Sreedharan Pillai v. State

1. The appellant who was the assistant station master at mankara on the southern railway stands convicted under s. 161 of the indian penal code and s. 5 (1) (d) and 5 (2) of the prevention of corruption act, 2 of 1947. He was sentenced to a term of rigorous imprisonment for one year.

2. The case against the appellant was that on 18 - 3 - 1958 he received a sum of rs. 3/ - from ummer (pw. 2) as illegal gratification for sending a consignment of mangoes and jack fruits by train from mankara station to coimbatore. On 17 - 3 - 1958 pw. 8, An inspector of police, Delhi special police establishment, Received at coimbatore a petition (ex. P2) from pw. 2 complaining that the station masters at mankara were in the habit of receiving illegal gratification for sending goods from there to coimbatore, At the rate of 4 annas per bag and 2 annas per basket of fruits. Pw. 8 moved the district magistrate, Palghat, For grant of sanction to investigate the offence and obtained such sanction (ex. P10) the same day. He proceeded to mankara the next day and quite accidentally he met pw. 2 there. The latter offered to prove his allegation against the station master and invited pw. 8 to come to the railway station and witness payment of illegal gratification to the station master. They proceeded together to the office of the adhikari where pw. 8 examined the five currency notes which pw. 2 had and prepared a list (ex. P3) showing the numbers of the notes. These consisted of one 5 rupee note, Two 2 rupee notes and two 1 rupee notes. Pw. 8 sought the assistance of the adhikari to catch the culprit. Pw. 2 was then sent to the railway station to book the goods, Directing him to pay "mamool" only if the same was demanded. The amsom menon (pw. 3) was also sent to the railway station to watch and report. Pw. 8 and the adhikari (pw. 7) then went to a building situated opposite to the station and they were watching the scene from a window upstairs. Pw. 3 went to the waiting room to observe the transaction through the window. After getting the goods weighed, Pw. 2 accompanied by pw. 6 who was acting as his agent went into the station master's room and paid a sum of rs. 6 - 11 - 0 to the accused as freight. He tendered a five rupee note and a two rupee note towards this and got the balance, Viz., 5 annas. When pws. 2 and 6 were about to leave the room, The accused demanded payment of mamool and on pw. 2 enquiring how much it came to, The accused told him that the rates were 4 annas per bag and 2 annas per basket. As the consignment consisted of 11 bags and 2 baskets, Pw. 2 paid rs 3/ - to the accused. Pws. 7 and 8 who were watching this from the building on the opposite side immediately rushed into the room and asked pw. 2 to point out the person who demanded and received mamool and to state how much he had paid. He pointed out the accused and then pw. 8 asked the accused to produce the amount received as mamool. The accused denied taking mamool and he took out the whole cash from the chest and placed it on the table. Pw. 8 asked the station master, Subramonia iyer, Who was present in the room to find out from the books the actual cash that should be in the chest. Subramonia iyer went through the books and stated that the cash balance according to the books should be rs. 78 - 8 - 3. The money in the chest was counted by pw. 8 who found a sum of rs. 78 - 4 - 9, I. E., A deficit of 31/2 annas. From the money produced, Pw. 8 took m. Os. Nos. 1 to 4, Four currency notes of the aggregate value of rs. 10/ -, The numbers of which tallied with the list (ex. P3). The notes thus taken were one 5 rupee note, Two 2 rupee notes and one,1 rupee note. The balance which pw. 2 had was also checked and found to be rs. 1 - 5 - 0. Pw. 8 took this sum from pw. 2, Got signed statements from the persons there and prepared observation mahazars. He sent up ex. P - 12 as the first information report. After obtaining the requisite sanction (ex - p1) from the general manager, Southern railway, The accused was arrested and charged with offences under s. 161 i. P. C. And s. 5 (1) (d) and (2) of the prevention of corruption act (2 of 1947). The learned special judge found the accused guilty under both the sections and sentenced him to undergo rigorous imprisonment for one year for the offence under act 2 of 1947, No separate sentence being awarded for the offence under s. 161 i. P. C.

3. The main question for decision is whether the accused demanded for and received a sum of rs. 3/ - from pw. 2 as illegal gratification. Though the prosecution relied on the evidence of pws. 2, 3, 6, 7 and 8 to establish the guilt of the accused, The learned judge refused, And in my opinion rightly so, To act on the testimony of pws. 3, 7 and 8. Though pws. 3, 7 and 8 asserted that they saw the payment of mamool by pw. 2 the learned judge who conducted a local investigation was satisfied that they could not have seen the same on account of the situation of the station master's room and its doors in relation to the respective

places from which the witnesses were stated to have seen such payment. According to the learned judge, Pws. 2 and 6 are the only persons who could have witnessed the payment of the sum of rs. 3/ - as 'mamool'.

4. Before considering the evidence of these two witnesses i may refer to certain conclusions reached by the learned judge. It was found that signed statements had been obtained by pw. 8 from some of the witnesses including pw. 2 and that the value of the evidence of such witnesses was therefore seriously impaired. This conclusion is based on the decision of the privy council in zahiruddin v. Emperor (a. I. R. 1947 p. C. 75) and of the travancore - cochin high court in kuruvilla joseph v. State (a. I. R. 1952 t. C. 300), Nilakantan vasu v. State (a. I. R. 1954 t. C. 282) and arulan israel v. State (a i. R. 1955 t. C. 6). It was also found that though pw. 2 could not be deemed to be an accomplice, He had to be treated as a partisan witness whose evidence could be acted upon only if the court was confident that it could safely do so. In this view, The learned judge sought for corroboration of the evidence of pw. 2 and found such corroboration in the evidence of pw. 6 as well as the circumstance that the currency notes for rs. 10/ - were found in the cash chest.

5. The evidence of pws. 1 and 2 may now be considered. On 17 - 3 - 1958 pw. 2 gave the petition (ex, P2) to pw. 8 complaining against the station masters at mankara. This was as coimbatore. Pw. 8 obtained permission for investigation of the alleged offence from the district magistrate, Palghat the same days and proceeded to mankara the next day. According to him he did not tell pw. 2 that he would be going to mankara that day. Pw. 2 also did not tell pw. 8 on the 17th that he would be at mankara the next day, And the prosecution case is that their meeting each other at mankara on the 18th was quite accidental. Though pw. 2 stated that he was a dealer in fruits at coimbatore he admitted that he had no licence for such trade and that the only licence taken by him from the municipality was to deal in scrap iron. He admitted that he had accounts for the trade in scrap iron but not in fruits. He has no record to show that he ever had trade in fruits. According to him pw. 6 used to send him a bill for each consignment of fruits sent from mankara but he has not preserved any such bill. He admitted that pw. 8 was known to him for the past two or three years and that his place of business was close to the police station at coimbatore. The matters referred to above which do not appear to have been noticed by the court below throw doubt as to the question whether pw. 2 is a fruit merchant at all or whether he is a mere tool in the hands of pw. 8 as alleged by the defence. It cannot be denied that pw. 8 exhibited unusual zeal in securing a conviction in this case. Apart from the fact that he took signed statements from material witnesses, He even went to the extent of stating on oath that he saw the payment of mamool - a statement which is palpably false as seen from the observation made by the learned judge who inspected the locality to ascertain whether pws. 3, 7 and 8 could see the payment of money by pw. 2 to the accused. In the light of these circumstances the so - called 'accidental' meeting of pws. 8 and 2 at mankara appears to have been a pre - arranged one. I have dealt with this aspect in some detail to show that pw. 2 must have been acting as an "agent provocateur" in this transaction which means that his evidence has to be scanned very carefully. Prudence requires that there must be corroboration of the evidence of pw. 2.

6. It was urged on behalf of the appellant that pw. 6 was also in the position of an accomplice and that the learned judge lost sight of the fact that the rule of prudence which requires corroboration of the evidence of an accomplice means that such corroboration must be by independent evidence and not by the evidence of another accomplice. Even if pw. 6 cannot be deemed an accomplice it cannot be denied that he was acting as the agent of pw. 2 in the transaction. It is in evidence that pw. 2 and his brother (pw. 5) who was his partner had a suspicion that pw. 6 was misappropriating money on the ground of payment of mamool so that pw. 6 had to vindicate his position. He was therefore an interested witness. Pw. 6 is by profession a butcher. Though pw. 2 stated that pw. 6 had a shop two furlongs away from the railway station, Pw. 6 admitted that he had no shop. Pw. 6 stated that he gets an income of rs. 100/ - from his trade, Yet he has no accounts or records to show that he is a trader. His evidence differs from that of pw. 2 on several material points. According to pw. 6 he has been sending mangoes and jack fruits to pw. 2 for the last ten years but pw. 2 stated that pw. 6 began sending fruits to him only from 1958 and that nobody had sent him fruits from mankara in 1957. Pw. 6 stated that he had brought mangoes to the station at 10 p. M. That day though there was no order from pw. 2. He added that he would have sent the consignment to pw. 2 even if pw. 2 had not arrived there that day. However he admitted that he had no money with him to pay the freight. Pw. 6 said that pw. 2 wrote ex. P - 4 at the railway station but pw. 2 not only denied it but even stated that he could not say who wrote ext. P4 again, Pw. 6 said that he lent rs. 6/ - to pw. 2 to return to coimbatore but pw. 2's version was that he borrowed rs. 5/ - from some other person. The learned judge relies on the fact that the value of his evidence has not become impaired as pw. 8 has not taken a signed statement from him. It is true that pw. 2 has not given any signed statement or attested any of the mahazars but it appears to me that it is because he was not present at the time. Pw. 2 stated that pw. 6 used to be with him whenever he came to mankara so that he appears to be a dependent of pw. 2. These matters have not been considered by the learned judge. In the circumstances referred to above, I am not inclined to place any reliance on the testimony of pw. 6. It follows that the evidence of pw. 6 is not useful for corroborating the evidence of pw. 2.

7. The circumstantial evidence relied on by the learned judge is the fact that currency notes for rs. 10/ - which were originally in the possession of pw. 2 were found in the cash chest under the control of the accused at the relevant time. If pw. 2 had paid only the freight, Currency notes noted in ext. P - 3 of the value of rs. 7/ - only should have been found there and it is inferred from this fact that pw. 2 must have paid a sum of rs. 3/ - as mamool. There is however one circumstance which practically destroys the value of this piece of circumstantial evidence. The total amount excluding this sum of rs. 3/ - which should have been in the chest at that time was rs. 78 - 8 - 3 but the actual sum available was only rs. 78 - 4 - 9, I. E, 31/2 annas less than the figure according to the books. If the amount found was three rupees in excess of rs. 78 - 8 - 3 the inference would have been irresistible that the accused had received rs. 3/ - as illegal gratification, As currency notes for rs. 10/ - formerly in the possession of pw. 2 were found there. The learned judge observed that the deficiency in the actual amount was immaterial. I am unable to agree with this conclusion. The prosecution has no case that the accused secreted rs. 3/ - alleged to have been received as mamool, Before the amount in the chest was counted. In fact such a case would have been fatal to the prosecution, As currency notes of the value of rs. 10/ - the numbers of which had been noted in ex p3 were found in the chest. It cannot be assumed that the accused was aware that a trap was laid to catch him and that he removed rs. 3/ - from the cash chest to evade detection. It is here that the explanation offered by the accused becomes relevant. His case is that either before or soon after receipt of the freight, One of the porters had got change for rs. 3/ - from him. He examined two witnesses to prove this but the witnesses were not believed. Unlike the prosecution, The accused has no duty to prove his case beyond doubt and the fact that the evidence adduced by him in support of his explanation is not acceptable is no ground for assuming that the marked notes must have reached the accused's possession only in the manner stated by the prosecution. The argument urged by the prosecution to reject this plea is that if there was any truth in it, The accused should have asked pw. 2 whether he had given rs. 3/ - to the porters for getting change for the same and that he had not put any such question. It is not correct to say that this explanation was not indicated in the cross - examination of pw. 2. He was asked whether he did not have to pay the charges for transporting the goods up to the station and also for getting the same weighed at the station. He said that transport charges have to be met by him and that though the porters have to be paid at the rate of 2 annas per bag for weighing the same, They did not demand it this time. It cannot therefore be said that no indication of this plea was given when pw. 2 was examined. The explanation given by the accused is consistent with the fact that the amount found in the cash chest was not in excess of the amount as per the books. In these circumstances it cannot be held that the fact that the currency notes for rs. 10/ - were found in the cash chest points only to the conclusion that the accused received rs. 3/ - as mamool from pw. 2.

8. Reference may be made to another argument advanced on behalf of the appellant, Viz., That the sanction given by the district magistrate to pw. 8 for investigating the offence as well as the sanction given by the general manager of southern railway are invalid. As regards the sanction given by the district magistrate, The point taken is that the district magistrate granted the same mechanically, Without applying his mind to the question whether it was necessary to grant sanction to an officer below the rank of a deputy superintendent of police and whether the facts warranted the same. Presumably, S. 5a of the prevention of corruption act was introduced by the amending act of 1952 to protect public servants against harassment and victimisation. The object of the amendment is thus stated by the supreme court in the state of madhya pradesh v. Mubarak ali (air 1959 s. C. 707) :

"if it was in the interest of the public that corruption should be eradicated, It was equally in the interest of the public that honest public servants should be able to discharge their duties free from false, Frivolous and malicious accusations"

it was also held that the provisions for obtaining sanction for investigation by an officer below the rank of a deputy superintendent of police as well as for launching the prosecution were mandatory and that it was desirable that the order giving permission should ordinarily on the face of it disclose the reasons for giving the permission and that in a case in which the reasons are not disclosed in the order, It is the duty of the prosecution to establish the fact that the magistrate has taken into consideration the relevant circumstances, If that fact is denied. Ext. P - 10 is the order of the district magistrate giving permission to pw. 8 for investigation of the alleged offence. Ext. P - 10 reads as follows:

"read: report 17 - 3 - 1958 from the investigating officer sri. T. Raghavan, Special police establishment, Madras and the complaint of sri k. Ummer, Merchant, Old market, Coimbatore dated 17 - 3 - 58"

order

sanction is accorded for investigation of an alleged offence of corruption against (1) shri c. R. Subramania iyer, Station master, Mankara r. S, Southern railway, (2) shri k. Sridharan pillai, Asst. Station master, Mankara r. S., Southern railway, And (3) shri a. K. Velappan nair, Asst. Station master, Mankara r. S., Southern railway (an offence under s. 161 of the indian penal code and s. 5 (2) of act ii of 1947) to sri t. Raghavan, Inspector of police, Investigating officer, Delhi special police establishment, Madras, Ministry of home affairs, Government of india under s. 5 (a) [c] of the prevention of corruption act 194 7. "

except for the statement in the cause title of ext. P - 10 that the magistrate read the report of pw. 8, There is nothing in the order to indicate that the magistrate applied his mind to the question whether permission ought to be given in the circumstances. If the report submitted by pw. 8 had been produced in evidence that would have been of some use in finding out whether there was material before the district magistrate justifying the grant of permission. The report however was not produced by the prosecution so that it is not possible to say that the magistrate had taken into consideration all the relevant circumstances before giving permission to pw. 8.

9. Coming to the question of sanction given by the general manager of southern railways, The order (ex. P - 1) shows that all relevant aspects were considered by him before granting sanction. The appellant relies on a statement of pw. 1, A clerk of the general manager's office who proved ex. P - 1, That all the original documents now before court were not placed before the general manager. From the fact that original documents were not before the general manager it does not follow that he gave sanction mechanically. There is no foundation for the criticism so far as ex. P - 1 is concerned.

10. In view of my finding on the main question, The question of sanction is of no importance, But i have dealt with it mainly to impression magistras who are asked to grant sanction under s. Sa of the prevention of corruption act to deal with the matter in accordance with the principles laid down by the supreme court in the case referred to earlier as well as the other decisions referred to therein, Lest the protection given to officers by the legislature prove illusory.

11. In the result, I hold that the prosecution has not succeeded in proving the guilt of the accused beyond reasonable doubt. The conviction must therefore be set aside and the accused acquitted and i order accordingly. Out of the money (m. Os. Nos. 1 to 7) seized by pw. 8, Rs. 10/ - will be returned to the southern railway and re. 1 - 5 - 0 to pw. 2. The bail bonds executed by the accused are cancelled.

allowed.