Wednesday, 22 May 2019

Whether Intention to aid commission of offence is essential for conviction of accused U/S.12 of Prevention of corruption Act?

Hon'ble Apex Court found that merely because he was entrusted with
some money to be passed on the accused No.1, it could not be held that
he was guilty of any one of the offences unless it was established that
he was party to the alleged understanding arrived at between
complainant and accused No.1. Hon'ble Apex Court also found that
arrangement if any was between accused No.1 and complainant and
accused No.2 was not party to it.
18. Facts of matter at hand are identical. Here complainant or
panch witness PW3
do not depose that they informed the appellant
that Rs.1500/was
being deposited with him for its transmission to
deceased accused No.1. In this respect, perusal of Section 12 of 1988

Act becomes essential. It contemplates abetment of any offence
punishable under 1988 Act. Hon'ble Apex Court has in the matter of
Central Bureau of Investigation .Vs..Shukla and Ors. reported in
(1998) 3 SCC 410 considered the provisions of section 12 of
Prevention of Corruption Act 1947. Relevant discussion is contained
in paragraph No.50 and 51. Hon'ble Larger Bench of Apex Court finds
that as ''abetment'' is not defined under Prevention of Corruption Act,
it has to refer to its exhaustive definition in Section 107 of Indian
Penal Code. Discussion by Hon'ble Court shows that for first two
clauses of Section 107 of Indian Penal Code, it it not necessary that
offence instigated should have been committed. While considering
clause (iii) of Section 107, Hon'ble Apex Court took aid of explanation
of (2) and arrived at findings that when a person abets by aiding, the
act so aided should have been committed in order to make such aiding
an offence. Said paragraph No.50 reads as under:''
Undoubtedly for a person to be guilty
thereunder it is not necessary that the offences
mentioned therein should have been committed
pursuant to the ''abetment''. Since ''abetment'' has
not been defined under the Prevention of
Corruption Act we may profitabley refer to its
exhaustive definition in Section 107 of the Indian
Penal Code. As per that Section a person abets
the doing of a thing when he does any of the acts
mentioned in the following three clauses;
(i) instigates any person to do that thing, or
(ii) engages with one or more other person or

persons in any conspiracy for the doing of that
thing ........, or
(iii) intentionally aids, by any act or illegal
omission, the doing of that thing.
So far as the first two clauses are concerned it is
not necessary that the offence instigated should
have been committed. For understanding the
scope of the word "aid" in the third clause it
would be advantageous to see Explanation 2 in
Section 107 I.P.C. which reads thus:
''Explanation 2.Whoever,
either prior to or at the
time of the commission of an act, does any thing
in order to facilitate the commission of that act,
and thereby facilitates the commission thereof, is
said to aid the doing of that act."
It is thus clear that under the third clause that
when a person abets by aiding, the act so aided
should have been committed in order to make
such aiding an offence. In other words, unlike the
first two clauses the third clause applies to a case
where the offence is committed''.
19. These observations of Hon'ble Apex Court also apply in
present facts. It was never the case of prosecution that the appellant
instigated complainant to pay bribe or then engaged himself and
conspired to facilitate receipt of bribe. In fact there is no charge of
conspiracy at all. The only remaining part therefore, is of aiding and,
the provisions of Clause III
of section107 show that aiding has to be
with intention. Facts necessary to demonstrate that the appellant was
dwelling under such intention are not brought on record. Prosecution

has only established the payment of Rs.1500/by
complainant to
appellant. However, its nature as bribe could not be established.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 408 OF 2005

Abdul  Mannan Mohd.Yusuf  Vs  The  State of Maharashtra,

CORAM
: B.P. DHARMADHIKARI , J.
DATED : 16.05.2019

The
appellant original accused No.2 has challenged his
conviction under Section 12 of the Prevention of Corruption Act 1988
by Special Court designated under said Act in Special Case No.14 of
1999 on 11th July 2005. Judge of Special Court has sentenced him to
suffer simple imprisonment for six months and to pay a fine of
Rs.1,000/or
in default to suffer simple imprisonment for two months.
This Court has admitted the matter on 9.8.2005 and then suspended the
substantive sentence.

2. The charge against appellant/accused No.2 was of aiding
Accused No.1 ASI Pawar in accepting bribe amount from complainant
and thereby committing offence under Section 12 of the Prevention of
Corruption Act 1988. Accused No.1 ASI Pawar expired during the
pendency of trial and hence special case against him was declared as
abated. The trial therefore, proceeded only against accused No.2 i.e.
present appellant.
3. From case of prosecution it appears that the complainant
and his sons were involved in a property dispute which arose out of a
loan transaction. The borrower and other persons connected with
property had filed cases against complainant and his sons. We need not
go into niceties of said aspect as trial Court itself has not examined
those fassets because of death of accused No.1. Complainant claimed
that accused No.1 had demanded amount of Rs. 5000/from
him for
removing the police complaint filed by other side against him and his
sons. After negotiations, the amount was reduced to Rs.2000/and
complainant paid Rs. 500/immediately.
Balance amount of Rs. 1500/was
to be paid on 26.5.1997 in Jagat Restaurant.
4. On said date the complainant and his son went to Jagat
Restaurant and there the accused No.l had a talk with accused No.2,

who was running a pan shop. Then accused No.1 came to complainant
and inquired whether amount was brought. Complainant declared
that he had amount and hence accused No.1 told him to give that
amount to Pan shop owner. Son of complainant then told accused No.l
that pan shop wala was a notorious person but accused No.1 told them
that he had close acquaintance with accused No.2 since last 30 years.
On direction of accused No.1, complainant then gave amount to
accused No.2. Thereafter, the raid was conducted and amount was
recovered from accused No.2. Not only this, accused No.l was also
apprehended on spot and then he carried raiding party and ACB
Officials to Police Station, where he handed over the documents of
subject complaint.
5. Mr.A.H. Jamal, learned counsel appearing for the
appellant submitted that offence under Section 7 or Section 13 itself has
not been established and hence there is no question of offence under
Section 12 being committed by appellant. He contends that there has to
be first an independent finding that offence under Section 7 or other
offences under Prevention of Corruption Act, 1988 has been committed
and as trial court has not recorded such findings, the judgment is
unsustainable.

6. Inviting attention to Section 313 Statement of accused, he
states that the appellant has taken plea of denial and material on record
does not show that he was party to any criminal design. Without
prejudice, he submits that even if amount of Rs.1500/is
presumed to
be received by appellant, there is nothing to demonstrate that he
received that amount on behalf of accused No.1 or then he was aware
of any mal intention on accused No.1 in the matter and ingredients of
Section 12 are therefore, not satisfied.
7. He has placed reliance upon judgment of Hon'ble Apex
Court in the matter of Sadashiv Mahadeo Yavaluje and anr..Vs..The
State of Maharashtr a reported at AIR 1990 SC 287 to urge that as
ingredients of offence itself are not established judgment of conviction
is unsustainable.
8. Learned A.P.P on the other hand, has relied upon evidence
of complainant to urge that he has specifically pointed out that amount
was received by appellant only after instructions and clearance given by
accused No.1. He counted the notes and then kept it in his pocket. It is
argued that when accused No.1 was standing at a short distance from
Panthela, appellant could have instructed complainant to pay the
money directly to accused No.1 and there was no need for him to accept

that money. Support is also taken from panch witness PW3
Ashok
Dhote to advance these arguments.
9. Learned APP adds that presence of accused No.1 on spot,
his handing over document of complaint and other documents to ACB
Officials, all show that amount was paid by complainant to appellant
for getting rid of criminal complaint filed against him, his sons and his
soninlaw.
10. Learned APP submits that in this situation the
consideration by trial Court is neither erroneous nor perverse and
hence this Court should not intervene in the present matter.
11. In brief reply, learned advocate Mr. Jamal submitted that
appellant now is about 80 years old. Learned APP pointed out that at
the time of raid, appellant disclosed his age to be 45 years only.
12. With the assistance of respective counsel, I have perused
records. The judgment of trial court shows that the trial court has
accepted the fact that after accused No.1 arrived, he had talk with the
present appellant for two to three minutes and thereafter, the amount
was given by the complainant to the appellant. Therefore, trial court has

concluded that accused No.1(present appellant) had knowledge about
the amount received by him and its nature. This findings is reached in
paragraph No.22 of the judgment.
13. In paragraph No.18 the trial court has taken a note of
improvement made by PW2
complainant and PW3
Panch. Both of
them deposed that when amount was offered by complainant to
appellant, the appellant had looked at accused No.1 and thereafter
accepted that amount. This fact of accused No.2 getting a confirmation
before accepting the amount from accused No.1 does not figure in their
statements recorded by ACB Officials. The trial court however has
found this omission while recording the statement was not put to PW5
Investigating Officer and therefore has not been established as per law.
Thereafter, it has proceeded to conclude that in any case, it is not fatal
since the complainant had under crossexamination
stated that accused
No.l ASI had a talk with appellant earlier and thereafter money was
accepted by appellant.
14. The evidence of PW2
complainant Sudhakar shows that
after he was told by accused No.1 to hand over the money to pan shop
owner, he went to appellant and told him that accused No.1 had
directed him to give that amount to appellant. The appellant received

the amount, counted it and kept it in pant pocket. Thereafter, accused
No.l told him to go.
15. Evidence of PW3
Panch Ashok is on the same lines.
16. Thus, both these witnesses do not state that they told the
appellant that amount was being payed to him for making it over to
accused No.l. Material on record does not show that appellant was
aware of any criminal complaint filed against the complainant which
was being investigated into by accused No.1. It does not show that
present appellant was aware of relationship or understanding between
the complainant and accused No.1. The demand made by accused No.l
and payment of Rs.1500/towards
its fulfillment are therefore not
proved to be the facts within knowledge of present appellant. The
material only demonstrates that the appellant received amount from
complainant. Nature of that payment was not disclosed to appellant
and knowledge of appellant about it is not brought on record.
17. Judgment of Hon'ble Apex Court reported in Sadashiv
Mahadeo Yavaluje and anr..Vs..The State of Maharashtr a (supra) is
on Section (5)(1)(d) and (2) of Prevention of Corruption Act 1947. The
Hon'ble Apex Court there has found that evidence of complainant and

trap witness did not establish that ingredients were satisfied. Facts there
show that accused No.1 in the said matter had instructed complainant
to pay Rs.100/to
accused No.2. On two occasions it was not paid to
accused No.2. However, after some time amount was paid to accused
No.2 and complainant alleged that it was to be paid to accused No.1.
Accused persons were convicted and their conviction was maintained
by High Court. Hon'ble Apex Court found that apprehending accused
No.2 in a trap revealed failure of trap against accused No.1. It is
further observed that there was no evidence against accused No.1
except the story given out by complainant. As regards accused No.2,
Hon'ble Apex Court found that merely because he was entrusted with
some money to be passed on the accused No.1, it could not be held that
he was guilty of any one of the offences unless it was established that
he was party to the alleged understanding arrived at between
complainant and accused No.1. Hon'ble Apex Court also found that
arrangement if any was between accused No.1 and complainant and
accused No.2 was not party to it.
18. Facts of matter at hand are identical. Here complainant or
panch witness PW3
do not depose that they informed the appellant
that Rs.1500/was
being deposited with him for its transmission to
deceased accused No.1. In this respect, perusal of Section 12 of 1988

Act becomes essential. It contemplates abetment of any offence
punishable under 1988 Act. Hon'ble Apex Court has in the matter of
Central Bureau of Investigation .Vs..Shukla and Ors. reported in
(1998) 3 SCC 410 considered the provisions of section 12 of
Prevention of Corruption Act 1947. Relevant discussion is contained
in paragraph No.50 and 51. Hon'ble Larger Bench of Apex Court finds
that as ''abetment'' is not defined under Prevention of Corruption Act,
it has to refer to its exhaustive definition in Section 107 of Indian
Penal Code. Discussion by Hon'ble Court shows that for first two
clauses of Section 107 of Indian Penal Code, it it not necessary that
offence instigated should have been committed. While considering
clause (iii) of Section 107, Hon'ble Apex Court took aid of explanation
of (2) and arrived at findings that when a person abets by aiding, the
act so aided should have been committed in order to make such aiding
an offence. Said paragraph No.50 reads as under:''
Undoubtedly for a person to be guilty
thereunder it is not necessary that the offences
mentioned therein should have been committed
pursuant to the ''abetment''. Since ''abetment'' has
not been defined under the Prevention of
Corruption Act we may profitabley refer to its
exhaustive definition in Section 107 of the Indian
Penal Code. As per that Section a person abets
the doing of a thing when he does any of the acts
mentioned in the following three clauses;
(i) instigates any person to do that thing, or
(ii) engages with one or more other person or

persons in any conspiracy for the doing of that
thing ........, or
(iii) intentionally aids, by any act or illegal
omission, the doing of that thing.
So far as the first two clauses are concerned it is
not necessary that the offence instigated should
have been committed. For understanding the
scope of the word "aid" in the third clause it
would be advantageous to see Explanation 2 in
Section 107 I.P.C. which reads thus:
''Explanation 2.Whoever,
either prior to or at the
time of the commission of an act, does any thing
in order to facilitate the commission of that act,
and thereby facilitates the commission thereof, is
said to aid the doing of that act."
It is thus clear that under the third clause that
when a person abets by aiding, the act so aided
should have been committed in order to make
such aiding an offence. In other words, unlike the
first two clauses the third clause applies to a case
where the offence is committed''.
19. These observations of Hon'ble Apex Court also apply in
present facts. It was never the case of prosecution that the appellant
instigated complainant to pay bribe or then engaged himself and
conspired to facilitate receipt of bribe. In fact there is no charge of
conspiracy at all. The only remaining part therefore, is of aiding and,
the provisions of Clause III
of section107 show that aiding has to be
with intention. Facts necessary to demonstrate that the appellant was
dwelling under such intention are not brought on record. Prosecution

has only established the payment of Rs.1500/by
complainant to
appellant. However, its nature as bribe could not be established.
20. I therefore find conviction of appellant under Section 12
of Prevention of Corruption Act, 1988 unsustainable.
21. I, therefore proceed to pass the following order:(
i) The judgment and order of conviction dated 11th July 2005
delivered by Special Court Nagur in Special Criminal Case No.14 of
1999 is quashed and set aside.
(ii) The appellant is acquitted of the said offences.
(iii) Bail bond furnished by him stands cancelled.
(iv) Muddemal property be dealt with as directed by trial court after
appeal period is over.
JUDGE

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