1. Public servant prosecuted for accepting illegal gratification to exempt an entity from statutory contributions under Section 161 IPC and Section 5(2) of the Prevention of Corruption Act. (Para 1 , 2 )
Back
Next 
1997 Supreme(SC) 20
1997(1) Supreme 478
SUPREME COURT OF INDIA
M.K. Mukherjee and S.P. Kurdukar, JJ.
C.K. Damodaran Nair -Appellants versus
Govt. of India -Respondents
Criminal Appeal No. 687 of 1989
Decided on 8-1-1997
Counsel for the Parties :
For the Appellants : A.S. Nambiar, Sr. Adv., and P.K. Manohar, Advocates.
For the Respondent : P.P. Malhotra. Sr. Adv., and Y.P. Mahajan, Advocates.
Important Points
IMPORTANT POINT
A demand or request from accused will be a primary requisite for an offence u/s 5(1) (d) of Prevention of Corruption Act unlike an of fence u/s 161 IPC which can be established by proof of either acceptance or obtainment.
A demand or request from accused will be a primary requisite for an offence u/s 5(1) (d) of Prevention of Corruption Act unlike an of fence u/s 161 IPC which can be established by proof of either acceptance or obtainment.
Subject
Criminal Law - Corruption
Act Referred
Headnote
Indian Penal Code, 1860-Section 161 r/w Section 4(1) of Prevention of Corruption Act, 1947-Appellant, a public servant, accepted or obtained Rs. 1000/- as gratification-Defence plea was that amount was thrust into his trouser-Two independent witnesses holding responsible position in bank, stated that they saw appellant accepting the amount and putting it in his pocket-Evidence proved transaction was consensual-Presumption u/s 4(1) of the Act would operate-Appellant failed to rebut it-Conviction has to be upheld-Appellant obtained money pursuant to demand earlier made by him by abusing his position as public servant-Conviction u/s 5(2) of Prevention of Corruption Act was also well merited- Sentence of six months imprisonment, being on side of leniency no interference was called for. (Paras 13 to 15)
Legal Category Hierarchy
Table of Contents
2. Whether recovery of money without proof of prior demand is sufficient to trigger the statutory presumption of illegal gratification. (Para 8 )
3. The court found the transaction consensual based on independent witness testimony, rejecting the defense that money was forcibly thrust into the appellant's pocket. (Para 13 )
4. Acceptance under Section 161 IPC does not require prior demand, whereas obtainment under Section 5(1)(d) of the Prevention of Corruption Act requires a demand or request. (Para 11 , 12 )
5. Appeal dismissed and convictions under Section 161 IPC and Section 5(2) of the Prevention of Corruption Act upheld. (Para 15 )
6. Does acceptance of a bribe under Section 161 IPC require proof of a prior demand?
No. Acceptance means taking or receiving with a consenting mind. Consent can be established by the circumstances surrounding the transaction itself without proof of a prior agreement or demand. (Para 11 )
7. What is the legal distinction between accepting and obtaining gratification under the Prevention of Corruption Act?
Acceptance involves receiving with a consenting mind, where the offer may originate from the payer. Obtainment involves securing a gain through the receiver's own request or effort, making a demand a primary requisite. (Para 11 , 12 )
8. When does the statutory presumption under Section 4(1) of the Prevention of Corruption Act, 1947 apply?
The presumption applies when it is proved that a public servant accepted or obtained gratification. It presumes the gratification was a motive or reward unless the contrary is proved. (Para 10 , 11 , 13 )
JUDGMENT
M.K. Mukherjee, J.-Four Provident Fund Inspectors of Calicut, including the appellant before us were tried by the Special Judge, Ernakulam for offences punishable under Section 161 IPC and Section 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act, 1947 ( Act for short). The learned Judge acquitted all of them and aggrieved thereby the respondent preferred an appeal. The High Court disposed of the appeal by setting aside the acquittal of the appellant and convicting him for the above offences while maintaining the acquittal of the other three. Hence this appeal at the instance of the appellant.
2. According to the prosecution case of March 24,1984 the appellant and two of the other three accused persons (who were arrayed as A3, Al & A2 respectively at the trial and will hereinafter be so referred to) visited the Relief Hospital at Kondotty, of which Dr. Moideenkutty (P.W. 1), K.K. Haneefa (P.W. 9) were the Managing partner, Office Manager and Assistant Manager respectively. There they first met P.W. 2 and then, along with him, went to meet P.W. 1. Before P.W- 1 they disclosed their identities and told that they had come to inspect the records of the Hospital. Accordingly, under directions of P.W. 1, P.W. 2 handed over the attendance book and wages registers to them. The three accused persons then directed P.W. 2 to produce all other relevant records of the Hospital including the partnership deed in their office on March 29, 1984. As directed, P.W. 9 took the records to the office of the above three accused persons on the appointed day. Even though, Al and A3 scrutinised the records on that day they asked P.W. 9 to produce the same again on the following day i.e. March 30, 1984. On the day so fixed when P.W. 9 and P.W. 2, alongwith the records, went to the office of the accused persons they found only A2 present there. A2 directed PWs 2 and 9 to go and meet Al and A3 who were waiting for them in room No. 17 of the nearby Alakapuri Guest House. P.W. 2 and P.W. 9 then went to Alakapuri Guest House and met Al and A3. A3 told P.Ws 2 and 9 that the Hospital would have to pay Rs. 7500/- towards its provident fund contribution but if they were paid Rs. 3500/- the Hospital could be exempted from such payment. When P-W. 9 expressed his inability to pay the amount demanded, Al insisted on payment of at least Rs. 2000/- and out of that amount Rs. 1000/- on March 31, 1984 in their office. P.Ws 2 and 9 then returned to the Hospital and apprised P.W. 1 about the talks they had with the three accused persons. For making such illegal demand P.W. 1 decided to cornplain against the accused persons to the CBI and handed over a sum of Rs. 1000/- to P.W- 9 for payment to them at the appropriate time. On March 31, 1984 P.W. 9 visited the office of the accused when A2 alone was present and he asked P.W. 9 whether he had brought the amount, P.W. 9 however told A2 that he could not bring the amount as he could not contact P.W. 1. A2 thereupon instructed P.W. 9 to bring the money to their office on April 2, 1984 before 10.30 A.M.
3. Immediately thereafter P.W. 9 contacted Inspector Thomas John (P.W. 10) of the CBI Office, Cochin over phone from Calicut. On being told about the entire episode P.W. 10 reached Calicut the same evening accompanied by A.S.I.A.D. Nambiar and constable Sreekumar and met P.W- 9. P.W. 9 gave a written complaint (Ext. P16) to P.W. 10 and the latter immediately forwarded the same to the Superintendent of Police, (S.P.) C.B.I. Cochin through a constable. The S.P. C.B.I. marked the complaint to Inspector S. Vijaykumar (P.W. 8) with a direction to register a case under Section 161 IPC and arrange a trap. In terms of the said direction P.W- 8. drew up an FIR (Ext.P. 15) and immediately proceeded to Calicut along with Inspector M.R. Kurup and two constables to lay a trap. On arrival at Calicut P.W. 8 ensured the presence of two local witnesses viz. Premarajan .(P.W. 3), local Manager of the State Bank of India
