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Case Number

Criminal Appeal No. 175 of 1966

Attorney(S)

For the Appellant: State Prosecutor

Judges

K. Sadasivan, J.

Acts

Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 (hereinafter referred to as the Act) and under S. 161 of the Indian Penal Code

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Smart Summary

Summary of Opinion: Appeal of Cherian Lukose

Factual and Procedural Background

The appellant, Cherian Lukose, a staff nurse at the Taluk Headquarters Hospital, Karunagapally, was prosecuted under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 and under Section 161 of the Indian Penal Code. He was convicted by the Special Judge, Trivandrum, and sentenced to one year rigorous imprisonment.

The prosecution alleged that on 26-9-1964 the accused demanded a bribe of Rs. 5 from Raghavan in return for providing him a bed in the hospital. Raghavan, initially an out-patient, had been given admission ticket No. 59081 after the doctor decided inpatient treatment was required. Raghavan later informed the Deputy Superintendent of Police (Dy. S.P.), X-Branch, Quilon, that the accused had demanded illegal gratification; a signed statement (Ext. P-5) and the marked five-rupee note were given to the Dy. S.P. The Dy. S.P. deployed constables (Pw. 11 and Pw. 12) and later, observing what occurred, seized the marked note (M.O.1) from the accused's shirt pocket in the presence of an attesting lady doctor (Pw. 4) and other witnesses. Crime No. 10 of 1964 was registered (Ext. P-10, the F.I.R.).

At the close of the prosecution evidence the accused denied the charge, disclaimed knowledge of Raghavan or Ext. P-2, denied any demand or receipt of money, denied the search and seizure, and alleged the charge was foisted by colleagues Mohammed Kunju and Jalaluddin. The Special Judge accepted the prosecution version and convicted the accused. The accused appealed.

Legal Issues Presented

Whether the accused demanded a bribe of Rs. 5 as motive or reward for doing an official act in his capacity as a staff nurse of the hospital.
Whether the accused actually received the alleged bribe.
Whether the recovery of the marked five-rupee note from the accused's person was lawful and reliable evidence connecting him to the offence.
Whether, as a legal matter, the acts alleged (receipt/demand of money relating to allotment of beds) fall within misconduct "in the discharge of his duty" so as to attract Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act and/or Section 161 IPC.
Whether the presumption under Section 4(1) of the Prevention of Corruption Act (arising from receipt of money) was triggered and what burden it placed on the accused.

Arguments of the Parties

Appellant's Arguments

The appellant denied the core factual allegations: he denied seeing Raghavan, denied knowledge of Ext. P-2 prescription slip, denied ever asking for or receiving any money from Raghavan, and denied that any search or recovery (M.O.1) occurred from his person.
The appellant contended the charge was a fabrication instigated by Mohammed Kunju and Jalaluddin, employees ill-disposed to him.
On a point of law, counsel argued that mere receipt of money by a public servant, even if corruptly received, does not automatically constitute an offence under Section 5(2) read with Section 5(1)(d) unless the public servant misconducted himself in the discharge of his own duty; it was submitted that allotting beds is not a normal function of a nurse and hence the criminal charge under those provisions would not be made out even if some money was received. The appellant relied on In re P. Venkiah (AIR 1924 Mad 851) and State of Ajmer v. Shivji Lal (AIR 1959 SC 847) to support this legal contention.
Learned counsel also addressed the presumption under Section 4(1) of the Act, arguing that once the accused shows a preponderance of probability the statutory burden is discharged (citing V.D. Jhingan v. State of U.P., AIR 1966 SC 1762), but the court concluded this did not require detailed consideration because acceptance of the bribe itself was not proved beyond doubt.

Prosecution's Arguments

The prosecution relied on Raghavan's signed complaint (Ext. P-5) and the operation of a "trap": the Dy. S.P. prepared a mahazar for the marked note, sent constables to observe, and arranged to witness the handing over and subsequent search and seizure resulting in M.O.1 being recovered from the accused's shirt pocket.
The prosecution called attending witnesses including Pw. 1 (a patient), Pw. 11 and Pw. 12 (constables), Pw. 4 (the lady doctor who attested the search), and the Dy. S.P. and relied on their evidence to establish demand, receipt and recovery.
The prosecution treated Raghavan's earlier statement to police and his involvement in the trap as supportive of the case that the accused had demanded and accepted money for allotting a bed.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ramjanam Singh v. State of Bihar, AIR 1956 SC 643	The court may proceed only on evidence given on oath in the witness box and not on prior unsworn statements (letters/statements) when assessing the case; caution on use of agents/entrapment.	The court relied on the principle to disregard discrepancies between the statement given to police (Ext. P-5) and the in-court testimony of Raghavan; it also used the Supreme Court's observations to frame the ethical critique of "traps" and distinguish legitimate from illegitimate traps.
In re P. Venkiah, AIR 1924 Mad 851	Receiving a bribe for doing an act which is not an official act of the accused (here, obtaining land) does not constitute an offence under the official corruption provisions.	The appellant relied on this precedent to argue that receiving money for allotting a bed was not within the nurse's official duty. The court distinguished the case on facts, finding the nurse had some role in bed allotment when ordered by a medical officer.
State of Ajmer (Now Rajasthan) v. Shivji Lal, AIR 1959 SC 847	A government teacher accepting money to procure employment in a railway running shed did not commit misconduct in the discharge of his duty because making such appointments was not part of his official duties.	The appellant cited this case to argue absence of official duty in the present facts; the court again distinguished it, noting that the nurse did have responsibility in practice for allotment of beds (subject to medical officer's approval), so the analogy did not assist the defence.
V.D. Jhingan v. State of Uttar Pradesh, AIR 1966 SC 1762	On the operation of Section 4(1) of the Prevention of Corruption Act: once receipt is established, the burden shifts and the accused may have to show by a preponderance of probabilities (civil standard) to rebut the presumption.	The court noted the legal principle but stated it need not engage in detailed consideration in the present matter because the acceptance/receipt of the bribe itself had not been proved beyond reasonable doubt, and therefore the presumption under Section 4(1) did not arise.

Court's Reasoning and Analysis

The court conducted a close appraisal of the prosecution evidence and identified three central factual points to be decided: (i) whether there was a demand by the accused for Rs. 5 as a reward for an official act; (ii) whether the accused actually received the bribe; and (iii) whether the recovery of the marked note from his person was reliable.

On demand and receipt:

The key complainant, Raghavan (Pw. 5), gave materially inconsistent testimony: though his signed police statement (Ext. P-5) alleged a demand by the accused, before the court he denied that the accused had demanded money and asserted instead that he (Raghavan) himself thrust the five-rupee note into the accused's pocket without any demand being made earlier. Because the matter had to be judged on evidence given on oath in the witness box, the court treated the in-court denial as undermining the prosecution's foundation (citing Ramjanam Singh).
Pw. 1, a patient, claimed to have seen events earlier in the day and his testimony contained timing inconsistencies: he said he saw Raghavan at 10 a.m. but the alleged payment occurred at 4:55 p.m., making it impossible for him plausibly to have observed the handing over at the time claimed. The prosecution also subjected him to leading questions and improperly confronted him with the police statements without treating him hostile in the prescribed way; nothing helpful was elicited.
Pw. 11, a constable stationed to watch, was a police witness and his evidence was considered weak. He claimed to have peeped through a door and seen the handing over (a version inconsistent with Pw. 5). The court emphasized that such police-witness evidence requires careful scrutiny.
Additional contradictions, such as the denial by Pw. 8 that he lent Raghavan Rs. 10 (contradicted by an alleged diary entry Ext. P-8 which Pw. 8 said was prepared at the request of unknown persons), further undermined the prosecution's narrative about how Raghavan obtained money to give the accused.
Given these inconsistencies and contradictions, the court concluded that the prosecution had not proved demand and receipt beyond reasonable doubt.

On the lawfulness and legitimacy of the trap:

The court examined the nature of the trap and adopted the distinction drawn from legal commentary and the Supreme Court decision in Ramjanam Singh between "legitimate" traps (where an offence is already in course and the police merely witness the payment) and "illegitimate" traps (where temptation is artificially created to see if an offence will be committed).
Pw. 5 stated his motive was to eradicate corruption in the hospital rather than to set a trap; the court characterized the operation as an "illegitimate trap" given this context and considered all persons involved in setting it as accomplices whose evidence required corroboration by untainted material. The court found the required corroboration lacking.

On recovery (search and seizure of the marked note):

Pw. 4, the lady doctor who attested the search (and who was deputed for that role), gave evidence that she was not convinced that the searcher had shown his hands to be empty before inserting them into the accused's pocket. She explicitly said she was "not convinced" that the searcher's hands were empty. This raised the real possibility the note could have been planted.
The court criticized the prosecution's conduct in not producing the Circle Inspector (C.I.) who, according to Pw. 4, conducted the search; instead the Dy. S.P. was examined and said he had conducted the search. The court treated this as suppression of the true search officer's evidence and as damaging to the prosecution's bona fides.
Because the recovery of the marked currency note was the crucial link connecting the accused to the crime, and because that recovery was shrouded in suspicion (attesting witness not satisfied, C.I. not called), the court rejected the recovery as evidence.

On whether the acts, if proved, would constitute the statutory offence:

The court addressed the appellant's legal contention that allotting beds is not normally the function of a nurse, and hence the offence under Section 5(2) read with Section 5(1)(d) might not be made out even if money had been received. The court distinguished the precedents relied upon (In re P. Venkiah and State of Ajmer v. Shivji Lal) by reference to Pw. 4's evidence that a nurse is bound to allot a vacant bed when ordered by a medical officer. Thus the court observed that the nurse had at least some role in bed allotment and that S.161 IPC or the Act could be engaged in appropriate circumstances.
Nevertheless, the court observed that this legal question did not require resolution because the facts proving payment/acceptance were not established beyond reasonable doubt.

On the presumption under Section 4(1) of the Act:

The court noted the argument that once receipt is proved a statutory presumption may require the accused to discharge the burden on a preponderance of probabilities (citing V.D. Jhingan). However, the court held that the presumption only arises when acceptance/receipt is first proved; because the prosecution had not proved acceptance beyond reasonable doubt, the presumption under Section 4(1) did not become operative in this case.

Holding and Implications

Final Disposition: The court allowed the appeal. The conviction and sentence were set aside and the appellant was ACQUITTED. The appeal was allowed.

Implications: The direct consequence is that the appellant's conviction and sentence imposed by the Special Judge were quashed and he was acquitted. The court's decision was founded on evidentiary deficiencies: hostile and inconsistent testimony by the complainant, weaknesses in the evidence of eyewitnesses (including police witnesses), characterization of the operation as an illegitimate trap requiring corroboration, and a tainted recovery resulting from an unsatisfactory search procedure with the true search officer not produced. The opinion does not purport to lay down a new rule of law; it resolves the case on the facts and the application of existing principles (including those concerning traps, admissibility and weight of accomplice/police evidence, and statutory presumptions) to those facts.

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Cherian Lukose, v. State Of Kerala, .

1. This appeal is by one Cherian Lukose who was a staff nurse attached to the Taluk Headquarters hospital, Karunagapally. He has been convicted by the Special Judge Trivandrum under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 (hereinafter referred to as the Act) and under S. 161 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. The appellant was prosecuted by the Deputy Superintendent of Police, X-Branch, Quilon under the Act on the allegation that while functioning as the Staff Nurse of the above said hospital he demanded a bribe of Rs. 5 from one Raghavan for providing him a bed in the hospital. The demand is stated to have been made at 9.45 a.m on 26-9-64. Raghavan was being treated as an out-patient for stomach disorder; but later when he was examined by the doctor it was found that he required further treatment and for that he had to be admitted as an inpatient. Accordingly he was provided with admission ticket No. 59081. In the afternoon of 26-9-64 when Raghavan went to the hospital for being admitted as an inpatient the accused is stated to have told him he would get him admitted and provided with a cot in case he gave him a gratification of Rs. 5.

2. Raghavan then met the Dy. Superintendent of Police,X-branch at the Kayamkulam Travellers Bungalow at about 2.30 p.m that day and told him that the accused was demanding illegal gratification for providing him with a bed in the hospital. The Dy. S.P took a signed statement from him in respect of the matter and also the five-rupee note which was intended by Raghavan to be presented to the accused. A mahazar was prepared showing the number etc., of the currency note the Dy. S.P then sent two constables (Pws. 11 and 12) to the hospital along with Raghavan to watch what was happening there. Raghavan proceeded in advance with the marked note followed by Pws. 11 and 12. Pw. 11 stood at the entrance of the hospital room and Pw. 12 a little away, in the courtyard.

3. Raghavan went inside the room from where the medicines are usually supplied to the patients by that time, Pw. 13 the Dy. S.P also arrived in a car and waited on the road side in front of the hospital. Pw. 1 is a patient who had come to obtain medicine and he was also standing nearby and watching the scene. Raghavan went near the accused and presented him with the marked five-rupee note wrapped in a piece of paper. The accused received it and put it in his shirt pocket. Pw. 11 seeing the delivery of the currency note to the accused signalled to Pw. 12 and the latter in his turn signalled to the Dy. S.P who was waiting outside. He immediately came to the hospital and the accused was pointed out to him by P.w 11.

4. The Dy. Director of Health Services also happened to be present in the hospital that day and the Dy. S.P apprised him of what had happened, and requisitioned the help of a doctor to watch the body search of the accused. Accordingly, Pw. 4 the Lady Doctor of the hospital was deputed to witness the search. The Dy. S.P then searched the person of the accused in the presence of Pw. 4 and seized from his shirt pocket the five-rupee note that Raghavan had paid him. Pw. 2 Mytheen Kunju is another witness who was present at the time of the search. Ext. P-1 is the search list and M.O 1 is the five-rupee note recovered from his shirt pocket. The accused had also in his pocket another two-rupee note M.O 3, which was also wrapped up in a paper and 2 nP. kept in a money purse. After the search the Dy. S.P returned to Quilon, and registered crime No. 10 of 1964; Ext. P-10 is the F.I.R

5. The accused when questioned by the learned Judge at the close of the prosecution evidence, denied the charge in toto. He stated that on 26-9-64 he had not even seen Raghavan anywhere in the hospital. He was also not aware of Ext. P-2 prescription slip, having been issued to Raghavan. He has never asked for any money from Raghavan and no amount was ever received from him. The alleged search of his person was also denied by him. M.O 1 was never recovered from his shirt pocket. He further stated that this false charge was foisted on him at the instance of Mohammed Kunju and Jalaluddin, both employees of the hospital who were ill-disposed to him. He had no witnesses to be examined on his side. The learned Special Judge accepting the prosecution version in full has entered the conviction.

6. Scanning the evidence carefully I am not satisfied that the guilt of the accused has been proved beyond doubt. From the materials available, the points that arise for consideration are:

(i) demand by the accused for a bribe of Rs. 5 as motive or reward for doing an official act in the accused's capacity as staff nurse of the hospital;

(ii) actual receipt of the bribe; and

(iii) the recovery from his person of the alleged five-rupee note that was so received. Points 1 and 2 may conveniently be considered together. The case of the prosecution is that a sum of Rs. 5 was demanded by the accused from Raghavan by way of reward for providing him with a bed, he having been admitted as an inpatient of the hospital; but Raghavan does not swear before court that such a demand was made. He was declared hostile and cross-examined by the learned Prosecutor. He was confronted with the statement Ex. P-5 given by him to the Dy. S.P, wherein he had stated that the accused had told him that he would be supplied with a cot, provided he gave Rs. 5; but that was denied by him before court. His answer was:

7. The prosecution case is that the ‘demand was made in the morning’; but the payment was, however admitted by him, but according to him a five-rupee note was thrust into the accused's shirt pocket in the evening when the accused had given him an injection. This he did without any demand being made by the accused. The complaint Ext. P-5, was made by him to the Dy. S.P for a different purpose altogether and the purpose as stated by him was:

8. Thus the very foundation of the charge has been shattered. The two witnesses who are stated to have seen the accused receiving the bribe are Pw. 1 a patient who had come to obtain medicine from the hospital and Pw. 11 the police constable who was standing at the entrance; but their evidence is too weak and shaky to stand a critical examination. Pw. 1 for instance stated in his chief examination that Pw. 5 Raghavan was seen by him in the hospital at 10 a.m that day, and thereafter he was not seen. The alleged payment of the money was made in the evening (at 4.55 p.m to be exact) and if the witness is to be believed, he could not have been present at the hospital at the time to see the handing over of the money. He stated further that when he saw Pw. 5 in the hospital in the morning he was seen in the injection room.

9. At this stage the Public Prosecutor who conducted the case, besieged the witness with a volley of leading questions. To quote one or two specimen questions:—.

10. To this his answer was that he did not “remember the time.” Then the learned Public Prosecutor began to confront the witness with his statement to the police without treating the witness hostile and without getting the court's permission to confront him with the C.D statements; but nothing helpful to the prosecution could be elicited from him even then.

11. The witness stated that at the time the payment was made, there were about 100 persons present in the hospital. According to him, he stood on the verandah along with other persons and it was through the window that he saw the money being delivered. In view of the conflicting statements made by this witness it is impossible to believe him. The next witness to be considered in this case is Pw. 11 who is a police constable deputed by the Dy. S.P to watch the handing over of the money Being a police witness, much weight cannot be attached to his evidence. According to him he was standing outside, a little away from the hospital room; but at the time of the actual delivery of the money he would say that he was peeping through the door of the room:

12. What he saw was Raghavan handing over the paper cover and the accused receiving it and putting it into his pocket. This of course, is not the case of Pw. 5. We have already seen that according to him the paper cover was thrust into the accused's pocket. There is also another circumstance to be considered in this connection which would also reflect against the truth of the prosecution version. According to the prosecution, Raghavan himself had no money and when the demand came from the accused had to borrow Rs. 10 from Pw. 8 and it was out of that, that Rs. 5 was made over to the accused, but Pw. 8 has denied having lent any money to Raghavan.

13. The prosecution would rely in this connection on Ext. P-8 the diary entry alleged to have been made by this witness. The entry is to the effect that on 26-9-64 Raghavan had received from him Rs. 10. When the witness was confronted with this he stated that 2 persons had come and asked him to make such an entry in the diary. After making the entry the diary was obtained from him by the said persons. He does not remember the name or address of these persons. The implication, of course, is that those persons were either the police constables or persons sent by the Dy. S.P to get such a document prepared at the hands of this witness.

14. Demand by the accused for the bribe is an essential ingredient of the offence and that has an important part to play in ascertaining whether the trap laid is legitimate or illegitimate.

“There are two kinds of traps, “a legitimate” trap where the offence has already been born and is in its course, and an “ilgitimate trap” where the offence has not yet been born and a temptation is offered to see whether an offence would be committed, succumbing to it, or not. Thus where the bribe has already been demanded from a man, and the man goes out offering to bring the money, but goes to the police and the Magistrate, and brings them to witness the payment, it will be a “legitimate trap” wholly laudable and admirable, and adopted in every civilized country without the least criticism by any honest man. But where a man has not demanded a bribe and is only suspected to be in the habit of taking bribes, and he is tempted with a bribe, just to see whether he would accept it or not and to trap him, if he accepts it is will be an illegitimate trap and, unless authorised by an Act of Parliament it will be an offence on the part of the persons taking part in the trap who will all be “accomplices” whose evidence will have to be corroborated by untainted evidence to a smaller or larger extent as the case may be before a conviction can be had under a rule of court which has ripened into a rule of law.” (Vide the Law relating to Bribery and Corruption by Soonavala, 1964 Edn. page 229).

15. In the present case we have already seen that there is no evidence to show that the accused had demanded the bribe. Pw. 5 who was instrumental in trapping the accused has stated before court that the accused had not demanded any bribe from him; but the bribe was put into his pocket by him. Of course, in Ext. P-5 given to the Dy. S.P the version was different. We have to be guided by the evidence given before court Under similar circumstances the Supreme Court in Ramjanam Singh v. State Of Bihar , AIR 1956 SC 643, held;

“The court could only proceed on the evidence given on oath in the witness box by the witness and not on the statement made in the letter.”

16. In the matter of laying traps the Supreme Court has made the following observation in the self-same decision cited supra:

“However regrettable the necessity of employing agents provocateurs may be, it is one thing to tempt a suspected offender to overt action when he is doing all he can to commit a crime and has every intention of carrying through his nefarious purpose from start to finish, and quite another to egg him on to do that which it has been finally and firmly decided shall not be done. The very best of men have moments of weakness and temptation, and even the worst times when they repent of an evil thought and are given an inner strength to act Satan behind them; and if they do, whether it is because of caution, or because of their better instincts, or because some other has shown them either the futility or the wickedness of wrongdoing, it behaves society and the State to protect them and help them in their good resolve; not to place further temptation in their way and start afresh a train of criminal thought which had been finally set aside.”

17. We have to approach the facts on hand, in the light of the ethical principles adumbrated in the above observation. Pw. 5 has stated in his evidence that his object in complaining to the police was not to trap the accused; but to weed out corruption from the hospital as a whole. Corruption, according to him, was rampant in the hospital and it was to root out the same and purify the atmosphere of the hospital that the cause was championed by him. In the circumstances the trap laid will have to be characterized as ‘illegitimate trap’ and all the actors in the drama to be dubbed accomplices; Unless their evidence is corroborated in material particulars, it will be unworthy of acceptance and could hardly be made the sole basis for a conviction. We have already seen that apart from the question of corroboration the discrepant and inconsistent nature of the evidence has itself made it unacceptable.

18. Now coming to the recovery of the amount from the accused's shirt pocket the position is still worse for the prosecution. Pw. 4 has thrown considerable light into this aspect of the prosecution case. She is the Asst. Surgeon who was serving in the hospital at the time. She was deputed by Pw. 3 the then Dy. Director of Health Services to witness the search (Pw. 3 did not admit that the lady doctor was deputed by him, but she has stated in her evidence that she was deputed by him). It has come out from Pw. 4's evidence that the person who conducted the search did not convince her that his hand was empty before it was thrust into the shirt pocket of the accused. It was, therefore, impossible for her to rule out the possibility of the currency note having been planted in the pocket of the accused by the person who inserted his hand into the pocket. The following questions put to Pw. 4 by the Public Prosecutor and the answers elicited will give us the true picture of what had happened. Pw. 4 stated:—

““I happened to be there specifically for the purpose of witnessing the search.”

(Q) Did you find any currency note in the C. I's hands when he put them inside the accused's pocket?

Ans. I was not convinced that his hands were empty then.

(Q) Did anybody compel you to sign Ext. P-1?

Ans. Since I was asked by the Dy. S.P to sign it, I did not refuse to sign. The Dy. Director too was then present.”

19. The learned Judge has criticized the conduct of the lady doctor in having stated that she was not convinced that the C. I's hands were empty. She has been condemned by the learned Judge in bitter terms. To quote the learned Judge's own words:

“I am constrained to observe that this is one of those unfortunate instances not very infrequent in trials and inquiries relating to corruption cases where the officers working in the office in which the accused or the delinquent officer, as the case may be, has been functioning swerves from the path of rectitude and justice out of a false sense of sympathy towards the accused. In the instant case it is particularly unbecoming of a respectable and responsible officer like Pw. 4 is to have done so.”

20. These observations are totally out of place and uncalled for. I fail to understand how the lady doctor has swerved from the path of rectitude and justice she was only stating the bear truth that before the search was made the person who conducted the search did not satisfy her that his hand was empty. The police officer who conducted the search ought to have exposed his hand to the attesting witness before the same was inserted into the shirt pocket of the accused. Without doing that it would be futile now to empty the Phial of wrath on the attesting witness. There is also another interesting feature to be noted in this connection. The officer who conducted the search was the Circle Inspector of Police and he has not been examined in the case. Instead of that the Dy S.P was pushed forward as the person who conducted the search and he was examined. This, according to me is a fraud played on the court.

21. Pw. 4 the lady doctor is positive that the person who conducted the search was the C I and that is further clear from one of the questions extracted above, where the Public Prosecutor has asked: “Did you find any currency note in the C.I's hands when he put them inside the accused's pocket?”

22. I do not know why the C.I has been kept back from the court and the Dy. S.P has been made to usurp his place. The Dy. S.P cannot be believed when he says, “I went to the accused and searched him in the presence of the lady doctor.” The suppression of the C. I's evidence has gone a long way to detract from the bona fides of the prosecution case, especially, when the challenge was thrown out by the attesting witness that the search officer had not convinced her that his hand was empty. In the nature of the case the recovery of the marked currency note from the shirt pocket of the accused is the most important link to connect him with the crime and when the recovery has been shaken like this it cannot serve any purpose in the case. The recovery in the circumstances has to be rejected, since it is shrouded in a cloud of suspicion as seen already.

23. Learned counsel for the appellant argued also that even if the evidence against the accused is accepted, the charge against him is not made out, because according to him mere receiving of money by a public servant even if it be by corrupt means is not sufficient to make out an offence under S. 5(2) read with S. 5(1)(d). The words “by otherwise abusing his position” read along with the words “in the discharge of his duty” appearing in S. 5(1)(d) make it quite dear that an offence under that section requires that the public servant should misconduct himself in the discharge of his own duty. The point sought to be made out is that allotting of beds to patients is not the normal function of a nurse. So even if it is shown that some money was received by him it could not be said that he has done so by misconducting himself in the discharge of his duty.

24. Learned counsel invited my attention to a decision of the Madras High Court in In re P. Venkiah, AIR 1924 Mad 851 wherein it was held “Receiving a bribe of Rs. 20 from a villager on the understanding that the accused would get him some land on darkhast in his capacity as karama is no offence, as getting darkhast is not the official act of a Karama”. In another case, State Of Ajmer (Now Rajasthan) v. Shivji Lal, AIR 1959 SC 847, where a teacher in the service of the government accepted a sum of money from certain person as illegal gratification for securing a job for him in the railway running shed, it was held that:

“It is no part of the duty of a government teacher to make appointments in a railway running shed. There would, therefore, be no question of his committing misconduct in the discharge of his duty when he takes money for procuring a job for a person in the running shed.”

25. I am not impressed by the argument. The present case is distinguishable from the two cases cited, in this way, viz., that in the case on hand the accused is one who has at least something to do with the allotment of beds. The lady doctor Pw. 4 has stated that when there is a vacant bed the nurse is bound to allot it to the patient if ordered by the medical officer. Therefore, the function allotting bed is that of the nurse; of-course, it has to be done with the approval of the medical officer. That being the case the public are likely to be misled into thinking that allotment of beds is one of the normal duties of the nurse and so thinking if they have offered any bribe, S. 161 I.P.C would certainly be attracted.

“The section does not require that the public servant must, in fact, be in a position to do the official act, favour or service at the time. Where the accused offered a bribe to an officer, mistaking him for the one to whom he wanted to offer it, was held that he was guilty of abetment of the offence under S. 161.” (Vide The Law of Grimes by Ratanlal and Dhirajlal, 1966 Edn page 399).

26. The argument therefore that S. 5(2) read with Section 5(1)(d) of the Act or S. 161 I.P.C is not attracted even if it is proved that money was received by the accused cannot stand. But this question does not directly arise in the present case in view of the fact that the handing over of the money and the receipt of it by the accused etc., have not been proved.

27. About the presumption under section 4(1) of the Act also some arguments were addressed. Learned counsel argued that even though the mere receipt of money is sufficient to raise the presumption, it is not necessary that the accused should establish his case by the test of proof beyond a reasonable doubt. The burden of proof lying upon the accused under S. 4(1) of the act will be satisfied if he establishes his case by a preponderance of probability as is done by a party in civil proceedings: vide V.D Jhingan v. State Of Uttar Pradesh, AIR 1966 SC 1762. But I do not think this question need engage us in any such detail since I have already found that the factum of payment or acceptance of bribe has not been proved beyond doubt. The presumption will arise only when acceptance of money or money's worth is proved in the case. To sum up, the charge against the accused has not been proved beyond doubt. The conviction, therefore, has to be set aside and the accused has to be acquitted. The conviction and sentence are hence set aside and the appellant is acquitted. Appeal is allowed.

GK/NRK/G.G.M

28. Appeal allowed.

Cherian Lukose, v. State Of Kerala, .

Summary of Opinion: Appeal of Cherian Lukose

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Prosecution's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Cherian Lukose, v. State Of Kerala, .

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