(1.) ACCUSED-APPELLANT has directed this appeal against the judgment dated 25th January, 1996 rendered by Special Judge and 1st Addl. Sessions Judge Ujjain in Special Case No. 11/93, thereby convicted the appellant for the offence punishable under Sections 5 (1) (d) read with Section 5 (2) of the Prevention of Corruptions Act, 1947 and also under Section 161, IPC and he was sentenced to undergo two years RI, Rs. 2,000/- fine and one year RI, Rs. 1,000/- fine under each count. In default of payment of fine he is further directed to undergo one year simple imprisonment and six months simple imprisonment respectively. All the sentences passed against the appellant are directed to run concurrently.

(2.) AS per case of the prosecution, the appellant between 5-9-86 to 10-9-1986 working as Assistant Engineer in the Office of the M. P. Electricity Board at Tarana as Public Servant, demanded Rs. 1,500/- as bribe for installation of Electricity connection on the well situated in the agricultural field and also obtained Rs. 800/- from the complainant Chandersingh, thereby committed an offence punishable under Section 161, IPC and Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruptions Act, 1947 (for short the Act).

(3.) IT is alleged that the complainant did not want to pay any amount to the appellant as illegal gratification other than the legal remuneration for installation of the alleged electricity connection. As such, he went to the office of the DSP Lokayukta Organization, Ujjain and submitted a written report Ex. P-1 for taking action against the appellant. On the report of the complainant, a trap was arranged to caught the appellant red-handed while accepting the alleged bribe from the complainant. On the date of the incident, at about 9. 30 or 10 p. m. when the appellant returned from Ujjain and went inside his bungalow at Tarana; at the same time complainant Chandersingh P. W. 6 entered the house of the appellant and paid the marked and powder treated currency notes of Rs. 800/- to the appellant. On accepting the said currency notes, the complainant came out of the house of the appellant and as per plan, gave signal to the members of the trap party. The members of the trap parly immediately entered the house of the appellant and caught hold the hands of the appellant. The officers of the trap party gave their identity and thereafter took search of the appellant for the alleged currency notes. No currency notes were recovered from the person of the appellant in his search. On taking the search of the room, it is said that the alleged currency notes of Rs. 800/- were found in one Almirah and were seized. The hands of the accused were washed in the solution of the Sodium Carbonate which turned pink. A portion of the said solution was preserved in a bottle and it was duly sealed. The appellant was arrested and on performing the other formalities as also the usual investigation, a challan was filed against the appellant before the Trial Court.

(4.) THE accused appellant was charged and tried for the alleged offences punishable under Section 5 (1) (d) read with Sections (2) of the Act and Section 161 of the IPC and on completion of the trial he was convicted and sentenced for the alleged offences as indicated above. Aggrieved the appellant has filed this appeal.

(5.) DURING the pendency of this appeal, on behalf of the appellant I. A. No. 2332/2000 was filed on the averments that at the relevant time, appellant was in the employment of the M. P. E. B. on the post of Assistant Engineer and not covered under the definition of the public servant as given under Section 21 of the IPC. As such, the appellant cannot be prosecuted or tried for the alleged offences under the Prevention of Corruptions Act, 1947 as also under Section 161, IPC and on this count he deserves acquittal. This application was directed to be heard alongwith the final hearing of the appeal.

(6.) THE counsel for the appellant contended that Section 2 of the Act of 1947 provides that for the purpose of this Act public servant means a public servant as defined in Section 21 of the IPC. On perusal of the definition of publicservanl given in Section 21 of the IPC, the appellant being an employee of the Electricity Board is not covered under the definition. As such, he cannot be prosecuted and convicted for the alleged offence under Section 161, IPC and the alleged offences under the Act. The accused appellant deserves acquittal on this very ground.

(7.) THE counsel also submitted that in view of the evidence adduced on behalf of the prosecution in this case, the demand of Rs. 1,500/- as bribe and acceptance of Rs. 800/- from the complainant as illegal gratification for installation of the electricity connection on his well is not established. As such, the appellant also deserves acquittal on considering the case on merits. The learned counsel relied on the decision of the Apex Court in case of State of Maharashtra Vs. Laljit Rajashi Shah and others, reported in AIR 2000 SC 937 [LQ/SC/2000/420] .

(8.) AS against this, the learned D. A. G. appearing for the respondent supported the impugned judgment of the Trial Court and submitted that in view of the provisions of Section 81 of the Electricity (Supply) Act, 1948, the appellant is covered under the definition of the public servant under Section 21 of the IPC. The learned counsel submitted that from the evidence of the prosecution, the demand of the alleged bribe and acceptance of Rs. 800/- as illegal gratification for installation of the electric connection on the well of the complainant is duly established from the evidence of the prosecution and the appellant is rightly convicted and sentenced for the alleged offences punishable under the Act as also under Section 161 of the IPC. The impugned judgment of the Trial Court is well founded and requires no interference in this appeal.

(9.) I have considered the rival submissions of the learned counsel for parties and carefully perused the record as also the legal aspect of the case on hand.

(10.) ON considering the contention of the learned counsel for appellant that the appellant at the relevant time being an employee of the M. P. E. B. is not covered under the definition of the public servant, provisions of Section 2 of the Act of 1947, Section 21 (Twelfth) of the IPC and Section 81 of the Electricity (Supply) Act, 1948 are relevant and for convenience, the said provisions are reproduced as under :-

(11.) SECTION 2 of the Act of 1947 provides for the purpose of this Act public servant means a public servant as defined in Section 21 of the IPC.

(12.) SECTION 21 (Twelfth) of the IPC after the amendment in 1964 by Criminal Law Amending Act, 40 of 64 reads as under :-Section 21. Public Servant.--

"the words public servant denote a person falling under any of the descriptions hereinafter following, namely :-First. . . . . . . . . . . . . . . Twelfth :-- Every person (a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government; (b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government Company as defined in Section 617 of the Companies Act, 1956 (1 of 1956). Explanation 1 :-- Persons falling under any of the above descriptions are public servants, whether appointed by the Government or not. Explanation 2 :-- Wherever the words "public servant" occur they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation. Explanation 3 :-- The word "election" denotes an election for the purpose of selecting members of any legislative, municipal or other public authority, or whatever character, the method of selection to which is by, or under, any law prescribed as by election. "

(13.) SECTION 81 of the Electricity (Supply) Act, 1948 reads as under :--

"section 81. Members, officers and other employees of the Board to be public servant.-- All members and officers and other employees of the Board shall be deemed, when acting or purporting to act in pursuance of any of the provisions of this Act, to be public servants within the meaning of Section 21 of the Indian Penal Code. "

(14.) CONSIDERING the aforesaid provisions of law, it emerged that for the purpose of the Act of 1947, a "public servant" is a person who is covered under the definition of public servant as given under Section 21 of the IPC On careful perusal of the definition of public servant as given in Section 21 of the IPC, it is found that the employees of the Electricity Board are not covered under any of the clauses of the said Section. However, by virtue of Section 81 of the Electricity Supply Act, 1948, all the members, officers and employees of the Board when acting or purporting to act in pursuance of any of the provisions of the Act are deemed to be public servant under Section 21 of the IPC. As such, it can be inferred that by virtue of Section 81 of the Electricity Supply Act, the Board employees when acting in pursuance of the provisions of the Act are considered deemed public servants under Section 21 of the IPC. But as held by the Apex Court in case of Stale of Maharashtra Vs. Laljit Rajashi Shah (supra) on the ground of deemed provision a person covered under the definition of Section 21 of the IPC cannot be considered public servant for the purpose of prosecution under the provisions of the Prevention of Corruptions Act, 1947. In the aforesaid case, in view of the analogous provision of deemed to be public servant for certain employees of the Cooperative Societies under Maharashtra Cooperative Societies Act, were not considered as public servant for the purpose of the Act of 1947. The Apex Court while considering the deemed provision contained in the Maharashtra Cooperative Societies Act for the employees of the Cooperative Societies as public servant has held as under :-"a "public servant" within th meaning of Section 2 of the Maharashtra Cooperative Societies Act, 1960, is not a "public servant" within the meaning of Section 2 of the Prevention of Corruptions Act, 1947 (II of 1947) by virtue of the provisions of Section 161 of the Maharashtra Co-operative Societies Act, 1960, read with Section 21 of the Indian Penal Code. It is undoubtedly true that the Co-operative Societies Act has been enacted by the State Legislature and their powers to make such legislation is derived from Entry 32 of List II of the Seventh Schedule to the Constitution. The legislature no doubt in Section 161 of Mah. Act has referred to the provisions of Section 21 of the Indian Penal Code but such reference would not make the Registrars and other officers under Co-operative Societies Act public servants within the ambit of Section 21 of IPC. The State Legislature had the powers to amend Section 21 of the Indian Penal Code, the same being referable to a legislation under Entry I to III of the Seventh Schedule, subject to Article 254 (2) of the Constitution as, otherwise, inclusion of the persons who are public servants under Section 161 of the Cooperative Societies Act would be repugnant Section 21 of the Indian Penal Code. That not having been done, by virtue of deeming definition in Section 161 of the Co-operative Societies Act by reference to Section 21 of the Indian Penal Code, the persons defined as officers under Maharashtra Co-operative Societies Act cannot be prosecuted for the offences under the Indian Penal Code. The Court further held that :-

"the Indian Penal Code and the Maharashtra Co-operative Societies Act are not Statutes in pan materia. The Co-operative Societies Act is a completely self-contained Statute with its own provisions and has created specific offences quite different from the offences in the Indian Penal Code. Both Statutes have different objects and created offences with separate ingredients. They cannot thus be taken to be Statutes in pari materia, so as to form one system. This being the position, even though the legislatures had incorporated the provisions of Section 21 of the Indian Penal Code into the Cooperative Societies Act, in order to define a public servant but those public servants cannot be prosecuted for having committed the offence under the Indian Penal Code. "

(15.) ON applying the aforesaid decision of the Apex Court to the case on hand, it emerged that the employees of the Electricity Board are not specifically covered under any of the clauses of Section 21 of the IPC. But by virtue of Section 81 of the Electricity Supply Act, the Board employees can be considered deemed public servants when exercising powers under the Act but they cannot be considered to be public servants for the purpose of initiating prosecutions under the Act of 1947 or Section 161 of the IPC.

(16.) AS a result of the foregoing discussion, in my considered opinion, the appellant at the relevant time, was in the employment of the MPEB and performing his duties under the Electricity Supply Act, cannot be considered as a public servant for initiating prosecution for the offences punishable under the Act of 1947 as also under Section 161 (since repealed) of the IPC. The prosecution and the trial initiated against the appellant considering him as public servant is vitiated and the accused appellant on this very ground deserves acquittal of the alleged charges under the Act of 1947 and 161 of the IPC.

(17.) ON considering the case on merits, it also emerged that from the evidence of the prosecution as also the facts and circumstances of the case on hand, the alleged demand of Rs. 1500/- as bribe and acceptance of Rs. 800/-by way of illegal gratification is not proved beyond reasonable doubt. On the point of demand, only complainant Chandersingh P. W. 6 is examined on behalf of the prosecution. Some contradictions and omissions are found in the statement of P. W. 6 Chandersingh. The solitary statement of the complainant in the said circumstances cannot be relied on in absence of some independent corroboration for the facts stated by the complainant on the point of demand. The law is well settled on the point that in cases of accepting the bribe, the position of the complainant is that of an "accomplice witness" and his statement cannot be accepted on any fact in absence of corroboration as a matter of prudence and practice.

(18.) IT is pertinent to note that in the present case, as per case of the prosecution and the statement of Chandersingh the appellant demanded Rs. 1500/- as bribe, whereas the trap was arranged only for the payment of Rs. 800/- to the appellant. If it is considered that the accused demanded Rs. 1500/- by way of bribe then, at the time of trap under what circumstances he accepted Rs. 800/- only. In view of the aforesaid discrepancy found in the case of the prosecution, in my opinion, the demand of Rs. 1500/- as bribe is not established beyond doubt from the evidence of the prosecution.

(19.) ON the point of acceptance of the alleged currency notes of Rs. 800/-at the time of the trap, it emerged from the evidence of the prosecution that the said currency notes were not recovered from the person of the appellant in the alleged search. The currency notes were recovered from one almirah during the search of the room of the house of the appellant. From the statements of P. W. 9 Aminuddin Qureshi (para 8), a Head Constable who was a member of the trap party and T. I. Shri Vijay Singh Pawar P. W. 10, who arranged the trap, it emerged that before taking the search of the accused as also the search of the house, the members of the trap party or the persons conducted the search did not give their personal search before the appellant. As such, in the circumstances the possibility of plantation of the currency notes in the almirah and its recovery during the search cannot be ruled out.

(20.) IN case of Madhusudan Prasad Vs. State of M. P. (1981 JLJ 518 [LQ/MPHC/1980/124] ), this Court has held as under :-

"from the evidence afforded by Pyarelal (P. W. 1) and Govind Singh (P. W. 9) it is clear that the Search Officer did not convince the witnesses that he was empty handed. Accordingly, the possibility of planting of the notes cannot be ruled out. As such, the recovery of the Notes from the person of the accused appears to be surrounded by a cloud of suspicion and the factum of recovery is shaken. "

(21.) IN view of the facts and circumstances of the case on hand as also the law applicable, the impugned judgment of the Trial Court cannot be allowed to sustain and the accused appellant deserves acquittal mainly on the ground that he being an employee of the Electricity Board at the relevant time, cannot be considered as public servant for initiating prosecution against the appellant under the Act of 1947 as also for the offence punishable under Section 161 (since repealed) of the IPC, the alleged demand of Rs. 1500/- as bribe and acceptance of Rs. 800/- from the complainant as illegal gratification other than the legal remuneration, is also not established from the evidence of the prosecution beyond reasonable doubt.

(22.) CONSEQUENTLY, this appeal is allowed. The impugned judgment of the Trial Court is set aside and the accused appellant is acquitted of the charges levelled against him. Accused appellant is on bail. His bail bonds stands cancelled.