MAHENDRA SINGH CHOTELAL BHARGADversusSTATE OF MAHARASHTRA AND ORS.

            MAHENDRA SINGH CHOTELAL BHARGAD                                        A
                                       v.
                STATE OF MAHARASHTRA AND ORS.

                           DECEMBER 12, 1997

             [M.K. MUKHERJEE AND K.T. THOM~S, JJ.)                                 B

      Indian Penal Code, 1860.

        Section 163---Conviction unde~Two police officers allegedly demand-
ing illegal gratification for dropping oiminal case and directing the gratifica-   C
tion money to be paid to appellant-Money paid accordingly and
subsequently recovered from appellant-High Cowt acquitted the police of-
ficers for an offence committed under Section 161 and Section 5(1)(d) read
with Section 5(2) of the Prevention of Cormption Act, 1947-Appellant
convicted under Section 16~Held, in view of the acquittal of the police
officers, conviction of the appellant under Section 163 !PC w1sus-                 D
tainable--Penal Code, Section 161-Prevention of Conuption Act, 1947,
Sections 5(l)(d) and 5(2) .

       .For obtaining an illegal gratification from PW-1 for dropping the
criminal case pending against him through the appellant, A-1 and A-2, two          E
police officers were convicted under Section 161 IPC read with Sections
5(1) (d) and 5(2) of the Prevention of Corruption Act, while the appellant
was convicted under Section 163 IPC. Two separate appeals were filed
before the High Court against said conviction. The High Court allirmed
the conviction of the appellant and acquitted the two police officers. Hence
this appeal.                                                                       F
      Allowing the appeal, the Court

      HELD : 1.1. High Court, after having disbelieved the prosecution
case qua Al and A2, could convict A3 and that too for an offence under             G
Section 163 IPC. On a plain reading of Section 163 IPC, it is manifest that
to convict an accused for the said offence the following ingredients are
required to be proved :-

      (i) The accused accepted or agreed to accept, obtained or attempted
to obtain for himself or anyone on his behalf, a gratification;                    H
                                   465
    466                    SUPREME COURT REPORTS [1997] SUPP. 6 S.C.R.

A        (ii) The gratification must be as a motive or reward to induce a public
    servant by the exercise of personal influence:-

          (a) to do or to forbear to do any official act, or

          (b) to show in exercise of his official functions favour or disfavour; or
B
         (c) to render or attempt to render any service or disservice to any
    person with the Central Government or with any public servant as such.
                                                                    [468-A-D]
          1.2. The gist of the offence, therefore, is that the person arraigned
C must accept the gratification to induce a public se1vant by the exercise of his
  personal influence (emphasis supplied) to do any of the acts mentioned in
    the Section. It is the positive case of the prosecution, as testified by PWl,
    that it was Al and A2 who initially demanded the money from PWl and in
    terms of the arrangement that he had with Al and under his instruction
    and direction that he paiill the money to the appellant. It was not the
D   appellant who struck the deal and received the money to induce Al and A2
    to show some favour to a Guest House and its proprietor. On the contrary,
    it was Al and A2 who had struck the deal and the appellant was the
    recipient of the money in terms ofan arrangement which he had (obviously)
    entered into with Al and A2. By no stretch of imagination, therefore, can it
E   be said that the appellant is guilty of the offence under Section 163 IPC. Of
    course acceptance of money by the appellant from PWl for handing over
    the same to Al and A2 certainly constitute an abatement of the offences
    allegedly committed by Al and A2, but then this aspect of the matter need
    detain this court : firstly because, such was not the charge framed against
    the appellant and secondly, because, Al and A2 stand acquitted of the
F   offences alleged against them. [468-E-H; 469-A]

          CRIMINAL APPELLATE JUR1ISDICTION: Criminal Appeal No.
    663 of 1994.

         From the Judgment and Order dated 20.1.94 of the Bombay High
G   Court in Cr!. A. No. 6 of 1993.

           A.K. Sanghi for the Appellant.

           D.M. Nargolkar and S.M . .Jadhav (NP) for the Respondents.

H          The Judgment of the Court was delivered by
     MAHENDRA SINGH CHOTELAL BHARGAD v. STATE [M.K. MUKHERJEE, J.)          467

       M.K. MUKHERJEE, J. For obtaining an illegal gratification of Rs.            A
3000 from Rajkumar Mohanram Sawani, (P.W.l) through Mahendra Singh,
the appellant before us, Uttamrao .Baburao Raut, Inspector and Abdul
Kadar, Sub Inspector (hereinafter referred to as Al and A2 respectively),
of Ramdaspeth· Police Station, Akola were convicted under Sections 161
I.P.C. and 5(1)(d) read with 5(2) of the Prevention of Corruption Act, 1947,       B
while the appellant was convicted under Section 163 I.P.C. Aggrieved
thereby they preferred separate appeals before the Bombay High Court
which were disposed of with an order of affirmation of the conviction of
the appellant and acquittal of the two Police Officers. Hence this appeal.

       2. According to the prosecution case, in the night intervening April        C
12 and 13, 1984 Al and A2 carried a raid at Seema Guest House of Akola
and found Madhukar@ Shaligram Raut (P.W.10) and one Ashok Thakur
indulging in immoral sexual activities with two girls. They were arrested
and brought to the Police Station by Al and A2. Rajkumar (P.W.l), the
Manager of the Guest House, and Pramod Gangaramji Bhirad (P.W.5), a                D
friend of the persons arrested, went to the Police Station and secured their
release on bail after paying Rs. 1,200 to A2 as illegal gratification. It is the
further prosecution case that a few days later Al and A2 demanded a sum
of Rs. 5,000 as a consideration to drop the prosecution launched against
Seema Guest House and its proprietor for immoral trafficking, but                  E
ultimately the consideration was fixed at Rs. 3,000. On April 27, 1984 Al
instructed P.W.1 to pay that amount to the appellant, who stayed in a
nearby hotel, on the following day. On the same day P.W. 1 lodged a
written complaint with the Anti Corruption Bureau for the illegal demand
made by Al (Ext. 58) and Mr. Rade (P.W. 14), an Inspector of the Bureau,
arranged a trap. On April 28, 1984 when the appellant accepted the
                                                                                   F
currency notes worth Rs. 3,000 at the tea-stall of Mahadeo (P.W.3), as per
earlier arrangement, the raiding party apprehended him with the notes.

      3. To prove the accusation levelled against the three accused persons,
the prosecution relied upon - and the trial Court accepted - the evidence G
of P.W.l and the members of the raiding party, to convict them. The High
Court, however, declined to accept the prosecution case regarding the
demand made by Al and A2 for illegal gratification as it found the
evidence of P.W.1 (on which the prosecution solely relied to prove the
demand made by Al and A2) unsatisfactory. Since, however, the evidence H
    468                   SUPREME COURT REl'ORTS [1997] SUPP. 6 S.C.R.

A of P.W. 1 that the amount of Rs. 3,000 was paid to the appellant stood
    corroborated by its recovery from the appellant, as testified by the trap
    witnesses, it convicted the appellant.

          4. It passes our comprehension as to how the High Court, after
    having disbelieved the prosecution case qua Al and A2, could convict A3
B
    and that too for the offence under Section 163 I.P.C. On a plain reading
    of the said Section it is manifest that to convict an accused for the above
    offence the following ingredients are required to be proved :-

    (i) The accused accepted or agreed to accept, obtained or attempted to
C   obtain for himself or anyone on his behalf, a gratification;

    (ii) The gratification must be as a motive or reward to induce a public
    servant by the exercise of personal influence :

D (a) to do or to forbear to do any official act, or

    (b) to show in exercise of his official functions favour or disfavour; or

    (c) to render or attempt to render any service or disservice to any person
    with the Central Government or State Government or with any public
E   servant, as such.

  The gist of the offence, therefore, is that the person arraigned must accept
  the gratification to induce a public servant by the exercise of his personal
  influence (emphasis supplied) to do any of the acts mentioned in the
  Section. It is the positive case of the prosecution, as testified by P.W.l, that
F it was Al and A2 who initially demanded the money from him (P.W.l) and
  in terms of an arrangement that he had with Al and under his instruction
  and direction that he paid the money to the appellant. It was not the
  appellant who struck the deal and received the money to induce Al and
  A2 to show some favour to Seema Guest House and its proprietor. On the
G contrary, it was Al and A2 who had struck the deal and the appellant was
  the recipient of the money in terms of an arrangement which he had
   (obviously) entered into with Al and A2. By no stretch of imagination,
  therefore, can it be said that the appellant is guilty of the offence under
  Section 163 l.P.C. Of course the acceptance of the money by the appellant
H from P.W.l for handing over the same to Al or A2 would certainly
     MAHENDRASINGH CHOTELAL BHARGAD v. STATE (M.K. MUKHERJEE, J.)        469

constitute an abatment of the offences allegedly committed by A-1 and A2,       A
but then this aspect of the matter need not detain us : firstly because, such
was not the charge framed against the appellant and secondly, because, Al
and A2 stand acquitted of the offences alleged against them.

      5. We, therefore, allow this appeal, set aside the conviction of the
appellant under Section 163 l.P.C. and acquit him. The appellant, who is        B
on bail, will stand discharged from his bail bonds.

R.K.S.                                                      Appeal allowed.