Holding

The appellant had indeed obtained a pecuniary advantage, the sanction was valid, the change of charge was not prejudicial, and the conviction stands with the imprisonment term reduced to time served.

Summary

M.W. Mohiuddin, a Special Auditor in the Local Fund Accounts Department, demanded and received Rs.400 from a Gram Panchayat Sarpanch in exchange for removing audit objections. He was caught in a police‑arranged trap at a hotel, and the prosecution proved that he took possession of the money, wrapped it in a handkerchief, and placed it in his bag. The trial court convicted him under Sections 13(d)(i)&(ii), 13(2) and 7 of the Prevention of Corruption Act, 1988 and sentenced him to six months' rigorous imprisonment and a fine; the High Court affirmed the conviction. On appeal, the Supreme Court examined whether the accused had "obtained" a pecuniary advantage, whether the sanction for prosecution was valid, and whether the change of charge from the 1947 Act to the 1988 Act was permissible. The Court held that the evidence satisfied the requirement of obtaining a pecuniary advantage, that the Chief Auditor was the competent authority to sanction prosecution, and that the change of charge caused no prejudice. Consequently, the conviction was upheld, the imprisonment term was reduced to time already served, and the fine with default clause was confirmed.

Issues considered

The prosecution must prove that the accused "obtained" a pecuniary advantage under Sec. 13(d) of the Prevention of Corruption Act, 1988.
Whether the sanction for prosecution was valid given the appellant's posting and the authority of the sanctioning officer.
Whether the substitution of charges framed under the 1947 Act with those under the 1988 Act vitiated the trial.
Whether the sentence imposed should be modified in view of the appellant's prolonged litigation, loss of employment, and health.

Legislation cited

Prevention of Corruption Act, 1947s. 5(1)(d), s. 5(2)
Prevention of Corruption Act, 1988s. 13(2), s. 13(d)(i), s. 13(d)(ii), s. 7

Subjects

briberypecuniary advantagePrevention of Corruption Actsanction for prosecutioncharge framingsentence modificationpublic servant corruptiontrap operation

Judgment

A M.W. MOHIUDDIN
v.
STATE OF MAHARASHTRA

MARCH 21, 1995

B
[M.M. PUNCHHI AND K. JAYACHANDRA REDDY, JJ.)

. Prevention of Corruption Act, 1988 :

Ss. 13(d)(i)&(ii}-Bribe-Special Audit Officer of Local Fund Ac-
C counts accepting bribe on the pretext or removing certain audit objec-
tion-Caught while receiving bribe-Convicted and sentenced by CouTts
below-"Obtained" pecuniary advantage-Meaning of-Sanction for prosecu-
tion-Validity of-Framing of charges under the 1947 Act and subsequently
under the 1988 Act-Contention not raised in the appellate Coun---Conten-
D tion not to be raised for the first time in Supreme Coult especially when no
prejudice is caused to the accused-<:onviction confinned, but sentence of
imprisonment reduced to the period already undergone-However, Sentence
of fine with default clause-Confinned.

For. accepting a bribe of Rs. 400 from a Sarpanch of a Gram
-
E Panchayat, on the pretext of removing an audit objection, the appellant, a
Special Officer under the Local Fund Accounts, was tried under
S.13(d)(i)&(ii)r/w.Ss.13(2) and 7 of the Prevention of Corruption Act.
According to the Prosecution he was caught red handed while receiving the
bribe. He was convicted by the trial Court and sentenced to undergo six
p months' R.I. and to pay a fine of Rs. 5000 in default of which to further
undergo three months' R.I. On appeal, High Court confirmed the convic·
tion and sentence. Hence this appeal.

Appellant contended that the evidence of the prosecution was not
trustworthy and reliable since there were a number of discrepancies,
G omissions and contradictions; that it cannot be said that the appellant had
"obtained" any pecuniary advantage since there was no proof that he
actually accepted the illegal gratification; and that there was no valid
sanction.

H Dismissing the appeal, but modifying the sentence, this Court
864
M.W. MOHIUDDIN 1•. STATE 865

HELD: 1.1. It is clear from the evidence of PWs_. 1' ~d 6 that P.W. 1 A
had parted \\ith the tainted money and the same ca111e~~er the hold and
control and hence into the possession of the accused and immediately a
signal was given and the trap party entered the scene and completed the
trap proceedings. Thus it cannot be said that the accused had not come into
possession of the money. When once this requirement namely that he came
into possession of the money is satisfied, then the only inference is that he
B
accepted the same and thus obtained the pecuniary advantage. (869-E]

,
I
1.2 It is proved that the accused made a demand and also got the
affirmation form P.W.1 that he had brought the demanded money before
\ entering the Hotel and at his instance, P.W.1 wrapped the money in the C
handkerchief which was given by the accused and placed the same on the
bag which was brought by the accused and as asked by him. So all these
steps have to be taken into cons"ideration in arriving at the conclusion that
the accused had in fact "obtained" the pecuniary advantage namely that he
received the illegal gratification. There is no scope whatsoever to doubt
this aspect of the case. Therefore, the prosecution has fully established D
that the accused accepted the bribe money and thus obtained the pecuniary
advantage thereby committing the offence completely. The evidence of P.W..
1 regarding the demand of the bribe as well as the acceptance of the same
is amply corroborated by the evidence of P.W. 6 as well as other cir-
cumstances spoken to by P.Ws. 2 and 7. (870-F-H, 871-A] E
Ram Krishan and another v. State of Delhi, AIR (1956) SC 476, relied
on.

Stroud's Judicial Dictionary Sth Edn. Vol. 3 page 1729 and Shorter
Oxford English Dictionary, 3rd Edn. Vol. II, Page 1431, referred to. F
2. Though initially appointed by the Commissioner, the accused was
later absorbed in the Local Fund Accounts Department under the control
of P.W. 8, the Chief Auditor. As per the relevant provisions of the
Prevention of Corruption Act, the sanctioning authority is the authority
who is competent to remove him from service and there is no doubt G
whatsoever that P.O. 8 is such competent authority to remove the accused
)
from service. Assuming that the accused was initially appointed by the
Commissioner he was no longer competent to remove the accused from
service as he was not under the control of the said Commissioner nor he
was in his department. P.W. 8 therefore is in no way subordinate to the H
866 SUPREME COURT REPORTS [1995) 2 S.C.R.

A said Commissioner. On the other hand he was the competent authority to
remove the accused from service at the relevant time. Therefore, the
sanction accorded by him is a valid one. [871-B-G]

3. Initially charges were framed under Section S(i)(d) read with
S.5(2) of the Prevention of Corruption Act, 1947 but when the trial actually
B commenced in the year 1990 the then Presiding Judge framed charges
under Section 13(d)(i) & (ii) read with Sections 13(2), 7 of the Prevention

C
of Corruption Act 1988 and the trial proceeded. No objection was taken in
the trial court; nor such contention was put forward in the appellate court.
Even otherwise no prejudice has been caused to the accused since the
graveman of the charges under the relevant provisions of both the Acts in
--
respect of these offences are the same in substance and at any rate the
appellant cannot raise such a contention for the first time in this Court
when in fact no prejudice has been caused to him. [872-B-C]

4. The offence took place in the year 1981. All these years the
D appellant has undergone the agony of criminal proceedings and he has

-
also lost his job and has a large family to support. It seems he has become
sick and infirm. He has been in jail for some time. For all these special
reasons, while confirming the conviction of the appellant, the sentence of
imprisonment is reduced to the period already undergone. However, the
E sentence of fine with default clause is confirmed. [872-D] /

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
224of1993.

From the Judgment and Order dated 2.12.92 of the Bombay High
F Court in Crl. A.No. 140 of 1990.
U.R. Lalit and A.K.,Sanghi for the Appellant.

S.M. Yadav <ifd A.S. Basme for the Respondent.

· The Judgment of the Court was delivered by
G
K. JAYACHANDRA REDDY, J. The appellant was tried under Sec- (
tions 13(d)(i)(ii) read with 13(2) and 7 of the Prevention of Corruption Act
("Act" for short) and was convicted by the trial court and sentenced to
undergo six months' R.I. and to pay a fine of Rs. 5,000 in default of
H payment of which to further undergo three months' R.I. The appeal filed
M.W.MOHIUDDINv. STATE[K.JAYACHANDRAREDDY,J.] 867

by him was dismissed by the High Court. Hence the present appeal. A

The appellant, at the relevant time, was working as a Special Auditor
under the control of the Chief Auditor, Local fund Accounts, Bombay. The
audit of the accounts of the Gram Panchayat, Chanaji Takali in Wardha
District was to be done from 25.11.1981 as per the memo of District B
Sub-Auditor received by Sarpanch Ramrao Hole, P.W. 1. The accused
went to the said Village on 11.11.1981 and started auditing the accounts of
the Gram Panchayat. He disclosed to P.W. 1 that there were some audit
objections and P.W. 1 would be required to remit an amount of Rs. 1,600
and in case of non-deposit of the money, a criminal prosecution would be
started. The appellant further told P.W.1 that if he pays Rs. 500 the audit C
objections would be removed. Later on, the amount of demand was
reduced to Rs. 400 and P.W. 1 agreed to arrange for the same and the
appellant asked him to bring the amount to Annapurna Hotel, Wardha on
13.11.1981between1 and 2 P.M. P.W. 1, however, approached the office
of the Anti-Corruption Bureau and lodged a complaint. P.W. 7, the Inspec- D
tor of Vigilance arranged a trap. P.Ws. 2 and 6, officials belonging to the
Forests Department were required to act as Panchas. The necessary
proceedings were drawn up and the currency notes of Rs. 400 were
subjected to Phenolphthalein powder and directions were given to P.W. 1
and the panchas that if the amount was accepted as per demand by the
accused, the necessary signal should be given by P.W.1 by rubbing his E
handkerchief on his face. As per the prior arrangement P.W.1 and P.W.6
went to Annapurna Hotel at about 1.30 P.M. The appellant was not present
there at that time but they came to know from owner of Taj Hotel situated
just in front of Annapurna Hotel that the appellant had gone to his office
and would be returning at about 3 or 4 P.M. At about 4.30 or 5 P.M. the p
appellant came to Taj Hotel and all of them had tea and there was
discussion about the preparation of audit note. The appellant asked P.W.
1 as to whether he had brought the money and when P.W.1 answered in
the affirmative, the appellant asked P.W.1 to accompany him to Room No.
8 in Annapurna Hotel in which the appeilant was staying. P.W. 1 followed
the appellant. When they reached the first floor of the Hotel, the appellant G
took out one handkerchief from bis right pocket and asked P.W.l to wrap
the amount in the handkerchief and then it should be given to him. The
appellant also told P.Ws. 1 and 6 that they should stand there and
meanwhile he would bring his bag from his room. The appellant went in
and came out with his bag and asked P.W.1 to keep the handkerchief in H
'
868 SUPREME COURT REPORTS [1995] 2 S.C.R.

A which the money was wrapped on that bag which was kept on the cot in
the corridor in front of Room No. 10 of the Hotel. P.W. 1 accordingly took
out the money from his pocket, wrapped in the handkerchief given by the
accused and kept it alongwith the money on the bag and thereafter he gave
the necessary signal. On receiving the signal, P.W. 7 and other members
B of the trap party came there and asked the appellant not to move and
coming to know from P.W. 1 that the money was wrapped in the hand-
kerduef and was kept on the bag the same was seized by P.W. 7 and a
demonstration of Phenolphthalein powder test was conducting which
proved positive. The numbers of the currency notes were verified with the r
. numbers noted in the earlier panchnama and after completion of the
c<~vestigation the charge-sheet was laid.

The prosecution mainly relied on the evidence of P.W. 1, the two
"'
\

Panchas P.Ws. 2 and 6 and P.W. 7, the investigating officer. P.W. 8 is the
officer who accorded the sanction. When examined under Section 313
Cr.P.C. the appellant· denied the offence and pleaded not guilty. His
D defence was of total denial and he stated that he was falsely implicated.
The trial court accepted the prosecution case and convicted him and the
same has been confirmed by the High Court.

Learned senior counsel appearing for the appellant firstly contended
E that the evidence of the prosecution is not trustworthy and reliable since
-
there are a number of discrepancies, omission and contradictions. Even
otherwise it cannot be said that tlie appellant in view of the facts stated
had "obtained" any pecuniary advantage since there is no proof that he
actually accepted the illegal gratification. Lastly the learned counsel also
contended that there is no valid sanction. Learned counsel has taken us to
F the evidence of the material witnesses and pointed out certain discrepan-
cies or omissions which have been considered by both the courts below and
it has been rightly held that they are very minor and do not affect the
veracity of the witnesses in any manner. Therefore we need not again
traverse the same.

G Learned counsel, however, strongly contended that the requirements
of Sections 13(d)(i) and 13(d)(ii) are to the effect that the accused must
by corrupt or illegal means or by abusing his position as a public servant
should obtain for himself or for any other person any valuable thing or any
pecuniary advantage and that in the instant case since there is no actual
H acceptance of the bribe money the said requirements have not been
M.W. MOHIUDDINv. STATE(K.JAYACHANDRAREDDY,J.] 869

satisfied and therefore the conviction can not lie. In support of his submis- A
sion the learned counsel laid considerable emphasis on the fact that the
currency notes were found wrapped in the handkerchief lying on the bag
and the said amount has not been actually received by the accused and
there was every possibility of his changing the mind and therefore there is
a missing link and consequently it cannot be said that he "obtained" the B
pecuniary advantage. To appreciate this submission we shall refer to the
.releva~t portions of the evidence of P.Ws. 1 and 6 on this aspect. It is their
evidence that both of them met the accused, had tea and then that accused
asked P.W. 1 as to whether he had brought the money and when he
answered in the affirmative the accused asked them to accompany to his
room in Annapurna Hotel. When they reached the first floor the accused C
took out the handkerchief from his right pocket and asked P.W. 1 to wrap
---- the money in that handkerchief and went in and brought his. bag from his
room and thereafter again asked p .w. 1 to keep the handkerchief in which
the money was wrapped on that bag which was kept on the cot in front of
Room No. 10. P.W. 1 according wrapped the money on the handkerchief D
and kept it on that bag and gave the signal. This is the consistent version
given by both P.Ws. 1 and 6. From this it is dear that P.W. 1 had parted
with the tainted money· and the same came under the hold and control and
-- hence into the possession of the accused and immediately a signal was
given and the trap party entered the scene and completed the trap
proceedings. We are unable to see as to how it can be said that the accused E
had not come into possession of the inoney. When once this requirement
namely that he came into possession of the money is satisfied then the only
inference is that he accepted the same and thus obtained the pecuniary
advantage.
F
In stroud's Judicial Dictionary 5th Edn. Vol. 3, page 1729, the
meaning of the word "obtain" is as under:

"Obtains (Larceny Act, 1916 (C.50) Section 3~(1). meant obtains
the property and not merely the possession (R.V. Lurie (1951))."
G
In Webster's third new international dictionary page 1559, the meaning of
) the word "obtain" reads thus:

"Obtain:-to gain or attain possession or disposal of USU, by some
planned action or method, Hold, Keep, possess, occupy.• -H
870 SUPREME COURT REPORTS (1995] 2 S.C.R.

A In Shorter Oxford English Dictionary, 3rd Edn. Vol.II, Page 1431, the ---
meaning of the word "obtain" is gi\'en as under:

"Obtain:- To prncun.: or gain as the result of purpose and effort;
hence, generally, to acquire get."

B Relying on the meanings of the word "obtain" given in these dictionaries,
the leaned counsel further contended that the word "obtain" has a definite
connotation and unless it is proved that the accused gained or attained the
possession of the money and held the same, the requirement is not satis-
fied. According to the leaned counsel even if the prosecution is to be
C believed it may amount to a preparation or at the most to an attempt on
the part of the accused and here is no completed offence.

We see no force in this submission whatsoever. In Ram Krisha11 and
another v. State of Delhi, AIR (1956) SC 476, a Bench of three Judges of
this Court while examining the requirements of Section S(l)(d) of the
D Prevention of Corruption Act, 1947 observe thus:

"We have primarily to look at the language employed and give
effect to it. One class of cases might arise where corrupt of illegal .......
means are adopted or pursued by the public servant to gain for
himself a pecuniary advantage. The word "obtains" on which much
E stress was laid does not eliminate the idea of acceptance of what
is given or offered to be given, though it connotes also an element
of effort on the part of the receiver."

Therefore whether there was an acceptance of what is given as a bribe and
F ·whether there was an effort on the part of the receiver to obtain the
pecuniary advantage by way of acceptance of the bribe depends on the
facts and circumstances in each case. In the instant case, it is proved that
the accused made a demand and also got the affirmation from P.W.1 that
he had brought the demanded money before entering the Hotel and at his
instance, P.W. 1 wrapped the money in the handkerchief which was given
G by the accused and placed the same on the bag which was brought by the
accused and as asked by him. So all these steps have to be taken into
consideration in arriving at the conclusion that the accused had in fact \,
"obtained" the pecuniary advantage namely that he received the illegal
gratification. We are satisfied that there is no scope whatsoever to doubt
H this aspect of the case. Therefore the prosecution has fully established that
M.W. MOHIUDDIN I'. STATE (K.JAYACHANDRAREDDYJ.] 871

the accused accepted the hribe money and thus obtained the pecuniary A
advantage therehy committing the offence completely. The e\·i<lence of
P.W.1 regarding the demand of the bribt.: as wdl as the acceptance of the
same is amply corroborated by the e\·idrncc of P.W. 6 as well as other
circumstances spoken to by P.Ws. 2 and 7.

It is lastly contended that there is no valid sanction inasmuch as the
B
appellant was appointed as Special Auditor by the Commissioner of Nag-
pur Division and hence P.W. 8 had no authority to accord sanction. We
see no force in this submission. P.W. 8 deposed that he was. working as
Chief Auditor, Local Fund Accounts, Bombay and at that time the appel-
lant-accused was working as Gram Panchayat Special Auditor at Wardha c
and that he was the appointing as well as the authority who could remove
the appellant from service. He further deposed that after going through
the records he was satisfied that there was sufficient evidence prim a f acie
to accord sanction and accordingly he gave the sanction. In the cross
examination P.W. 8 admitted that he himself did not appoint the accused D
but he added that the Chief Auditor, Local Fund Accounts, Bombay which
post he was holding was the competent authority to appoint Gram
Panchayat Special Auditors. In any event the fact remains that at the
relevant time the accused was working as Gram Panchayat Special Auditor
and P.W. 8 was the competent authority to remove him from service.
Learned counsel. however, contended that the appellant was appointed by E
the Commissioner, Nagpur and P.W. 8 was not holding the equivalent post
and therefore he was not competent to remove him. But it has to be noted
that the accused was absorbed in the Local Fund Accounts Department
and was under the control of P.W. 8, the Chief Auditor and as per the
relevant provisions of the Act the sanctioning authority is the authority who
F
is competent to remove him from the service and there is no doubt
whatsoever that P.W. 8 is such competent authority to remove the accused
from service. It must also be noted that assuming that the accused was
initially appointed by the Commissioner he was no longer competent to
remove the accused from service as he was not under the control of the
said Commissioner nor he was in his department. P.W. 8 therefore is in no G
way subordinate to the said Commissioner. On the other hand he was the
)
competent authority to remove the accused from service at the relevant
time. Therefore the sanction accorded by him is a valid one.

We may incidentally refer that the learned counsel also sought to H
872 SUPREME COURT REPORTS [1995) 2 S.C.R.

A contend that the trial of the accused initially commenced under Section
1611.P.C. read with Section 5(2) of the Prevention of Corruption Act, 1947
but the trial court ultimately convicted the accused under the provisions of
the new Act of 1988. Therefore· the trial is· vitiated. We see no merits in
this submission. Initially no doubt on 9.12.83 the charges were framed
B under Section 5(i)( d) read with 5(2) of the Prevention of Corruption Act,
1947 but when the trial actually commenced in the year 1990 the then
Presiding Judge framed charges under Section 13(d)(i), (ii) read with 13(2)
and Section 7 of the Prevention of Corruption Act, 1988 and the trial
proceeded. We do not find any objection having been taken in the trial
court nor such contention was put forward in the appellate court. Even
C otherwise we see no prejudice has been caused to the accused since the
graveman of the charges under the relevant provisions of both the Acts in
respect of these offences are the same in substance and at any rate the
appellant cannot raise such a contention for the first time in tliis Court
when in fact no prejudice has been caused to him.

D Now coming to the question of sentence, the offence took place in
the year 1981. All these years the appellant has undergone the agony of
criminal proceedings uptil now and he has also lost his job and has a large
family to support. It is also stated that he has become sick and infirm. He
has been in jail for some time. For all these special reasons, while
E ~onfirming the conviction of the appellant, we reduce the sentence of
imprisonment to the period already undergone. However, we confirm the
sentence of fine with default clause. Accordingly, subject to the modifica-
tion of sentence of imprisonment, the appeal is dismissed.

G.N. Appeal dismissed.

I -