Judgment : The appellant in this case has been convicted of an offence punishable under section 5 (2) of the Prevention of Corruption Act and has been sentenced to rigorous imprisonment for three months and to a fine of Rs. 100 by the learned Special Judge and Chief Judicial Magistrate, Tirunelveli. (Though a charge under section 161, Indian Penal Code is framed, the Special Judge has not discussed anything about it and has not given any finding in respect of that charge. It is a matter of regret that he has not given a finding as to whether the appellant is guilty of the offence under section 5 (1) (d) of the Prevention of Corruption Act also.) 2. The facts leading to the conviction of the appellant are few and may be stated. The appellant was an Assistant in the District Registrar’s Office at Tenkasi. P. W. 1 Rajalingam, is the President of a society called “Soul International Society” P. W. 2 is the Vice president. P. Ws. 1 and 2 went on 26th December, 1977, to the office of the District Registrar at Tenkasi for registering the society. The appellant was an Assistant in B-l section and P. W. 1 gave Exhibit P-2, the memorandum and Exhibit P-3 the Rules of the Society and an application Exhibit P-1, to register the society under Act XXI of 1860. The application bears an endorsement of P. W. 4, the District Registrar, directing the Joint Sub-Registrar to receive a sum Rs. 50 towards registration charges. P. Ws. 1 and 2 paid the amount and at about 12-00 noon P. W. 1 asked the appellant to hand over the receipt, whereupon the appellant told P. W. 1 that he had sent the receipt for the signature of the District Registrar and that it would take some time. But, P. W. 1 told the appellant that he has complied with all the rules and had also paid the registration charges and there was no impediment for him to give the receipt, whereupon the appellant told P. W. 1 that if he wants the receipt and the certificate of registration, he has to pay him a bribe of Rs. 50. P. W. 1 again told the appellant that as it is a society, it would not be proper to pay a sum of Rs. 50 as bribe as one cannot account for such expenditure. 50. P. W. 1 again told the appellant that as it is a society, it would not be proper to pay a sum of Rs. 50 as bribe as one cannot account for such expenditure. But, however, P. Ws. 1 and 2 were made to wait till 5-00 p. m. and then the appellant told them that the District Registrar had gone out. P.W.1 wanted to know when he will get the receipt and the document, and certificate of registration, and he was told that he should get it when pays Rs. 50 after two days But, P.W.1 and 2 decided to see the Vigilance Officer. 3. On 30th December, 1977, P.W.1 gave Exhibit P-4, a complaint mentioning about the demand made by the appellant. P.W.5, the Vigilance Inspector, asked him to go over to his office at about 1-30 p. m. and accordingly P.W.1 went to the Vigilance Inspector and he found P.W.3, Deputy Agricultural Officer, and another person, an assistant from the Collectorate. P.W.1 was introduced to them. Exhibit P-4 was read over to those present there and P.W.1 produced two currency notes of twenty-rupee denomination and one currency note of ten rupee denomination. P.W.5 wanted to demonstrate the phenolpthalein test and for that purpose smeared phenolphthalein powder and then prepared a solution of sodium carbonate and dipped his fingers and the solution turned pink. He gave the currency notes to P.W.1 after noting the numbers of the currency notes in Exhibit P-5, an athakshi. Later on at about 2-45 p. m., P.Ws.5, and 1 and others went to Tenkasi. P.W.1 was dropped near the Government Hospital. He was instructed to give a pre-concerted signal of scratching his head if the appellant receives the amount. Accordingly, P.W.1 went to the office of the appellant and asked him whether the certificate of registration is ready. Thereupon, the appellant told him that the signature of the District Registrar has not yet been obtained and he asked P. W. 1 whether he has brought the money. Thereupon, P.W.1 gave the money and the appellant received it and kept it in the drawer of the table. P.W.1 came out and gave the agreed signal and P.Ws.5 and 3 others entered the room. P.W.1 was also in the room of the appellant. P.W.5 introduced himself to the appellant and the appellant was visibly perturbed. Thereupon, P.W.1 gave the money and the appellant received it and kept it in the drawer of the table. P.W.1 came out and gave the agreed signal and P.Ws.5 and 3 others entered the room. P.W.1 was also in the room of the appellant. P.W.5 introduced himself to the appellant and the appellant was visibly perturbed. P.W.5 prepared a solution of sodium corbonate and dipped the fingers of the right hand of the appellant and there was no change in the solution. Later, he dipped the fingers of the left hand of the appellant and the solution turned pink. P.W.5 asked the appellant as to whether he has received the bribe amounts. The appellant first hesitated, but then took out from the drawer of the table the amount, M. Os. 1 to 3. P.W.5 verified the numbers of the currency notes with the numbers noted in the athakshi, Exhibit P-5, and he seized those currency notes, M. Os. 1 to 3, under an athakshi, Exhibit P-6. After obtaining sanction from P.W.4, P.W.5 laid the charge sheet. 4. The defence was one of denial. According to the appellant, P. W. 1 had visited him twice or thrice in connection with the registration of the society, that on the date in question he came with the memorandum of the Society, but without an application that he asked him to have attestation of two personed on the memorandum that P W I got the signature of a person who happened to be there, but then he asked P. W 1 to pay the registration fee, that again when he came at 3-30 P.M he told P W 1 that he his sent all the papers to the District Registrar for being signed by him and asked him to wait and take the papers, but P W 1 stated that he was being sent from pillar to post and vowed to take vengeance. He would also say that a false case has been foisted on him. 5. The Special Judge and Chief Judicial Magistrate, Tirunelveli, on the evidence adduced before him, came to the conclusion that the accused is guilty of the offence punishable under section 5 (2) of the Prevention of Corruption Act and convicted and sentenced him as stated above. The appellant challenges that judgment in this appeal. 6. 5. The Special Judge and Chief Judicial Magistrate, Tirunelveli, on the evidence adduced before him, came to the conclusion that the accused is guilty of the offence punishable under section 5 (2) of the Prevention of Corruption Act and convicted and sentenced him as stated above. The appellant challenges that judgment in this appeal. 6. P.W.1 the President of “Soul International Society” wanted to have his society registered and for that purpose went to the District Registrar’s Office at Tenkasi. The appellant, who was an Assistant in B-1 section, attended to this work and the appellant handed over Exhibit P-1, the application, P-2, the memorandum, and Exhibit P-3, the Rules and Regulations of the Society. P.W.1 was directed to pay Rs. SO towards registration charges which he paid. He waited for some time and then when he asked the appellant for the registration certificate and the receipt for payment of Rs. 50 was told by the appellant that if he wants them quickly, he has to pay him a sum of Rs. 50 as bribe. P.W.1 told him that he could not pay this amount as the payment cannot be shown in the accounts of the society. P.W.2, the Vice-President of the society, who accompanied P.W.1 also heard about the demand made on P.W.1 by the appellant. The evidence of P W.1 about the demand is very clearly corroborated by the evidence of P.W.2. There is nothing in their evidence to show that they had any animus against him. A suggestion was thrown to P.W.1 that the appellant asked P.W.1 as to whether they are starting the society in order to get aid ‘from foreign societies and to commit fraud and that on that account there was a heated discussion. But this suggestion was repelled by both P.Ws 1 and 2. The appellant has examined D.W.1 a witness to show that there was heated discussion between P.W.1 and the appellant. According to him, the appellant is said to have asked P. W. 1 whether they are starting the society to get money from foreigners and P.W.1 vowed that he will see that the appellant loses’ his job. One cannot persuade oneself to believe that by merely asking whether they are trying to get foreign aid by starting the society, P. W . 1 the President of the Society, would say that he will see that the appellant loses his job. One cannot persuade oneself to believe that by merely asking whether they are trying to get foreign aid by starting the society, P. W . 1 the President of the Society, would say that he will see that the appellant loses his job. Further, D.W.1 has stated in cross-examination that he does not know as to what transpired between the appellant and P.W.1 The demand was on 26tb. December, 1977. It is also evident that P.W.1 has cot received either the certificate of registration or the receipt for payment of Rs. 50 as they are available on record. 7. According to the prosecution, the appellant seems to have told P. W. 1 and 2 that the officer has gone out and that he has not signed the papers. But P. W. 4 the District Registrar, has stated that he left the office only at about 6-30 p. M. In Exhibit P-4 the complaint preferred by P.W.1 to P.W.5 the Vigilance Officer, there is clear reference to the demand made on him by the appellant for the bribe amount of Rs, 50. In Prakash Chand v. State (Delhi Administration)1, the Supreme Court took the view that one of the circumstances to corroborate the evidence of the complainant is giving of the report by the complainant to the anti-corruption police. The following observations of the Supreme Court make it clear: "Corroboration to the evidence of P.W.6 if considered necessary, may be found in the following circumstances: First his evidence is corroborated by the report Exhibit P.W.1/A which he gave to P.W.9 that day”. 8. The complaint was given on 30th December, 1977, perhaps after some deliberation. There is evidence that P.Ws.No.1 and 2 consulted the members of the society whether to pay the amount or to approach the vigilance department. Therefore the evidence P.W.1 as regards the demand is amply corroborated by both evidence of P.W.2 and by the complaint, Exhibit P-4, preferred by P.W.1 on 30th December, 1977. 9. The next important event is passing of the sum of Rs. 50 by way of bribe or illegal gratification by P.W.1 and the receipt of the same by the appellant. On this aspect there is the clear testimony of P.W.1 which is corroborated by the result of phenolphthalein test conducted on the appellant and the evidence of P.Ws.3, 4 and 5. 50 by way of bribe or illegal gratification by P.W.1 and the receipt of the same by the appellant. On this aspect there is the clear testimony of P.W.1 which is corroborated by the result of phenolphthalein test conducted on the appellant and the evidence of P.Ws.3, 4 and 5. P.W.1 gave the complaint, Exhibit P-4, to to P.W.5 at about 12-00 noon in his office at Palayamcottai. He was asked to come back at about 1-30 p. m. by P.W.5. At 1-30 p. m. P.W.5 introduced P.W.1 to P.W.3 and another and also read over the complaint. One Arumugam. P.W.1 then produced a sum of Rs. 50 two currency notes of twenty rupee denomination and one ten rupee currency note. P.W.5 then demonstrated to them the phenolphthalein test and after that smeared the phenolphthalein powder on the notes and gave them to P.W.1. the pre-concerted signal was to scratch his head if the appellant receive the amount, while the case of P.W.5 is that P.W.1 should raise his hand above the head. Nothing much turns on this discrepancy in the evidence as the raiding officers have clearly acted upon the signal given by P.W.1 when the appellant received the amount. P.W.5 has noted the numbers of the currency notes given by P.W.1 in Exhibit P-5 the athakshi The evidence of P.W.1 shows that P.W.5 and 3 and others accompanied by P.Ws.1 went in a jeep, that the jeep was stopped at a place near the Government Hospital and P.W.1 was asked to proceed. Later, P.W.1 was followed by P.Ws.3 and 5 and the police party. P.W.1 saw the appellant and asked him for the receipt and the certificate of registration but the appellant asked P.W.1 whether he has brought the amount and on being told that he had brought the amount, the appellant took the amount which P.W.1 tendered and placed it inside the drawer of his table and then P.W.1 came out and gave the signal and the raiding party entered the room of the appellant and P.W.5 conducted the phenolphthalein test. He immersed the fingers of the right hand of the appellant inside the solution of sodium corbonate. As nothing happened to the solution, the fingers of the left hand of the appellant, were immersed in the solution of sodium corbonate, prepared separately and the solution turned pink. He immersed the fingers of the right hand of the appellant inside the solution of sodium corbonate. As nothing happened to the solution, the fingers of the left hand of the appellant, were immersed in the solution of sodium corbonate, prepared separately and the solution turned pink. P.W.1 further says that when P.W.5 revealed his identity the appellant got perturbed and when questioned whether he received the bribe amount, he did not answer first and then took out the amount from the drawer of the table and gave it to P.W.5 who compared the numbers of the currency notes noted in Exhibit P-5, the athkashi earlier prepared and P.W.5 found them to accord with those numbers. P.W.5 then prepared Exhibit P-6, an athkashi incorporating in it, all that had happened in the office of the appellant. The evidence of P.W.1 about the raid by the police party of the office of the appellant with P.W.3 and others, is corroborated, by the evidence of P.W.3 himself and the evidence of P.W.4., the District Registrar, who was in that office at that time and by P.W.5 the investigating officer. P.W.3 Deputy Agricultural Officer, speaks about the signal given by P.W.1 after the receipt of the money by the appellant and their entering the room of the appellant and P.W.5 conducting the phenolphthalein test and then questioning the appellant about the receipt of the money and the appellant producing the money from out of the drawer of, the table and P.W.5 comparing the notes with the numbers of the currency notes noted in Exhibit P-5 and then preparing Exhibit P-6, the athakshi and his attesting Exhibit P-6. P.W.4 was informed about the raid by the peon of his office and he went to the place where the appellant was and he also witnessed the phenolphthalein test conducted by P.W.5. He corroborated the evidence P.W.3. He also speaks about the appellant producing the money from the drawer of his table. He has also attested Exhibit P-6, the athakshi. P.W.5, investigating officer, has also spoken about the raid. His evidence is corroborated in all material particulars by the evidence of of P.Ws.1, 3 and 4. The numbers of the currency notes produced by the appellant accorded with the numbers noted in Exhibit P-5, the athakshi. The evidence adduced by the prosecution therefore clearly establishes that P.W.1 has paid Rs. P.W.5, investigating officer, has also spoken about the raid. His evidence is corroborated in all material particulars by the evidence of of P.Ws.1, 3 and 4. The numbers of the currency notes produced by the appellant accorded with the numbers noted in Exhibit P-5, the athakshi. The evidence adduced by the prosecution therefore clearly establishes that P.W.1 has paid Rs. 50 the bribe amount, and it was received by the appellant and kept in the drawers of his table and that the phenolphthalein test proved positive when the fingers of the left hand of the appellant were dipped in the solution of sodium corbonate prepared by P.W.5 and that the appellant produced the money from the drawer of the table. 10. It is now contended for the appellant by the learned counsel that the evidence of the prosecution witnesses is interested and discrepant in material particulars, that the trial Court failed to note that the evidence relating to the trap is highly artificial and the seizure of notes cannot be believed and that the story of the prosecution that the accused took the money by the left hand and put it in the right side drawer is highly artificial (See grounds Nos. 3, 4 and 5 in the memorandum of grounds of appeal). 11. As regards the first ground, the defence has not shown as to what those discrepancies which have materially affected the evidence of the prosecution witnesses are. On the second ground, it must be pointed out that there is also no reason why the seizure of currency notes should not be believed. P.W.3 and P.W.4, the District Registrar in whose office the appellant works, have clearly spoken to the fact of the appellant producing the currency notes from the drawer of the table. The evidence of P.W.5 also lends assurance to that fact. There is no reason why these witnesses should be disbelieved A faint attempt was made by the defence to show that the amount was planted without the knowledge of the appellant The Special Judge has clearly pointed out that it is highly improbable that a stranger would enter the office of the appellant and in his absence plant the currency notes inside the drawer of the table. The defence story therefore is highly unbelievable in the appellant receiving the amount with the left hand and placing it inside the right side drawer of the table. It is not improbable that the appellant would have received the amount with his left hand and as he was holding the amount in his left hand, would have opened the drawer with his right hand and placed the currency notes inside the right side drawer. It is only a matter of convenience. It is not necessary that if the appellant receives the amount with the left hand, he should place it only in the left side drawer There was clinching proof that the currency notes, the numbers of which have already been noted in Exhibit P-5, have been recovered from the right side drawer of his table immediately after its receipt from P.W.1, the complainant. The evidence is that the appellant himself produced these currency notes the numbers of which accorded with the numbers noted in Exhibit P-5. This is clearly spoken to by P.W.3 and is corroborated by P.W.4 and 5. The phenolphthalein test conducted on the appellant proved positive when the fingers of the left hand of the appellant were immersed in the solution of sodium corbonate and this lends assurance to the evidence that the appellant received the amount which he gave. The counsel for the appellant sought to rely on the evidence of P.W.4 to explain the reason for the solution turning pink. P.W.4 has admitted in cross-examination that one of the Inspectors was catching hold of the hand of the appellant. But P.W.5 has emphatically denied this. He has also stated that no Police Officer held the land of the appellant. It may not be fair to suggest that the police officer would have deliberately smeared the hand of the appellant with phenolphthalein powder though he may be interested in the success of the trap. The recovery was witnessed by P.W.3, an independent witness, and also by P.W.4, the District Registrar himself A random suggestion was thrown to P.Ws.3 and 4 that there are lots of complaints about them to the vigilance officers. But that suggestion was repelled by both the witnesses. The recovery was witnessed by P.W.3, an independent witness, and also by P.W.4, the District Registrar himself A random suggestion was thrown to P.Ws.3 and 4 that there are lots of complaints about them to the vigilance officers. But that suggestion was repelled by both the witnesses. The evidence of P.Ws.3 and 4 is creditworthy and reliable If the appellant had not received the amount and if it had been planted without his acquiescence or knowledge, he would not have been in a position to produce it from the drawer of his table, for he would not know where those incriminating currency notes whose numbers have been noted already in Exhibit P-5. The story of the defence that the notes were planted without the knowledge of the appellant has to be disbelieved. The details about the phenolphthalein test by P.W.5 and about the recovery of the incriminating currency notes and about the conduct of the appellant who got perturbed when P.W.5 challenged him, are clearly noted in Exhibit P-6, the athakshi. P.W.5 though a police officer, is not a partisan witness. There is nothing in the cross-examination of the police officer to discard his testimony. In Maha Singh v. State (Delhi Administration)1, the Supreme Court observed: "P.W.7, the Inspector, cannot be considered as an absolutely partisan witness because he is a police officer who took immediate action on the complaint. Nothing unusual is suggested against him." Apart from the evidence of P.Ws.No.3, 4 and 5 which proves the recovery of incriminating currency notes from the appellant, there is the conduct of the appellant which is relevant under section 8 of the Evidence Act. When the raiding party entered the office of the appellant and revealed their identity, the appellant was very much perturbed and was disturbed mentally. That fact is spoken to by P.Ws. 1, 3 and 4 and also by P.W.5. This conduct of the appellant finds reference in Exhibit P-6, the athakshi prepared by P.W.5 and attested by P.Ws.3 and 4. In Zwinglee Ariel v. State of Madhya Pradesh2, the Supreme Court held that the evidence to the effect that the accused started trembling and showed signs of being frightened on being questioned by the police officer, if proved, was admissible. In Zwinglee Ariel v. State of Madhya Pradesh2, the Supreme Court held that the evidence to the effect that the accused started trembling and showed signs of being frightened on being questioned by the police officer, if proved, was admissible. In Rao Shiv Bahadur Singh & another v. The State of Vindhya Pradesh3, the Supreme Court relied upon the evidence relating to the conduct, namely that the accused was confused and could furnish no explanation when questioned by the police officer. In State of Madras v. Vaidyanatha Iyer4, the evidence which is to the effect that the accused was seen trembling and he silently produced the currency notes from the folds of his dhoti, was relied on and acted upon. In this case, the evidence as regards the conduct of the appellant that he was perturbed and was mentally disturbed when the identity of the police officer was revealed to him lends assurance to the evidence of P.W.1 that the appellant has received the tainted money from P.W.1. On a consideration of the entire evidence, I am satisfied that the appellant was rightly convicted. 12. It is then pointed out that the special Judge has not convicted the appellant under section 161, Indian Penal Code. It is rather unfortunate that though a charge has been framed under section 161, Indian Penal Code, the Special Judge has not discussed nor has given any finding in regard to the offence under section 161, Indian Penal Code. It must therefore be deemed that he has not convicted the appellant of that offence. Even if there is no conviction under section 161, Indian Penal Code, there is no impediment to convict the appellant under section 5 (1) (d) of the Prevention of Corruption Act, if the ingredients of that offence are brought home. It must therefore be deemed that he has not convicted the appellant of that offence. Even if there is no conviction under section 161, Indian Penal Code, there is no impediment to convict the appellant under section 5 (1) (d) of the Prevention of Corruption Act, if the ingredients of that offence are brought home. In Dhaneshwar Narain Saxena v. Delhi Administration1, the Supreme Court took the view that the neceseary ingredient of an offence under section 161, Indian Penal Code, is the clause “as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person, with the Central or any State Government or Parliament or the Legislature of any State, or with any public servant” but it need not be there in order to bring an offence under section 5 of the Act home to the accused and that the words “in the discharge of the duty” occurring in section 5 do not constitute an essential ingredient of the offence and that the ingredients of the offence under clause (d) of sub-section (1) of section 5 are: (1) that the accused should be a public servant; (2) that he should use some corrupt or illegal means or otherwise abuse his position as a public servant; and (3) that he should have thereby obtained a valuable thing or pecuniary advantage for himself or for any other person, and in order to bring the charge home to the accused person under clause (d) of subsection (1) of section 5, it is not necessary that the public servant in question while mis-conducting himself should have done so in the discharge of his duty. It is therefore clear that clause (d) of sub-section (1) of section 5 of the Prevention of Corruption Act is wider in scope than section 161, Indian Penal Code. 13. The conviction and sentence are confirmed and the appeal is dismissed.