidding for the liquor shop at Baraut. Although bid for the same was offered up to ₹ 32,000, he caused the auction of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the accused, the money being given to him as Excise rewards. The accused received money on so many occasions in the presence of Shri Burney and must have been recognising him well. Shri Burney was also Arms Officer and used to endorse licences for guns and pistols after seeing the arms and comparing the numbers and the accused must have appeared before him to take the licence of his pistol and his father's gun which are Exs. D-1 and D-2 and bear signatures of Shri Burney. Lastly the court room of Shri Burney was also very near to that of the Excise Magistrate and the accused had often been attending that court in his Excise cases and thus had occasions to see Shri Burney; also Shri Burney has stated that he had only changed his clothes and his face was not at all changed. It is somewhat astonishing that the High Court did feel surprised at this finding which the Magistrate, arrived at, on a careful consideration of the evidence adduced before him. This is what the learned Judges of the High Court say : There is no substance in the defence of the respondent that he knew Shri Burney well and we are surprised that the learned Magistrate thought that this was proved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... District Magistrate, was that if ₹ 48 was paid to the accused the latter would accept the money under the impression that it was only the balance of the subscription that Ghammanlal was paying and consequently would not excite his suspicion at all. The High Court seems to think that the entire plea of the accused was that he received the money as the balance of the subscription owing to him by the complainant. The learned Judges disbelieved the story of the accused that Ghammanlal at all promised to pay ₹ 70 or had actually paid ₹ 22 out of the same on the 3rd February 1948. In arriving at this finding the High Court, in our opinion, had not adverted to or considered the material facts upon which the trying Magistrate based his conclusion. They even overlooked the admissions which the prosecution made during the hearing of the case. The High Court says that the accused might be collecting subscriptions but from that it does not follow that Ghammanlal agreed to pay ₹ 70/-. It may be pointed out that the accused got three receipt books, namely, D-37, D-38 and D-39 from the Excise Office and the payment of ₹ 22 by Ghammanlal was evidenced by five c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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