The State vs Keshaval L. Oza

This is an appeal u/s 417 Criminal P.C., against an order of acquittal of the respondent-accused on a charge u/s 161, Penal Code of acceptance

of illegal gratification. The accused was a Mamlatdar of Sayla Taluka and had his headquarters at Sayla. The prosecution case was that for the gale

of foodgrains it was necessary for the dealers to obtain a licence from the Revenue Authorities and in pursuance of this requirement of law several

wholesale and retail dealers of the village of Sudamda in Sayla Taluka had applied in the month of April 1949 for the grant of licences to the

accused who was authorised to issue such licences. The conditions for the grant of licences are contained in a circular of Government dated 20-4-

1949, Ex. No. 9/72. The first two conditions which are material for the purpose of the case are as under; (a) That the applicant should have been a

dealer in grains at least from 1-1-1949 upto the date of the application, (b) It should be definitely ascertained that the applicant was in fact dealing

in grains and for determining this previous licences granted should be considered and books of accounts inspected.

The several applicants from the village of Sudamda who bad applied for licences were required to appear and produce their account books

before the Mamlatdar on 30-4-1949 About sixteen merchants came to Sayla which is at a distance eight miles from Sudamda and brought their

books of accounts. Some of them also purported to represent some other parties whose books of accounts were also brought by them. In all it is

alleged that there were come twenty applicants whose applications were considered on that date. In addition the applications of some other

persons were also on the record but they have not been examined as witnesses in the case and their applications have little relevancy so far as the

offence in the present case is concerned. The merchants who came to the accused''s office on 30-4-1949 were asked to show their books to the

clerks of the Mamlatdar. The clerks concerned were two; one of them was Laxmishanker Shivlal and the other Champaklal Vrajlal. Most of the

applications have been dealt with by the former. The applications bear more or less a similar endorsement by the clerks to the effect that the

account books were not kept in regular course of business and that the applicants were not eligible for a licence except in one case where an

endorsement made by Champaklal said that in spite of the account books not being in order, licence might be granted. The merchants on being

told that they were not entitled to a licence were naturally put into a state of anxiety. It is alleged that all went in a body to the accused who told

them that their books were not kept in regular course of business and that they were not entitled to licences. However he gave a hint to them that

they should consider that everybody had to earn and that they could see him afterwards. The merchants considered this to be an indication that the

accused wanted some bribe for granting a licence. They accordingly held a consultation among themselves and selected two of them to negotiate

with the accused. These two were Keshavlal Maganlal and Permchand Khimchand who saw the accused at his office. The accused is alleged to

have first demanded Rs. 50 per licence. Then he came down to Rs. 25 but even this sum seemed to these two representatives to be too high.

Thereafter Premchand told Keshavlal to leave them and let him alone negotiate with the accused. Keshavlal accordingly left the office and soon

after Premchand joined the party and informed them that he had fixed up with the Mamlatdar at the figure of Rs. 171 i.e. Rs. 9 per license: There

were in all twenty applicants but accused agreed to grant licence to Premchand without any payment, Premchand is then supposed to have advised

the other merchants to collect Rs. 10 from each of the applicants, Rs. 9 being the amount of bribe to the accused and Rs. 1 to be reserved for

expenses of their return journey of the village of Sudamda. After this interview and the settlement of the amount of the bribe it is alleged that the

merchants again want to the accused who asked them a few questions about the previous licences held by thorn, and told them that they need not

worry; the licences will be sent to them through the Talati in due course. Coming down from the office of the accused the merchants then began to

consider as to who should actually take the money to the accused. The two persons who were deputed to negotiate i.e. Eeshavlal and Premchand

suggested that they should be accompanied by some other merchants also. It was then decided that in addition to Keshavlal and Premchand,

Kachra Chhaganlal, Chhotalal Gulabchand and Girdharlal Tribhovan should also go. The moneys were, however, handed partly to Keshavlal and

partly to Premchand only. The other three persons, it seems, were to accompany them to see that the amount was actually paid and that there was

no hitch. The prosecution further alleges that in pursuance of this-arrangement these five persons went to the-house of the accused and both

Keshavlal and Premchand handed over to the accused the sum of Rs. 171. The amount collected was Rs. 190. Some of the merchants were

refunded Re. 1 per application as they made their own arrangement for going back in the carts to their village. All this happened on 30-4-1949

which was a Saturday. 1st of May was a Sunday. The applications for licences bear the endorsement signed by the accused dated 2-6-1949

ordering issue of licences. In pursuance of this endorsement the licences were issued to the various merchants who received them with in a few

days thereafter.

It seems that some time thereafter the alleged incident of illegal gratification having been paid so the accused came to the notice of the Collector

of Zalawad but it is not in evidence in what manner this information was conveyed whether by an application or by an oral complaint. The

Collector ordered the Deputy Collector to go on the spot and hold an enquiry into this allegation. The Deputy Collector, Mr. Kusumrai, J. Diwan,

who has been examined in the case went to Sudamda and held an enquiry on 14-5 1949. He took down the statements of merchants who were

supported to have paid this illegal gratification and inspected the books of account also in which there were specific and definite entries of the

amounts of Rs. 9 paid for getting the licence. Some of these entries are very specific and stated that the amount was paid to the accused. Others

merely mentioned as expenses for obtaining licences. One or two merchants were cautious to debit the amount to some> miscellaneous expenses.

These entries were initialed by the Deputy Collector and after concluding the enquiry he sent a report to the Collector who ordered suspension of

the accused on 18-5-1919. Thereafter sanction to prosecute was obtained from the Government and a complaint was filed by the Deputy

Collector on 12-7-1949. The order of Government granting sanction mentions two instances of illegal gratification viz. (1) Rs. 171 from the

merchants of Sudamda and (2) Rs. 970 from the tenants of Sokhda and Karadi in the Sayla Taluka, but we are not concerned with the second

alleged act of acceptance of illegal gratification as the complaint in the present case is confined to the item of Rs. 171 only. The accused was tried

by the First Glass Magistrate, Sayla. In addition to the Deputy Collector and the two clerks in the office of the accused i.e. Laxmishanker Shivlal

and Champaklal Vrajlal, some twenty-one marchants of Sadamda have been examined as witnesses. These included about fifteen merchants who

had actually gone and seen the accused and who had contributed to the illegal gratification for themselves and on behalf of certain other merchants.

Of these fifteen witnesses one of the very material witnesses, Premchand Khimchand, who formed one of the deputation to settle the amount o�

bribe with the accused and who is also alleged to have been one of the parties of five who actually paid the amount to the accused at the latter''s

house and Mohanlal whose evidence is not very material have turned hostile and have not supported the prosecution, whereas all the Ors. have

given substantially the same evidence with same minor discrepancies about the occurrences as to how they went first to the clerks who put the

endorsements on the applications to the effect that their account books were not in order and that they were not eligible for licences and how they

went in a body to the accused who hinted to them that everybody would like to make money and how they subsequently deputed Keshavlal and

Premchand to negotiate and how the collection was made had ultimately five from amongst themselves were selected and the amount paid and

thereafter they returned to their village of Sudamda in the evening. Premchand, however, has denied the whole episode. He stated that he obtained

the licence in the ordinary course and the whole story of the alleged negotiations with accused, the fixation of the amount and acceptance thereof

by the accused was false. The learned Magistrate who tried this case believed the evidence of the witnesses so far as the collection of the bribe

was concerned as he said that there was ample corroborative proof from the entries of the account books but he came to the conclusion that there

was no corroborative and independent evidence that the amount wag actually paid to the accused and which according to the Magistrate was

necessary as the witnesses were all accomplices in the crime. He accordingly gave benefit of doubt to the accused and acquitted him. Against this

acquittal, the Government have filed the present appeal.

The accused in his statement denied the whole story of the bride and stated that objections were raised on the applications for licences to the

effects that books of the applicants were act kept in regular course of business. He admitted that the applications with such endorsements were

submitted to him but he said that when the merchants came to him along with the clerk Laxmishanker he told them that the licences would be

granted to them as some of them held prior licences from the Jamnagar State and Ors. were grain dealers from 1947. He said that this was the

only interview that he had with the merchants and the entire story of negotiations for the bribe and the payment thereafter was false. He said that

the prosecution was probably due to enmity. The enmity alleged relates to a probable action which he might have taken for breach of the

Ordinance and circulars of the Government relating to procurement by Government of foodgrains from agriculturists and merchants for rationing

purposes. The Government had first issued orders that every agriculturist should give a certain portion of the produce to Government at the rates

fixed by the Government. These orders were not being observed by the agriculturists hence the Government amended the Ordinance making it

obligatory on the part of the purchasers from agriculturists and merchants who sold grain to see that this levy by Government was given before

transactions were entered into. A penalty was provided for breach of the orders of Government in this respect. There was Borne confidential

correspondence, which will be referred to later on, on the subject and the accused said that he had threatened the merchants of Sudamda with

action under this Ordinance and it was just to eliminate the accused that they conspired to bring the present charge of bribery against him.

We have heard the learned Government pleader and the learned Counsel for the accused at length and in view of the importance of the case and

of the peculiar difficulties inherent in bribery prosecution, we reserved our judgment in order to be able to give the case and the contentions of the

respective parties our most careful and anxious consideration.

It would be proper at this stage to give a short resume of the evidence recorded in the case before dealing with the respective contentions of the

parties based upon questions of the facts as well as of law. The prosecution has examined 24 witnesses. Of these the Government servants are 1.

the Deputy Collector, Kusumrai J. Diwan, 2. Bhurubha Velubha, the Mamlatdar succeeding the accused after the latter''s suspension, 3.

Laxmishanker Shivlal, clerk Mamlatdar''s office and 4. Champaklal Vrajlal, clerk, Mamlatdar''s office. The Deputy Collector deposed about the

fact of inquiry held by him on 14-5-1949 when he recorded the statements of 16 witnesses. On 25.5-1949 he recorded the statement of an

additional witness. His evidence not being of a primary nature is only important so far as the identity of the entries in the books of account are

concerned and any inconsistent statement that any of the merchants might have made before him and which could have been relied upon by the

defence when the merchant was being examined in the Court. The evidence of the succeeding Mamlatdar, Bhurubha Velubha, is similarly of very

little importance. He has however produced the entire record i.e. the original licences. He has also produced the confidential correspondence

relating to the levy of foodgrains which bears relevancy so far as the question of enmity is concerned. It seems that the Government had in the

month of January and February 1949 fixed the amount of levy of certain grains and directed that every holder of agricultural land should deliver

possession of levy to the officers notified at the rates fixed by the Government. On 8-8-1949 there is a circular to all the Deputy Collectors and

Mamlatdara stating as under:

You have already been requested to issue levy demands on the cultivators after estimating correct yield expected in their tract...serious notice will

be taken in case of default of this work. It has come to the notice of the Government that grains are flowing in the market before the levy demand is

satisfied. This is illegal and must be stopped and you must take every precaution to stop such sales. Cases should be made against the defaulters

and wide publicity should be given to such cases.

There was some subsequent correspondence as it was observed that this levy was not being given effect to.

There is a demi-official letter addressed to the Collector of Jhalawad which begins as under;

Endorsed please find a statement showing tell-tale figures of levy procurement upto 12-3-1949. From this statement it will be seen that except in

Halar District practically no levy has been collected so far. Hon''ble the Minister is completely dissatisfied with the progress of the work and he has

asked me to draw your attention to this. According to him the levy figures do not reflect much credit on the machinery for collecting levy.

It must be remembered that the original order of the Government passed under Saurashtra Essential Commodities and Cattle (Control) Ordinance

required the possessors of agricultural lands to make available the required grains to Government, but it seems that the agriculturists who were

primarily responsible were failing to their duty to give the required proportion of foodgrains to Government. On 5-4-1949 Government

consequently made an amendment in the order amplifying its scope; the following clause was added:

No person whether on his account or on account of Anr. in the whole of United States of Saurashtra shall purchase or offer to purchase or cause

to be purchased the foodgraina which are required to be sold to the Government of the United States of Saurashtra from any holder in actual

possession of agricultural land or an owner of such land or a person having interest in such land in the whole of the United States of Saura-shtra

until such person has sold and delivered the quantity of such foodgrains to the Government of United States of Saurashtra as required by Clause 1

of this Order.

This brought merchants within the penal provision. The Government issued a press note dated 21-4-1949 bringing the provision of the clause

above referred to the notice of persona concerned i.e. principally the merchants who dealt in grains and made purchases from agriculturists. The

witness, Bhurubha, the succeeding Mamlatdar, also produced confidential correspondence which starts by a reference dated 17-8-1949 from the

accused to the Sudamda Circle Inspector stating that the levy of wheat had not been given as yet by the Kheduts and it was found that wheat was

being brought to the Wadhwan Camp market and directed the Circle Inspector to make inquiries and report about persons who had sent wheat

and the amount thereof to Wadbwan Camp. On this Talati reported that according to the private information gathered by him no wheat had been

sent from the village of Sudamda to Wadhwan Camp as the bus service was suspended for many days. The Circle Inspector however had tom-

tomed by beat of drums the obligation to give levy to the Government in the village of Sudamda. This is followed by an endorsement of the Circle

Inspector to the effect that it did not seem that any wheat was going from the village of Sudamda. The Police Patel had been cautioned to see that

no foodgraina go without the levy being procured. This reference was then forwarded to the Collector with the endorsement of the accused,

Mamlatdar, saying that it appears that the Circle Inspector had only made some superficial enquiries in the matter and that from information

received from private persons it appeared that some merchants had hidden grains to the extent of even 200 maunds and the Mamlatdar sought

orders of search and attachment. The Collector in reply pointed out that the-Ordinance did not authorise a search being made. To this the

Mamlatdar replied on 13-4-1949 that it was necessary to have these powers of search and that the necessary orders may be obtained in this

connection. Thereafter the Collector endorsed on the reference that there was no authority for making a search but that if any merchant was found

purchasing any foodgraina without observing the rules of levy, he should be made liable to prosecution; but according to the Mamltdar''s report

nobody seems to have committed any offence under the Ordinance; if the Mamlatdar thought that he had information that any offence had been

committed, he might take the necessary action but at the same time he should state very clearly the full facts and the offences which were to be

charged against the parties concerned. This last endorsement of the Collector is dated 21-4-1949. Nothing seems to have been done by the

accused thereafter and the correspondence closed with the endorsement of the succeeding Mamlatdar Bhurbha Velubha dated 2-6-1949, stating

that the previous Mamlatdar had started this correspondence on certain information received by him and had he taken action on that information

the defaulters might have been caught but now considerable time had elapsed and it was now advisable to close the correspondence. The

Collector agreed with the views of the succeeding Mamlatdar and ordered the correspondence to be filed. It would seem from the above

confidential reference that although the accused at one time thought there was an evasion of the rules of levy by the merchant, he never took any

action and the correspondence had to be filed.

The clerk, Laxmishanker Shivlal, supported the story given by the accused and he might well be expected to do so because if the complaint

about the bribery is true then it is possible and even probable that there was some pre-concerted understanding between the Mamlatdar and the

clerk Laxmishanker that all the applications should be put under objection as they were in fact by a stereotyped endorsement but as Laxmishanker

is not one of the accused we refrain from going deeper into the matter. The clerk, Champaklal, had dealt with very few applications and his

evidence has hardly any importance. Then we come to the evidence of the various merchants who had applied for licences and who with two

exceptions give practically the same story with slight modifications here and there. (After discussing the evidence of these merchants their

Lordships concluded). It will thus be seen that as against the testimony of Premchand and Mohanlal there is indeed overwhelming evidence of

many witnesses in support of the prosecution case. This evidence is also further corroborated by the entries in the account books.

The learned Government pleader has argued that the learned Magistrate having held proved that the contributions were collected, he should

have relied upon the evidence of the four witnesses i.e. Chhotalal Gulabchand, Kachra Chhagan, Girdhar Tribhovan and Keshavlal Maganlal who

went along with Premchand and say that the money in fact was paid to the accused. This is a circumstance which arises naturally as a consequence

of the previous negotiations. Two other circumstances which support the prosecution are (1) that all the applications were put under stereotyped

objections which in fact were not correct and which lead to the inference that some sort of a previous understanding existed between the accused

and his clerks and (2) that nothing had happened during the period between the endorsements on the applications and the subsequent orders

granting the applications to justify the waiver of the objections on the applications. The third piece of corroborative evidence is that of the entries in

the account books.

The Magistrate''s findings appear to be somewhat irreconcilable. On the one hand, he is unable to accept the version of the prosecution that

the accused threw hints for bribe by saying to the witnesses

you should consider, as you have to earn, I have to earn; as you have stomach to feed, I have similarly a, stomach to feed as well,

simply owing to some minor discrepancies as to the exact words used by the accused. On the other hand, he holds proved that the merchants had

made contributions for the purpose of giving a bribe. Then the learned Magistrate holds that the last stage of the payment of the bribe is not

proved. the Magistrate is evidently unable to get over the evidence of the account books which give a clear indication that the amount was

collected and paid; some of the entries clearly mention that the amount was debited to the expenses of the licence or for payment to the accused.

The main ground of the Magistrate and which is urged by the learned Counsel for the accused is that the witnesses or accomplices and their

evidence cannot be relied upon without material independent corroboration. On this ground the Magistrate has held not proved the words used by

the accused at the time of the first interview giving hints for bribe. On the same ground he has held not proved the story of the negotiation for the

bribe between Keshavlal and Premchand and the accused as to the amount of the bribe and on this ground also be has held not proved the fact of

payment. So that the material point in the present case is whether or not there is corroboration of the evidence given by the merchants and whether

the corroboration is sufficient to warrant the proof of the bribe.

Section 133, Evidence Act lays down that an accomplice shall be a competent witness against an accused person and a conviction is not illegal

merely because it proceeds upon the uncorroborated testimony of an accomplice. This is a rule of law but illustration (b) to Section 114 lays down

a rule of prudence. It says that the Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars.

Although the law lays down that it is not illegal to base conviction on the uncorroborated testimony of an accomplice, the rule of prudence laid

down by Section 114 has become almost of universal application and Judges now in their charge usually tell the jury that under ordinary

circumstances it is unsafe to convict on such evidence without the specific corroboration of independent evidence. A Judge who combines the

functions of the Judge and the jury is equally bound to scrutinise an accomplice''s evidence. There may be however cases of an exceptional

character in which the accomplice''s evidence alone convinces the Judge of the facts required to be proved and Section 133 will support him if he

acted on that conviction with-out the corroboration usually insisted upon. The reasons for requiring corroboration of the testimony of an

accomplice are: 1. the accomplice is likely to swear falsely in order to shift the guilt from himself: 2. the accomplice, as a participator in crime, and

consequently an immoral person, is likely to disregard the sanctity of the oath: 3. the accomplice gives his evidence under promise of pardon or in

the expectation of an implied-pardon if he discloses all he knows against those with whom he acted criminally and this hope would lead him to

favour the prosecution.

Numerous cases and authorities have been quoted before us as to what amount of corroboration would be necessary. It is not possible to

formulate the nature and amount of evidence which should be regarded as sufficient corroboration. The nature and extent of the corroboration

would depend upon and vary with the circumstances of each case; particularly, the nature of the evidence, the character of the accomplice and the

degree of reliability attaching to his evidence, the circumstances in which the accomplice makes his statement and his motive to implicate the

accused falsely, are material factors. It is obvious that a distinction must be drawn between a person who is threatened and becomes an

accomplice and a person who voluntarily takes part in the crime. In the former case corroboration necessary to establish the credit of such a

person would be very much less than in the latter case. In bribery cases this factor becomes of great importance by the very nature of crime itself.

When a person gives a bribe to a public servant with a view to induce him to abstain from doing his duty and to the detriment of a third party as in

a case of bribing an Income Tax Officer with a view to evade payment of proper Income Tax, the bribe giver is equally guilty with the bribe taker

as their common intention is to defraud a third party and bearing in mind the reasons why an accomplice''s evidence is unworthy of credit i.e., he is

immoral person and has little sanctity for the oath, his evidence would certainly require a greater amount of corroboration than in the case of person

who is compelled by force of circumstances to give bribe to a public servant to induce him to do just his plain duty which he refuses to do

otherwise. In the latter case although there is the element of wrong doing, the degree of immorality involved is considerably less on the part of the

bribe giver and his credibility would stand on a higher footing than that of a bribe giver in the former case. This principle has been laid down by a

recent ruling of the Bombay High Court in the case of Kamal khan v. Emperor reported in AIR 1935 Bom. 230, wherein Beaumont, C.J.

remarked:

The rule of the Court which requires corroboration of the evidence of an accomplice as against cash accused, if it applies at all, applies with vary

little force to a case is which the accused is charged with extorting a bribe from other persons. The objections which usually arise to the evidence

of an accomplice do not really apply where the alleged accomplice i.e., the person who pays the bribe, is not a willing participant in the offence but

is really victim of that offence.

This ruling of the Bombay High Court was referred to by the Privy Council in the case of Srinivas Mall v. Emperor reported in AIR 1917 P.C.

Their Lord-ships of the Privy Council referred to the ruling by stating as under:

Finally it was urged that reliance bad been placed on the uncorroborated evidence of accomplices. Section 133, Evidence Act, expressly provides

that ""an accomplice shall be a competent witnesses against an accused person"" and that ""a conviction is not illegal merely because it proceeds upon

an uncorroborated testimony, of an accomplice. No doubt the evidence of accomplices ought as a rule to be regarded with suspicion. The degree

of suspicion which will attach to it must however vary according to the extent and nature of the complicity; sometimes, as was said by Sir John

Beaumont, C.J., in Kamalkhan v. Emperor AIR 1935 Bom 230, the accomplice is ""not a willing participant in the offence but a victim of it."" There

is ground for saying that the accomplices in this case acted under a form of pressure which it would have required some firmness to resist.

We have duly borne in mind the observations of the Federal Court in the case of AIR 1944 66 (Federal Court) , to the effect:

That a charge u/s 161 is one which is easily and may often by lightly made but is in the very nature of things difficult to establish, as direct evidence

must in most cases be meagre and be of a tainted nature. These considerations however cannot be suffered to relieve the prosecution of any part

of the burden which rests upon it to establish the charge made beyond a reasonable doubt. If after everything that can legitimately be considered

has been given its due weight room still exists for taking the view that however strong the suspicion raised against the accused every reasonable

possibility of innocence has not been excluded, he is entitled to an acquittal.

We are also aware of the series of rulings of different High Courts laying down very definitely that the evidence of one accomplice is not

available as corroboration of Anr. .

The case in point as far as facts are concerned appears to be that of Deo Nandan Preshea v. Emperor reported in 33 Cal. 649, where it was

held that:

Where the complainant did not willingly offer the bribe, but the accused a Police officer demanded it before, taking up the charge lodged by the

complainant and made use of his official position to enforce his demand, it was held that the circumstances were such as would justify a conviction

on the testimony of accomplices with a much slighter degree of corroboration than would be the case if the accomplices were entirely voluntary

accomplices.

In that case the accused was a head constable of a Thana. He demanded Rs. 50 from the complainant as a bribe for enquiring into the cage of theft

and sending it up for trial. The complainant at first objected but eventually agreed to pay Rs. 50 as demanded and paid to the accused Rs. 20 on

the 27th April, Rs. 20 on the next day and two days, thereafter, he handed over to him a goat worth Rs. 3. The demand of the bribe was proved

by the evidence of the complainant, his mother and Sainath Chowkidar. To prove the delivery of the first sum of Rs. 20 there was the evidence of

Phand and Gurdyal, who obtained the money from one Chaman and stood security for its repayment and of Bhudan, Chowkidar, who was

present, when the money was handed over to the accused. To prove the payment of the second sum of Rs. 20 there was the evidence of

Radhanath, who lent the money to the complainant on the pledge of his three bullocks and of Gurdyal and Bhudan in whose presence the money

was handed to the accused. And the delivery of the goat was proved by Jhumak Ahir, who sold the goat and by four other witnesses through

whose hands the goat passed until it was delivered to the accused. The accused was convicted of 3 offences under Sections 161-165 and

sentenced to one year''s rigorous imprisonment for each offence. On appeal the conviction was upheld by the Sessions Judge. The accused went in

revision to the Calcutta High Court who issued a rule and it was argued that the conviction of the accused rested entirely on the evidence of

accomplices and that evidence was not corroborated as to material particular connecting the accused with the offence. The Sessions Judge bad

relied upon the authority of the case of Akhoy Kumar v. Jagat Chunder reported in 27 Cal. 925, and hold that as the bribe was paid by the

complainant under compulsion, be could not be regarded as an accomplice and that the other witnesses to the delivery of the two sums of money

and the goat to the daroga were also not accomplices. In support of the rule before the High Court, the learned Counsel for the accused

contended that the Sessions Judge bad erred in law that the complainant was not an accomplice. He argued that the ruling in the case reported in

Akhoy Kumar v. Jagat Ghunder 27 Cal. 925, was no authority for the view taken by the Sessions Judge as in that case the person who paid the

money was in custody and was compelled to pay the money to secure his release, whereas in this case the complainant simply paid the money to

the accused in order to secure the return of the property which had been stolen and to avoid the expenses of a case in Court. He accordingly

contended that both the complainant and his mother were accomplices. In support of this contention be relied upon the case of Queen-Empress v.

Maganlal reported in 14 Bom. 115, in which it was held that the limits of the application of the doctrine of necessity as an excuse for an act

otherwise criminal, are those prescribed in Section 94, Penal Code. He also contended that the evidence of Budhan Gurdyal, Sainath and Phand

was no better than the evidence of accomplices as they were cognizant of the crime and took no means to prevent or disclose it; and similarly the

evidence of the witnesses to the delivery of the goat. He also further contended that the evidence of Radha Nath could not be accepted as

sufficient corroboration of the evidence of the accomplices as he did not know for what purpose the money was borrowed from him, and therefore

his evidence failed to corroborate the evidence of the accomplices on material points connecting the accused with the offence. The learned Judges

of the Calcutta High Court considered all these objections and were pleased to remark as under:

The result of these contentions would appear to amount to this that in no case u/s 161, Penal Code, can there be a conviction, as the person who

gives the bribe and all persons present, when the bribe is given are accomplices, and the evidence of all persons who are not present and not

cognizant of the purpose for which the money is taken is worthless for the purpose of corroboration. We are unable to accept this view as correct

the contention is no doubt correct that under the law the person, who gives the bribe, is an abettor of the offence u/s 161, Penal Code, and as such

would be punishable u/s 116, Penal Code. He must therefore be regarded as an accomplice and the rule of practice would then apply which lays

down that it is generally unsafe to convict an accused on the evidence of an accomplice unless corroborated in material particulars connecting the

accused with the offence. But at the same time we agree with the view taken by the Judges of the Bombay High Court in the case of King-

Emperor v. Malhar reported in 26 Bom 193, that in considering whether this rule of practice applies to any particular case it mast be remembered

that all persons coming technically within the category of accomplices cannot be treated as precisely on the same footing, and that no general rule

on the subject can be laid down. Even though in this case the circumstances are not such as to place it on all tours with the case of Akhoy Kumar

v. Jagat Chunder reported In 27 Cal. 92, still it cannot be lost sight of that it was not the complainant, who willingly offered the bribe, but it was the

accused, who demanded it, before he would take up the charge lodged by the complainant and that he made use of his official position to enforce

his demands. The mere fact that the accused offered to secure the restoration of the stolen property rather than the conviction of the offender

makes little difference. He refused to act at all or even to record the complainant''s information till the bribe was paid, and though complainant in

the end agreed to pay it, he did it of necessity rather than of his own free will. It is possible that the circumstances of the present case, particularly

the fact that the accomplices are not striving to save themselves by throwing the blame for the offence on the accused but are rather doing the

reverse and that their guilt, such as it is, is plainly not being used as an instrument to induce them to give evidence, are such as would justify the

exceptional treatment mentioned in Queen-Empress v. Chagan Dayaram reported in 14 Bom. 331, that is, are such as to justify a conviction on the

uncorroborated testimony of accomplices. They are certainly such that a much lighter degree of corroboration is needed to establish their credit

than would be the case if they wore entirely voluntary accomplices in the offences which they speak to. And from this point of view the

corroboration of the statements of the complainant and his mother is ample.

We are in complete agreement with the views of the learned Judges of the Calcutta High Court. In the present case no doubt the several

persons who have been examined in support of the prosecution case of the payment of the bribe are technically accomplices but it is clear that they

did not willingly offer the bribe. It was the accused who demanded it before he would agree to grant licences and if we believe the evidence of the

witnesses as to the negotiations and how he came from Rs. 50 to Rule 9 per licence, and also the fact that these accomplices were not trying to

save themselves by throwing the blame for the offence on the accused but were rather doing the reverse, we must come to the conclusion that the

merchants paid the bribe ""of necessity rather than that of their free will"" to use the words of the Calcutta ruling referred to above. The Calcutta casa

Akhoy Kumar v. Jagat Chunder 27 Cal. 925, gives an indication of what amount of pressure would be sufficient to render a person an unwilling

accomplice or an accomplice under compulsion. In that case the complainant was not threatened with loss of liberty nor was there any accusation

from which he wanted to be released nor was there any threat of injury to his person, yet the learned Judge of the High Court proceeded on the

fact that they were not willing offenders of the bribe which was demanded by the accused who made the use of his official position to enforce his

demand. It is not possible to lay down any hard and fast rule as to the degree of compulsion necessary to render a witness an unwilling accomplice

to bring his case within the exception to the ordinary rule that an accomplices evidence should be supported in material particulars and if at all any

corroboration is necessary a very much slighter amount of evidence would be sufficient. In the case of Kamalkhan v. Emperor reported in AIR

1935 Bom 230 referred to above and quoted by the Privy Council, Wadia, J. observed:

In cases of bribery the persons who pay the bribe and those who act as intermediaries are the only persons who can ordinarily be expected to give

evidence about it. It is not possible to expect absolutely independent evidence about the payment of a bribe and a distinction has to be made

between persons who have voluntarily paid a bribe to a public servant in order to secure some advantage for themselves and persons who have

been compelled by improper pressure put upon them by a public servant to pay a bribe. In the latter case where the payment of the bribe has not

been voluntary, very slight corroboration would be sufficient to make the evidence of such person admissible against the receiver of the bribe.

The Privy Council case was not a case of acceptance of an illegal gratification. There the retail dealers who were said to be accomplices had been

forced to pay an illegal extra charge for the price of salt fixed by orders under the Defence of India Rules. The retail dealers could not obtain

delivery of the salt without payment of this illegal charge. It wag in reference to this that their Lordships of the Privy Council were pleased to

observe as above quoted and cite the observation of Beaumont, C.J. in the Bombay case Kamalkhan v. Emperor AIR 1935 Bom. 230.

Bearing in mind these principles of law, let us see what corroborative evidence is avail-able in the present case. The first circumstance is that all

the applications were put under a stereo-typed objection that the account books were not kept in regular course of business and therefore the

applicants were not entitled to a licence. The learned Magistrate has not paid any attention whether this objection was in fact real and that the

account books were in fact not kept in the regular course of business. We our selves had a look into the account books to see the entries of

payment of the contribution to wards the bribe and it struck us that the account books, in the moat of the cases, did appear to have been kept in

regular course of business. Entries were duly posted and balances were in most cases drawn every day. We are satisfied that the objection about

the accounts not being kept in regular course of business was false. The second circumstance is that no satisfactory explanation is given why thin

objection is waived soon after and the licences were ordered to be issued. To a direct question put to the accused he has made very evasive reply.

Question--What is your explanation in granting licences without any further enquiry attar the applications wore put under objection that the amount

books were not kept in regular course of business?

Answer - Because the books of account were not kept in order it did not follow that licences were not to be given. There was no bar to grunting

licences in the exercise of discretion to any person who was doing business in 1947 and against whom there was no complaint of black-marketing.

The third and most important piece of corroboration is the evidence of account books. Even the learned Magistrate who acquitted the accused

was forced to the conclusion that the amount of the bribe was as a matter of fact collected relying upon the entries in the account books. In our

opinion those circumstances are sufficient corroboration of the evidence of the merchants assuming them to be accomplices.

We are not impressed by the contention of the learned Counsel of the accused as to the alleged enmity in connection with the evasion of the

levy of grains orders. We have seen the correspondence produced by the succeeding Mamlatdar, Mr. Bhurubha, and the confidential reference in

connection with the Kheduts and merchants of Sudamda. We are of the opinion that the ground of enmity is indeed very farfetched. The rules of

levy seemed to have been observed more in breach than in the performance--there and it is doubtful whether the public notice dated 21-4-1949,

issued from Rajkot at all came to the notice of the merchants of Sudamda. There is no evidence that the accused had at any time threatened any of

the witnesses in the case with presecution for non-observance of the levy rules and it is very doubtful whether the merchants could have got any

inkling of the confidential reference that passed between the accused the Circle Inspector and the Collector. Disregarding the allegation of enmity

as the basis of a false charge there does not seem to be any circumstance why so many merchants should conspire to involve the accused in an

offence in which they themselves would be implicated as accomplice?. The merchants got the licences and were apparently satisfied.

The learned Counsel for the accused has tried to throw some doubt on the veracity of some of the witnesses by pointing out certain

contradictions in their evidence. One of the instances is in the evidence of Chhotalal Gulabchand where he has confused the name of Nandlal

Ladkachand with that of Girdharlal Tribhewan and which has already been dealt with in discussing the evidence above. In the re-examination the

witness explained why he has mentioned the name of Nandlal Ladkachand instead of Girdharlal Tribhowan. His second instance appears in the

evidence of Kantilal where the witness has said:

I have not myself paid money to five persons. The story of payment to five persons is not correct. All the persons has written the names of five

persons. Therefore I have also written.

but this is easily explained by the fact that moneys were paid only to two persons viz. Keshavlal and Premchand so that there is no inconsistency.

This is a very minor thing as according to the several other witnesses all the five persona were present at the time of the payment of the bribe which

in fact was paid by two of them, the three being merely spectators. Probably the witness Kantilal bad no personal knowledge whether five persons

had actually gone to pay the bribe to the accused. The third instance relied upon is in the evidence of Jayantilal wherein he stated that before the

Deputy Collector he had stated that two persons had gone to make payment to the accused. He explains that at the time when he made that

statement he was not aware that actually five persons had gone. There is thus nothing material to throw any doubt upon the credibility of the

witness.

From the above two latter instances, the learned Counsel for the accused has argued that it is not a fact that five persons were present at the

time when the amount of the bribe was paid but at the most it can be inferred that only two persona i.e. Keshavlal and Premchand were present

and as premchand has turned hostile and has not supported the evidence, there is just the word of Keshavlal against that of the accused so far as

the actual payment of the bribe is concerned. But as stated above there are no such material contradictions or inconsistencies to doubt the

evidence that five parsons were present at the time the bribe was paid. There is in fact overwhelming evidence of the other witnesses that five

persons were deputed for payment although the money was entrusted to two of them.

The learned Counsel for the accused has also strongly relied upon the case of Quten-Empress v. Chogan Dayaram reported in 14 Bom 331.

He argues that the facts of this case were very much similar to the present case. In that case also the evidence against the accused was that of

accomplices i.e. of some of the persons who had subscribed towards funds said to have been collected for the payment of bribe to the accused.

The Magistrate held that this evidence was sufficiently corroborated by certain entries in the account books of money-lenders showing sums

advanced. The Sessions Judge upheld the conviction on a consideration of the evidence of accomplices as he was satisfied that they had told a

substantially true story and the Judge was led to form a favourable opinion of the accomplices because he found that its production was due to the

discovery of a clue in the account books of money-lenders Nagar Amba and Govind Itcha and because the record disclosed no intention of any

consert or conspiracy. When the matter came before the High Court, the conviction in that particular case was reversed with the observations

As regards the books of the money lenders and the reliance placed on them by the Sessions Judge, it is to be observed that the money-lender

Nagar Amba, first of all produced at the trial a book Ex. A, which, he said, was his original book of accounts, after referring to which he was able

to depose to the several payments made by him on 23-121888. On cross-examination, however, on 1-7-1889, he was forced to admit that his

book was copied out from Anr. rough book (Ex C), which he produced on the 9th July. This book (Ex. C) was apparently written by his son who

however was not called to prove it. The witness adds that he is not acquainted with the account book transactions, as his son writes it. It does not

appear therefore that the case against the accused receives any support from the accounts as produced, or from the evidence of Nagar Amba, It

seems scarcely safe to hold that accounts, as to the autheticity of which no evidence was recorded at the trial, could have furnished any clue to the

discovery of the evidence. These unproved accounts cannot be used as corroborative evidence in this case of Nagar Amba''s statement; and even

if they could be so used, there is apparently nothing in his evidence to corroborate, as he does not seem to speak from personal knowledge and

recollection of payments alleged to have been made by him to persons who profess to have bribed the accused. The money lender, Govind Itcha,

who is said to have advanced the money which forms the subject of the second charge does not himself prove his books. He cannot read or write,

his books were written by his nephew, Pocha, who was not called.

The Magistrate had observed that Govind Itcha had also prevaricated a good deal in his evidence. It was under these circumstances that it was

held that there was not sufficient corroboration by the entries in the books of accounts produced. In the present case the entries have been

sufficiently proved. They have been produced by persons who have written them and most of the entries are dated the same date on which the

bribe was paid or the day after. We are satisfied that this evidence of the account books is genuine.

Taking all the facts and circumstances into consideration, we are satisfied, that the guilt of the accused has been established beyond all

reasonable doubt. We accordingly set aside the acquittal of the accused and convict him u/s 161, Penal Code, and sentence him to rigorous

imprisonment for onto year and a fine of Rs. 600. In default of payment of the fine, the accused should undergo rigorous imprisonment for six

months.