1. The appellant, Mohanlal Moolchand Mundhyani of Cawnpore was convicted and sentenced by the Special Tribunal, Luck-now, at Jubbulpore, to undergo 6 months rigorous imprisonment and to pay a fine of Rs. 1500 under S. 116 read with S. 161, Penal Code. The prosecution case against him was briefly summarised as follows. The appellant was the manager of the Cawnpore firm known as “Kashmir Fruit Mart” and his tender in August 1944 for the supply of fruit to the Jubbulpore area was not accepted. In September 1944, Major R.L Denton (P.W 2), Deputy Assistant Director of Local Purchases, Jubbulpore, made enquiries for the supply of poultry to the troops for Christmas and the appellant approached him in the beginning of October of that year with a statement of his rates. Major Denton told him to have the stock ready pending receipt of definite orders from Central Command concerning the purchase of the poultry. On the morning of 16th October he went to Major Denton's office, asked him what was happening in the matter of the poultry contract and remarked that he was wasting his time in Jubbulpore without business. He also asked Major Denton to accept his fruit tender under any terms, but Major Denton informed him that the contract had already been given and that the sanction for the purchase of poultry had not yet been received. The appellant then handed Major Denton an envelope with currency notes protruding from it, but the latter angrily pushed the notes away and told him to get out. The appellant apologised for his conduct and was told by Major Denton that when the sanction for the purchase came he would be given the contract without having to pay for it. The appellant then went away and Major Denton reported matter at Area Headquarters to Staff Captain “a”. A meeting was arranged between Major Denton and Kunwar Sen (P.W 3), Inspector, Special Police Establishment, War Department, Government of India, that afternoon and in the course of it the latter told him to treat the appellant normally if he came to his office again and to put him off until he (Kunwar Sen) would have arranged to entrap him.

2. The sanction for the purchase of poultry was thereafter received and when the appellant visited Major Denton's office on the morning of 18-10-1944, Major Denton asked him what he had offered on 16th of that month and was told that he had offered only a small amount but was willing to give him 5 per cent, on all contracts made with him and he added that the supply would cost about Rs. 2000. They then arranged to meet at 8 o'clock that night at Jackson's Hotel where Major Denton was staying.

3. Major Denton thereafter reported the conversation to Staff Captain “a” and in the afternoon made the signed statement, Ex. P-12, at Area Headquarters to Kunwar Sen. The latter told him that he would meet him at Jackson's Hotel at about 7-30 p.m and asked him to carry on normally with the accused with regard to the arrangements for the poultry contract. At about 7-30 p.m Kunwar Sen, Mr. S.L Sonakia (P.W 1), First Class Magistrate, who had been ordered by the District Magistrate, to assist him, and the District Magistrate's stenotypist Venkatraman, who died before the trial, arrived at Jackson's hotel and it was arranged between them and Major Denton that the three of them were to take up their positions in the bedroom adjoining his sitting room. The door between the two rooms was open but there was a curtain which concealed the occupants of the bedroom. Major Denton's person and room were searched in order to find out whether there was any money there and whatever money there was washanded over to Major Denton's wife who took no further part in the matter. At about 8 p.m his bearer brought the appellant's visiting card, Ex. P-8, and when he entered the sitting room he was offered a cigarette and a drink and was asked whether he had come in connexion with the poultry contract. He was also asked for the revised poultry rates and he wrote them down in pencil on the paper, Ex. P-6. When Major Denton asked him what his commission was to be, he stated that it would be 5 per cent, and would amount in all to Rs. 2200. When asked whether he had brought the money, he replied that he had brought Rs. 500 and had been unable to bring the balance as the bank was closed for Diwali. Major Denton then asked him to sign Ex. P-6 and when he had done so he handed him currency notes of the value of Rs. 500 which Major Denton put in his pocket and informed him that he had received sanction for the purchase of the poultry. After the appellant had informed Major Denton that he would take the order from his office on the following day, he said “Good Night” and proceeded to go away. At this point Major Denton gave a prearranged signal to the witnesses by turning on his radio to show that the money had been accepted and that the appellant was going away. The witnesses emerged from the bedroom when the appellant had stepped out of the sitting room to the verandah and he was stopped by Kunwar Sen and brought back into the sitting room where the amount of Rs. 500 was seized with other articles.

4. The stenotypist Venkatraman then read out his shorthand notes Ex. P-2 which the witnesses verified as correct and the following transcript Ex. P-8 was prepared by him and also read out:

“Major: How are you?

Contractor: Quite well sir, Thank you.

Major: You have come to see me in connection with poultry contract.

Contractor: Yes Sir.

Major: I have got orders to arrange for supply of poultry. I would like you to supply

Ducks 750 Turkeys 850 Geese 650

What is your rate-for these?

Contractor: Ducks will be Rs. 5-8-0

Turkeys Rs. 26-00 Geese Rs. 24-8-0

According to my enquiries the market has an upward tendency. For Turkeys I do not mind if you reduce it by Rs. 10 and increase the ducks by Rs. 2.

Major: What commission you will give?

Contractor: 5 per cent. Formerly there used to be big margin but things are now complicated and difficult. Your honour would be so good to us to have consideration and give us the contract. I have brought Rs. 500 and I shall pay the rest later on as the bank is closed for Diwali holidays. The total commission will be Rs. 2200. Sir, the contract be given quick as we shall be purchasing these now and the date of delivery may be any time before X'mas.

Major.: Yes.

Contractor: I can take the order from your office.

Major: Yes. Thank you.”

5. The appellant in examination declared that Major Denton had given him the poultry contract in the beginning of October 1944 but had informed him on the 16th of that month that sanction to it had not yet been received. When he explained that his firm required a written contract, Major Denton informed him that the contract was provisional and as there was no written contract he required him (appellant) to make a deposit to ensure his adherence to the rates agreed on. Major Denton, he continued, told him that the amount of the required deposit would be 6 per cent, and he then paid him Rs. 500 in part payment to enable him to begin supplying poultry. On the morning of 18-10-1944, Major Denton sent his chaprasi Durga to call him to his office and when he went there informed him that sanction had been received and asked him to revise the rates for poultry, but added that as he was then busy the appellant should meet him at his hotel in the evening. This meeting took place at about 8 p.m that day and during it, according to the appellant, Major Denton asked him what commission he was going to give him. This in view of the morning's conversation he took to refer to the deposit and he accordingly replied that it would be 6 per cent, as desired by him. He was then asked to revise the rates and did so in the paper Ex. P-6. Major Denton accepted the rates and informed him that he would receive the order next day from his office. As he was leaving the room in the hotel he was stopped by Kunwar Sen and Mr. Sonakia and because of his confusion did not notice what occurred after it. Finally, he denied that he had given Rs. 500 to Major Denton on that evening or that he had ever paid him the bribe. As to the transcript Ex. P-3, he agreed that it was correct with the two exceptions, the first being that he had replied “6 per cent” and not “5 per cent” when asked “What commission you will give? and the second that he had said “I have paid Rs. 500” and not “I have brought Rs. 600.”

6. The appellant also filed a written statement but it was pro tanto on the lines of his oral statement and added nothing to it. The evidence of Kashiprasad (D.W 1) to the effect that the appellant had hired a bicycle from him at 7-25 p.m on 18-10-1944 was of no germane value to the case and I concur in the view of the learned members of the Tribunal that the testimony of Pranjivan (D.W 2) could not be regarded as reliable. It would in fact appear that he had come forward to depose for the appellant as he is the employer of his younger brother. I am also in agreement with the finding of the learned members of the Tribunal that the prosecution established its case against the appellant and I would go so far as to say that it would not be easy to find a clearer case. The most important witness was Major Denton and his conduct throughout has demonstrated his integrity. It is obvious that if the currency notes tendered on 16-10-1945 had not actually been offered to him as a bribe, he would not have treated the appellant so gruffly nor reported the matter to Staff Captain ‘a’ or thereafter to Kunwar Sen. Similarly, on the morning of 18th October after the appellant had again offered him 5 per cent, on all contracts made with him, Major Denton reported the conversation to Staff Captain ‘a’ and later made the full and circumstantial statement contained in Ex. P-12 to Kunwar Sen. It was as a consequence of that statement that the latter took action in order to entrap the appellant. Concerning the conversation in Major Denton's quarters in Jackson's Hotel on the evening of 18th October, Mr. Sonakia, Kunwar Sen and he gave corroborative evidence which was borne out by the contents of the short-hand notes Ex. P-2 and the transcript Ex. P-8. The defence suggestion that the stenotypist Venkataraman had mistakenly taken down 5 per cent, for 6 per cent, in his notes can be readily dismissed. The words ‘five’ and ‘six’ are widely divergent phonetically, both Exs. P-2 and P-3 show “5 per cent” and all the prosecution witnesses are at one in averring that the appellant said 5 per cent.

7. I am also clear that there was no truth in the appellant's version that he had paid Major Denton Rs. 500 as deposit on 16-10-1944 and that he when questioned in Jackson's Hotel two days later concerning the commission thought that the reference was to a deposit. It was shown from Major Denton's evidence that he had never accepted and was not entitled to accept currency notes by way of deposit and that deposits were made in the form of Government bonds and Deposit at Calls. The procedure, he went on, was for a contractor to present a cheque or currency notes at a bank in the name of the C.M.A and until a deposit had been paid the contract was not regarded as being final. Prior to this the amount of the deposit has to be calculated and demanded after the final rates have been accepted and it is evident in the case now before me that on 16-10-1944 the stage for furnishing a deposit had not been reached as no contract had been entered into between the appellant and Major Denton on that date. The final rates had not then been settled and the appellant himself admitted that he had gone to Major Denton at the hotel on 18-10-1944 as he had been asked to revise the rates for the poultry to be supplied by him. My conclusion on these points is reinforced by the fact that the appellant used the words “I have brought Rs. 500” at the hotel. It is true that the appellant maintained that the words used by him were “I have paid Rs. 500,” but it was manifest from the evidence on record that he had used the expression “I have brought Rs. 500”. This was borne out by the testimony of Sant Ram (C.W 1), stenographer of the Tribunal, in the course of which he declared that the outline for “brought” in Venkatraman's shorthand notes can be read as “brought” or “praught” but not as “paid” as the hook at the top of the relevant outline, which represents the sound ‘R,’ would not have been present if the word had been “paid.”

8. Another contention raised by the appellant's learned advocate was to the effect that it was highly improbable that he would have offered the bribe to Major Denton on 18-10-1944 in view of the facts that the contract was virtually settled in his favour and that when he gave the list of revised rates at Jackson's Hotel he had reduced his charges for the poultry by about Rs. 7000. This contention loses sight of the appellant's anxiety to secure a final contract in his favour and of the fact that even on 18-10-1944 it was then open to Major Denton to fix the rates and to purchase the poultry from whom he liked. Earlier in the day, the appellant had by going to Kanor Denton's office not only demonstrated his desire to ascertain whether orders had been received from Central Command but his willingness to give him 6 per cent on all the contracts made with him. This meeting was, as adumbrated, followed by another meeting that night and in it too the appellant had again promised to give Major Denton 5 per cent commission and to pay the remaining Rs. 1700 on another date. The total amount, viz., Rs. 2200 was, it is true, approximately 6 per cent of rupees 86000, the total value of the contract, and 5 per cent of that amount is only Rs. 1800, but this did not necessarily connote that the amount of Rs. 2200 mentioned in the course of the conversation at the hotel was more likely to refer to the full deposit which in accordance with practice is calculated at the rate of 6 per cent of the total value of the contract. The calculation of Rs. 2200 was patently enough approximate and the appellant's reference to it as “the total commission” indicated beyond doubt that it was in no way a deposit. I am also not impressed by the contention that the appellant had not intended to give a bribe and Major Denton had not intended to accept one and that the payment of Rs. 500 was merely a customary payment, e.g, dasturi which was not expected to influence Major Denton's decisions. The appellant's conduct on 16th and 18th October showed beyond doubt that he was only too willing to offer an illegal gratification to Major Denton, but I agree with the learned Advocate General that even if the payment could be regarded as having been paid in the nature of the dasturi it came within the mischief of S. 161, Penal Code.

9. Before passing to the question of the propriety of the sentence awarded, I propose to repel the contention that the prosecution witnesses were accomplices. In the well-known case in (1848) 3 Cox. C.C 5261 it was held that an accomplice is a person who has concurred in the commission of an offence … spies, that is, persons who take measures to be able to give to the authorities information so as to prevent those who are disposed to break out from effecting their purpose, i.e in the case of an accomplice he acknowledges himself to be a criminal, in the case of these men they do not acknowledge any thing of the kind. In (1848) 3 Cox. C.C 5092 Erie, J. held that if a witness merely lent himself to a scheme for the purpose of convicting the guilty, he was not an accomplice. In (1803) 28 H. St. Tr. 3463 at p. 489, Lord Ellenborough in summing up to the jury said:

“But there is another class of persons which cannot properly be considered as coming within the description or as partaking of the criminal contamination of an accomplice; I mean persons entering into communication with the conspirators with an original purpose of discovering their secret designs and disclosing them for the benefit of the public. The existence of such original purpose on their part is best evinced by a conduct which precludes them from ever wavering in or swerving from the discharge of their duty, if they might otherwise be disposed so to do.”

10. That case was followed in 38 Cal. 964 in which Doss, J. remarked that the rule laid down in it had been followed in a long and uniform current of decisions in America where it had been held that one who as a spy or a detective associates with criminals solely for the purpose of discovering and making known their crimes and without any criminal intent, is not an accomplice and it is immaterial that he encourages or aids in the commission of the crime. It may sometimes, Doss, J. added, be difficult to draw the line of discrimination between an accomplice and a pretended confederate, such as a detective Spy or decoy; but we think, that the line may be drawn in this way. If the witness has made himself an agent for the prosecution before associating with the wrong-doers or before the actual perpetration of the offence, he is not an accomplice but he may be an accomplice if he extends no aid to the prosecution until after the offence has been committed. I am in respectful agreement with these decisions and hold that the prosecution witnesses in the present case were not accomplices. The case was, however, so strong that although the Tribunal mistakenly considered that Major Denton at least was an accomplice and that his evidence required corroboration on material points, it unanimously found the appellant guilty of abetment of bribery and convicted him under S. 116 read with S. 161, Penal Code. That finding was altogether warranted, if not inevitable, and it is maintained. In awarding sentence the learned members of the Tribunal took into consideration all the circumstances of the case and in my view passed an appropriate sentence. The award of a fine alone would not in a case of this kind be justified and would encourage rather than deter of-fenders. The appeal is dismissed.

G.M/D.H

11. Appeal dismissed.