Mohandas Lalwani Vs. The State of
Madhya Pradesh  INSC 164 (11 September 1973)
KHANNA, HANS RAJ KHANNA, HANS RAJ
CITATION: 1973 AIR 2679 1974 SCR (1) 636 1974
SCC (3) 361
Indian Penal Code, s. 165-Appellant attempted
to bribe the Chief Engineer to secure a contract-Trial Court acquitted but High
Court convicted and sentenced the appellant- Whiether- High Court has power of
review the entire evidence under s. 417, Cr. P.C.
The accused-appellant was acquitted by the
Special Judge, Bhopal, but convicted by the High Court under s. 165-A I.P.C.,
and sentenced to one year's rigorous imprisonment.
The prosecution case is that on April 9,
1966, the Chief Engineer (Construction) of Heavy Electricals Ltd. was present
in his office. The appellant-accused went there for an interview with two
others. It is alleged that the accused-appellant offered a bribe of Rs. 3,000/-
to the Chief Pngineer and requested him to give the contract for which tenders
were submitted earlier by 4 contractors. On being refused, the appellant put
back the currency notes in his pocket. P.W. 5, the Personal Assistant of the
Chief Engineer, is alleged to have taken out the envelope containing the
currency no-es from the trouser-pocket of the accused and thereafter, the Chief
Engineer made a report to the Police and the accused and the report were sent
to the Police Station. The First Information Report was prepared in the Police
Station on the basis of the report (P-1) and a case was registered against the
A complaint about the occurrence. was
thereafter filed in the Court of the Special Judge, Bhopal, by the Police. At
the trial, the Chief Engineer, (P.W. 1) gave evidence in support of the
prosecution and witnesses were examined by both sides. The trial Court did not
believe wholly the prosecution case and gave the accused the benefit of doubt.
On appeal, the High Court considered the
evidence on record, and convicted ,he accused.
In appeal before this Court, the appellant
had assailed the judgment of the High court and had contended that there was no
sufficient ground for the High Court to reverse the judgment of acquittal of
the Trial Court. If two views, according to the counsel were possible in the
matter, the view which was favourable to the accused, as had been taken by the
Trial Court, should be adopted.
Dismissing the appeal,
HELD : (1) There is no cogent ground as to
why the evidence of P.W. I should not be accepted. The witness had no animus
against the accused. The witness even did not know the accused till the day of
occurrence. There is no particular reason as to why P.W. I should falsely
involve the accused in this case.
(ii)The view taken by the Trial Court in
rejecting the evidence of P.W. 1 was clearly unreasonable and the High Court
had the cogent grounds to interfere with the judgment of acquittal passed by
the Trial Court. Further, the High Court in reversing the order of acquittal
considered the matters on record, including the reasons given by the Trial
Court, as well as those aspects which could possibly be claimed by the accused
to be favourable to him. [643B] Kanu Ambu Vish v. State of Maharashtra, A.I.R.
1971 S.C. 2256, referred to and distinguished.
(iii)It is well settled that the High Court
in appeal, under S. 417 of Cr. P.C., has full power to review at large the
evidence on which the order of acquittal was founded and reach the conclusion
that upon the evidence the 637 order of acquittal should be reversed. No
limitation should be placed upon that power unless it be found expressly stated
in the Code, but in exercising the power conferred by the Code, and, before
reaching its conclusion upon fact, the High Court should give proper weight and
considerations to the following matters :-(i), the views of the Trial Judge as
to the credibility of the witnesses (ii) the presumption of innocence in favour
of the accused (iii) the right of the accused to the benefit of any doubt and
(iv) the slowness of an appellate court in disturbing a finding of fact arrived
at by a judge who had the advantage of seeing the witnesses.
Therefore, from the matters on record and
after considering the judgment of the trial court and the High Court, we are
firmly of the opinion that the trial is not vitiated by any such infirmity as
may call for interference by this Court.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 45 of 1970.
Appeal by special leave from the, judgment
and Order dated February 4, 1970 of the High Court of Madhya Pradesh (Jabalpur
Bench) in Criminal Appeal No. 24 of 1967.
Hardayal Hardy, M. S. N. Nambudri and B. R. G
K. Achar, for the appellant.
Ram Paniwani and H. S. Parihar, for the
The Judgment of the Court was delivered by
KHANNA, J. This is an appeal by special leave by Mohandas Lalwani against the
judgment of Madhya Pradesh High Court whereby the High Court reversed the
judgment of acquittal of the Special Judge Bhopal and convicted the accused
appellant under section 165A Indian Penal Code and sentenced him to undergo
rigorous imprisonment for a period of one year.
The Executive Engineer, Heavy Electricals
Ltd. (hereinafter referred to as HEL), Bhopal invited tenders for construction
of four BCC overhead tanks, each of one lakh gallons capacity, by a tender
notice published on December 23, 1965.
Four contractors, including the accused
appellant, submitted their tenders., Those tenders were opened on February 1,
1966. It was found that the tender of the appellant, who had stipulated that he
would use 18 tons of steel, was of the lowest amount. The other three contractors
bad stipulated that they would use 24 tons of steel.
The case of the prosecution is that on April
9, 1966 PW 1 Shivnarain Wadhwa, Chief Engineer Construction of HEL was present
in his office. PW 5 Niranjanlal Shrivastava, Personal Assistant to the Chief
Engineer, was also present there. A partition divides the office of the Chief
Engineer from the place where Shrivastava used to sit. At about 11.45 a.m. on
that day, the appellant accompanied by two others, came to PW Shrivastava. The
appellant gave visiting card P4 to Shrivastava and said that he wanted to see
the Chief Engineer. Shrivastava sent that card through a peon to Chief Engineer
Wadhwa. A short time thereafter on being called by Wadhwa, the accused
appellant accompanied by his two companions went inside the office of Wadhwa.
On arrival there, the accused talked about big tender and stated that as his
tender was the lowest, 15-L382SupCI/74 638 the same should be accepted- The
accused also handed over copy P3 of letter dated April 8, 1966 which had been
addressed by him to the Executive Engineer in connection with the above tender
Wadhwa then told the accused that according to the information received by him,
the accused had stipulated the use of only 18 tons of steel as against 24 tons
stipulated by others. The accuse however, persisted in saying that his tender
was the lowest. Wadhwa then told the accused that whatever he had to say in the
matter, he should tell the Executive Engineer and that he might also hand over
a copy of his letter to the Assistant Chief Engineer. The two companions of the
accused, then left the office of Wadhwa, while the accused remained sitting
Wadhwa then told the accused also to go, but
the accused instead of going took out from the left pocket of his trousers an
envelope and presented it to Wadhwa. Wadhwa could see that the envelope
contained 100-rupee currency notes. Wadhwa reprimanded the accused for doing
something wrong and at the same time he (Wadhwa) pressed the buzzer for his
Personal Assistant. Shrivastava PW then came inside the office of Wadhwa. In
the meantime, the accused had put back the envelope containing currency notes
in the pocket of his trousers. On the arrival of Shrivastava, Wadhwa told him
that the accused had given him bribe. Wadhwa also asked Shrivastava to take out
the envelope from the pocket of the trousers of the accused. Shrivastava then
took out the envelope containing currency notes from the trousers' pocket of
the accused. There were thirty 100-rupee currency notes in that envelope.
Wadhwa then rung up R.C. Gupta (PW 3) who is the Secretary and Vigilance
Officer of HEL as well as Chandra Shekhar Tiwari (PW 4), who is the Chief
Security Officer of HEL. The offices of Gupta and Tiwari are also in the
Administrative Building of HEL, in which building is situated the office of
The case of the prosecution further is that
on the arrival of Gupta and Tiwari PWs, Wadhwa narrated, the facts about the
offer of Rs. 3,000 by the accused to him as mentioned above. The accused then expressed
his apologies and stated that he was sorry and ashamed for what he had done.
The accused also requested that he might be forgiven and that otherwise he
would lose his career as a contractor. When the accused offered his apologies,
Wadhwa remarked that if the accused gave anything in writing, he would consider
the matter. The accused thereupon wrote something on a piece of paper. As the
writing was not found to be satisfactory, the same was not accepted by Wadhwa
and the paper remained with the accused. Wadhwa then asked Shrivastava to take
Lalwani to his room. Wadhwa thereafter asked for the advice of Gupta and
Tiwari. It was then decided that the matter should be reported to the police.
Wadhwa thereupon called Shrivastava and dictated to him report P1. In the
report the number of currency notes were also noted by Shrivastava.
The report was then signed by Wadhwa. The
accused and, the report were thereafter sent to police station Govindpura.
Formal first information report P8 was
prepared at the police station on the basis of report P1 and a case was
registered against the accused at 639 2.15 P.M. Complaint about the occurrence
was thereafter filed in the court of the Special Judge Bhopal by Town Inspector
Gurbir Singh on. May 20,1966.
At the trial, Wadhwa (PW 1) gave evidence in
support of the prosecution case as given above. Gupta (PW 3) and Tiwari (PW 4)
deposed about, the extra judicial confession of the accused in the office of
Wadhwa PW when they were called there by Wadhwa PW on telephone. The prosecution
further examined Shrivastava (PW 5), according to whom, he was called by Wadhwa
and was told that the accused had offered him bribe. The witness took out an
envelope containing currency notes of the value of Rs. 3,000 from the pocket of
the accused under the directions of Wadhwa- The witness further deposed
regarding the extra ' judicial confession made by the accused after the arrival
of Gupta and Tiwari PWs.
The accused, in his statement under section
342 of the Code of Criminal Procedure, admitted having met Wadhwa PW in his
office on April 9, 1966 and about his having handed over to Wadhwa copy of
letter P3. The accused also admitted that the Personal Assistant of Wadhwa had
taken out 30 currency notes of Rs. 100 each from his pocket under the
directions of Wadhwa. The fact that Gupta and Tiwari were called on telephone
by Wadhwa was further admitted by the accused.
The other prosecution allegations were denied
by the accused. He denied having offered any amount to Wadhwa or about his
having made any confession after the arrival of Gupta and Tiwari PWs. The
accused further gave the following version of the occurrence :
"On 7-4-66 1 had gone to the office of
the Executive Engineer Shri Karajgi. He was not there. I learnt from the office
that my tender and the tenders of two or three persons more sent to the
Assistant Chief Engineer, and there was remark on my tender that the
testimonials were not attached whereas I had sent the same on the 21st.
Therefore, I went to the Chief Engineer on the sameday and told him that my
tender was the lowest and they say, that the testimonials have not been sent.
On being asked by him I replied, 'can bring
the testimonials'. Then I went to Delhi and on 9-4-66 1 came with the
testimonials and the consultant Engineer and I had brought the amount of
security also. Then I went to the office of the Chief Engineer on the 9th and
talked to him and showed my testimonials and handed over the letter Exhibit
P.3. For taking out the papers I was required to take out money also and after
keeping money in my pocket I showed the papers to him. I said 'I have brought
the testimonials also. I have brought the Engineer also.' You discuss with him
and give final reply. 'He replied', Do not talk to me. Speak to the Executive
Engineer. 'I said', There is corruption.
Otherwise why my certificates have been
removed from my tender? 'Thereupon he began to say, 'I am not prepared to hear
this much.' Whereupon I replied, 'You are Head of the Depart- 640 ment. If you
do not hear who will hear?' Thereupon he replied,. 'Do not talk anything more
with me?' Whereupon I said, 'Are you also included in that corruption ?'
Thereupon, he pressed the, buzzer. I had a hot talk with him. My Engineer also
told, him. Thereupon he replied, 'I am not prepared to hear anything.' Then my
Engineer spoke in Sindhi language, 'He is not hearing I go downstairs and I
send any other person.' At the same time Wadhwa Saha ,threw away the
testimonials and said, 'Where those persons have gone ?' Whereupon I replied,
'They have gone down- stairs'. He questioned, 'What did they say?'- I replied,
'They have not said anything.' 'Then I put the testimonials in my pocket and he
pressed the buzzer." In defence, the accused examined one witness V. S.
Asnani, Consulting Engineer. According to this witness, he went with the
accused on the day of occurrence to Wadhwa PW. The witness supported the
version of the occurrence as given in the statement of the accused under
section 342 of the Code of Criminal Procedure.
The trial court was of the view that Wadhwa
PW was not wholly reliable witness. As regards Gupta and Tiwari, it was
observed that they were interested witnesses.
Reference, was also made to some
discrepancies in the prosecution evidence as well as to the fact that there was
no mention in the first information report of the extra judicial confession of
the accused. The version given by the accused, in the opinion of the trial
court, could not be said to be unreasonable. In the result the trial court gave
the benefit of doubt to the accused and acquitted him.
On appeal the High Court considered the
evidence adduced in the case by the prosecution and found the same to be
reliable. The High Court disagreed with- the trial court that the prosecution
evidence suffered from infirmities.
The defence version was rejected by the High
Court as unworthy of evidence. In the result the appeal was accepted and the
accused was convicted and sentenced as above.
In appeal before us Mr. Hardy on behalf of
the appellant his assailed the judgment of the High Court and has contended
that there was no sufficient ground for the High Court to reverse the judgment
of acquittal of the trial court. If two views, according to the learned
counsel, were possible in the matter, the view which was favourable to the
accused and had been taken by the trial court should be adopted. As against
that, Mr. Ram Panjwani on behalf of the State submits that the view taken by
the trial court was clearly unreasonable and there were good and valid grounds
for the High Court to interfere with the judgment of the trial court. We find
force in the submission of Mr. Ram Panjwani.
The prosecution in order to bring the charge
home to the accused has examined Wadhwa (PW 1). The witness gave evidence in
support of the prosecution case as reproduced above and deposed about the offer
of the envelope containing currency notes by the accused to him. We have been
taken through the evidence of the witness and 641 find no Cogent ground as to
why his evidence, should not be accepted, The witness had no animus against the
The witness even did not know the accused
earlier and had met him only once before on April 7, 1966 when the accused had
seen him in his office and had made some representation regarding his tender.
In the circumstances, we can discover no particular reason as to why Wadhwa
should falsely involve the accused in this. case.
The trial court did not place much reliance
upon the testimony of Wadhwa because the witness admitted that complaints had
been made against him for showing favouritism as well as for corruption and
highhandedness. On some occasions the witness also had to give explanation to
clarify some particular action. The accused also placed on record letters and
articles published in a local paper, copies of which are D2, D3, D4 and D5. In
this respect we find that documents D2 to D5 contained general allegations of
irregularities in HEL. There were no allegations in those writings against
Wadhwa by name or by designation. As regard$ the complaints made against Wadhwa,
there is nothing to show that the authorities concerned found substance in any
of those complaints. As things are, such complaints are even made against
senior officers who are very honest. In the absence of' material to show that
substance was found in any of the complaints made against Wadhwa, it would, in
our opinion, be not proper to infer that Wadhwa is a person of doubtful
integrity from the mere fact that sometimes complaints were received against
him. Another reason which weighed with the trial court in not Placing much
reliance upon the testimony of Wadhwa was the fact that in answer to a question
relating to the details of the design of the tanks in question, the witness
replied that it was his prerogative as Chief Engineer incharge of construction
to decide as to what he should do. The above answer would show that the witness
used inappropriate language in describing his powers and functions. The answer
might also reveal that the witness had exaggerated notion of the authority
vested in him, but these facts would hardly warrant an inference that Wadhwa PW
is not a very truthful witness and the court cannot place much reliance upon
The conduct of Wadhwa immediately after the
offer to him of the envelope containing currency notes by the, accused lends
considerable support to his testimony. Wadhwa immediately pressed the buzzer
and called Ms Personal Assistant Shrivastava PW. Shrivastava PW was then told
by Wadhwa that the accused had offered him bribe. Wadhwa also told Shrivastava to
take out the envelope containing currency notes from the trousers' pocket of
the accused. Shrivastava then took out the envelope containing currency notes
from the trousers ' pocket of the accused. The envelope was then found to
contain 30 currency notes of Rs. 100 each. The evidence of Wadhwa in this
respect is corroborated by that of Shrivastava. PW. Shrivastava too had no
animus against the accused and it is not explained as to why Shrivastava should
falsely depose against the accused in this case.
It has been pointed out by Mr. Hardy that
Wadhwa did not mention in report P1 dictated by him that he had told
Shrivastava about the offer of bribe by the accused to him.
This omission appears to 642 have been due to
the fact that Wadhwa did not give complete details in the report dictated by
him. As mentioned earlier, there is nothing' to show as to why Shrivastava
should falsely depose against the accused. The fact that Shrivastava was a
Personal Assistant of Wadhwa would hardly justify rejection of his testimony,
especially when Wadhwa himself had no animus against the accused. In any case,
it is mentioned in report Pi and is also admitted by the accused in his
statement under section 342 of the Code of Criminal Procedure that Shrivastava
took out Rs. 3,000 from the trousers' pocket of the =used under the directions
of Wadhwa. There is nothing to show that the accused protested against the
taking out of the currency notes from his pocket by Shrivastava under the
directions of Wadhwa. If the accused was an innocent person and had no guilty
conscience, he would in the normal course have flared up and not meekly
submitted to the recovery of currency notes from his pocket by Shrivastava
under the directions of Wadhwa. The conduct of Wadhwa in directing Shrivastava to
take out the envelope containing currency,notes from ,the pocket of the accused
is in consonance with the prosecution case and. belies the defence version.
The evidence of Gupta and Tiwari PWs
regarding the extra judicial confession. made by the accused after the arrival
of these witnesses lends further corroboration to the evidence of Wadhwa. These
two witness, who were senior officers of HEL, had no enmity with the accused
and nothing has been brought out as to why they should make false statements against
the accused. It is true that Wadhwa made no mention of the extra judicial
confession of the accused in the report sent by him to the police. This
omission might also have been due to the fact that Wadhwa did not give full
details in the report dictated by him. Be that as it may, even if the evidence
regarding the extra judicial confession of the accused were excluded from
consideration, the other material on record, particularly, the testimony and
conduct of Wadhwa as well as the evidence of Shrivastava, furnishes ample
ground for basing the conviction of the accused.
We are not impressed by the plea taken on
behalf of the accused that Rs. 3,000, which were recovered from his pocket, had
been brought by him for the purpose of depositing security. The question of the
depositing of the security would have arisen only if and when the tender would
have been accepted. The amount of security in that event would have to be
deposited within 15 days of the date directing the contractor to do so.
Argument has also been advanced on behalf of
the accused appellant that it was not a condition of the tender that the
contractor would use 24 tons of steel in the making of the tanks in
question.This may be so, but it would not make any material difference so far
as the present case is concerned.
The evidence of Wadhwa PW shows that he had
learnt from the Assistant Chief Engineer that as against the accused who had
stipulated to use 18 tons of steel, the other contractors had stipulated to use
24 tons of steel. The accused, in the circumstances, might have become
apprehensive that his tender in spite of 643 his lowest quotation might not be
accepted. Necessity might consequently have been felt by the accused to offer
illegal gratification with a view to secure a favourable decision in the matter
of the acceptance of the tender.
The view taken by the trial court in
rejecting the evidence of Wadhwa, in our opinion, was clearly unreasonable and
the High Court, in our opinion, had cogent grounds to interfere with the
judgment of acquittal of the trial court. We are unable to find any infirmity
in the appraisement of the evidence by the High Court as may, induce us to take
a different view.
Reference on behalf of the appellant has been
made to the decision of this Court in the case of Kanu Ambu Vish v. State of
Maharashtra(1) wherein it was observed that the High Court in reversing a
judgment of acquittal should not only consider all matters on record, including
the reasons given by the trial court in respect of the, order of acquittal, but
should particularly consider those aspects which are in favour of the accused,
and ought not also act on conjectures or surmises. The above, dictum, in our
opinion, cannot be of much avail to the appellant because we find that the High
Court in reversing the order of acquittal considered the matters on record,
including the reasons given by the trial court, as well as those aspects which
could possibly be claimed by the. accused to be favourable to him.
It is well settled that the High Court in appeal
under section 417 of the Code of Criminal Procedure has full power to review at
large the evidence on which the order of acquittal was founded and to reach the
conclusion that upon the evidence the order of acquittal should be reversed. No
limitation should be placed upon that power unless it be found expressly stated
in the Code, but in exercising the power conferred by the Code and before
reaching its conclusion upon fact the High Court should give proper weight and
consideration to such matters as (1) the views of the trial judge as to the
credibility, of the witnesses; (2) the presumption of innocence in favour of
the accused, a presumption certainly not weakened by the fact that he has been
acquitted at his trial; (3) the right of the accused to the benefit of any
doubt; and (4) the slowness of an appellate court in disturbing a finding of
fact arrived by a judge who had the advantage of seeing the witnesses. We have
been taken through the judgments of the trial court and the High Court and we
find that the judgment of the High Court is not vitiated by any such infirmity
as may call for interference by this Court.
Before we part with this case, we would like
to observe that as long as an impression exists that corruption is prevalent
and that unless one pays to somebody things are not done, there would be always
persons who would feel the urge to offer bribe. Bribe would be offered not only
to get an undue favour but also to avoid unnecessary harassment and to see that
no obstruction or delay is caused in getting the most legitimate work done. To
prevent the repetition of crimes. like (1) A I. R. 1971 S. C. 2256.
644 the one of which the appellant has been
found guilty, it is necessary to inculcate a general feeling that things are
done in due course uninfluenced by extraneous considerations. It would be
unfortunate that, rightly or wrongly, an impression were to exist that without
payment of illegal gratification, things would not be done. At the same time,
the position in law is that if one makes an offer of bribe to a public servant,
he would be guilty of the offence under section 165A Indian Penal Code. The
courts are concerned only with the fact whether the person arraigned as an
accused before them is guilty of the offence with which he is charged. The
finding regarding the guilt of the accused cannot be affected by any
consideration of the social and administrative milieu in which the offence is
committed. Once the guilt is proved, as it has been in the case of the
appellant, the law must take its course.
The appeal fails and is dismissed.
S.C. Appeal dismissed.