K.B. Panda, J.
1. The appellant stands convicted Under Section 5(1)(d) of the Prevention of Corruption Act, 1947 (Act 2 of 1947) read with Section 5(2) thereof (hereinafter referred to as the Act) and also Under Section 161 of the Indian Penal Code. Under the first count, he has been sentenced to rigorous imprisonment for one year and to pay a fine of Rs. 507/- in default to undergo rigorous imprisonment for a period of fifteen days more and under the second, to undergo rigorous imprisonment for a period of one year. The sentences have been ordered to run concurrently.
2. It is alleged by the prosecution that the appellant received as bribe a sum of Rs. 30/-, three ten-rupee currency notes (marked M. Os. II to IV) from P. W. 9 on 27-4-1972 for making over to him the lease deed Ext. 17. Earlier on 12-7-1971 P. W. 9 had applied for lease of a strip of Railway land (100'x20') under Ex. 5, within Khallikote Railway station premises. The appellant was admittedly the Senior Clerk in the office of the Divisional Engineer, South Eastern Bail way, Khurda Road and dealing with lease cases. There was another applicant Shrihari Patra for a lease of an overlapping and contiguous piece of land measuring 50'xl5.' He had been granted lease of the same under Ext. 4 on 18-9-1971. As the lease in favour of Shrihari Patra was earlier, P. W. 9 was recommended a lease by P. W. 1 over 100'x15'. On 31-1-1972, P. W. 9 signed the agreement and subsequently on 4-2-1972 P. W. 1 signed it. P. W. 9 was asked to sign the agreement plan on 18-2-1972 (Ext. 21). The prosecution case is that initially on 31-1- 1972. the accused had demanded Rs. 50/- from P. W. 9 saying that to be the usual amount he gets in a lease case. On that occasion P. W. 9 had paid only Rs. 10/-. Subsequently on 18-2-1972, P. W. 9 had paid Rs. 10/- and suggested to the appellant to send the lease deed by post. P. W. 9 waited for four months and as he did not get the lease deed he contacted the appellant on 26-4- 1972 when the appellant demanded the balance Rs. 30/-.
3. In the meantine, P. W. 9 had filed a suit (T. S. No. 76 of 1971) (Ext. D) against Shrihari Patra, which he lost on 24-4-1972. Vexed at the conduct of the appellant he went to Bhubaneswar where he informed one Assistant Sub-Inspector of Police Shri Mohapatra about the illegal demand of the appellant. That A. S. I. contacted the Deputy Superintendent of Police, Central Bureau of Investigation (P. W. 11), The next day, that is 27-4-1972 P. Ws. 5 and 6 of the Posts and Telegraphs Department were sent for and the grievance of P. W. 9 was reduced to writing under a memo (Ext. 31). It was done by P. W. 6. Thereafter three ten-rupee currency notes (M. Os, II to IV) given by P. W. 9 were treated with Phenolphthalein powder. It was decided to lay a trap and so the party left Bhubaneswar and reached Khurda by 4-30 p. m. The appellant was found alone in the room and others had left on close of the office. P. W. 9 went inside to the appellant. At this the appellant demanded the balance amount of Rs. 30/-. So P. W. 9 passed on the M. Os. II to IV which the appellant counted and put in his chest pocket. Thereafter he brought out the file and handed over the lease deed (Ext. 17) to P. W. 9. The agreed signal being given the trap party, namely, P. Ws. 5, 6, 10 and 11 entered into the room of the appellant. They gave their identity and demanded the money that the appellant had received from P. W. 9. The appellant hesitated and so P. W. 11, the D. S. P., C. B. I. brought out the notes from his chest pocket. P. W. 9 was also searched and from him Ext. 17 was recovered. The trap had been laid on the basis of the F. I. R. given by P. W. 9 (Ext. 38) on 27-4-1972 at 1 p. m. After conclusion of investigation by P. W. 10 the appellant was chargesheeted ending in his conviction as aforesaid.
4. The defence was that P. W. 9 was pestering him to get the lease deed as he had filed a case against Shrihari Patra. But it could not be done as the same was not complete in all respects. He had made no such demand as alleged. He had not met the appellant on 26-4-1972. On 27-4-1972 he was working at his table with a banyan as it was sultry and his shirt was hanging on the chair. On that day he had drawn Rs. 50/- from the Postal Savings Bank which he had kept in his shirt pocket. P. W. 9 somehow inserted M. Os. II. Ill and IV and removed his Rupees 50/-. While he was examining the file to see if Ext. 17 had become complete, P. W. 9 snatched it from his hand. Regarding the incriminating circumstance of sodium carbonate solution turning pink on his dipping fingers therein, the explanation was that the Investigating Officer (P. W. 10) first dipped his fingers in the solution to demonstrate as to how he would do it and thereafter he did it thereby suggesting that if the solution turned pink it was because of the first dip of the fingers of P. W. 10.
5. The learned lower Court held that the evidence of P. W. 9 was corroborated by the evidence of P. W. 6 who is an independent and reliable witness. He further held that the oral evidence had been strengthened by circumstantial evidence in that the defence case that P. W. 9 had not met the appellant on 26-4-1972 is false, that there was no recovery of Rs. 50/- from P. W. 9 and therefore the defence suggestion of insertion of Rs. 30/- and removal of Rs. 50/- of the appellant is also false ; that the snatching of Ext. 17 by P. W. 9 from the appellant is equally false ; that the appellant offered various explanations over the bribe money recovered from his possession and that his explanation as to how when he dipped his fingers in the sodium carbonate solution turned pink is varying.
6. It was contended on behalf of the appellant that (1) the basic case of the prosecution that the appellant demanded the bribe to make over the lease deed (Ext. 17) is not acceptable and therefore the whole case must fail ; (2) that P. W. 6 cannot be a disinterested witness in the instant case inasmuch as he has taken part in writing the lengthy memo (Ext. 31), accompanied the raiding party from Bhubaneswar to Khurda ; and his evidence that he saw the acceptance of the bribe by the appellant through the gap in between the door frame and the door leaves is intrinsically suspicious ; (3) and that the appellant has succeeded in proving his case of insertion of the three impugned notes through defence witnesses. As parallel cases great reliance was placed on 1976 SCC (Crl) 160 : 1976 Cri LJ 295 Sat Paul v. Delhi Administration ; and (1954) 20 Cut LT 721 : AIR 1955 NUC (Orissa) 3978 (Raghubir Prasad v. The State), Incidentally a point of law was urged, namely, that the learned lower Court has violated the provisions of Section 235(2) of the Criminal Procedure Code, 1973 and as such the judgment is vitiated.
7. As against this it was contended on behalf of the State that when the impugned notes were found in possession of the appellant the presumption envisaged under the Act against the appellant has to be drawn and that has not been rebutted ; that the trap witnesses are not per se interested so that their evidence will be thrown out as of no consequence ; and that in the instant case the oral evidence has enough support from circumstantial evidence dealt with by the learned lower Court. The prosecution relied greatly on the case of Maha Singh v. State (Delhi Administration) : (1976)IILLJ424SC and the case of Raghbir Singh v. State of Punjab : 1976CriLJ172 .
8. Before coming to facts, I would like to dispose of the point of law raised on behalf of the appellant. Section 235, Sub-section (2) Cr. P. C., 1973 lays down that the accused should be heard on the question of sentence. It is unnecessary to discuss the point at length for it has no application to the instant case, The occurrence of this case was on 27-4-1972, cognisance whereof was taken on 17-3-1973 and charge-sheet submitted against the appellant on 10-5-1973. Recording of evidence started on 15-1-1974. Thus the trial proceeded according to the old Criminal Procedure Code and not according to Criminal Procedure Code, 1973, Under the saving clause i. e. Section 484, all trials commenced under the old Code, the provisions of that Code would apply and not the new Code. In this case, the enquiry, investigation and trial having commenced in accordance with the provisions of the Criminal Procedure Code of 1898, there is no need for referring to the new Code at the time of passing the judgment. This contention is devoid of merit and hence rejected.
9. There are 12 witnesses for the prosecution and four for the defence. Out of the witnesses for the prosecution, P. Ws. 1, 3, 4 and 7 are railway people ; P. Ws. 5 and 6 are Engineering Supervisors of the Posts and Telegraph Department, Bhubaneswar who went with the raiding party ; P. W. 9 is the decoy witness ; P. W. 10 is the Investigating Officer and P. W. 11 is the Deputy Superintendent of Police, Central Bureau of Investigation. Out of the railway witnesses, P. W. 1 is the material witness. The decoy witness is corroborated by P. W. 6. As P. W. 9 passed the impugned notes to the appellant P. Ws. 5, 6, 10 and 11 came upon the spot. Out of the defence witnesses, the first three are co-workers of the appellant who substantially deposed to the fact that at the relevant time, the appellant was working alone in the office keeping his shirt hanging from the chair thereby suggesting the possibility of P. W. 9 inserting M. Os. II to IV in his pocket. D. W. 4 is a witness to show that on the alleged day the appellant had drawn Rs. 50/- from his Postal Savings Bank. So far as the receipt of the bribe is concerned, the relevant witnesses are P. Ws. 1, 6 and 9. P. W. 9 is a cultivator who had applied for the lease under Ext. 5. His evidence so far as material is thus :
Then I went to the office of the accused and I was closely followed by the witness Panda. We approached through the front side of the office. I went to the accused and the witness Panda remained in the door of the adjoining room secretly. When I went to Narayan Rao he was alone in the office. The accused asked me whether I brought the money of Rs. 30/- with me and he demanded me to pay the said amount of Rs. 30/. Then I paid M. Os. II to IV to the accused and the accused counted the same and kept it in his chest pocket of his shirt which he was wearing. Thereafter the accused gave me the agreement Ext. 17. Thereafter I put chaddar around my neck to give the singal to the C. B. I. Officers that I paid the bribe to the accused.
P. W. 6 who corroborated P. W. 9 stated in the same strain thus :--
I stood at the entrance door secretly and watching through the gap in between the door leaf and door frame. Then Sri Sahu straightway went to Sri Rao in the room and asked him for the lease document. Thereupon Sri Rao asked Sri Sahu if he has brought the money of Rs. 30/-. At this Sri A. Sahu gave the three ten rupee currency notes to Sri Rao which he after counting kept in his left side chest pocket of the Hawain Shirt which he was wearing and handed over the lease deed papers to Sri A. Sahoo. I came to know that the papers handed over by Sri Rao were lease deed papers subsequently.
Thus the evidence of the decoy witness has been fully supported by P. W. 6,
P. W. 1 is the Divisional Engineer, South Eastern Railway, Khurda Road. His statement is--
Under Ex. 24 dated 29-4-1972 the accused complained before me that the money placed in his pocket was removed and that instead three ten rupee notes were planted in his pocket without his knowledge on the occasion when the C. B. I. officers entered his room on 27-4-1972.
In cross-examination he stated :
On 27-4-1972 the accused when he met me complained to me generally about the planting of the notes in the shirt pocket. He told me that by the time some unknown persons entered into his office room, he had removed his shirt as it was summer and kept it hanging on the chair nearby and that after he wore the shirt again he discovered that some thirty rupees were planted in his pocket and he was also complaining that the said unknown persons might have planted the same in his pocket while he was engaged in bringing a file from an almirah. The accused further told me at that time that as Arakhita Sahu entered the office and asked him about some matter in relation to his file, he (accused) went to the almirah for bringing that file when the three ten-rupee notes might have been planted in his pocket.
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I wanted to have the certificate of possession for mentioning the date in Exts. 16 and 17. In actual practice we are not very particular about mentioning the date of delivery in Exs. 16 and 17. According to practice an incomplete document of the nature of Exs. 16 and 17 can be handed over to the party although I cannot say whether rules permit it In practice the date of agreement is taken to be the date of occupation for the purpose of calculating the period of occupation. I am not aware of any other rules regarding the grant of licence of the Railway land besides what is contained in Exs. 16 and 17.
The question for consideration is if the evidence of P. W. 6 is to be accepted or not What is alleged as against P. W. 6 is that he had conceded to the request of the C. B. I. officers and had come all the way from Bhubaneswar to Khurda to help them and that he had also taken the trouble of writing out the memo (Ex. 31) and thus interested.
10. It was contended relying on 1976 SCC (Cri) 160 : (1976 Cri LJ 295) that this is a case much worse than that and therefore the learned lower Court should not have accepted the prosecution evidence and convicted the appellant. In the above case law, the facts were that the accused had detained certain persons while they were loitering on the platform in suspicious circumstances and demanded bribe for their release. It is in evidence in that case that the persons detained were connected with running brothels and had a heavy load of bad antecedents and were anxious to remove the accused who was an obstacle in carrying on their shady business. The accused produced unimpeachable evidence, oral and documentary that at the relevant time he was on duty and the trousers from which the suspected notes were found was hanging in his office room on a peg. So their Lordships of the Supreme Court set aside the finding of conviction of the appellant on four grounds, namely, (i) that the decoy witness was of questionable character ; (ii) that the independent trap witnesses were declared hostile as they did not support the prosecution ; (iii) that the Investigating Officer exhibited undue zeal in prosecuting the accused although he had no power to investigate the case ; and (iv) that the Courts below did not take into consideration the unimpeachable defence evidence. The above features are conspicuous by their absence in this case. Here P. W. 9 is not a man of bad antecedents. Nothing has been suggested against P. W. 6 as to why he would sacrifice his conscience and falsely implicate the appellant who was unknown to him. The Investigating Officer and the D. S. P. (P. Ws. 10 and 11) did not go out of their way in laying a trap and the defence evidence was not formidable enough to inspire confidence.
11. The second case of Raghbir Singh AIR 1976 SC 91 : 1976 Cri LJ 172 relied on on behalf of the appellant is of no avail since the point decided therein is how the presumption arising Under Section 4(1) of the Prevention of Corruption Act can be rebutted. In that case, before the raiding party including the Magistrate the accused had stated that it was a loan that had been taken by Upendra which he had repaid and no bribe. Justice Narasimham (as he then was) accepted this plea since it was the earliest unaided statement of the accused. The last case relied on is that of Rabindra Kumar Dey v. State of Orissa : 1977CriLJ173 wherein it was held that the accused is only bound to give a probable or reasonable explanation and need not prove his case beyond doubt. So it was urged that in the instant case the explanation offered by the appellant is a probable and reasonable one and therefore should have been accepted.
12. In the case of Maha Singh : (1976)IILLJ424SC over the evidentiary value of trap witnesses it is said thus :
There is no rule of law that even if a witness is otherwise reliable and independent, his association in a prearranged raid about which he had become acquainted, makes him an accomplice or a partisan witness. In absence of anything to warrant a contrary conclusion : conviction is not untenable merely because it is based on the testimony of such a witness Every witness of a raiding party cannot be dubbed as an accomplice per se or even as an interested witness in total absence of materials justifying such an inference.
From this it follows that there is no general rule to assess the evidence of the trap witnesses and each case has to be judged on its own merits.
13. In the case of Raghbir Singh : 1976CriLJ172 the search witnesses were not relied on and their Lordships pointed out that--
Where a trap is laid for a public servant, it is desirable that the marked currency notes, which are used for the purpose of trap, are treated with phenolphthalein powder so that the handling of such marked currency notes by the public servant can be detected by chemical process and the Court does not have to depend on oral evidence which is sometimes of a dubious character for the purpose of 'deciding the fate of the public servant.
14. From the above citations it is clear that each case has its peculiar features and the Court has to judge the guilt or otherwise of the accused in the context of facts and circumstances of that case. So far as the instant case is concerned, evidently P. W. 9 was only interested in getting his lease deed and be had no other grudge against the appellant. P. W. 6 had also no axe to grind. The C. B. I. people have to take the assistance of some respectable witnesses and if nothing is shown against them there is no reason why their evidence should be discarded merely because they help the raiding party. Here the two independent witnesses, i.e. P. Ws. 5 and 6 had accompanied the raiding party being deputed by their boss. The D. S. P. (P. W. 11) sent a. requisition to the S. D. O Telephones to send two of his assistants to act as witness. Thus they were members of the raiding- party not voluntarily but as directed. The comment, therefore, that P. W. 6 is interested has no basis.
15. Besides the oral evidence in this case there are several incriminating circumstantial evidence. To begin with a reference may be made to the meeting of the appellant with P. W. 9 on 26-4-1972 which has been denied by him. According to the prosecution when P. W. 9 approached the appellant on 26-4-1972, he demanded the money and so out of disgust P. W. 9 informed one A. S. I. at Bhubaneswar who in his trun informed the C. B. I. people. Thereafter this trap was laid for the case. If this defence version that the appellant did not see P. W. 9 on 26-4-1972 at any time be true, it would be as if all that has happened is the product of the machination of P. W. 9. I do not think P. W. 9 would have gone so far as to entrap the appellant if in fact he had not been disappointed by the appellant the previous day in obtaining the lease deed. The defence in the circumstances seems to be false.
The second circumstance is regarding the varying explanations given by the appellant at different times regarding the notes found in his chest pocket. His first explanation before the raiding party was that it was his money ; his second explanation before his boss P. W. 1 was that somebody of the raiding party had inserted three notes and lastly in his 342 Cr. P. C, examination he stated that P. W. 9 had inserted the three notes and had taken away his 50 rupees from pocket. As the case proceeded his explanation varied and became more suitable. Evidently he was not conscious of the implications of his first plea that 'it was his money' If itwere so then the money he had drawn that is Rs. 50/- would be in addition to the sum of Rs. 30/- thus making a total of Rs. 80/-But in fact what has been recovered is only three notes whose numbers had been mentioned in the memo (Ext. 31). While two days after he filed an application before P. W. 1 (Ext. 24) dated 29-4-1972 it was stated therein that the money placed by him in his pocket was removed and those three ten rupee notes were planted in his pocket without his knowledge. Here his case was not that it is P. W. 9 who removed his money and planted the three notes.
In the 342 Cr. P. C. examination of the appellant on this aspect as on others he has stated thus :
But while I was putting on my shirt to leave the office some persons entered my room and disclosed that they were C. B. I officers.
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I was not nervous at that time. I did not tremble. When they asked me to give the money, which I had in my pocket, I asked them as to why I should give the money which I had withdrawn from the post office on that day.
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B.N. Misra held my hands and fingers and asked me to wash my hands in a glass of water, after showing as to how I should dip my fingers by himself dipping his finger in the water. Then I dipped my fingers in the same solution.
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No personal search of Arkhita Sahu was made. Arkhita Sahu was holding the entire file. I do not know that they seized from him.
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I told it was not possible to hand over the same to him unless they were completed in all respects. So after the trap I came to know that Arkhita Sahu, owing to that grudge, thinking that I was the person responsible for the delay in handing over the lease, foisted this false case against me. He lost the case at Berhampur and thought I was responsible for it. The file was dealt with properly by me. I was no way responsible for the delay. The money I kept in my pocket was taken away and in its place some other money was substituted without my knowledge. I have reported to my head clerk (P. W. 7) G.P. Singh that Arkhita Sahu was troubling me for cancellation of Shri Hari Patra's lease.
From the above it would appear that the explanations offered by the appellant regarding the existence of the three notes in his pocket are not only inconsistent, but false.
The third incriminating circumstance is the recovery of the three notes from the shirt pocket. According to the appellant, his shirt was hanging on the chair. The time-lag between P. W. 9 entering into his room and the appellant being questioned is very short. In the meanwhile, there was only discussion about making over of the lease deed. Unless it is assumed that P. W. 9 had known previously that the appellant had withdrawn Rs. 50/- from his Postal Savings Bank, it would be difficult to accept the defence suggestion that he removed Rs. 50/- from the shirt and inserted Rs. 30/- that he had carried. Therefore the defence theory of removal of appellant's money and insertion clause the three tainted notes is unworthy of credit.
The fourth incriminating circumstance against the appellant is that the assertion of the appellant that P. W. 9 snatched away the lease deed Ext. 17 from him. In 342 Cr. P. C. examination he has stated that the entire file was with P. W. 9. If really the document was not complete in every respect as he stated, there is no reason for bringing out the file. It was urged on behalf of the appellant that he did so to satisfy himself if in the meanwhile it would have been made complete. Even if it be so and if really P. W. 9 snatched away the file with the document from the hands of the appellant, it is really difficult to understand that the appellant would not react to this and keep mum. Evidently there is no evidence that he raised any alarm over the misconduct on the part of P. W. 9 in snatching away some official records from his hands. The story of snatching away the Ext. 17 from the appellant is, therefore, false.
The fifth incriminating circumstance i.e. the solution becoming pink while the appellant dipped his fingers, the explanation is also varying. The cross-examination proceeded on the footing that as P. W. 10 caught hold of his fore-arms and hands, the chemicals were introduced to his hands. The learned lower Court has dealt with this aspect of the case elaborately in para 17 of his judgment. Under Ext. 24 dated 29-4-1972 the appellant had reported to P. W. 1 that as per the demand of the C. B. I. Officers he took away the money from his pocket and counted the same and found that they were only Rs. 30/-. This was also given up. In his 342 Cr. P. C. examination as already quoted he took a third plea. All these are hardly reconcilable.
16. Coming to the defence witnesses they only depose to the fact that the appellant was working with his shirt hanging from the chair, That by itself even if accepted is inconsequential in the instant case.
17. In the result, therefore, I would hold that the oral evidence of P. Ws. 9 and 6 coupled with the circumstantial evidence dealt with above establish the guilt of the appellant of having received a bribe of Rs. 30 /-from P. W. 9 as alleged by the prosecution. As such his conviction is meet and proper and the appeal is dismissed. The appellant surrender to his bail bond for undergoing the unexpired period of sentence.