MEHTA, J. - (1.) THIS is an appeal taken by Ghanshyam Lal Chaudhary against the judgment, dated March 10, 1971, of Mr. T. G. Bhagat, Additional Special Judge, Rajasthan, Jaipur, convicting the appellant under sec. 168 I. P. C. as also under sec. 5 (2 , read with sec. 5 (1) (d), Prevention of Corruption Act, 1947, and sentencing him to simple imprisonment for a period of one year on each count and to pay a fine of Rs. 1000/-, in default of payment of which to further undergo four months simple imprisonment on the second count. Both the substantive sentences of imprisonment were made concurrent.
(2.) THE brief facts of this case, as alleged by the prosecution, are that the Anti Corruption Department, Government of Rajasthan, Jaipur, challaned accused Ghanshyam Lal, Accounts Officer, Water Works Department, for offences under secs. 420, 468 and 168 I. P. C, as also under sec. 5 (2) of the Prevention of Corruption Act 1947. THE allegations against the accused were that during the period between 1960 and 1963 Ghanshyam Lal, while functioning as Accounts Officer in the Water Works Department, Jaipur, and being a public servant, obtained illegal pecuniary advantage by cheating. He ran a shop and did business in the name of M/s. Mahavir Jain Sewing Machine Co. , Jaipur, with the assistance of his wife Mst. Snehlata. THE Anti Corruption Department further alleged that Gopal Lal was shown as owner of the Company and it was the accused who in fact had obtained illegal pecuniary advantage, amounting to Rs. 17,662. 40 P. and he also forged signatures of his son Ripunjaya Prasad on receipts for Rs. 272/-, Rs. 260/- and Rs. 140/ -. THEse receipts were given in lieu of the amounts obtained from the branches of the Social Welfare Department. Udaipur and Kota, to which certain goods bad been supplied. It was further alleged that a sum of Rs. 1050/- had been obtained from the Executive Engineer, Jaipur, as the cost of certain commodities provided. In this manner the accused had obtained Rs. 2042/-, in trade. THE accused, being a public servant, was legally bound not to have engaged in trade or business and he should not have run the firm, known as M/s. Mahavir Jain Sewing Machine Co. , Jaipur. Further charge against Ghanshyam Lal was that while employed in the Water Works Department, as Accounts Officer, he got illegal pecuniary advantage amounting to Rs. 105. 84 p. on account of T. A. Bills for the journey performed in the months of July and August, 1961. THE tour in fact had been undertaken in connection with the business of the firm M/s. Mahavir Jain Sewing Machine Co. , Jaipur. It was also asserted that the appellant was found in possession of the assets, amounting to Rs. 42,075/-, which were disproportionate to his known source of income. On submission of the challan after investigation by the Anti-Corruption Department the accused was charged under sec, 168, I. P. C. as also under sec. 2 (5), read with sec. 5 (l) (d) and sec. 5 (1) e), Prevention of Corruption Act, 1947. THE accused denied the indictment and claimed trial. In support of its case the prosecution examined 28 witnesses and produced 138 documents. In his statement recorded under sec. 312. Cr. P. C. the accused denied the prosecution allegations. His main plea was that he was not concerned with M/s. Mahavir Jain Sewing Machine Co. It was Gopal Lal who was the proprietor of the firm. Raghunandan, P. W. 26 was the Manager of the firm. He further entreated that the alleged journey to Udaipur related to his official duty. In his defence he examined seven witnesses and produced 79 documents. THE trial court by its judgment, dated March 10, 1971, acquitted the accused of the two charges, one concerned the T. A. bill amounting to Rs. 105. 84 P. and the other appertained to the assets disproportionate to the known sources of his income. THE court however, gave a positive finding that the accused being a public servant did engage in trade in the name of M/s. Mahavir Jain Sewing Machine Co. , Jaipur. THE business of the concern was carried on by him and in his premises. THE accused had signed letters on behalf of the firm and had engaged in trade and had obtained illegal pecuniary advantage to the extent of Rs. 602/ -. THE trial court, however, gave categorical finding that pecuniary advantage to the tune of Rs. 17,662. 40 p. has not been proved. THE appellant was accordingly convicted and sentenced, as stated above. Dissatisfied by the above verdict, Ghanshyam Lal has taken this appeal. The contention of learned counsel for the appellant is that the trial court has not properly appreciated the evidence on the record. Learned counsel submits that there is not an iota of evidence from which it could be inferred that the accused was engaged in trade [contrary to the provisions of sec. 168 I P. O. He has taken me through the statements of the relevant witnesses as also through the plethora of the documentary evidence. Learned Government Advocate supports the judgment of the court below. Sec. 168, I. P. C. is in the terms following - "whoever, being a public servant, and being legally bound as such public servant not to engage in trade, engages in trade, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both. *, The section requires 3 elements to constitute the offence - (1) that the offender is a public servant ; (2) that as 'such he is legally bound not to engage in trade, and (3) that he engaged in trade. There is no controversy as regards the ingredient No. 1. There is also no dissension in respect of component No. 2 The entire discord in this case hinges around element No. 3, and it is as to whether or not the appellant had engaged in trade during the period between 1960 and 1963. The word 'trade' and the term 'engages in trade' have not been defined in the Indian Penal Code. Sec. 168 I. P. C. , has been made the radix for a number of special enactments in order to control the conduct of public servants. Public servants are not allowed to trade so that they may not neglect their duties and being in official position may not obtain unfair advantages. The expression 'trade' as used in sec. 168. Penal Code and R. 14 of the Rajasthan Government Servants' and Pensioners' Conduct Rules, 1949 formed part of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1950 in the form of Appendix A and saved by R. 38 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, cannot be construed in its technical sense, it should not be confined to mercantile or commercial operations, but it should be given a Wider meaning bearing in mind the context in which it is used. In its wider sense the word is used to cover every kind of trade, business, profession or occupation Trade in its primary meaning is the exchanging of goods for goods or goods for money and in a secondary meaning it is any business carried on with a view to profit, whether manual or mercantile as distinguished from liberal arts or learned professions and from agriculture : see Halsburys Law's of England, Vol. 38, 3rd Ed. page 8. So construed, it would include any business carried on with a view to profit. vide Mulshankar vs. Govt. of Bombay (l) Per Gajendragadkar J. Besides, the word 'trade' implies that the trade or business must be habitually or systematically exercised. It does not apply to isolated transactions : vide Bolls vs. Miller (2 ). It may also be stated here that if a Government servant carries on trade benami in the name of another person, he must be regarded as himself carrying on the trade. In this connection a reference is made to King vs. Maung Saw Nan (3 ). With the above background, it is to be seen whether the prosecution has succeeded in bringing home the fact that accused Ghanshyam Lal engaged himself in trade. The most important evidence on which the trial court placed reliance, is that of Gujrat Bahadur, P. W. 13. He says in his evidence-in-chief that the accused was working in the Water Works Department as Accounts Officer and he was working in the said Department as an Accountant. The accused told him that he wanted to start business of sewing machines and would take agency of C. R. Auluck & Co , Ludhiana. He accordingly started business under the name and style of M/s. Mahavir Jain Sewing Machine Co. , Kabir Marg, Jaipur. The business was carried on in the name of his son Ripunjaya Prasad, who was a student and was about 13 to 14 years of age. The business continued from 1960 to 1963. The witness then said that he obtained a draft from the Punjab National Bank in the sum of Rs. 500/-, to Rs. 600/-, and had filled in a slip for the said purpose. The witness also said that he deposited Rs. 500/-, to Rs. 600/-, in the Punjab National Bank to be transferred to G. R. Auluck & Co. , Ludhiana, but he does not remember in whose account he deposited the amount. Then the witness testifies that he had been to the Sales Tax Department, Government of Rajasthan, Jaipur, for registration of Mahavir Jain Sewing Machine Co. , Jaipur, at the instance of the accused. The witness again says that he had been to Bharatpur in connection with his official duty. But he was called from Bharatpur to Jaipur and was sent to Delhi for expediting the despatch of musical instruments for Social Welfare Department Kota from the firm Rattiram, & Sons of Delhi. The witness then proves certain documents. He also told the court that he worked for the accused under compulsion. I may first take up the question of the alleged visit of Gulraj Bahadur, P. W. 13, to Delhi on or about March 28, 1962. Ex. G. 50/1 is the invoice sent by Rattiram and Sons. It is dated March 23, 1962. This has been proved by Raghu-nandan, P. W. 26. According to this invoice musical instruments were despatched from Delhi on March 23, 1962, for Kota, and the invoice was received by Raghu-nandan on March 25, 1962. Then the invoice in respect of goods had already been received. There was no occasion for sending Gulraj Bahadur to Delhi to remind Rattiram and Sons to expedite the despatch of the articles to the Social Welfare Department. Gulraj Bahadur has stated : "i was informed by Ratilal and Sons that musical instruments had already been sent to Kota. " Besides, the invoice shows that the goods despatched to the Social Welfare Depart-ment Kota, were valued at about Rs. 400/- It is not easy to believe that for the transaction of such a trivial amount the firm would incur the expenditure of sending a personal messenger to Delhi. One could have talked to Delhi for it through telephone. Thus, this aspect of the evidence of Gulraj Bahadur is dismissed with disbelief. T. A. bill Ex. P. 37 submitted by Gulraj Bahadur shows that he left Jaipur for Bharatpur on March 27, 1962. He reached Bharatpur the same day. He stayed at Bharatpur upto 8-50 a. m. on March 28, 1962. He reached Jaipur the same day at 1. 15 p. m. Again, he left Jaipur on March 80, 1962, at 7 p. m. and reached Bharatpur at 12 p. m. the same day. He left Bharatpur on March 31, 1962 at 5 p. m. and reached Jaipur that day at 1. 05 p. m. This T. A. bill stands proved by the evidence of Gulraj Bahadur himself. The T. A. bill shows that during the relevant period Gulraj Bahadur was either at Bharatpur or at Jaipur. Besides, Ex. D. 10/1, dated March 20, 1962, shows that O. P. Singh, D. W. 2, (Account Clerk in the office of the Executive Engineer Water Works Department) wrote to his officer : "the Accountant (Gulraj Bahadur) came and clarified the amount to be adjusted today (29. 30. " The letter shows that on March 20, 1962, Gulraj Bahadur was in Jaipur. D. W. 2 O. P. Singh, cays in his statement : "on 28th March, 1962 Gulraj Bahadur came in the evening, and he called me and also asked me as to why a complaint was made against him. . . . . . . . . Gulraj Bahadur remained in the office throughout on 29th March, 1962. " From the above evidence the inescapable conclusion is that Gulraj Bahadur has not gone to Delhi on or about March 28/29, 1962. Gulraj Bahadur says in his statement that he had been told by Ghanshyam Lal that he wanted to start his business and in that connection he would like to obtain the agency of the supply of sewing machines from C. R. Auluch & Co. Ludhiana. This talk, according to the witness, transpired prior to the start of the business and that too after November 1, 1960, when Gulraj Bahadur joined the service at Jaipur. The record speaks that prior to this talk the agency had already been taken. Ex. P. 49, dated August 18, 1960, written by Gopallal on behalf of Ripun-jaya Prasad, Kabir Marg, Bani Park, Jaipur, to M/s. Bharat Sewing Machine Co. Station Road, Bikaner, shows that some agreement had already been arrived at between Bharat Sewing Machine Company, Bikaner, (sole distributor of C. R. Auluck & Co. in Rajasthan) and Mahavir Jain Sewing Machine Company, Jaipur. In that letter Gopallal on behalf of Ripunjaya Prasad wanted to confirm certain points agreed upon by both the parties. In that very letter the rate of commission fixed was 20% if a lot of S. machines was purchased at a time and 17-1/2% if two machines were purchased at a time. P. M. 20 Mohanram, proprietor of the Bharat Sewing Machine Company, Bikaner. has stated in the cross-examination : ". . . in 1960 Gopallal had come to me on behalf of Mahavir Jain Sewing Machine Company, Jaipur and one boy was with him. . . . . . Gopallal had talked to me about agency. . . . . . . . . . . . After Gopallal had a talk with me I received letter Ex. P. 49. The accused never met me in connection with Mahavir Jain Sewing Co. Jaipur. From the letter Ex. P. 49, coupled with the above oral evidence, it appears that the terms of business had already been settled between Mahavir Jain Sewing Machine Company, represented by Gopallal and Bharat Sewing Machine Company, Bikaner (the sole agent of C. R. Auluck & Co, Ludhiana), in the month of August, I960. In this context there was hardly any occasion for Ghanshyam Lal to have a talk with Gulraj Bahadur on the subject after November 1, 1960. Learned Deputy Government Advocate has drawn the attention of this Court to the agency agreement, dated January 12, 1961, and argued that the agreement had been arrived at between the parties on or after January 12, 1961. The agreement Ex. P. 86 is proved by Mohan Ram, P. W. 20. He says : "i had received agreement Ex. P. 86 through post,. . . . . . Ex. P. 86 does not bear my signature as I had not accepted. " When Ex. P. 86 had not been received with consenting mind by Bharat Sewing Machine Company, no reliance can be placed on it. In the light of the foregoing colloquy, it is difficult to reach the conclusion that accused Ghanshyamlal had a talk with Gulraj Bahadur about the agency of C. R. Auluck & Company, Ludhiana through Bharat Sewing Machine Company, Bikener, after or on November 1, 1960, when the witness joined the Water Works Department, Jaipur. Another significant statement made by Gularaj Bahadur, P. W. 13, in his statement before the trial court is that he deposited Rs. 500/-, to Rs. 600/-, in the Punjab National Bank. This statement does not appear to be accurate as the witness at a subsequent stage unequivocally says : "i do not remember in whose account I deposited. " The witness then deposes that he had taken a draft of Rs 500/. , or Rs. 600/-, from the Punjab National Bank. He had filled in the slip for obtaining a draft. The accused had handed over a forwarding letter to be delivered by him to the Bank. The witness then says that he had been to the Rajasthan Bank, Jaipur, for making payment of money on behalf of the accused. No forwarding letter alleged to have been delivered by the accused to the witness has been produced. Suppression of this important document raises inference unfavourable to the prosecution by virtue of illustration (g) to sec. 114, Evidence Act. The observations at their Lordships of the Privy Council in Murugasen Pillai vs. Ghanasmbandra (4) apply here. This is what their Lordships observed : "it is an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the court the written evidence in their possession which would throw light upon the proposition. " Ex. P. 66, dated February 16, 1961, shows that a demand draft for Rs. 847. 96 P. was obtained in favour of C. R. Auluck and Sons. The signature on this slip is that of Gulraj Bahadur at portion marked A to B. According to P. W. 26 Raghu-nandan all the other entries in Ex. B. 66, excepting A to B, were in his handwriting. It is in the evidence of Ragunandan that it was his first occasion to obtain and send demand draft. Gulraj Bahadur, who was known to him before, met him on the way and then both went to the Bank. He deposited the amount in the Bank and Gulraj Bahadur signed Ex. P. 66 at portion marked A to B. This suggestion was put forward to Gulraj Bahadur to which his answer was : "i am not definite if Raghunandan met me in the way on 16-8-61 when I I went to Punjab National Bank. I do not remember that Raghunandan sought my help on 16-2-61 in the matter relating to Ex. P. 66 and that I helped him. " Gulraj Bahadur did not venture to contradict the suggestion made by Reghunandan His answer was only evasive a skilful dodge to avoid confrontation. If the accused gave money to Gulraj Bahadur, the relevant contents of Ex. P. 66 should have, in the normal course of business, been in the handwriting of the accused or, at any rate, in the handwriting of the witness himself. The contents of the document having been written by Raghunandan show that the explanation furnished by the witness connotes correct position. P. W. 26 Raghunandan ways : "i had to send money to Auluck A sons, Ludhiyana as five Machines were to be supplied to the Social Welfare Officer, Kota, All the writing excepting A to B on Ex. P. 66 were in my hand. . . . . . I deposited the amount in the Bank. . . . . . " The inevitable conclusion from this evidence is that Reghunandan, who was working as Manager of M/s. Mahavir Jain Sewing Machine Company, Bani Park, Jaipur, in fact deposited the amount and it was at his instance that the draft was obtained from the Punjab National Bank. At any rate, this evidence does not display that accused Ghanshyamlal had his hand in that transaction.
(3.) GULRAJ Bahadur has deposed in the clearest terms : "no tender on behalf of Mahavir Jain Sewing Machine Company was submitted by me any where in Rajasthan, nor did I secure any order. " The witness further told the trial court : "i know that Raghunandan used to come to the Water Works office for securing business but I cannot give out details in regard to the dealings and also about securing business. " The witness again speaks : "i was never curious to know about the personal affairs of the accused. I do not know what capital and from what source was invested in Mahavir Jain Sewing Machine Co. . . . I know Gopallal resident of Bundi had concern with M/s. Mahavir Jain Sewing Machine Co. " From this version it is plain that the witness was not well aware in respect of the business of Mahavir Jain Sewing Machine Company. He, on the other hand, says that it was Gopallal, resident of Bundi, who had business relation with Mahavir Jain Sewing Machine Company. In other words, the witness probabilities the plea taken by the accused that it was Gopallal, who ran the business of M/s. Mahavir Jain Sewing Machine Company, Jaipur, as its proprietor. Gulraj Bahadur, P. W. 13, says in his statement : "the accused used to threaten me that you work for me otherwise your G. R. will be spoiled and you will be got transferred and so I used to work for him under compulsion. " This statement appears to me to be outraging natural characteristic. If a man wants to utilise the services of another person or his subordinates in connection with his commercial enterprise, he would never behave in the manner in which the witness says he did. That apart, Ex D. 61, dated February 26, 1962, and Ex. D. 62, dated June 21, 1961, which stand proved by D. W. 4 Ramjilal show that Gulraj Bahadur was admonished by the accused on account of certain laches in his duties. These two documents give an impression that the relations between Gulraj Bahadur and the accused were not so affable or amicable as the latter would repose implicit confidence in him and would take his personal work from him; which, if exposed, would annihilate him. Had the accused taken private work from Gulraj Bahadur, he would not have written to him letters Exs. D. 61 and D. 62 in the acrimonious language in which he did. Apart from what has been stated above, admittedly Gulraj Bahadur was in the service of the Government. Gulraj Bahadur also admits that he participated in some business at the behest of the accused on behalf of the firm M/s. Mahavir Sewing Machine Company, Jaipur. If this statement of his is correct, the witness is equally guilty and he becomes a co-accused. Illustration (b) to sec. 114. Evidence Act, provides that the court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. The combined effect of secs. 133 and 114 (b , Evidence Act, is that though a conviction based upon an accomplice's evidence is legal, the court will not accept such evidence unless it is corroborated in material particulars. As has been observed by their Lordships of the Supreme Court in Mohd. Hussain Umar Kochra vs. Dalip Singhji (5) corroboration must connect the accused with the crime and it must be from an independent source. One accomplice cannot corroborate another. Roscoe in his Criminal Evidence, 15th Edition, page 152, writes : "the accomplice must be corroborated by independent evidence. " In Vigmore Law of Evidence, it is mentioned in Art, 2056, Vol. VII, that : "there comes with acceptance a general practice to discourage a conviction founded solely upon the testimony of an accomplice uncorroborated. " wills on Circumstantial Evidence, 17th Edn. says at page 431 "an evidence of an accomplice requires corroboration. " In the light of the foregoing discussion, the evidence of Gulraj Bahadur, P. W. 13 does not appear to me to be worthy of credence, and conviction cannot be founded upon his testimony uncoroborated in materal particulars. It has been observed by the trial court that on August 1, 1961, a sum of Rs. 1250/- was withdrawn from accused's saving bank account, kept with the Bank of Rajasthan, Jaipur: vide Ex. P. 84. The same amount was deposited in the current account of M/s. Mahavir Jain Sewing Machine Company the same day, i. e. , on August 1, 1961: vide Ex. P. 85. The debit and the credit entries in Ex. P. 84 and Ex. P. 85 respectively are not disputed. According to the accused an amount of 1253/-, had to be paid to a stone dealer. A withdrawal form duly filled in was given to the dealer by him. The stone-trader insisted for cash payment. Raghunandan P. W. 26 then gave cash amount of Rs 1250/-, to him from the balance of the firm M/s. Mahavir Jain Sewing Machine Company and he took the withdrawal form from the accused in exchange. P. W. 26 Raghunandan corroborates this fact. It is further strengthened by entry in the cash-book Ex. D. 50. This entry has been proved by Raghunandan, P. W. 26. He says in his statement : "all the entries in the cash-book Ex. D. 50 are in my hand. Gopallal used to check and sign Ex. D. 50. I deposited Rs. 1250/- in the Bank on 1-8-61. " In this manner the statement of Raghunandan is supported by documentary evidence. On the basis of such evidence it cannot be deduced with unerring certainty that the accused used to have monetary transactions with the Bank for or on behalf of M/s. Mahavir Jain Sewing Machine Company, Jaipur. ;