Prithvi Raj, J.
(1) The appellant, Shri G.V. NanJundiah,was tried by Shri 0.P. Singla, Special Judge, Delhi, for having committed an offence punishable under section 161, Indian Penal Code and sections 5(l)(d) and 5(2) of the Prevention of Corruption Act on the allegation that be being a public servant as Executive Engineer, Central Public Works Department, Housing Division, Delhi Development Authority, New Delhi, on 30th October, 1973, at his house No. R-1/57, Greater Kailash, New Delhi, accepted a sum of Rs, 2.500.00 from one Shri R.S. Sharma, contractor as gratification other than legal remuneration as a motive or reward for releasing the security amount of the contract in the sum of rupees one lac and to approve and sanction for extra substituted work executed by the contractor for construction of double storied houses for Lower Income Group in D.I.S. Block at Kalkaji and being a public servant on the aforesaid date and place thus by corrupt or illegal means by otherwise abusing his position obtained for himself a pecuniary advantage of Rs. 2.500.00 . The Trial Court finding the appellant guilty of having committed the offence sentenced him to six months' simple imprisonment and a fine of Rs. l,000.00 by its order dated 26th October, 1977, under section 5(2) of the Prevention of Corruption Act (hereinafter called 'the Act'). The appellant was also sentenced to six months' simple imprisonment and a fine of Rs. 5000.00 under section 161 of the Indian Penal Code. Both the sentences were, however, ordered to run concurrently. In default of payment of fine, the appellant was sentenced to undergo simple imprisonment for two months. The sentence in default of payment of fine was ordered to run consecutively.
(2) The appellant feeling aggrieved by his conviction and sentence has challenged the same in this appeal, both on facts and on question of law. It would be relevant here to note in brief the facts of the case. The prosecution story as unfolded by the contractor Shri R.S Sharma(PW 1) is as follows. Shri R.S. Sharma in the year 1972-73 was carrying, on the business of build- ing contract in the name of 'R.S. Sharma and Company' in partnership with his son and three other persons. In July, 1972, he got building contract for the construction of Lower Income Group Houses (Group No. 1) in Kalkaji Colony. In February, 1973, he got another contract for the construction of Lower Income Group Houses (Group No. 2). The number of houses which were to be constructed in respect of group No. 1 was 326. Further the additional items work in respect of these houses were also executed, and a sum of rupees two lacs was payable to them which amount was outstanding. The appellant, he stated, was the Executive Engineer in charge of the works. He further stated that of the previous bills pertaining to the work which had been executed by them, a sum of rupees one lac had been kept by the department as security. He asked the appellant on 3/4 occasions to release the security amount of rupees one lac by getting bank security as was done in the other divisions. He also asked the appellant to sanction the amount due on '' account of the extra work. He submitted a copy of the guarantee bond, Exhibit Public Witness .I/A with letter Exhibit Public Witness .I/B and application Exhibit P.W.1/C personally to the appellant on 17th October, 1973. Thereafter he approached the appellant 3/4 times and repeated his requests for releasing the security amount and the amount in respect of extra work. On 30th October, 1973, he stated, he met the appellant at his office when his son, Shri U.S. Sharma (Public Witness 2) was with him on the way in the office building he met Shri Sehgal, Accounts Officer, working under the appellant. He also requested Shri Sehgal to help him in the release of the security amount. He then stated that he reiterated his request to the appellant for early payment, expressing his financial difficulties in carrying on with the execution of the Work. The appellant asked him if he could pay Rs. 5.000.00 . The witness represented that he had no money even to carry on with his work. Thereupon, the appellant is alleged to have asked him to bring Rs. 2,500.00 for payment to him at his house that evening and that on payment of that amount he would consider the matter. The appellant is further stated to have told him that he would have to pay further amount of Rs. 2500.00 after refund of the security amount and payment in respect of extra items. Telling the appellant that he will see him at his house in the evening and his son came out of his room. They came to the ground floor of the building and deliberated over the matter. They did not want to pay the bribe as they thought that in case they paid the bribe once their further work will not be done without payment of further bribe. They then thought of rushing to the bank to withdraw Rs. 2,500.00 and any further steps that were to be taken would be considered later as otherwise the bank would be closed. They then went to their bank, Syndicate Bank, G.B. Road and withdraw Rs. 2,500.00 from there account with the bank. He further stated that he asked the Manager to give the money in the form of Rs. 100.00 currency notes. He also asked the Manager of the Bank to issue certificate regarding payment by mentioning the number of the currency notes. The requisite certificate was issued by the Manager.
(3) After withdrawing the amount they mutually decided to go to the 'Central Bureau of Investigation. They went there at 4 or 4.15 p.m. and met the Superintendent 'of Police. The witness presented complaint. Exhibit P.W.I/D, to the Superintendent of Police. The complaint, he stated, is in the hand of his partner Pothi Singh and bears his signatures at point 'A'.
(4) The Superintendent of Police, he stated, called the Deputy Superintendent of Police, Chaudhry, and gave him some instructions. The Deputy Superintendent of Police took them to his room. They accompanied him. The Deputy Superintendent of Police went through the complaint and called two independent witnesses. They were introduced as Shri R. L.Verma and Shri R. N. Khanna. The witness were told the facts and the purpose for which they were called. The name of the appellant was, however, not disclosed to them. He produced twenty-five hundred currency notes. The Deputy Superintendent of Police prepared a memorandum and noted the numbers of the currency numbers. The memorandum was checked by the two independent witnesses. Thereafter, he stated, the currency notes were treated with some powder. The Deputy Superintendent of Police asked Shri Verma to touch the notes which he did. Thereafter, some solution was prepared by making use of water and some Chemical. The hand of Shri.Verma was dipped in that solution which turned reddish.
(5) He further stated that' this person was searched and he was not allowed to carry anything, with him. The currency notes were given to him with instructions to keep them wife him and take out the amount only,at the time when he would be required to pay. On seeing the currency notes, Exhibits P/l to P/25 and comparing their numbers with those mentioned in the memorandum, he stated, that these were the same notes which were produced by him and treated by the Deputy Superintendent of Police, Chaudhry, with the powder and returned to him. He also stated that it was agreed before leaving the office of the C. B. I. that some sweets and fruits would be purchased on the way and on reaching the house of the appellant he' and his son would go into the house while the other members of the raiding party would remain inside the car. It was also agreed that after a talk with the appellant, his son would come out to take the sweets and fruits from the car and that at the same time Shri Verma would accompany him into the house. He further stated that it was also agreed that the currency notes (P/ I to P/25) would be given in the presence of Verma and thereafter he would cough loudly which would be a signal for other members of the raiding party to come in. He proved the handing over memorandum, ' Exhibit P. W. I/E by which the currency notes Wire handed 'over to him, staling that the same bears his signatures at point 'A'. Continuing his statement, he stated that they left the office of the C. B. 1. at 5.30 p.m. in two cars. On reaching Greater Kailash they purchased sweets and fruits. They then went to the house of the appellant. On enquiry it was found that he wa$ not there. -Accordingly they waited. At about 7.30 p.m. he found the appellant coming to his house in his car. The appellant came out of the car and after parking it on the road went up to his house on the first floor. After waiting for five minutes he and his son went up into the house of the appellant who asked them to sit in the drawing room. He started talking about his difficulty and the non-payment of his dues. The appellant asked him if he had brought what had been talked in the office in the morning. He told him that he brought the money which had been' demanded and besides that they had also .brought some sweets and. fruits as they could not visit on the day of 'Diwali. He asked his son to bring the .sweets. His son went down. His son and Verma brought the sweets and, the fruits in the room. The witness then placed the fruit basket and the .cartons containing sweets in the room. The witness took out the currency notes (P/l to P/25) and gave the same to the appellant who took them into his left hand. From the left hand the appellant put the currency .notes in his right hand and then placed them in the pocket of his shirt by his right hand. Immediately, the witness coughed and instantaneously the Deputy Superintendent of Police, Khanna and one or two other persons rushed in from the stairs where, he guessed, they appeared standing behind, a. door. The appellant was apprehended and was caught by the arms. The Deputy Superintendent of Police, Chaudhry, after disclosing his identity and identity of others, asked Verma to search him. The search was conducted and nothing was found oil the person of the Deputy Superintendent of Police. Thereafter, the Deputy Superintendent of police took out the currency notes (P/1 to P/25) from the pocket of the bushrt (Exhibit P/2'))of the appellant which he was wearing at that time. He further stated that the Deputy Superintendent of Police prepared some solution and the left and right hands of the appellant were separately dipped in the colourless solution and each fun; the solution turned pink. The solution was transferred into bottles, Exhibits P/27 and P/2 which were corked and sealed. He further stated that the pocket of the bushirt of the appellant was dipped in the colourless solution separately and it turned pink. The solution was put in bottlesExhibit P/29 which was corked and sealed by making use of wrapper. On 6th November, 1973, he stated, the police seized document Exhibit Public Witness . G1, certificate issued by the bank, vide seizure memorandum Exhibit P. W. 1/G and an 14th January, 1974, the police seized document Exhibit P.W. 1/HI vide memorandum Exhibit Public Witness . 1/H.
(6) The prosecution examined 14 other witnesses in support of their case that the appellant was not releasing the sum of rupees one lac deducted by way of security from the contractor's running bills on security being furnished and that the payment in respect of additional items of works was being delayed as the appellant demanded bribe of Rs. 5,000.00 from the contractor and in fact had received Rs. 2,500.00 as bribe on 30th October, 1973, which amount was recovered from the appellant by Chander Bhan, Deputy Superintendent of Police, who apprehended the appellant immediately after the receipt of the said amount by organising a raiding party on the complaint filed by R.S.Sharma.
(7) The Trial Court dealing with the evidence produced in the case while recording its assessment observed in paragraph 25 of the impugned judgment that it had to be readily conceded that the appellant did not designate delay the submission of extra items statement for sanction to the Superintending Engineer.
(8) The trial Court further found the following facts in favor of the appellant:
(1)That the appellant made payment of extra items up to the limit of his power, i.e.. Rs. 25.000.00 ; (2) That he also made payment up to October, 1973, in the amount of more than Rs. l,84,000.00 ; (3) That pending sanction of extra items payments were made to the extent of 70 % in the running bills being within bids competence; (4) That P.D. Sehgal (Public Witness 8) was not a reliable witness as he was inimical to the appellant who insisted that Sehgal should be punctual in attending the office which he was unable to do because he was pre-occupied in the construction of his house at the relevant time ; (5) That the complainant, R.S. Sharma, and his son U.S.Sharma also were inimical towards the appellant and wanted to im plicate the appellant in a false case to get rid of the appellant's strait supervision and insistence on good quality work in respect of constructions of Lower Income Group quarters.
(9) In the premises the Trial Court held that the story of demand of bribe put forth by the complainant and his son could not be believed without corroboration and that P.D.Sehgal's statement could not be said to furnish corroboration because he was inimical towards the appellant. The trial Court, however, placing reliance on the testimony of the two independent witnesses, ramely, R.L. Verma (Public Witness 3), R.N. Khanna (Public Witness 11) and Chander Bhan, Deputy Superintendent of Police (Public Witness 14), believed the prosecution case regarding the recovery of the money from the pocket of the bushirt of the appellant and held that the statements of the said witness lent corroboration to the case of the complainant RS. Sharma. The trial Court rejected the version of the appellant that K.S.Sharma and his son U.S.Sharma on 30th 0ctober, 1973, came to his house around 8 p.m. and tried to foist the money on him and he was trying to resist with his both hands, the police raiding party entered the drawing room and tried to over-power him despite his strong protest and that the currency notes Exhibits P/1 to P/25 were not recovered from the pocket of his bushirt but in fact they were snatched from the hand of R. S. Sharma by the police who had falsely implicated him. Raising the statuto, presumption under section 4(1) of the Act against the appellant and accepting the prosecution version regarding the recovery of the money, viz, Rs.2,500.00 Exhibits P/l to P/25 in 100 rupees currency notes from the appellant, the trial Court observed fiat the recovery lent corroboration to the case of the complainant R.S Sharma regarding the demand and acceptance of bribe or illegal gratification by the appellant. In the result, the Court held that the charges for the offence punishable under section 161 of the Indian Penal Code and under section 5(2) read with section 5(l)(d) of the Act stood proved against the appellant, and accordingly sentenced the appellant to 6 month's simple imprisonment and a fine of Rs. l,000.00 for the offence punishable under section 5(2) of the Act, besides sentencing him to six month's simple imprisonment for the offence punishable under section 161 of the Indian Penal Code, in default of payment of fine the appellant was sentenced to further undergo simple imprisonment for two months in respect of each sentence of ne. The substantive sentences awarded were ordered to run concurrently while the sentences in default of payment of fine were ordered to run consecutively.
(10) Shri R.K.Garg, learned counsel appearing for the appellant, strenuously contended that the prosecution story as alleged was unacceptable and unnatural and that the appellant was made the victim of the unscrupulous contractor and overzealous investigating officer who had ready access to stock trap witnesses too wiling to support the false prosecution case. He submitted that RS.Sharma, the complainant, had nursed grievance against the appellant on account of the complaints made by the appellant against the poor quality of work executed by the contractor. It was contended that Shri H.D. Sharma Executive Engineer who was earlier in charge of the work of the complainant was not satisfied with the execution of work by the complainant and had brought to the notice of the complainant the unsatisfactory quality of the work done by him. This infuriated the contractor who threatened to blackmail the staff and get them remove. This was borne out from Shri H D Sharma's letter to the contractor, copy of which was endorsed to the Chief Engineer (Housing) D.D A. vide Exhibit Public Witness 12/DB. It was accordingly submitted that because of the bullying behavior of the contractor and the substandard work done by the contractor, it was thought fit to take out the construction work of 326 Lower Income Group dwelling houses from Housing Division No. 1 and create a separate Division, Housing Division No. Xii to deal more effectively with the said construction work. The appellant, it was contended, was specially selected for the job because of his high integrity and his sense of devotion to work.
(11) Could the appellant in the circumstances, it was submitted, be naive enough to demand bribe from the complainant knowing full well his background? Onthe contrary, it was urged, the appellant had tightened control over the complainant who nursed a grouse against the appellant and eventually had implicated him falsely in the present case. No doubt on the creation of a new Housing Division No. Xii with effect from 1st March, 1973, work of 326 dwelling houses was transferred to 'the new division and the appellant was posted as executive Engineer in charge of this Division but according to B. M. Banerji (Public Witness 12) who earlier had been working in Housing Division No I and was transferred to the new Division No. Xii it would not be correct to say that R.S Sharma contractor's work was transferred as such.
(12) The above-noted contention sought to be urged on behalf of the appellant being not supportable from the record, cannot be sustained.
(13) On the contrary the case of the prosecution is that amounts to the extent of approximately rupees two lacs on accounts of extra item and substituted items of work due to the contractor were not paid, besides withholding the security amount in the sum of rupees one lac despite furnishing a bank guarantee bond and that provided the motive in extracting the bribe Of money.
(14) In support of its case the prosecution placed relianced on the various bills regarding substituted items and extra items of works is stated to have been executed by the contractor, which bills, it was alleged, were not forwarded to the Superintending Engineer for being sanctioned for payment or where it was competent for the appellant to sanction them, he did not do so. These bills are Exhibits P:W.4/A,P.W. 4/C, Public Witness 6/A, Public Witness .6/C, Public Witness .6/E and Public Witness .8/A and Public Witness .8/E. Before dealing with these bills individually, it would be relevant there to note that the bills were prepared by the department on the basis of the measurements recorded in the measurement book. . The bills were to be scrutinized by Shri S.K.. Jain, Section Officer (Technical), P.W13, before they were put up to the appellant for appropriate orders. That the bills were to be so scrutinized is borne out from the testimony 'of B.M.Banerji (Public Witness 12) and indeed is accepted by S.K.Jain.
(15) I first take up bills Exhibits P W.4/A andP:W.6/A as they can be dealt with together. Shri R.S.Mathur, (Public Witness 4) who at the relevant time was Assistant Engineer dealing with the construction work in question Oh being shown substituted items statement. Exhibit Public Witness .4/A stated that it was prepared by Shri Anil Kumar Duggal (Public Witness 6) Junior Engineer who was ^ working under him at that time. The said statement was put up to him. He scrutinized it and signed the same at point 'A'. He forwarded it to the Executive Engineer for sanction vide his letter Exhibit Public Witness 4/B. He identified his signatures on the said letter and point B. Sanction in respect of this bill was not received during the period of 3 months he was there. Anil Kumar Duggal supported the statement of Shri Mathur to the extent that he prepared the statement. Exhibit Public Witness 4/A, bearing his signatures at point B. He further stated that substituted items statement No. 1. Exhibit Public Witness .6/A, was partly prepared by him and partly by B. M.Banerji. He proved his own signatures on it at point A and that of Banerji at point B. This statement Was forwarded to the Executive Engineer vide letter dated 10th May, 1973, Exhibit P.W.6/B. The said letter, he stated, bears the signatures of Banerji at point B. B M.Banerji fully corroborated the above-noted statement of Duggal, adding that no sanction had been issued on this statement.
(16) JK.JAIN, Public Witness .13, checked the statement. Exhibit Public Witness Public Witness 4/A, on 13th September, 1973. He proved his endorsement and signatures on it at point X. He stated that he had gone once or twice to the appellant for showing it but the appellant asked him to came later on as the appellant told him that he was busy otherwise. The statement remained pending with him under those circumstances. On being shown statement Exhibit Public Witness /A with its forwarding letter. Exhibit Public Witness 6/B,Shri Jain stated that it was received in the office of the Executive Engineer and was made over to him on 15th May, 1973, for checking. He checked it on 22nd May, 973, and gave it to the appellant. He proved his endorsement with his signatures at point X on letter Exhibit Public Witness .6/B. He proved the appellants endorsement in date 24th' May, 1973, at point Yon the letter Exhibit P. W.6/B for sending the statement to the Superintending Engineer for approval. Shri Jain further stated that later the appellant verbally told him not to send that statement to the Superintending Engineer till further orders, so the statement remained pending.
(17) Shri Jain's deposition does not inspire confidence. In fact he stands discredited by his cross-examination. According to him it was on 24th May, 1973, itself that the appellant asked him not to send statement Exhibit P.W.6/A to the Superintending Engineer. He, thereforee, did not deal with the said statement after 24th May, 1973, and it remained pending with him. He, however, admitted that he rechecked the statement. Exhibit Public Witness .6/A, on 3rd August, 1973, as per his endorsement in note Exhibit Public Witness 13/DA when he found that in item No. 5 of the statement only partial quantity was substituted. He accordingly wanted Assistant Engineer (J) to furnish details of the measurements. He further admits that the Assistant Engineer (1) did not send a reply and, thereforee, after 3rd August, 1973, the statement (Exhibit P.W.6/A) remained pending with him. He went to the length of staling that the Assistant Eng'neer (1) did not come to have a discussion on the statement in question but he had to beat a retreat admitting that there is an endorsement of discussion in date 25th September, 1973, of the appellant with Assistant Engineer (1) and the Explanationn furnished by the latter was attached. He admitted that on the basis of the above-mentioned discussion he prepared modified statement, copy Exhibit Public Witness . 13/DB, in respect of state- meat Exhibit Public Witness .6/A. He stated that the modified statement is undated but was made after 25th September, 1973. He further admitted that he did not .put up the modified statement to the appellant till 22nd October, 1973, because of other work. He admitted that the Explanationn attached to the endorsement of discussion between the appellant and the Assistant Engineer (1),was not forthcoming on the file. He also admitted that the endorsement on Exhibit Public Witness .13./DA about the discussion between the appellant and the Assistant Engineer (1) and the Explanationn attached in date 25th September, 1973, related to both the statements, viz , Exhibit Public Witness .4/A and Public Witness .6/A. In other words, he admits that statement Exhibit Public Witness .4/A, which he says he had checked on 13th September, 1973, and had carried the same to the appellant once or twice for showing the same to him but the appellant asked him to come later on, also cams up for discussion on 25th September, 1973. There was thus no question of the statement remaining pending with the witnesses because the appellant had asked him to come later on as he was otherwise busy. The witness further conceded that it may be that he did not put up statement Exhibit Public Witness .4/A to the appellant after 25th September, 1973, there being no record about-his putting it up to the appellant.
(18) On perusing the statement of this witness, the question of placing any reliance on him does not arise. It is no doubt true that the appellant had made endorsement at point 'Y' in date 24th May, 1973, on letter Exhibit P. W.6/B indicating his approval for forwarding it to the Superintending :Engineer but the stand of the appellant that he had asked the witness to recheck it before doing so, stands vindicated by the rechecking actually done by the witness despite his denying the suggestion put to him to the said effect. There appears to be substance in the contention of the appellant that , on 24th May, 1973, itself he had asked the witness to recheck the statement despite the loss of memory feigned by the witness that he did not remember the circumstances under which he rechecked the statement on 3rd August, 1973. His averment that it may he when be found statement No. 2 incorrect in some respects he felt obliged to check statement Exhibit PV 6/A does not ring true as he does not say, how and in what respect statement No. 2 was incorrect.
(19) It may bear mention here that as per statement Exhibit P.W. 6/A a sum of Rs. 18,447/- is shown as payable while after discussion with Assistant Engineer (1) according to modified statement. Exhibit P.W. 13/DB, prepared by S.K.. Jain a lesser amount in the sum of Rs. 13.989.84 was found due. The appellant was, thereforee, justified in asking S.K. Jain to recheck the statement despite his having made endorsement by signing the letter Exhibit P.W. 6/B at point 'Y' at which the statement Exhibit Public Witness Pw 6/A was received. Perusal of statement Exhibit P.W. 4/A, shows only the sum of Rs. 1572.40 was payable.
(20) The two statements Exhibits Public Witness Pw 4/A and modified statement Exhibit Public Witness Pw 13/DB pertaining to statement Exhibit Public Witness Pw 6/A having not been put up to the appellant till 22nd October 1973, as admitted by S K. Jain and there being no record about his having put up statement Exhibit Public Witness Pw 4/A again on his own admission, the appellant cannot be held guilty of having failed to procure the sanction from the Superintending Engineer.
(21) This brings me to extra items statement No. 3, Exhibit Public Witness Pw 4/C. According to Shri R. S. Mathur, Public Witness Pw 4, this statement was prepared by Anil Kumar Duggal, Public Witness Pw 6. It was put up to him. He signed it at point A on 4th September, 1973, and forwarded it to the Executive Engineer vide letter Exhibit P. W. 4/D of the same date. The appellant, he staled, sanctioned some of the items as per statement Exhibit P.W.4/E received with forwarding letter Exhibit P.W. 4/F. He identified the appellant's signatures on both the said documents at point 'A'. Anil Kumar Duggal admits having prepared statement Exhibit P.W. 4/C jointly with R.S. Mathur. P.D. Sehgal, Public Witness Pw 8, who was accountant in Housing Division No. Xii, stated that on 30th October, 1973, the appellant gave him extra items statement No. 2, Exhibit Public Witness Pw 4/E, and asked him to examine if he was competent to sanction it. Public Witness Pw 4/E, he stated, is an excerpt of Public Witness Pw 4/C. He examined the same and told the appellant that he was competent to sanction it. The appellant accorded sanction and sent the same to the Assistant Engineer (1) vide letter dated 31st October, 1973, Exhibit P.W. 4/F. A perusal of statement Exhibit P.W. 4/C shows it pertained to three items, viz.,(i) second class brick work 3' thick in cement mortar 1.3 (I cement : 3 coarse sand) with hoop recommending payment of Rs. 7363 60 (II) Encasing rainwater pipe with brick masonary in cement mortar I . 3, recommending payment of Rs. 7035.80: and (iii) Making 1.90 m x 30.5 m. opening in staircases including dismantling R.B. work, cutting reinforced bars, recommending payment of Rs. 1740.00. The recommendation for payment of Rs. 7,035.80 against item No. 1I on scrutiny was not approved and the amount was reduced tors.35/-. Thus the total amount recommended for payment was Rs. 9,138.60. Out of this amount, the sum of Rs. 7363.60 against item No. (i) was sanctioned vide excerpt P.W.4/E. Thus a sum of Rs. 1775/- only remained for payment against statement Exhibit P.W.4/C. It is no doubt true, Exhibit P.W.4/C was submitted to the Executive Engineer vide letter dated 4th September, 1973, Exhibit P.W.4/D and payment of Rs. 7363.60 was sanctioned on 30th October, 1973, there being a delay of really two months but this circumstance was not put to the appellant in his examination recorded under section 313 of the Code of Criminal Procedure with a view to afford an opportunity to him to explain the position. Not according section to this petty amount till 30 the October, 1973, pales into insignificance when we find that a far larger amount in the sum of Rs. l,12,223/- was paid to the contractor by cheque on 17th October, 1973, as admitted by P.D.Sehgal in his Gloss-examination as also by the complainant. If that amount could be paid without any hinderance, no discernible reason is forthcoming on the record to hold that sanction in respect of statement Exhibit Public Witness Pw 4/C was withheld for any ulterior motive.
(22) Substituted items statement No. 1I, Exhibit P.W.6/C, was prepared by Anil Kumar Duggal (PW 6). He proved his signatures on it at point 'A', which was checked by O.P.Gupta (PW 9). Anil Kumar proved the signatures of O.P.Gupta on it at point 'B'. He further stated that it was sent to the Executive Engineer, Housing Division No. Xii vide letter dated 11th June, 1973, Exhibit P.W.6/D, signed by 0 P. Gupta. He also stated that the appellant approved this statement vide his signatures at point 'C' below endorsement 'approved'. O.P.Gupta (PW 9) corroborating the testimony of Anil Kumar proved his signatures at point 'A' on the letter Exhibit P.W.6/D with which the statement in question was forwarded to the Executive Engineer. He, however, stated that though the approval was given by the appellant on 1st October, 1973, the sanction was conveyed on 30th October, 1973, vide letter Exhibit P.W.8/B. He proved the signatures of the appellant on this letter. Exhibit Public Witness Pw 8/B, at point X. In this respect the statement of P.D.Sehgal (PW 8) is that Exhibit P.W.6/C is the manuscript pertaining to the substituted items statement No. 1, Exhibit P.W.8/A, (2 sheets). This statement was received by the appellant vide forwarding letter Exhibit P.W.6/D on 14th June, 1973, as per his (appellant's) endorsement. Exhibit Public Witness Pw 8/C, on it in the said date. He further staled that the appellant gave the statement. Exhibit P.W.8/A, of which Exhibit Public Witness Pw 6/C is the manuscript, to him on 30th October, 1973, for examining if he was competent to award sanction on it. According to the witness, he examined the statement and submitted the same to the appellant within half an hour telling him that he was competent to award sanction. The witness proved his initials on the statement (Exhibit PW8/A)atpointX. From the above-noted testimony of the prosecution Witnesses, it is evident that the case of the prosecution is that although manuscript statement. Exhibit Public Witness Pw 6/C, was received on 14th Jane, 1973, as per endorsement of the appellant on the forwarding letter Exhibit Public Witness Pw 6/D, the appellant sat over it till 30th October, 1973, and after ascertaining from the accountant, Shri Sehgal, awarded sanction to the statement which sanction was conveyed vide letter dated 30th October, 1973, Exhibit Public Witness Pw 8/A.
(23) The story so put is falsified from the documentary evidence on the record. A comparison of the statements Exhibit P.W.6/C and Exhibit P.W.8/A shows that it is one and the same statement pertaining to four items of substituted work and sanction for payment of the sum of Rs. 9070.30 was sought. P.D.Sehgal has conceded that Exhibit P.W.6/C is the manuscript of fair statement Exhibit Public Witness Pw 8/A. There can be no dispute that manuscript statement Exhibit Public Witness Pw 6/C was received by the appellant vide letter Exhibit Pw 6/D on 14th June, 1973, as evidenced by his signature at point X on the said letter. But the appellant above his signatures bad passed an order 'S 0(T)/ACC, may check'. J.K.Jain, Section Officer (Technical) examined this statement and put up his note in date 28th September, 1973, Exhibit Pw 8/DC to the appellant to accord his sanction. Although it is not forthcoming from the record as to on which date the note reached the appellant but one thing is clear that the appellant gave his approval on 1st October, 1973, vide Exhibit Public Witness Pw 8/DD on this note and also gave his approval on the manuscript, statement Exhibit Public Witness Pw 6/C, at point 'C' on the said date i.e., 1st October, 1973. In face of the documentary evidence, the statement of J.K. Jain that he after checking this statement on 14th June, 1973, vide his endorsement at point X on Exhibit Public Witness Pw 6/C had taken the same with the file to the appellant once or twice but he did not accept it saying he was otherwise busy cannot be accepted in view of his own note Exhibit Public Witness Pw 8/DC. There can be no doubt that he has no compunction in telling a lie.
(24) P.D.SEHGAL in his cross-examination when confronted with the above mentioned note of J.K.Jain in date 28th September, 1973, had to concede that scrutiny note. Exhibit Public Witness Pw 8/DC, was in the hand of S.K . Jain and was in respect of statement Exhibit Public Witness Pw 6/C. He also proved endorsement on the said note. Exhibit Public Witness Pw 8/DD to be in the hand of the appellant, bearing his signatures. P.D.Sehgal's statement that he was given the fair statement Exhibit Public Witness Pw 8/A, of which Exhibit P. W. 6/C is the manuscept, by the appellant on 30th October, 1973, for scrutiny stands discredited from the above documentary evidence. He is inimical to the appellant and had allowed his zeal to over-run his regard for truth to male a statement which is falsified by the record. It is no wonder that he obliged the prosecution by putting his initials on statement Exhibit Public Witness Pw 8/A at point X.
(25) Sehgal at the relevant time was having his house built in Janakpuri. The case of the appellant is that the witness because of his preoccupation with the construction of his house used to come to the office after lunch break and had to be warned on that account because his work in the office was suffering. The witness admits that his house was under construction during those days but denied that he used to attend office after lunch break. He, however, admits that on one or two occasions he came late to office. He further admits that once he was asked to explain in writing. On the state of evidence on record the contention of the appellant that he had taken exception to Sehgal's coming late to office because of his preoccupation with the construction of his house and that offended Sehgal, appears to be probable one. Sehgal's testimony which is against the weight of the record, cannot be accepted.
(26) The prosecution also places reliance on Statement No. 3 of the substituted items of work. Exhibit Public Witness Pw 6/E. B.M. Banerji, Public Witness Pw 12, prepared this statement. He proved his signatures on it at point 'A'. Before proceeding on leave in the month of May, 1973, Banerji personally submitted this statement in duplicate in the office of the Executive Engineer. He stated that it was not sanctioned. This statement was checked by Anil Kumar Duggal (PW 6) who signed the same at point B.
(27) None of the witnesses says that this statement was put up to the appellant. The statement does not bear the signatures or initials of the appellant from which it may not be a wrong inference to draw that this statement never came to the notice of the appellant. In respect of this statement the solitary testimony of P.D.Sehgal is that 'This statement too was not sent to the Superintending Engineer'. Why and under what circumstances it was not sent, he does not say. The other witnesses say nothing on this point. In the circumstances, it would be a legitimate inference to draw that somebody in the office was negligent in putting up this statement to the appellant, who cannot be made to pay for the lapse of the office. The mere fact that a sum of Rs. 84,676/- was recommended for payment, cannot be made a ground to penalise the appellant when there is no evidence that the appellant was instrumental in withholding its payment. J K Jain admits that he could not click the statement Exh bit Public Witness Pw 6/E till 22nd October, 1973. Infact he had prepared the analysis rates Exhibit Public Witness PW13/A and B in respect of this statement on 22nd October, 1973, itself and that these had not been submitted to the appellant. In face of this categorical statement of Jain it is absurd on the part of the prosecution to indict the appellant for non-payment of this amount.
(27) Lastly, we are left with extra items statement No. 2, Exhibit Pw 8/E which is for the sum of Rs. 11,484/-. This statement was got proved from P.D. Sehgal (PW 3). He stated that statement Exhibit Public Witness Pw 8/E bears signatures of A.K. Duggal, Sectional Officer, and B.M. Banerji, Assistant Engineer. All that has has stated in respect of this statement was that as per record no sanction was accorded by the office of Executive Engineer in regard to this statement. He does not say when it was received in the office, who dealt with it and whether it was put up to the appellant or not I have perused the said statement, it does not bear signatures or initials of the appellant. S.K. Jain (PW 13) whose duty it was to check all statements and put them before the appellant for orders says nothing about it. Obviously, he had not dealt with it and had no occasion to put up the said statement before the appellant. The inference is obvious that the office sat over the statement and did not deal with it. The omission on the part of the office cannot be fastened to the appellant and make him pay for their sins of omission and commission.
(28) The prosecution has failed to show that the appellant was instrumental, in any manner, in withholding any of the bills of the complainant on which it relies. I have dealt with in detail with each statement and find that the accusation is without any basis. As a matter of fact P.D.Sehgal (PW 8), the accountant, admits that during the period March to October, 1973, R.S. Sharma and Co. were paid running bills from 9 to 15. Those bills included payments on account of extra items. According to bill No. 9, Rs. 5998.22 were paid to R.S. Sharma & Co. by Housing Division No. 1 on account of extra items. He further stated that according to bill No. 15 dated 17th October, 1973, total work done by the contractor was for Rs. 26,08,463/- and that the value of extra items paid to the contractor up to that date was approximately Rs. 1,84,000/-. Out of this amount, he stated, an amount of Rs. 30,000/- or so was paid towards extra items in the month of October. He also stated that on 17th October, 1973, cheque in the sum of Rs. l,12,223/- was given to the contractor.
(29) This statement fully supports the version of the appellant given in his statement recorded under section 313 of the Code of Criminal Procedure. The appellant had no occasion on this count to demand bribe from the complainant. It may not be out of place here to mention that the complainant admits in cross-examination that the appellant used to tell the Assistant Engineer to prepare their statements expeditiously.
(30) The findings of the Trial Court that the appellant did not designate delay the submission of extra items statement for sanction to the Superintending Engineer are accordingly confirmed.
(31) The other accusation against the appellant was that despite the furnishing of the bank guarantee by the contractor, the appellant did not release the security money in the sum of Rs. 1 lac deducted from the running bills of the contractor. There is no dispute with regard to the fact that amounts from the running bills were deducted towards the security amount that was required to be furnished by the contractor.
(32) According to P.D. Sehgal security in the amount of rupees one lac was demanded from the contractors. He stated that deductions were made from the running bills of M/s R.S.Sharma and Company in respect of security deposits and that the amount of security deposit so deducted was about a lac in October, 1973.
(33) Now the case of the complainant is that he asked the appellant on 3 or 4 occasions to release the security amount of Rs. I lac by getting bank security as was done in the other Divisions. He submitted copy of guarantee bond. Exhibit Public Witness Pw I/A, along with letter Exhibit P.W.I/B and application Exhibit Public Witness PW.1/C personally to the appellant on 17th October, 1973. Thereafter he approached the appellant 3/4 times and repeated his request for release of security amount but no action was taken on his requests.
(34) P.D.SEHGAL supporting this aspect of the case stated that application, Exhibit Public Witness Pw 1/C, letter from Syndicate Bank, Exhibit Public Witness Pw 1/B, and draft indemnity bond, Exhibit P.W.I/A, we. e submitted by R.S.Sharma and Company in their office. These documents were sent by the appellant to him on 17th October, 973. He proved the endorsement at point P. W.8/F to be in the hand of the appellant bearing his initials. He scrutinized the papers and made note Exhibit Public Witness PW.8/G which he stated was in his hand and bears his signatures. He recommended that the draft was in order and it may be accepted. He put up his note on 18th October, 1973. It was put up before the appellant on the said date. He proved endorsement Exhibit Pw 8/H to be in the hand of the appellant who initialled it at three places. He received back the papers on 19th October, 1973. He went to the appellant to seek direction for issuing letter to R.S.Sharma and Company but the appellant asked him to keep the papers and further told him that. he would himself inform the contractor. He further stated that in those days it was not necessary to seek confirmation from the Reserve Bank of India in regard to the Indemnity Bond.
(35) Again this aspect of the prosecution case is against the weight of the record. There is a discrepancy in the statement of the complainant who says that he submitted the above-said papers to the appellant personally while P.D.Sehgal says they were received in the office.
(36) The case of the appellant is that these papers were received in the office and he on 17th October, 1973, marked them to the accountant with the remarks in the margin 'Bond not enclosed. It is an advance copy'. He admits that the Divisional Accountant scrutinized the copy of the Bond and put up the paper to him with his comments on 18th October, 1973. He agreed to the suggestion of the accountant and returned the papers' to him on 19th October, 1973, having put his initials in token on his agreement. He further stated that thereafter the papers were never put up to him. The accountant, as already noted above, says that he went to the appellant on 19th October, 1973, to seek direction for issuing letter to R.S.Sharma and Company but the appellant asked him to keep the papers, further telling him that be would himself inform the contractor. Let us examine which is a more probable version. Sehgal in his cross-examination admits that his statement was recorded by the police twice.
(37) To a question whether he remembered that he had told the police in his first statement that the appellant had told him that he would himself inform R.S.Sharma and Company regarding the indemnity bond, he evaded the answer stating that he did not remember. On being confronted with his statement. Exhibit Public Witness Pw 8/DE, he had to concede that the version given by him in the Court was not record id in his first statement to the police. This incidentally be speaks fof the necessity of recording the supplementary statement of Sehgal to bring his version in conformity with the prosecution story.
(38) A perusal of the note Exhibit Public Witness PW8/G put up by the accountant Shri Sehgal, reveals that though the draft guarantee bond was in accordance with the approved specimen prescribed in the C P.W.D. Manual, Volume It, but there were some mistakes in spellings and other inaccuracies which the accountant had corrected. The accountant suggested that the corrected draft be given back to the contractor for giving the guarantee on proper stamp paper and in accordance with the corrections made. It was further submitted that the draft showed that it was valid up to 31st May, 1974, the accountant suggested that it should be made valid up'o 30th September, 1974. The suggestions made by Sehgal were approved by the appellant on 19th October, 1973, as evidenced by his order Exhibit Public Witness Pw 8/H. That being so, there was no occasion for Sehgal to go the appellant on 19th October. 1973, seeking his permission to write a letter to the contractor to do the needful. The permission had already been given vide Exhibit Public Witness Pw 8/H. The statement of Sehgal is not worthy of credence. He is a witness who has no regard for truth. He readily agreed to make a supplementary statement to fit in the prosecution story. I accordingly hold that what was required to be done by the appellant in regard to the release of the security money, proper orders were passed by him and any delay occasioned in executing order Exhibit P.W. 8/H passed by the appellant was entirely due to the office.
(39) But that is not the end of the case. The Trial Court, as already noted above, accepting the testimony of the independent witnesses R. L. Verma and R. N. Khanna and that of the Deputy Superintendent of Police, Chander Bhan, regarding the recovery of twenty-five marked currency notes of Rs. 100/- each. Exhibit P/1 to P/25, from the pocket of the bushirt of the appellant, Exhibit P/26, raising the statutory presumption under section 4(1) of the Act, rejecting the plea of the appellant that the money was snatched by the Deputy Superintendent of Police from the hand of the complainant and planted on him, observed that the recovery of the amount from the possession of the appellant lends corroboration to the case of the complainant regarding the demand and acceptance of the bribe or illegal gratification by the appellant and in consequence convicted and sentenced the appellant as noted in an earlier part of the judgment.
(40) On behalf of the appellant it was strenuously contended that the prosecution evidence bristles with inconsistency and contradictions, besides inherent improbabilities. The Trial Court having come to the conclusion that the service record of the appellant shows him to be an officer of integrity which was unquestioned all through his career and that the integrity was certified to be so by the highest officers in the department ought to have rejected the evidence of the trap witnesses who were not reliable, more so when the complainant had a motive to entrap the appellant. It was further submitted that the complaint of R. L. Sharma (PW 1) founded on allegations that the appellant was not refunding his security amount and paying a sum of Rs. 2 lacs allegedly due to the firm in respect of additional items of work, having not been supported by evidence on record, except the mere ipse dixit of the complainant, the defense version should have been accepted.
(41) That the complainant had a motive to implicate the appellant in a false case because of the rigid supervision enforced by the appellant who also insisted on the use of better quality of material, was sought to bs reinforced from the testimony of Anil Kumar Duggal (PW 6) and B. M. Banerji (PW 12) and the appellant's inspection rotes Exhibits Public Witness PW9/DA to Pw 9/DF, on the working of the contractor. It is Do doubt true that these witnesses admit that the appellant's supervision was more strict than that of his predecessor Shri H. D. Sharma but that would not provide a motive to implicate the appellant, 'the inspection notes of the appellant are of the routine type. The defects pointed out in these notes, according to 0. P. Gupta (PW 9) were minor and promptly attended to. According to Shri Gupta there was no complaint against R. S Sharma about his work being sub-standard. No capital can be made out of letter Exhibit Public Witness Pw 12/DA, portion A to Al, as according to B. M. Bsnerji (PW 12) only at that particular period the complaint was correct. Futher, according to this witness there was no trouble with R. S. Sharma and Company. Besides, this argument fails to take note of letter dated 1st August, 1973, Exhibit Public Witness Pw I/HI given by the appellant to the contractor recording appreciation of its work stating that their organising capacity was quite good and they can easily handle big construction jobs. This latter cf recommendation is incompatible with the appellant's case that the contractor was not doing the job well.
(42) It was then contended that the version given by R.S.Sharma (PW 1) and his son U.S Sharma (PW 2) regarding the alleged demand of bribe by the appellant in his office on 30th October, 1973, is highly discrepant and that the witnesses have charged the entire story of raid. The story of sweets and fruits was an after-thought to suit the changed version of the witnesses otherwise there was no reason if in Fact the sweets and fruits were carried, they be not mentioned in the recovery memorandum.
(43) It was submitted that according to the complainant on 30th October, 1973, he met the appellant in his office. His son U.S.Sharma, Public Witness PW2, was with him at that time. On the way in that building they met Sehgal accounts officer working under the appellant. The complainant is stated to have requested him to help him in the release of his security. But in his cross-examination the complaint contradicts himself stating that there was no specific talk regarding the security bond or extra items/substituted items statement Sehgal just talked about papers and added that payment would be made after papers were received from the appellant. His son, it was submitted, has a different story to tell According to the son on that day they met Sehgal, accountant, on their way to the appellant or on their way back and explained to him their difficulty. The accountant told them that he would expedite the payment if orders were made by the appellant. It was also submitted that the complainant in cross-examination had changed his earlier stand of having met the accountant in the building on their way to the appellant. in cross-examination, he had stated that he did not recollect whether they met the accountant before seeing the appellant or after seeing him that day.
(44) The accountant, Shri Sehgai (PW 8), it was contended has an altogether different story to tell. According to Sehgal on 30th October, 1973, he met the complainant and his son when he was climbing up the stairs of the office and they were coming down. He further stated that they had exchanged greetings. Thereafter, R.S.Sharma said to him that he had seen the appellation connection with the refund of security deposit and sanction of extra items but the appellant was not agreeing. Sehgal also stated that Sharma asked him to speak to the appellant on which he (Sehgal) told him that the appellant was his officer and that he could not speak to him on their behalf. Discrepancy noted above in the statements of R.S. Sharma and his son are not material to detract from the prosecution case. P.D. Sehgal appears to have given an embellished version but that would not militate against the recovery of currency notes Exhibits P/l to P/25 from the pocket of the bushirt of the appellant if otherwise the evidence regarding recovery is reliable and trustworthy which evidence shall be examined on its own intrinsic worth. Falsus in uno, falsus in omnibus is not the rule practiced in Courts in India. An obligation is cast on the Courts to sift the grain from the chaff.
(45) It was then contended that on 30th October, 1973, the Prime Minister of India was scheduled to visit the site and the appellant and other officers had gone to the site The appellant remained there and returned from the site when firm message at I 3U pm. came that the Prime Minister would not visit the site. The complainant it was submitted, admits that the appellant had gone to the site. It was accordingly submitted that the story of the complainant having met the appellant in his office at I p.m. and the appellant demanding bribe from him was unacceptable The complainant no doubt admits about the scheduled visit of the Prime Minister and the fact that on that day in the morning at 9 or 10, almost all the officers including the appellant were present at the site and that work was in progress at full speed at the site. He, however, denied that all the officers remained there that day till 2 p.m. He left the site at I I a m. His leaving the site by I I a.m. is indicative of the fact that firm message by that time of the Prime Minister cancelling her visit had been received, otherwise he being the concerned contractor could not afford to leave the site when the visit of the Prime Minister was concerning the work executed by him. Appellant alone was not present at the site. Other officers were also present. Appellant could have examined any one of them in support of his claim that he left the site after 1.30 p.m. This he has failed to do.
(46) It was then submitted that a serious doubt is cast on the fairness of (he investigation and that efforts were made to procure evidence at later stages, suiting Ihe convenience of the prosecution. This submission was sought to be fortified from the statement of the complainant that he produced certified of the Bank to the police on 6th November, 1973, when his statement was recovered, it w.is contended, if the certificate was procured on 30th October, 1973, (her; was no reason why it was not produced before the police along with the complaint. I find no substance in this contention which cannot be sustained in view of the categorical statement of the bank manager P. K. Patnaik (PW 5). The manager had proved cheque Exhibit Public Witness Pw 5/A. that the complainant got encased from ihe Bank on 30th October, 1973, and the certified Exhibit P.W. 1/GI which the Manager prepared mentioning the numbers of the currency notes and handed it over to the complainant.
(47) The case of the complainant is that he on 30th October, 1973, had seen the appellant at I P. M in his office and expressing his financial difficulty in carrying on with the execution of work, had asked for the release of the security amount and for passing the amount due on account of extra items when the appellant asked him if he could pay Rs. 5500/-. The complainant represented that he had no money to carry on even with his works, whereupon the appellant asked him to bring Rs. 2.500/- for payment to him at his house that evening, adding that on payment of that amount he would consider the matter. The appellant it is alleged, further said that the complainant would have to pay further amount of Rs, 2.500/- after refund of the security amount and payment, in respect of extra items. Oncoming out of the room the complainant and his son pondered over the matter, and then went to the bank wherefrom they withdrew the money. They decided to report the matter to the C. B. I. Accordingly they went there and presented their complaint Exhibit P.W. I/D to the Superintendent of Police who called Chander Bhan Deputy Superintendent of Police (PW 14) to his office and handing over the complaint to the Deputy Superintendent of Police directed him to register a complaint. First Information Report Exhibit Pw 14/A was registered on this complaint. The Deputy Superintendent of Police secured two independent witnesses, R. L. Verma (PW 3) and R. N. Khanna (PW 11) through the Vigilance Officer, Regional Settlement Commissioner's office. .
(48) The Deputy Superintendent of Police organized a raiding party consisting of the two independent witnesses. Inspector V. P. Sharma, Mr. Yadav and Assistant Sub-Inspector Ram Chander. According to the testimony of the Deputy Superintendent of Police Chander Bhan (PW 14), the complainant produced Rs 2500/ in 25 currency notes of Rs. 100/- each, Exhibits P 1 to P 25 which money was to be given as bribe to the appellant on account of the demand made by him He prepared binding over note Exhibit Public Witness Pw I/E wherein the numbers of the currency notes were recorded. These notes were treated with phenol the lene powder and the usual demonstration that the hands of anyone touching the notes when dipped in clear solution of sodium carbonate, the solution would turn pink, was given. The notes were returned to the complainant after searching his person and ensuring that he had no other cash with him. The complainant was directed to pass on that amount to the appellant on demand. R. L. Verma (PW 3) was asked to act as shadow witness. The complainant was directed to give signal by way of coughing on the passing of the bribe to the appellant.
(49) The Deputy Superintendent of Police stated that it was decided that the complainant and his son will go to the appellant's house in the first instance, and if the appellant was found present, the son of the complainant would return and inform the raiding party, then one basket of fruits and two packets of sweets, which were to be purchased from the market, would be taken by the complainant's son and R. S Verma to the appellant. It was also decided that the money may be paused by the complainant to the appellant in the presence of R. S Verma.
(50) The raiding party the Deputy Superintendent of Police stated left for Greater Kailash in two cars at about 6 p.m. In the way from the market fruits and sweets were purchased for which U S.Sharma paid. They reached the house of the appellant at 7 p.m. The appellant was not present in his house They waited outside the house. The appellant came at about 8 p.m. Immediately, thereafter, the complainant and his son went to his house which was situated on the first floor. The sweets and fruits laying in the car of the complainant were taken later by U.S.Sharma, on return from the appellant's house, with the assistance of Rs Verma, to the appellant's house. U.S.Sharma carried the sweets while Verma carried fruits. U.S.Sharma had informed them that his father and the appellant were in the drawing room of his house. The Deputy Superintendent of Police further stated that they followed U.S. Sharma and R.L Verma to the staircase of the house and took positions there. Within one or two minutes, both U.S. Sharma and R.L.Verma came back and informed them of bribe-money having passed to the appellant. They also heard the signal by way of coughing. Immediately, thereupon all of them rushed to the drawing room.
(51) He further stated that he disclosed his identity to the appellant and caught hold of him by his arms near the elbows towards the wrists. The appellant was nervous. After giving his search to the witnesses, the Deputy Superintendent of Police searched the person of the appellant and recovered notes Exhibits P/l to P/25 from the left side pocket of the bushirt, Exhibit P/26,worn by the appellant. The numbers of the currency notes were compared with the numbers recorded in Exhibit P.W.I/E, and they tallied. The two hands of the appellant were separately put in two clear solutions of sodium carbonate and the soil corporation turned pinkish. The hand washes were transferred to two separate bottles. Exhibits P/27 and P/28. The pocket of the bushirt from which the currency notes were recovered was dipped in another clear solution of sodium carbonate the solution turned pinkish and was transferred to bottle Exhibit P/29. The bottles were duly sealed. The witness proved bottles Exhibit P/27 to P/29 to be the said bottles. The seal impression was taken on recovery memorandum Exhibit Public Witness Pw 1/F. The witness proved his signatures on it at point X. The seal after use was given to R.N.Khanna. The fruit basket and packets of sweets were taken away by U.S Sharma.
(52) It is no doubt true that there is no independent witness to support the testimony of the complainant regarding the demand of bribe by the appellant in his office on 30th October, 1973, except his evidence of his son U.S.Sharma. That being so all that is required is to examine their testimony with a little more caution and greater scrutiny. S3 examined their testimony cannot be said to be incredible or false, more so when corroboration is provided by the recovery of the numbered currency notes from the appellant which dissolves scepticism and builds up credence.
(53) The complaint had no motive to involve the appellant in a false case. The observations of the Trial Court that, the contractor R.S.Sharma, appears to be a clever person who could as well have tried to implicate the accused in a false case to get rid of his strict supervision and clear insistence on good quality work in respect of construction of Lower Income Group quarters, are not warranted by the record. The Trial Court in so observing eschewed the certificate Exhibit P.W.I/HI given by the appellant and the evidence of O.P. Gupta, (PW 9), that there was no complaint against R S.Sharma about his work being substandard The Trial Court in taking the view noted above was mostly influenced by letters Exhibit P.W.12/DA dated 27th January, 1973. aud Exhibit P.W.12/DB dated 29th January, 1973, but they were much prior in point of time than certificate Exhibit Public Witness Pw I/HI issued on 1st August, 1973, which takes the sting out of the earlier complaints. The contractor as such had to be grateful to the appellant for appreciation of his work. That the work of the contractor was up to the standard prescribed is borne out from the testimony of O.P.Gupta. According to Shri Gupta no doubt the Superintending Engineer and the Executive Engineer (the appellant) found some defects in the work of the contractor as noted in their inspection notes, but they were of a minor nature and were promptly attended to. If the work was really sub-standard or otherwise not good the contractor would not have been paid Rs,l,12,223/- on 17th October 1973, or allowed to complete work to the tune of Rs.26,08,463/- as per bill No. 15 dated 17th October, 1973, against the total sanctioned amount of Rs. 36 lacs and odd.
(54) The prosecution story as unfolded by the complaint finds support from the testimony of the Deputy Superintendent of Police and is fully corroborated by the other witnesses, viz., U.S.Sharma, R.S. Sharma and R.N.Khanna and is backed by the recovery of numbered notes Exhibit P/l to P/25 from the bushirt Exhibit P/26, worn by the appellant the time of recovery.
(55) The learned counsel for the appellant submitted that there were glaring discrepancies in the version given by the witnesses and that it was not possible to sustain the conviction on its basis. He further submitted the . the witnesses, especially R.S.Verma (PW 3) have changed the entire theory of raid, rendering it unworthy of credence. It was submitted that according to the memorandum Exhibit Public Witness Pw 1/E, R.L.Verma was asked to act as a shadow witness in order to see and over hear whatever transpired between the decoy witness and the appellant. Besides a signal by way of coughing loudly was to be given by R.S.Sharma to the members of the raiding party as soon as the bribe money was demanded and accepted by the appellant but story given by the witnesses in Court is entirely different. I do not ageee. In deciding that Shri R.S. Verma would accompany U.S.Sharma and carry basket of fruits when sweets and fruits were taken to the appellant does not in any manner change the core of the prosecution version or assign a different role to R S.Verma. The presence of Shri Verma was not likely to create any suspicion in the mind of the appellant, assurance being provided by the presence of the contractor.
(56) The learned counsel vehemently contended that statements of the complainant and R.S. Verma were discrepant about the relative position the complainant and the appellant were occupying in the drawing room. According to the complainant he was occupying a sofa which was at a distance of three feet from the door of the room towards the right hand side and the appellant was occupying another sofa opposite to his sofa at a distance of five or six feet, while according to R.S.Verma the complainant and I he appellant were standing. The version of R.S. Verma, it was submitted, probabilities the stand of the appellant that there was an argument between the complainant and the appellant who was resisting the attempt of the complainant to plant the money on the appellant in which process his hands got be smeared with powder turning the solution pink in the test subsequently carried out. In the alternative it was submitted if the appellant was occupying the sofa, why should he stand up when U.S.Sharma and R.S.Verma entered the room with the alleged basket of fruits and packets of sweets and if he stood up on being startled on the presence of a stranger R.S.Verma there was no occasion for the appellant to accept the money. That, it was contended be speaks in favor of the contention of the appellant that he was made a victim of the conspiracy of the complainant and his son to thrust the money into the hands and the pocket of the bushirt of the appellant.
(57) The hypothetical contention sought to be raised on the basis of the alleged discrepant statement cannot be countenanced in view of the cogent and consistent testimony of the Deputy Superintendent of Police and the two independent witnesses regarding the recovery. One cannot altogether rule out the possibility of the appellant otherwise getting up from the sofa. No argument can be built on that score to destroy the factum of recovery. Equally no argument can be built on the hypothetical ground that the appellant as admitted by the complainant often used to visit the site of construction and why could he not demand bribe on any of those visits, why should be particularly chose 30th of October, 1973, alone. No capital can be made out of the fact that pocket of the bushirt when shown to the witnesses in Court was not found to be pinkish and that destroyed the theory of recovery of the money from the pocket. This argument fails to take notice of the fact that the Chemicals used in phenol the lene powder are not of a fast colour to last for ever. With the passage of time the colour was likely to fade and that speaks for the fact that in Court the colour of the pocket of the bushirt was not found pinkish. It was equally futile to contend that the pending bills of the complainant which would be best evidence in support of the complainant's case that his dues were not being paid or had been withheld. Exhibit Public Witness Pw /6E was one such bill. It is amply proved on the record as noticed in an earlier part of the judgment that there was delay in payment of some amounts in respect of extra items and that some statements in respect of extra items did not reach the Superintending Engineer for sanction till October, 1973. That was a situation which was capable of being exploited. The fruits and sweets were allowed to be taken away by U. S. Sharma. Their non-recovery is not fatal to the recovery of money. The absence of the appellant at his house at 7 p.m., the agreed time would not militate against recovery. No ostensible reason is forthcoming on the record as to why R. S Verma be not believed that the complainant gave currency notes lo the appellant who 'accepted the same in his left hand and then put them in his right hand and then put them in the left pocket of his bushirt'. He corroborates the version of complainant and his son. Corroboration to the testimony of these witnesses is found in the ultimate recovery.
(58) Some of the minor discrepancies in the case were brought to my notice, they are of inconsequential import and have no bearings on the substratum of the prosecution version.
(59) R.S. Verma and R.N. Khanna cannot be dubbed as interested witnesses. They did not associate in the raid of their own volition but were sent by the Vigilance Officer of the Regional Settlement Commissioier. They cannot be condemned and their testimony rejected because they had risen from ranks. The Deputy Superintendent of Police and the independent witnesses were not inimically disposed towards the appellant and had nothing to gain in being witnesses in the case. The mere fact that R.N. Khanna had earlier joined 3 or 4 other raids or traps organized by the C.B.I, would not be enough to discard his statement altogether. At best i( casts an obligation to examine his statement more cautiously. So read his statement inspires confidence. The trap witnesses are not accomplices. The law does not require that their evidence be corroborated for being accepted as sufficient to found a conviction (See Bhanuprasad Hariprasad Dave and another vs. The State of Gujrat, ).
(60) The appellant was tried for having committed an offence punishable under section 161 of the Indian Penal Code besides having committed an offence punishable under section 5(1)(d) of the Act punishable under section 5(2) of the Act. That being so, the Trial Court was justified in raising the statutory presumption in terms of sub-section (1) of section 4 of the Act, against him.
(61) In C.I. Emden vs. State of Uttar Pradesh, : 2SCR592 , their Lordships have held that the presumption under section 4(1) of the Act arises when it is shown that the accused had received the stated amount and that the said amount was not legal remuneration. In Dhanvantrai Balwantrai Desai vs. The State of Maharashtra, : 1964CriLJ437 , following their earlier decision in C 1. Emden's case (supra), their Lordships observed that what the prosecution had to prove was that the accused person had received 'gratification other than legal remuneration' and that when it was shown that he had received a certain sum of money which was not a legal remuneration, then the condition prescribed by sub-section (1) of section 4 was satisfied. The Court reiterated its earlier view in Emden's case that if the word 'gratification' was construed to mean paid by way of bribe then it would be futile or superfluous to prescribe for the raising of the presumption. It was accordingly observed that the plain meaning of the clause (1) of section 4 undoubtedly required the presumption to be raised whenever it was shown that the valuable thing had been received by the accused without anything more. Further if that was the true position in respect of the construction of that part of section 4(1), it would be unreasonable to hold that the word 'gratification' in the same clause imports the necessity to prove not only the payment of money but the incriminating character of the said payment.
(62) The grievance of the appellant for raising the statutory presumption against him is wholly misconceived in the facts and circumstances of the case. It is a presumption of law. It was obligatory for the Court to raise this presumption on being shown that the appellant had received the marked notes Exhibit P/l to P/25 which were not his legal remuneration.
(63) The defense version that the currency notes were not recovered from the pocket of the bushirt, Exhibit P/26, which the appellant was wearing but were snatched from the hands of R. S. Sharma by the police and that the Deputy Superintendent of Police touched the fingers of the appellant with his fingers and then dipped them along with his own fingers in the solution and likewise the pocket of the bushirt was dipped by the Deputy Superintendent of Police along with his own fingers in the solution due to which the clear solutions turned pink, is wholly unsatisfactory and altogether flimsy. Having regard to the preponderance of probabilities, the story put forth by the appellant does not ring true.
(64) Though the appellant has raised the question of competency of Shri G. P. Kalra Under Secretary. (Pw 15) sanctioning his prosecution in the grounds of appeal but nothing was urged on this point during the course of arguments.
(65) In view of the discussion on various points noted above, the appeal fails and is hereby dismissed. The appellant shall surrender his bail bond. The appellant be taken into custody so as to serve the sentence awarded to him.