Holding

Mere recovery of the currency note on the table does not prove acceptance of the bribe; the conviction is unsustainable.

Issues considered

Whether the recovery of a currency note lying on a table constitutes sufficient proof of acceptance of a bribe under Section 161 IPC and Section 5(1)(d) read with 5(2) of the Prevention of Corruption Act.
Whether the trial court erred in relying on the phenolphthalein test and the note’s location without examining essential shadow witnesses.

Legislation cited

Indian Penal Code, 1860s. 161
Prevention of Corruption Act, 1947s. 5(1)(d), s. 5(2)

Subjects

briberycorruptionacceptance of gratificationtrap operationevidencepresumption of innocencephenolphthalein testshadow witnessconviction reversal

Judgment

A SMT.MEENA
v.
STATE OF MAHARASHTRA

APRIL 17, 2000

B [DR. A.S.: ANAND, CJI, R.C. LAHOTI AND DORAISWAMYRAJU, JJ.]

'><..
Indian Penal Code, 1860-Section 161-Preventi<;m of Corruption Act,
1947-Section 5( 1)(d) rw/S. 5(2 )-Offence under-Requirements of-Charge
of acceptance of bribe by Revenue Record Keeper-Trap case-Recovery of
c currency note lying on pad on the table-Whether can be held to be sufficient
proof of acceptance of bribe-Held, No, in the facts and circumstances of the
case-Defence case that currency note fell on the table in process of accused
pushing it away with her hand when attempted to be thrust into her hand, held,
acceptable. A.

D Constitution of India-Art; 136-Appeal-Scope-Concummt findings
suffer from serious infirmities and manifest errors-Obligation of judicial
conscience to correct errors, where the same are manifest-Prevention of
Corruption Act, 1947-Section 5(l)(d) read with section 5(2)-Indian Penal
Code, 1860-Section 161.
E The appellant, working as Revenue Record Keeper in the Collectorate
was charged of the offences punishable under Section 161 of the Indian
Penal Code and Section 5(1)(d) read with Section 5(2) of the Prevention of
Corruption Act, 1947, for demanding and accepting a sum of Rs. 20 from
PW-1, as gratification other than legal remuneration for doing an official
F act of sending the relevant records to the copying section for providing
copies of maps and khasra patrak, applied for by him. A trap was laid
down. The currency note of denomination 9f Rs. 20 was found on the pad
on the table and seized from that place when the trap party arrived. The
lady constable immediately held both the hands of the accused and when
the accused dipped her hands in the glass tumbler containing solution of ""
G
sodium carbonate, the colour of the solution turned to purple. The Special
Judge held the charges proved and sentenced the appellant. On appeal, the ~

High Court.affirmed the finding recorded by the Trial Judge. Hence this
appeal by special leave.

H -The appellant contended that necessary and essential ingredients to
12
SMT. MEENA v. STATE 13
i

constitute offences could not be held to have been provided; that the A
,.A
____,,.--- controversy in respect of the manner of handing over the currency and its
receipt sufficiently proved the defence case that PW-1 only attempted to
thrust the currency into the hands of the appellant and when she refused
the same by pushing with her hand, not only the currency note came into
contact with her hand but in the process fall on the pad on the table from
where only it was taken and seized and that the non-examination of the lady
B
constable, who first searched the spot after the alleged acceptance of the
amount rendered the case of the prosecution self condemned.

The counsel for the State contended that the concurrent findings of
the Courts below did not suffer from any infirmities or irregularities, to call c
for an interference in this appeal.

Allowing the appeal, the Court

HELD : 1.1. The currency note in question was not recovered from
the person or from the table drawer, but when the trap party arrived the D
note was found only on the pad on the table and seized from that place only.
PW-2, one of the panch witnesses, who accompanied PW-1, as a shadow
witness when he tried to give the bride, did not support the prosecution
case. He has been treated hostile and his. evidence eschewed from consi-
deration by the courts below. The lady Constable, another shadow witness,
who first arrived on the spot after the signal was given by PW-1, was not E
examined at the trial. Law has always favoured the presence and impor-
tance of a shadow witness in the trap party, not only to facilitate such
witness to see but also overhear what happens and how it happens also. In
this case, the role of lady Constable was to enter first and hold the hand of
the accused immediately after the acceptance of the bribe amount and she F
"' was stated to have done that as planned. For reasons best known, such a
vital and important witness has been withheld by the prosecution, from
being examined. One J who scribed the application dated 13.8.1986 for
getting copies and who admittedly was all along with PW-1 and gave even
the idea of lodging a compliant with the Anti-Corruption Bureau, has also
been withheld from being examined. The other person, who was present at G
-... the place of occurrence though cited initially as witness, was not examined
by the prosecution but later examined as DW•1 and evidence of this person
completely belies the prosecution story. The corroboration essential in a
case like this for what actually transpired at the time of the alleged occur·
rence and acceptance of bribe is very much wanting in this case. Even the H
14 SUPREME COURT REPORTS [2000] 3 S.C.R.
A other panch witness, PW-5, categorically admitted that even as the Inspec-
tor of Police PW-6 arrived, the appellant gave the same version thatPW-1
tried to force into her hands the currency note which she turned down by
pushing it away, and his evidence also does not lend credibility to the c.ase or
the prosecution. The contradictory version of PW-1 or the very incident
when earlier examined in departmental proceedings renders his testimony
B
in this case untrustworthy. PW-3 the Head Copyist seems to be the brain
behind all these and PW-1 as well as J appear to be working as a group in
this affairs and despite the blunt denial by PW-3, his closeness to PW-1 and "'--
J stand well substantiated. All these relevant aspects or the case seem to
have been completely overlooked by the Courts below. [19-C-H; 20-A-B]
c
1.2. Mere recovery of the currency note of Rs. 20 denomination, that
too lying on the pad on the table, by itself cannot he held to be proper or
sufficient proof of the acceptance of the bribe, in the peculiar circumstances
of this case which lend credence to the case of the appellant that it fell on the
table in the process of the appellant pushing it away with her hands when
D
attempted to be thrust into her hands by PW-1. The results of phenolpthalein
test, viewed in the context that the appellant could have also come into
contact with the currency note when she pushed it away with her hands
cannot by itself be considered to he of any relevance to prove that the
appellant really accepted the bribe amount. With such perfunctory nature
E of materials and the prevaricating type of evidence of PW-1 and PW-3, who
seem to have strong prejudice against the appellant, it would be not only
unsafe but dangerous to rest conviction upon their testimony. PW-1 if
really keen on getting the copy of the record urgently, could have made an
urgent application to have them delivered within 3 days instead of making
F an o~dinary application and going on such an errand, which makes it even
reasonable to assume that the trio of PW-1, PW-3 and J were attempting to
weave a web around the appellant to somehow get her into trouble and
victimise her. [20-C-F]

1.3. The fact that the judgments of the courts below were rendered
G concurrently cannot dissuade this Court from interfering in a case like this
where such findings and conviction have been recorded on mere conjectures
and erratic evaluation of the evidence on record. Consistency for the mere
sake of it is no virtue. It is an obligation of judicial conscience to correct
errors, where the same are manifest. The judgments of the courts below
H suffer from serious infirmities and manifest errors on account of unwar-
SMT. MEENA v. STATE [RAJU, J.] 15
,/ ranted inferences liberally drawn by the Courts below against the appellant, A
overlooking the fundamental principle of presum,,on of innocence of an
accused till the charge levelled and his guilt is established beyond all
reasonable doubt. The courts below have failed to consider the adverse
impact on the prosecution case from the evidence of PW-2and the withhold-
ing of the lady constable and J, the two material witnesses. The appellant
B
cannot be, on the basis of available evidence, held to have tacitly accepted the
illegal gratification as alleged. The materials on record in this case are not
sufficient to bring home the guilt of the appellant. (20-G-H; 21-A-B]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 449
of 1995. C
From the Judgment and Order dated 18.10.94 of the Bombay High
Court in Crl. A. No. 411 of 1993.

U.N. Bachawat, R.B. Masodkar, K.L Taneja and Alok Bachawat for the
Appellant. D
A.S. Bhasme, V.B. Joshi and S.V. Deshpande for the Respondent.

The Judgment of the Court was delivered by

RAJU, J. The appellant in this appeal, who was working as Revenue
Record Keeper (Senior Clerk) in the Collectorate at Wardha District, was E
charged before the Special Judge, Wardha, of the offences punishable under
Section 161, IPC, and Sections 5(1)(d) read with Section 5(2) of the Preven-
tion of Corruption Act, 1947 [hereinafter referred to as "The Act"]. The case
of the prosecution was that the appellant demanded and accepted on 20.8.1986
a sum of Rs.20 from one Magorao Tarale (PW-I), as gratification other than F
legal remuneration for doing an official act of sending the relevant records to
the copying section for providing copies of maps and Khasra Patrak, applied
for by him. The appellant pleaded not guilty and sought for trial.

The prosecution examined PWs l to 7 and marked several documents
in support of the charges. The appellant denied the charges and asserted that G
she was falsely implicated on the machinations of PW-3, PW-1 and one
Jagdish Bokade, Shri Devanand was examined as DW-1. The crux of the
prosecution case, leaving aside the unnecessary details is that PW- I made an
application on 13. 8. 86 for copies of records relating to lands held by his grand
father and on the suggestion of PW-3, the Head Copyist, he approached the H
16 SUPREME COURT REPORTS (2000] 3 S.C.R.
A accused and requested her to make available the relevant record for prepara- ~ ~

tion of copies. The accused, allegedly demanded Rs.20 for making available '
the records. PW-1 was not prepared to pay the money and he sought the advise
of one Jagdish Bokade who gave the idea of complaining to the Anti-
Corruption Bureau. On receipt of a complaint from PW-1, orally PW-6
reduced the same in writing. Then Inspector, PW-6 called for two panchas
B
PWs 2 and 5 from the Forest Department as well as a lady constable named
Victoria. A pre-trap panchnama was stated to have been drawn after explaining .,._
the details of the trap and the characteristics of phenolphthalein powder as well
as its use in a trap. PW-1, the complainant was said to have produced a
currency note of the denomination of Rs. 20 before PW-6 who applied the
c chemical powder on either side of the cunency note and made it kept in the
side pocket of the trouser of the complainant. PW-1 was instructed not to touch
the currency note till the accused makes the demand and only thereafter give
it to her. PW-2, one of the panch witnesses, was instructed to accompany the
complainant and not only hear the conversation between the accused and the
complainant but also keep a watch as to where the accused keeps the amount,
D
after receiving the same. The other panch witness, PW-5 and the lady
constable Victoria were instructed to remain present nearby the side of the
record room and rush to the spot on receipt of the signal from the complainant.
The lady constable was instructed to immediately catch the hands of the A
accused and the rest of the trap party would follow them by remaining at a
E distance.

The complainant was said to have gone ahead with PW-2, while the
~
other members ()f the trap party took position outside the room waiting for the
agreed signal from the complainant by rubbing his mouth with his handker-
chief. The further case of the prosecution is that things happened the way it ~·
F
was planned and the complainant not only paid the amom1t by handing over
the currency note on a demand then made by the accused but he came out of
the room and made the signal for the trap party to play their respective and
allotted roles. The lady constable was said to have arrived first, immediately
and held both the hands of the accused who by then seems to have thrown the
G currency note from her hands on the table. Thereafter, PW- 6 prepared a
solution of sodium carbonate in a glass tumbler and when the accused dipped -~

her hands in the glass tumbler containing the solution the colour of the solution
was said to have turned to purple and the collection of the same was sealed
for being sent to chemical analyser. The solution of sodium carbonate when
sprinkled on the currency note and the pad on the table on which the currency
H
SMT. MEENA v. STATE [RAJU, J.] 17
note has been thrown purple colour appeared on both and they were duly A
seized under a mahazar, for further action. Immediately, thereafter, PW-6 was
said to have lodged a report against the accused at Police Station, Wardha, and
thereafter carried on the investigation which resulted in laying of the charge
against the accused.

The Special Judge, after considering the materials on record, held the B
charges proved and sentenced the appellant to undergo rigorous imprisonment
for a period of one week and to pay a fine of Rs. 200, in default of which to
suffer further rigorous imprisonment for fifteen days for the offence under
Section 161, IPC. For the offence under Section 5(l)(d) read with Section 5(2)
of the Act, the appellant was sentenced to suffer rigorous imprisonment for a c
period of one month and to pay a fine of Rs. 500, and in default to suffer
further rigorous imprisonment for three weeks. Both the sentences were
ordered to run concurrently, on 30.10.1993.

On an appeal filed before the High Court at Mumbai, a learned Single
Judge also affirmed the findings recorded by the Trial Judge. On the question D
of sentence also, the learned Judge in the High Court was of the view that
leniency had already been shown by the Trial Judge and there was no further
scope for interference. The appeal came to be rejected on 18.10.1994 resulting
in filing of this appeal by special leave.

The learned counsel appeaiing for the appellant strenuously contended E
that the courts below committed grave errors of law in returning a finding of
guilt on the perfunctory materials on record and that no court expected to
objectively analyse and evaluate evidence reasonably and rationally could
have held the charges proved. It was urged that necessary and essential
ingredients to constitute offences as statutorily defined could not be held to F
have been proved. The non-examination of the lady Constable, who first
reached the spot after the alleged acceptance of the amount as well as of
Jagdish Bokade, who had played a pivotal role in the trap alongwith PW-1 and
PW-3, renders the case of the prosecution self-condemned.

The learned counsel, at length, took us through the evidence of PW-1, G
PW-3, PW-4, PW-5 and DW-1 to substantiate the grievance of the appellant.
Reading the evidence of PW-1, it was endeavoured to show that he had spoken
altogether a different version in the departmental proceedings against the
appellant where he deposed in respect of the very incident earlier on 30.9.1987
rendering him totally an umeliable witness and his evidence uncreditworthy. H
-
18 SUPREME COURT REPORTS [2000] 3 S.C.R.
A The controversy in respect of the manner of handing over the currency and ,~,
its receipt was said to have been belittled and ignored when, according to the
- _,
learned counsel, it cuts at the ve1y root of the vital ingredient of acceptance
of the money itself and on the other hand sufficiently proved the claim that
PW-1 only attempted to thrust the currency into the hands of the appellant and
when the appellant refused the same by pushing with her hand, not only the
B
currency note came into contact with her hand but in the process fell on the
pad on the table from where only it was taken and seized. The several ,.,,..
admissions made by PW-1 and PW-3 were said to substantiate the position that
they and one Jagdish Bokade, who was the author of tl1e application submitted
on 13.8.1986 and who was with PW-1 all through, were in hand in glove in
c this venture t::> harass the appellant since the staff in the Collectorate,
particularly PW-3, did not like the appellant to be in the Collectorate aiid that
they were offended on account of the refusal of the appellant to participate in
the periodical liquor parties held by them by making contribution, as desired.
Finally, it was submitted that the materials on record are not safe to be relied
D upon or sufficient in law to condemn the appellant of the offences of the nature
levelled against her.

The learned counsel for the respondent-State, while strongly placing
reliance upon the judgments of the courts below, contended that the concurrent
findings of the courts below, recorded on a proper appreciation of the
E evidence, do .:iot suffer from any infirmities or irregularities, to call for an
interference in tl1is appeal and that, therefore, the appeal does not merit our
acceptance. Our attention has been drawn to such findings of the trial comt,
',
which were in extenso quoted and approved by the learned judge in the High
Court also, in support of his stand.
F )I(_
The essential ingredients to be established to indict a person of an
offence under Section 5(l)(d) of the Act are that he should have been a public
servant; that he should have used conupt or illegal means or othe1wise abused

....
his position as such public servant, and that he should have obtained a valuable
thing or pecuniary advantage for himself or any other person. Likewise,
G Section 161, IPC, requires that the person-accepting the gratification should
be a public servant; that he should accept the gratification for himself and the --y
gratification should be as a motive or reward for doing or forbearing to do any
official act or for showing or forbearing to show, in the exercise of his official
function, favour or disfavour to any person. Like any other criminal offence,
H fue prosecution has to prove the charge beyond reasonable doubt and accused
SMT. MEENA v. STATE [RAJU, J.] 19

,...l
should be considered innocent, till it is established otherwise by proper proof A
· of acceptance of the illegal gratification, the vital ingredient, necessary to be
established to procure a conviction for the offences under consideration.

We have bestowed our careful thought to the submissions made on
either side, in the light of the evidence on record. We are of the view that
neither the quality of the materials produced nor their proper evaluation could, B
in this case, be held sufficient to convince or satisfy the judicial conscience
~ of any adjudicating Authority to record a verdict of guilt, on such slender
evidence. Indisputably, the currency note in question was not recovered from
the person or from the table drawer, but when the trap party arrived was found
only on the pad on the table and seized from that place only. The question is c
as to whether the appellant accepted it and placed it on the table or that the
currency note fell on the pad on the table in the process of the appellant
refusing to receive the same by pushing away the hands of PW- I and the
currency, when attempted to be tluust into her hands. PW-2, one of the panch
witnesses, who accompanied PW-I, as a shadow witness, when he tried to give
the bribe, did not support the prosecution case. He has been treated hostile and D
his evidence eschewed from consideration by the courts below. The lady
Constable, Victmia, another shadow witness, who first arrived on the spot after
the signal was given by PW-I, was not examined at the trial. Law has alwa;s
favoured the presence and importance of a shadow witness in the trap party,
not only to facilitate such witness to see but also overhear what happens and E
how it happens also. In this case, the role of Victoria was to enter first and
hold the hands of the accused immediately after the acceptance of the bribe
amount and she was stated to have done that, as planned. For reasons best
known, such a vital and important witness has been withheld by the prosecu-
tion, from being examined. Jagdish Bokade, who scribed the application dated
13.8.1986 for getting copies and who admittedly was all alongwith PW-I and
F
gave even tl1e idea of lodging a complaint with the Anti-Corruption Bureau,
has also been witllheld from being examined. The other person, who was
present at tl1e place of occurrence though cited initially as witness, was not
examined by tlle prosecution but later was got examined as DW-1 and
evidence of tllis person completely belies tlle prosecution story. TI1e cotTobo- G
ration essential in a case like tllis for what actually transpired at tlle time of
....,..
the alleged occmrence and acceptance of bribe is very much wanting in this
,...
case. Even tl1e other panch witness, PW-5, categorically admitted that even as
the Inspector of Police, PW-6, arrived, the appellant gave tlle same version that
PW-I tried to force into her hands the currency note which she turned down
H
20 SUPREME COURT REPORTS [2000] 3 S.C.R.
A by pushing it away, and his evidence also does not lend credibility to the case
of the prosecution. The contradictory version of PW- I of the very incident
when earlier examined in departmental proceedings renders his testimony in
this case untrustworthy. PW-3, the Head Copyist, seems to be the brain behind
all these and that PW-I as well as Jagdish Bokade appear to be working as
a group in this &ffair and despite the blunt denial by PW-3, his closeness to
B
PW- I and Jagdish Bokade stand well substantiated. All these relevant aspects
of the case seem to have been completely overlooked by the courts below.

The learned-Judge in the High Court seems to have mechanically affixed
his approval to the findings recorded by the trial Judge by profusel~xtracting
c such findings. Mere recovery of the cun-ency note of Rs. 20 denomination, and
that too lying on the pad on the table, by itself cannot be held to be proper
or sufficient proof of the acceptance of the bribe, in the peculiar circumstances
of this case which lend also credence to the case of the appellant that it fell
on the table in the process of the appellant pushing it away with her hands .
when attempted to be tluust into her hands by PW-I. The results of
D
phenolphtl1alein test, viewed in the context that the appellant could have also
come into contact with the. Cllffency note when she pushed it away with her
hands cannot by itself be considered to be of any relevance to prove that the
appellant really accepted the bribe amount. With such perfunctmy nature of
materials and the prevaricating type of evidence of PW- 1 and PW-3, who
E seem to have strong prejudice against the appellant, it would be not only
unsafe but dangerous to rest conviction upon tlieir testimony. PW- I, if really
was keen on getting the copy of the record urgently, could have made an
urgent application to have them delivered within 3 days instead of making an
ordinary application and going on such an eITand, which makes it even
F reasonable to assume that the trio of PW-1, PW- 3 and Jagdish Bokade were
attempting to weave a web around the appellant to somehow get her into
trouble and victimise her.

111e fact that the judgments of tlie courts below were rendered concur-
rently cannot dissuade us from interfering in a case like this where such
G findings and conviction have been recorded on mere conjectures and erratic
evaluation of the evidence on record. Consistency for the mere sake of it is
no virtue. It is an obligation of judicial conscience to correct errors, where the
--.....--
same are manifest. The judgments of the courts below suffer from serious
infirmities and manifest e1rnrs on account of unwarranted inferences liberally
H drawn by the courts below against the appellant, overlooking the fundamental
__ 1.

SMT. MEENA v. STATE [RAJU, J.] 21
principle of preswnption of innocence of an accused till the charge levelled A
and his guilt is established beyond all reasonable doubt. The courts below have
failed to consider the adverse impact on the prosecution case from the
evidence of PW-2 and the withholding of the lady Constable and Jagdish
Bokade, two ma~erial witnesses. The appellant cannot be, on the basis of
available evidence, held to have tacitly accepted the illegal gratification as
alleged. The materials on rec:;ord in this case are not sufficient to bring home
the guilt of the appellant. Consequently, the appeal is allowed. The conviction
and sentence of the appellant is set aside and the fine, if any, paid shall be
refunded to the appellant.

R.A. Appeal allowed. c

-·