# [1974] 1 S.C.R. 605

- **Citation:** [1974] 1 S.C.R. 605
- **Court:** Supreme Court of India
- **Decided:** 1973-09-07
- **Case number:** special leave from the 24/26-9-1969 of the Bombay High No. 1825 of 1965
- **Bench:** H. R. Khanna Ani> A. Alagiriswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1974-1-s-c-r-605-6010
- **Pages:** 10

## Headnote

605
E>-idttice Act, 1812 (1 of 1872), ss. 124 and 125-Privilege-Noiings on
confide1Jtial file which have no bearing on the guilt or i11noce11ce of the accused
-If could be brought on the record by the High dourt.
The appellant was convicted under s. 165-A. I.P.C. for offer_ing a bribe
to a Custcnts appraiser and was sentenced to rigorous imprisonment and fine.
On appeal the High Court upheld the conviction but reduced the sent~nce of
imprisonment to six months.
Before the Special Judge the appellant had filed applications for the produc·_
ti on of three document'S viz. : ( i) the application made by S, the informer, for·
rewards for his services as an informer; (ii) receipts signed by S for the amourils
he received as n:ward and (iii) the notings made. by the appraiser on the Central Intelligence Unit file regarding the application by S for reward. The De·
partment · objected to their prodqction on the ground that the appraiser could
not be compelled to say or divulge any information as to ti!~ commission of
any offence against the public revenue and that the documents were made in
official confidence and pub.lie interest would suffer from disclosure of any of
the document< on the file. The Special Judge dismissed the applications. When
tho appeal was pending, the High Court passed an order bringing on record
ce.rtain portions from the file of the Central Intelligence Unit.
Disn1issing the appeal to this Court,
HELD : ( i) The order of the High Court permitting certain portions of the
confidential file to be brought on record was not correct. The
High Court
seemed to have been more concerned with the provisions of s. 125 than with
s. 124 of the Evidence Act. While portions brought on record might not contravene the provisions of s. 125 there was no doubt that they contravene s. 124.
The no1ings on the file were made in official confidence.
[608-H]
(ii) The fa:ct that S had acted as an informer and applied for rewards f9r
his services did not in any way affect the merits of the case. The Crucial question was whether the apoellant did make an offer of bribe ·to the appraiser and
did give it to him.
Documents in respect of which privilege was claimed did
n~t impinge on the question of guilt or innocence of the ac.:lBed.
[609-D]
In the circum.o;;tances of this case there was no harassment of the appellant
and no' case ha<l been made out for re~ucing the sentence.
Ran1jo11r11n Singh v. State of Bihar, A. I. R. 19·55 S. C. 643, held inapplicable.
G

## Text

•
A
B
c
D
E
F
KISHAN NARAIN
~.
STATE OF MAHARASHTRA
September 7, 1973
(H. R. KHANNA ANI> A. ALAGIRISWAMI, JJ.]
605
E>-idttice Act, 1812 (1 of 1872), ss. 124 and 125-Privilege-Noiings on
confide1Jtial file which have no bearing on the guilt or i11noce11ce of the accused
-If could be brought on the record by the High dourt.
The appellant was convicted under s. 165-A. I.P.C. for offer_ing a bribe
to a Custcnts appraiser and was sentenced to rigorous imprisonment and fine.
On appeal the High Court upheld the conviction but reduced the sent~nce of
imprisonment to six months.
Before the Special Judge the appellant had filed applications for the produc·_
ti on of three document'S viz. : ( i) the application made by S, the informer, for·
rewards for his services as an informer; (ii) receipts signed by S for the amourils
he received as n:ward and (iii) the notings made. by the appraiser on the Central Intelligence Unit file regarding the application by S for reward. The De·
partment · objected to their prodqction on the ground that the appraiser could
not be compelled to say or divulge any information as to ti!~ commission of
any offence against the public revenue and that the documents were made in
official confidence and pub.lie interest would suffer from disclosure of any of
the document< on the file. The Special Judge dismissed the applications. When
tho appeal was pending, the High Court passed an order bringing on record
ce.rtain portions from the file of the Central Intelligence Unit.
Disn1issing the appeal to this Court,
HELD : ( i) The order of the High Court permitting certain portions of the
confidential file to be brought on record was not correct. The
High Court
seemed to have been more concerned with the provisions of s. 125 than with
s. 124 of the Evidence Act. While portions brought on record might not contravene the provisions of s. 125 there was no doubt that they contravene s. 124.
The no1ings on the file were made in official confidence.
[608-H]
(ii) The fa:ct that S had acted as an informer and applied for rewards f9r
his services did not in any way affect the merits of the case. The Crucial question was whether the apoellant did make an offer of bribe ·to the appraiser and
did give it to him.
Documents in respect of which privilege was claimed did
n~t impinge on the question of guilt or innocence of the ac.:lBed.
[609-D]
In the circum.o;;tances of this case there was no harassment of the appellant
and no' case ha<l been made out for re~ucing the sentence.
Ran1jo11r11n Singh v. State of Bihar, A. I. R. 19·55 S. C. 643, held inapplicable.
G
CRIMINAL APPELLATE JURISDICTION : Criminal Apeal No. 14 of
H
1970.
Appeal by special leave from the
24/26-9-1969 of the Bombay High
No. 1825 of 1965.
judgment
Court in
and order dated
Criminal Appeal
H. L~ Sibal, S. C. Sibal, Harjinder Singh and Rameshwar Nath, for
the appellant.
M. C. Bhandare, M. N. Shroff and Z. A. Kluilidi, for the respondent.
13-L382Sup. CI/74
606
SUPREME COURT REPORTS
( 1974 J 1 S.C.R.
The Juugment of the Court was delivered by
ALAGIRISWAMI, J. The appellant was convicted
by the Special
fodge of Bombay under
s.
165-A I.P.C.
and sentenced to
rigorous imprisonment foe one year and to pay a fine of Rs. 10,000.
On appeal the High Court of Bombay upheld the conviction but
reduced the sentence of imprisonment to six months. The appellant
is a partner of a firm owning the New India Knitting Mills in
Amritsar. It has a sister concern called J. D. Woollen and Silk
Mills, which is owned by a partnership firm of which the appcJ!ant's
minor son is a partner. On 10-10-1963 the J. D. Mills was given
an import licence for Rs. 23,480/- for spare parts for Warp Knitting Machine from Germany. Towards a part of that import licence
goods valued at Rs. 11,699/· arrived in Bombay on 16.3.1964. The
J·D. Mills arranged for clearance of this consignment by the New
Suraj Trausit Company having its head QJlice in Amritsar and a
branch in Bombay. One Hiro Shahani, who became an approver in
this case, was an employee of the clearing agents. Bakubhai AmbaJa!,& Co. were the representatives in India of the machinery manu-
!l'acturing company.1
It appears that in July 1963 there was an anonymous petition
against the two mills and on 21.11.1963 au order was made by th~
Principal Appraiser of the Special Investigation Branch of the
Customs that a careful watch should be kept over the imports by
the two mills. -On 30-3-1964 the J. D. Mills had made a representation to the Deputy Collector incharge of the Appraising Department in the Customs House at Bombay complaining against long delays in clearing their imports and thereafter the appellaut also seems
to have met the Deputy Collector Customs aud protested against excessive scrutiny. The Deputy Collector ordered the matter to be examined and if there was no substance in the complaint against the mills
to consider reviving normal examination. By that time the consignment already referred to had arrived. The Bill of Entry in respect
of this consignment was prepared on 4·6-1964. The Import Brauch
sent it to the Special Investigation Branch and that Branch sent it
back to the Import Branch.
The consignment was examined by
one Motwani, who was later examined as P·W. 6 in the case. He
was of opi11ion that the goods were not spare parts but that it was
a machine in assembled condition.
The Shed
Appraiser
agreed
with this view.
The clearing agents thereupon telephoned to the
appellant who asked them to make a request for re-examination as
provided under the rules. Shahani, the approver, thereupon requested the Principal Appraiser, Almeida for re·examination. • Almeida
made an order for scrutiny by the scrutinizing appraiser and the
shed appraiser. One Vazirani, scrutinising appraiser, made a reexamination accordingly and made a report, which was approved
by the shed appraiser, Menon.
This
went
to the
scruitinising
appraiser, Merchant, who in his turn examined it in the presence
of Shahani and Majumdar, the engineer of Bakubhai Ambalal, and
recommended issue
of show cause
notice
for mis-declaration.
Almeida approved of it on 9-7-1964 and on 17-7-1964 a notice was
accordingly Issued by Almeida.
·
A
B
c
D
F
G
H
A
B
c
1)
E
F
G
H
KISHAN NARAIN v. MAHARASHTRA (A/agir~ami, /.)
60.7
On 1-7-1964 the jippellant reached Bombay.
Towards the end
of that month the Central Intelligence Unit was constituted in
the
Customs Deparment and it was to function as the vigilance party qf
that department. P.W.3. Ramachandra Rao, was one of the appraisers.
transferred to this unit.
He inspected the goods on 1-8-1964· On
4)-9-1964 he was directed by the Assistant
Collector
in-charge,
Sonavne to execute warrants of search against Bakubhai
Ambalal,
who however produced the documents asked for.
The appellant asked" Shahani on the 4th to introduce him
to
Rao.
That was not done.
On 13-8-1964 the appellant met Rao
at Gaylord restaurant- where Rao had gone to meet one of his contact men.
At that .time the appellant is alleged to have made an
offer of a bribe of Rs. 5000 /- to Rao. Rao told hi·m that he would
let him know and later asked Shahani to ask the appellant to meet
him at the same place the next day. He duly reported the offer of
bribe to his Assistant Collector, Sonavne at 1.30 p·m.
The latter
took some time to consider the matter and in the evening told Rao
that it had been decided to take up the matter with the Special Police
Establishment.
So on 14-8-1964 Rao went to the S.P.E·
Office
and was directed to see Mr. Jog, Dy. Superintendent of Police "'
charge of S-P.E., Bombay who recorded his complaint.
Jog took
with him to Gaylord two officers of the Income-tax
Department,
P.W. 4, an Assistant Commissioner of Income'.tax and P.W. 5, an
Income-tax Officer who later became panchnama
witnesses.
They
were directed to remain close to Rao and to overhear the conversation between him and the appellant.
In due course the appellant
~nd Shahani came there. About what happened then we shall refer
to in detail a little later. It is sufficient at tljis stage to say that
the appellant passed on two envelopes to Rao and at that moment
Jog appeared on the scene and recovered both the envelopes from
Rao.
The envelopes were found to contain Rs. 2,500/- each. The
investigation was carried out and a charge-sheet filed on 30-10-1964.
Shahani was arrested on 24-11-1964 and was released on bail.'His
statement was recorded in January 1965 by police and his confession statement before the Magistrate was
ordered on
19-3-1965.
On 15-4-1965 an application was made to grant him
pardon
in
order to treat him as an approver and an order was passed in due
course.
The case was in due course tried and the appellant wa!
convicted as mentioned earlier.
lt appears that on 21-5-1965 Shahani made an application
to
Customs Department for reward for passing on certain information
to that department and on 7-6-1965 he received 3 sums of Rs. 500.
Rs. 500 and Rs. 350 as part oayment of reward.
It also appears
that Shahani had made an application for licence to work as cleariI;g agent. Somehow the appellant had got information
about these
facts as
also the
noting made by Rao on the application
for
reward
mad€)
by
Shahani.
These
facts
were
denied
by both Rao and, Shahimi in their evidence.
Shahani was examined
from 15th to 20th of September, 1965 and on the 20th an applica·
tion was made on behalf of the appellant for prodnction of 3 docu·
608
SUPREME COURT REPORTS
[ 197:4 J 1 S.C.IL.
ments (i) the application of Shahani dated 21-5-1965 asking
for
A
reward, (ii) three reciep~ signed by him in respect_.; of
amounts,
about which mention has already been made, and (w) the Central
Intelligence Unit file, of which even the number was given.
The
Assistant Collector.·of Customs filed ·a reply to this application
stating that he could not be compelled to say or divulge any information as to the commission of any
offence
against the . public
revenn<>.
11~ al«> stated that a1t the . documents were _made
in
B
official oonfidence and public interest wquld suffer J!o~ disclosure
of any. of the documents on the file.
,Alnother applicati9~ to._ the
same effect was made on 22-9-1965. .
th the applkations were
dismissed by the Special Judge.
Befcre: the High Court, when the
appellant's appeal was pending, an a plication was made on
11-6-1968 by the appellant for s
· · the very same three docuC
ments for producing which he had a
·
before the trial court and _
the Hig!i Court passed an order on 5-1: 968 bringing . 0n record.·
-Oertain por,.tions from the file of the
, al Intelligence Unit, which ·
is found at pages 453 and 454 of the paper book as Ex.. 67 and 68.
Consequently, Shahani and Rao· were dii~ to be further examined
and they were accordingly further examined before the · Special
Judge. There was ilgaln another _app!icatiOn before the High Court on . D -
behalf of the appellant in respect of certain-questions put to Rao in the
cou~e _of. this examination, which· was dismissed by the High Court ·
on 3-3-1969. That need not detain us.
The contention· on behalf of the .appellant before us was that the - E
meeting between Rao and the appellant on .. 13-8-1964 was not
true, that this c;harge against him is the result of ~nspiracy between
Rao and Shahani, the former· with the object of advancing himself in
his career by posing as an honest officer who refused an offer of a
bribe and the latter with :the sordid motive of getting reward as an
informer, as also of getting a clearing agent's licence in respect of ·
which he expected Rao to be of help to him. Both the Special Judge
as well as the High Court-were not prepared to place implicit reliance
on the eyidence of Rao and though the High Court thought that Rao
was not playing fair with the court it was not prepared to consider
him a !far. We are of opinion that the High Court has not been quite
fair'to Rao. In regard to Shahani's application for reward and his own· ·
dealings with the connected file Rao was really on ·the hbrns of a
dilemma. As pointed out-by the Assistant Collector, Berl, in his reply
affidavit to the appellant's application for the production of the-three
documents whicll.he" wanted. Rao could not be compelled to answer
questions without breach of the provisions of ss. 124 and tis of the
Evidenee Act. We are of opinion that the order of the learned Judge
of the High Court permitting certain portions of the C.I.U. file to be
brought on record was not oorrect. The learned Judge seems to have
bet:t more concerned with the provisions of section 125 than · with
se~tion 124 of the Evidence Act While the portions brought on record
rmght not contravene the provisions-of section 125 we have no doubt
that it contravenes §ection 124. The noting made by Rao on the C.I.U.
F.
G
H
•
B
D
F
G
H
KISHAN NARAIN v. MAHAaAJlllTaA (A/a8irisWami, /.)
609
file was one made by him in official confidence. This was not seriously
disputed by Mr. Sibal appearing for the appellant before us. The
oonsequent order passed by the High Court for re-examination of Rao
and Shahani naturally put Rao in a very difficult situation and as the
learned Judge of the High Court has remarked, he had to do some
tight rope walking. He had to choose between his evidence being contradicted by the portions of the file which had been brought on record
and his being consistent with the evidence which he had earlier given.
The appellant had somehow managed to get details about all the three
records he wanted and the affidavit filed by the Collector of Customs
in answer to . his secood application filed before the High Court had
admitted their existence. It would probably have been better, as the
learned Judge of the High Court has remarked if the departmental
officers had come out right in the beginning boldly with the tac.ts of
the case instead of claiming privilege and putting Rao in a difficult
situation. It would not have affected the prosecution case in any way.
We do not consider that the faot that Shahani had acted as an infor·
mer and applied for rewards for his services as an informer in respect
of the 3 consignments im~ed J:y the J. D. Mills, in any way affects
the merits of the prosecutjod'li;ase. The crucial question is whether the
appellant did make an offer of a bribe to Rao on 13-8-1964 and did
give the bribe on the 14th. The evidence as to Shahani having acted as
an informer does not affect this question.
It is not necessary for the purposes of this case to consider the
scope of the powers of the court to examine the documents in respect
of which privilege is claimed under ss. 123, 124 and 125 of the
Evidence Act. Nor do we think that the English decisions on the
point would be wholly apt in the circumstances of this country. In
England the law regarding evidence is wholly Judge made law but in
this country the duty of the Judge is to interpret the provisions of the
Evidence Act in its application to the particular circumstances of a
case. Whether if in any particular case the guilt or innocence of an
acQllsed depended on the production of a document in respect of
which privilege is claimed the court could over-rule the claim of privilege is not a question which we need consider. That question does
not arise in this case. The documents in respect of which privilege is
claimed in this case do not impinge on the question of guilt or innocence of the accused. They do not relate to what happened on the
13th and 14th of August, 1964. We do not, therefore, feel it is neces·
sary to consider the decisions in Conway v. Rimmer(') and Marks v.
Beyfus( 2 ).
Given the fact that the High Court had permitted certain evidence
to come on record, which we consider ought not to have been allowed
to come on record, and the proceedings in connection therewith we
co_nsider that the concl~sions arrived at. by the learned Judge of the
High Conrt on the. basts of those matenals, as given on page 317 of
the .P.aper b0<~k, which we extract below, is a correct assessment of the
add11Ional evidence :
"The net result of the perusal of the additional evidence
(!) [1968] 1 All E. R. S74.
(2) [1890125 K. B. 494.
610
SUPREME COURT REPORTS
[ 1974] 1 s.c.R ..
on remand on 5-8-1968 and the points
discussed above
:A
may be summarised as follows :
( 1) That Shahani P.W. 2 did apply for reward on
21-5-1965 and actually did receive the reward on
7-6-1965 in the amounts of Rs. 500/-, Rs. 500/-
and Rs. 350/-;
(2)
(3)
(4)
(5)
That Shahani was the informant of
the Customs
Department. at any rate in regard to some
three
consigmnents though it is not in evidence as to who
was the owner thereof and when was
such information given and whether the information was given
to Rao or some other officer;
The extract$ Exs. 67 and 68 out of C.I.U. File
No. 69 of 1965 were scribed by Rao P.W. 3 and as
per admission of Rao they contained the appreciation of services of some informant whose information
directly Jed to the en-trapping of the accused in the
present case;
There is also no
warrant
in the evidencle
for
assumption that C.J.U. File No. 69 of 1965 r~ally
pertained to the
informafon given
by
Shahani
through Shahani is found to have been informant in
regard to some three consignments;
There is also no warrant for assumption that any
reward was recommended by Rao to Shahani
in
regard to any help or in fact Shahani could have
given any such help to the ·Customs Department in
regard to the trap arranged against the accused
in
this case."
Even taking those conc/lusions into account we do not consider that
the prosecution case in respect of the central point has in any way
been shaken. The learned Judge of the High Court himself did not
find Rao to be wholly unreliable and he did not consider that his
evidence could be altogether discarded. We
are
satisfied on
th~
evidence that the courts below were right in coming to conclusbn
that the appellant <lid meet Rao at Gaylord on the 13th. As we have
already mentioned the appellant had immediately reported the inatter
to Assistant Collector, Sonavne, and on the instructions of his higher
authorities a complaint was made to the Special Police Establishment.
We are not able to accept the argument on behalf of the appellant
that there was no such meeting, that it was Shahani that had arranged
for the appellant's meeting with Rao at Gaylord on the 14th and that
it was Shahani who had arranged to see that the two envelopes
which the appellant handed over to Rao contained not lhe documents
relating to the two further consignments but currency notes. That the
appellant should have been a!J,Xious to be on the right side of somebody in the Customs Department was natural enough. The reason is
this : All the .appraisers who had looked into t\!e consigmnent
received by the.J.D. Mills had taken the view that what was imported
c
D
E
F
G
H
KISHAN NAMIN V. liWUiltASHTRA (Afagiriswami, /.l
611
A
was not spare parts though it was argued on behalf of the appellant
that the various spare parts had been put together in order that they
might be transported safely and what was imported was not a whole
machine. It may well be that what was imported was not a whole
machine as held by the Collector of Customs ultimately in
1968.
But the spare parts were in an assembled condition and even
8
Majumdar, the Engineer of Bakubhai Ambalal got the first impression
. that it was nearly a machine. He could not say what parts were not
there. The appellant himself in the statement filed before the trial
court has stated that in view of the fact that the spare parts which ·
were imported were in an assembled cpndition for the purpose of
safe transportation without avoidable damage, the Customi; examiners
and appraisers got th~ first impression that what was
imported was
c
a machine and not spare parts. It was, therefore, not surprising that
all the appraisers who viewed the machine proceeded on the basis
that what was imported was not spare parts. Even according to the
appellant, he had asked Shahani to introduce him to Rao.
Quite
possibly Shahani might have told the appellant that Rao was expected
to be in the Gaylord on the 13th at 12.30 p.m. We are proceeding on
the basis that Shahani's evidence is wholly unreliable. But as we said
D
earlier, Rao could not have complained to Sonavne at 1.30 p.m. ooon
after he alleges he had met the appellant at Gaylord at 12.30 p.m.
and the appellant had made the offer of bribe, nor gone on further to
make a complaint to the Special Police Establishment if he had not
met the appellant on the 13th. He could not have done all that
merely on Shahani's information that the appellant would meet him
(Rao) on the 14th at Gaylords. Nor could it be expected that either
E
·shahani or Rao would have found Rs. 5,000/- merely to trap the
appellant and risk that amount. There is not strong enough motive
for either Shahani or Rao to implicate the appellant falsely. We are
satisfied that the evidence of Rao as to what happened on the 13th is
true and reliable.
F
G
H
As regards what happened on the 14th the evidence of P.W. 4
and P.W. 5 as well as the statements found in the panchnarna are not
attacked on behalf of the appellant as either false or as not representing the true state of facts. In fact the whole argument on behalf
of the appellant is based on the truth of those three pieces of evidence
and has been confined to showing that the evidence of Rao is contradictory to t!\.ese three piedes of evidence and therefore should not
be accepted. In assessing the evidence on this .point we must first of
all bear in mind that the whole incident took place in a crowded
restaurant and given the circumstances of the case the conversation
between Rao on the one hand and the appellant and Shahani on the
other could only have been in a low tone. PWs 4 and 5 would naturally
not have heard every bit of conversation between the three of .them.
The fact that something is found in Rao's evidence that is not found
in the panchnama or that something is found in the panchnama but
is not found in Rao's evidence cannot mean that Rao's evidence is
false on points which the panchnama does not refer to. A witness is
not like a tape-recorder. When he is giving evidence more than a year
later about what happened a year earlier his memory may not serve
612
SUPREME COURT REPORTS ¥
[ 1974 J 1 s.c.R.
him completely right; He may not be able to repeat the exact words
used on the occasion or all the words. Allowance must be made for
these. factors. Making that allowance let us now place side by side
statements in the panchnama, which in essence is corroborated by the
oral evidence of PWs 4 and 5, and Rao's evidence, as has been done
by the learned Judge of the High Court : Rao's evidence was :
"The accused started the conversation by asking me
whether I have cleared up the one or two points . which I
said I would clear up on the previous day. I told the accused
that nothing appeared to be wrong with the consignment
itself, bukthere is a rumour that he had paid. Rs. 5000/-
to Mr. Almeida and Rs. 3000/- to Mr.
Vazirani.
The
accused did not say anything. He requested me to clear up
the matters in his favour, as everything was in hands. I asked
him (accused) who were the persons present at the time of
re·examination by Mr. Vazirani. The accused replied that
he himself, his men Madanlal, Clearing A,gent's man Mr.
Shahani and Mr. Majwrular of M/s Bakubhai Ambalal,
were present at the time of the re·examination. The accused
told me that the same persons were present when the c'onsignment was inspected later on by Mr. Merchant and Mr.
Almeida.
The accused asked me whether I would be willing to
accept the money after the consignment was cleared. I told
him that this would mean lack of trust in me. The accused
told me that he had full trust in me.
The accused then
asked Mr. Shahani to go out· and to get the envelopes from
Mr. Madanlal standing outside the restaurant. Shri Shahani
went out from the side entry. The accused then told me that
this is just a beginning. He told me that more such consignments are expected to come.· He told me that for my
assistance in clearing the same he would pay me bigger
amounts. He told me "Thumbi Khau Hambi Khayenge."
'
The extract from the panchnama is as follows :
"Shri C. S. R. Rao was telling them that there were a lot
of difficulties since the papers had to pass through several
officers. The person on the right hand side of Shri Rao
(accused) mentioned about some other officials
in the
customs and asked about some officials of
the customs.
Then Rao mentioned the names of Almeida and Vazirani.
Then in reply to Rao the persons mentioned that they .know
Shri Almeida and Vazirani the customs officials. They both
then talked something which was not clearly audible to us.
Shri Rao said that in the matter 'you have to trust me just
as I am trusting you', He then again added 'it is
no use
bringing such offer to me unless you trust me.' This say
was addressed by Rao to the say of the person who was sitting to his left. A few moments later the man on the left
side of Shri Rao got up from the chair and walked out of
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
·'
KISHAN NARAIN v. MAHARASHTRA (Alagiriswami, J.)
6 J 3
the enclosure of the verandah from the western side went
up to the foot-path and came back
within a couple of
minutes by the same way he had gone. He then stood by the
side of the person who was sitting on the right side of Shri
Rao and we saw him giving hurriedly a few big envelopes
to the person sitting on the right side of Shri Rao. He put
them in his pocket at the left hand side of his pant. A little
later he passed on the big envelopes after taking them out
from his pocket to Shri C. S. R. Rao. Shri Rao iook them
and put them in his right hand coat pocket outside."
We see that Rao had mentioned about Almeida and Vazirani and
the rumour about appellant having paid them certain amounts. These
two names find a mention in the panchnama statement which also
clearly says that then they talked something which was not audible to
PWs 4 and 5. Then in Rao's evidence he says that he told the appellant that it would mean lack of trust in him and the appellant told
him that he had full trust in him. In the panchnama it is said that
Rao said "you have to trust me as I am trusting you." The point
about trusting each other could be understood only if Rao's evidence
is correct. There is no other explanation. Th~n Rao says
that the
aacused asked Shahani to go out and to get the packets from Madanlal and Shahani went out from the side entry. In the panchnama it is
mentioned that a few moments later the man on the left side of Shri
Rao (Shahani) got up from the chair and walked out of the enclosure
of the verandah from the western side, went up to the foot path and.
came back. We are satisfied that on the substantial question as
to
what happened there is really no contradiction between the evidence
of Rao and the panchnama statement as well as the evidence of the
panch witnesses. We find it difficult to accept the case on behalf of
the appellant that all that he did say was to ask Shahani to get . the
papers and that he found that the envelopes he brought contained
currency notes when the police came in and took them from
Rao.
The reaction of the appellant when this happened was not that of an
innocent person in snch a situation. He would have burst out
and
abused Shahani. He would have come out with his
case then and
there. It is difficult to believe the appellant's statement that when he
asked Shahani to give Rao the papers in regard to the two consignments Shahani said he had got them outside and he would fetch them
and he went out and brought two envelopes which were later found
to contain currency notes. He does not explain how the papers
happened to be outside and how they could
not be either
with
Shahani or with himself when they were inside the restaurant. The
envelopes must have been with somebody outside. It must be
Madanlal. This is also oonsistent with Rao's evidence that shows that
the appe!lant was trying to see if he could postpone the payment till
the consignments were cleared. We agree with the conclusion of the
cou'"!s below that Madanlal was in Bombay on that day and not in
Amritsar as was sought to be made out on behalf of the appellnnt.
Though in the arguments on behalf of the
appellant complete
reliance is sought to be placed on the panchas and (he panchnama
statement, in liis statement under s. 342 Cr. P.C. he had said that
. 614
S:JPREME COURT REPORTS
[ 1974 .l 1 s.c.R.
both Mr. Rao and Mr. Shahani had cookejl the whole matter earlier
and made Mr. Jog (D.S.P. of the Special Police Establishment) and
the panchas to believe that some bribe wai being given to Rao and
that all these things have been crammed in the heads of the panchas
and, they were made 'to believe that the appellant was going to give
bribe to Rao. The whole statement reads as though the panchnama
contained something against him. A clever attempt has been made to
make it appear that Shahani went out and brought in two envelopes
containing currenc,y notes instead of the papers relating to two con·
signments that appeliant expected Shahani to bring .• Not being in a
position to question the integrity of PWs 4 and 5 or the truth of their
evidence an attempt has been made on behalf of the appellant to sail
as close as possible .to their evidence and to give just a simple twist
to make it appear that the appellant was innocent. In addition to the
fact that the appellant's reaction was not that of an innocent man
falsely accused of giving a bribe we do not believe, as we said earlier
that Rao had sufficient motive to trap the appellant by either himself
producing the money or to get it from any of the appellant's enemies.
We are not able to find any reason to believe that anybody
had
sufficient enmity with appellant to try to falsely foist a case against
him and risk Rs. 5000/· in the process. We are satisfied that the epnclusion arrived at by both the courts below about the appellant's
guilt is correct and it has been established beyond all
reasonable
doubt.
The only question that remains is the question of sentence.
The
learned Judge of the High Court has reduced the sentence of one
year's imprisonment awarded by the Special Judge to one of six
months on the ground that the appellant paid the bribe only in order
to avoid harassment. Even if we actept this conclusion we do not
consider that the imprisonment should be reduced below six months
to which he reduced it. But we are of opinion that there was
no
harassment as the facts set out earlier would amply bear out. Nor can
we agree with· the argument advanced on behalf of the appellant that
Rao's evidence to the effect that the appellant asked him whether he
"".ould be ready to aocept money after the consigrunent was· cleared
shows that he had rec'Onsidered his decision of bribing Rao and
wanted to turn over a new leaf. What appellant was trying to do was
really to try to have the cake and eat it too. We do not consider that
this is a case like the one in Ramjanam Singh v. Bihar State(') of a
pers•Jn who had decided finallv and firmly not to bribe and where it
could be said that he was deliberately tempted beyond the powers of
his frail endurance and provoked into breaking the law by those who
were the guardians and keepers of the law.
·
The appeal is dismissed.
P.B.R.
Appeal dismissed:
·~~~~~~~~
(I) A. I. R. 1956 S. C. 643.
A,
c
D
E
F
G