P.N. Sinha, J.
1. This appeal is directed against the judgment and order of conviction under Section 161 of the Indian Penal Code (in short I.P.C.) and also under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act (in short P.C. Act), 1947 passed by the learned Judge, 24-Parganas (South), 1st Special Court, Alipore in Special Court Case No. 8 of 1987 thereby sentencing the accused appellant to suffer rigorous imprisonment for one year and to pay a fine of Rs. 2000A in default rigorous imprisonment for three months for the offence under Section 161 of IPC and rigorous imprisonment for three years and to pay a fine of Rs. 5000/- in default rigorous imprisonment for nine months for the offence under Section 5(2) of the P.C. Act. 1947. Being aggrieved by, and dissatisfied with, the judgment and order of conviction and sentence the accused appellant has preferred the instant appeal.
2. The prosecution case was started on the basis of written complaint/FIR made by Prasanta Agarwal (P.W. 1) submitted before the Superintendent of Police, CBI, 13, Lindsay Street, Calcutta. It was alleged in the complaint by P.W. 1 that on 23.7.86 some officials of Central Excise under the leadership of the appellant Sat Paul, Assistant Collector of Central Excise, raided the office of M/s. Capital Electronics situated at P-161, V.I.P. Road, Scheme VIIM, Calcutta-54 and at that time they seized some documents and also detained some T.V. sets pending investigation. At the time of leaving office of M/s. Capital Electronics, the appellant asked the complainant party to meet him at his office at Bamboo Villa next day. Accordingly, the complainant (P.W. 1) accompanied by Anand Swarup Agarwal (P.W. 6), partner of the said firm, met the appellant at his office when the appellant asked them to pay a sum of Rs. 40007- to him as bribe, otherwise he would not release the seized goods and would continue to harass them.
3. On 28.7.86 P.W. 1 met the appellant at his office and requested him to release the seized goods and after much persuasion the appellant agreed to pass order for release of the goods on condition of payment of Rs. 4000/- as illegal gratification. The appellant also asked the complainant to meet him at his oficce next day at about 10.30 a.m. with the bribe money. The complainant under compelling circumstances agreed to pay him the amount of bribe and thereafter the appellant issued an order dated 28.7.86 releasing the said goods unconditionally, which is totally contrary to the previous order issued by the appellant. The appellant had changed his earlier order after getting assurance from the appellant regarding bribe money of Rs. 4000A but, the appellant informed the complainant that if he does not pay the sum of Rs. 4000/- as bribe the appellant would cause more harassment in various ways.
4. The complainant (P.W. 1) was not willing to pay bribe amount to the appellant and accordingly he went to the office of the CBI and submitted written complaint on 28.7.86. Receiving the written complaint P.W. 9 S.R. Majumder, the Inspector of Police, CBI started R.C. Case No. 55/86 on 28.7.86 at 3.15 p.m. and filled up the formal FIR and the CBI officials decided to lay a trap on the matter. After receiving the complaint requisitions were sent to the witnesses to come to the CBI office and the complainant was introduced with the witnesses at CBI office on 29.7.86 at 7 a.m. The complainant accompanied by one Miss Debjani Bardhan (P.W. 8) came to the office of the CBI at about 8 a.m. on 29.7.86 and they were introduced with the witnesses. Thereafter, the complainant and the witnesses were informed about the procedure of laying trap and a pre-trap memo was prepared and the currency notes produced by complainant were mixed with phenolpthaline powder (in short P. Powder). After observing all formalities the CBI officials laid a trap and everything was noted in the pre-trap memorandum.
5. Thereafter, they reached the office of the appellant at about 9.55 a.m. and took position in different places. P.W. 1 with Debjani Bardhan (P.W. 8) went towards the chamber of the appellant. And when the complainant entered inside his chamber, the appellant told the comoplainant that he was waiting since 10 a.m. and wanted to know whether he had brought the money. The complainant answered in the affirmative and brought out the money from his bag and handed it over to the appellant who accepted it by holding the same with his hands and kept the bribe money inside right drawer of his office table. The complainant then gave signal according to earlier direction and the CBI officials apprehended the appellant red-handed in presence of the witnesses. When challenged, the appellant admitted acceptance of Rs,. 4000/- as illegal gratification from the complainant and pointed out that he had kept the money in the right side drawer of his table. S. Banerjee (P.W. 2) then brought out the money from the drawer according to direction of P.W. 9 and the numbers of the notes which were noted in the pre-trap memo tallied with the number of currency notes recovered from the drawer of the appellant. The hand solution of the accused was taken and it became pink and it was preserved in a bottle marked 'B'. Thereafter, the currency notes and the bottle and other things were seized under a seizure list (Ext. 6). Another seizure list was prepared which was marked Ext. 7. Another seizure memo dated 31.7.86 in respect of document produced by the complainant was seized which was marked Ext. 15.
6. After arresting the accused and completing all formalities when they were about to leave the office of appellant about 50/60 Central Excise Officials tried to assault the raiding party and even tried to snatch away the seized articles and the appellant. With the assistance of local police and other CBI officers the raiding party members were rescued and over that matter a complaint was lodged at Beniapukur P.S. in respect of attack and assault on the CBI officials at the time of their raid. Thereafter, the post-trap memo was prepared and after completing investigation chargesheet was submitted against the appellant under Section 161 of IPC and Section 5(2) read with Section 5(1)(d) of the P.C. Act, 1947.
7. Thereafter, the trial proceeded and charges were framed and the appellant as accused in the Trial Court pleaded not guilty and claimed to be tried. Finally at the end of the trial the learned Trial Court found the appellant guilty for the offence under Section 161 of the IPC and under Section 5(2) read with Section 5(1)(d) of the P.C. Act, 1947 and convicted him thereunder and imposed the sentence as mentioned above.
8. In order to prove its case the prosecution in the Trial Court examined as many as 10 witnesses namely, P.W. 1 Prasanta Agarwal (complainant), P.W. 2 Subhas Banerjee (independent witness), P.W. 3 Amalendu Biswas (independent witness), P.W. 4 Alok Kuamr Sen, one of the Inspector of Central Excise, P.W. 5 Dr. Amar Chatterjee (Assistant Director of Forensic Science Laboratory who tested the sample bottles and submitted report), P.W. 6 Anand Swarup Agarwal, partner of M/s. Capital Electronics, P.W. 7 R.N. Mukherjee (retired Superintendent of Central Excise), P.W. 8 Debjani Bardhan (employee of M/s. Capital Electronics), P.W. 9 Samir Ranjan Majumder (Inspector of CBI, who filled up formal FIR and took preliminary steps for trap) and P.W. 10 S.N. Bhattacharya (retired Deputy Superintendent of Police, CBI), who investigated into the case and after completing investigation submitted chargesheet against the appellant.
9. The appellant did not examine any witness and the defence case as it appears from the trend of cross-examination of prosecution witnesses and answer of the appellant in his examination under Section 313 of the Code of Criminal Procedure (in short the Code) is that he was falsely implicated into the case. It was his further case that duty of the seized goods was only Rs. 3400/- which was paid earlier and when the goods were released on 28.7.87, the alleged demand of bribe by him on 29.7.87 was false, and a concocted story was introduced by the prosecution.
10. For the prosecution paper documents which were admitted in evidence were marked as Exts. 1 to 15 and the material exhibits were Ext. I, II, III (collectively). Ext. 1 is the application dated 25.7.86 by P.W. 6 before the Assistant Collector, Central Excise, Calcutta requesting releasing of the goods as the customers were pressing hard for delivery of the goods. Ext. 1/1 is the signature and instruction of the present appellant dated 25.7.86 on Ext. 1. Ext. 2 is ordersheet dated 28.7.86 signed by the appellant. Ext. 3 is another ordersheet of same date 28.7.86 written and signed by the appellant. Ext. 4 is the written complaint by P.W. 1 dated 28.7.86 addressed to the Superintendent of Police, CBI, Lindsay Street, Calcutta for taking action against the appellant for alleged demand of bribe of Rs. 4000/-. On the basis of this written complaint formal FIR marked as Ext. 14 were filled up and CBI started Case No. RC 55/86 at 3.15 p.m. on 28.7.86 under Section 161 of the IPC against the appellant. Ext. 5 is the pre-trap memorandum prepared by the CBI showing therein how they took preliminary steps before laying the trap to intercept the appellant at the time of taking bribe amount.
11. Ext. 6 is search list dated 29.7.86 made in the office chamber of the appellant at Bamboo Villa, 4th Floor which shows seizure of Government currency notes (in short G.C. notes) of Rs. 4000/- in all of different denominations which are tallying with the number of notes and denomination of notes mentioned in the pre-trap memo. Ext. 7 is seizure memo dated 29.7.86 showing seizure of one file bearing No. V (85-28) 8/Prev/Cal-E 86 containing pages 1 to 29 relating to seizure of goods from M/s. Capital Electronics, the business concern of P.W. 1. Ext. 8 is seizure list dated 23.7.86 made by R.N. Mukherjee, Excise Officer and the seizure was made at Capital Electronics showing seizure of some T.V. sets from the said business concern. Ext. 9 is detention memo dated 23.7.86 prepared by R.N. Mukherjee, the Excise Officer showing seizure of some T.V. sets from M/s. Capital Electronics. Ext. 10 is custodian receipt which shows that the Excise Officers took the articles seized in their custody and it appears that those goods were returned later on 28.7.86. Ext. 11 is another detention memo dated 23.7.86 prepared by R.N. Mukherjee, the Excise Officer and this detention memo is in respect of the seizure of articles as reflected in Ext., 8. Ext. 12 is the report of Chemical Examiner (P.W. 5) in respect of the bottles marked as A and B which were sent to him for chemical examination and report as those bottles contained P. Powder mixed with soda and water. Ext. 13 is attested copy of release order of the goods dated 28.7.86 and Ext. 15 is seizure memo dated 31.7.86 and this seizure list shows that one original letter dated 25.7.86 addressed to the Assistant Collector, Central Excise written by P.W. 6 was handed over to the Superintendent of Police, CBI at their office at Lindsay Street.
12. Material Ext. I is bottle with pink colour water marked A connected with pre-trap memo, Ext. II is bottle with pink colour water marked B containing hand wash solution of appellant and Ext. III (collectively) are the G.C. notes which were seized from the appellant alleged to be bribe money.
13. On behalf of the appellant some documents were marked as exhibits and these are Ext. A series and Ext. B. Ext. A is signature of and Anand Swarup Agarwal (P.W. 6) on Ext. 1. Ext. A/1 is signature of Debjani Bardhan (P.W. 8) on Ext. 1. Ext. A/2, Ext. A/3 and Ext. A/4 are the signatures of Debjani Bardhan on Exts. 8, 9, 10 and 11 respectively. Ext. A/5 is the signature of Anand Swarup Agarwal on Ext. 11 and Ext. A/6 is another signature of Anand Swarup Agarwal dated 23.7.86 over a bond executed for Capital Electronics in view of provisions of Section 110 of the Customs Act. Ext. B is signature of S.K. Ghosh, the Deputy Superintendent of Police, CBI dated 31.1.96.
14. Mr. Alok Mitra, the learned advocate for the appellant submitted that out of the 11 witnesses examined by the prosecution P.W. 2 and P.W. 3 were independent witnesses but they were declared hostile witnesses. P.W. 4 was a witness who belonged to Central Excise Department and attached to valuation cell at the relevant time and he was also declared hostile witness. These three witnesses did not support the prosecution case and as a result of which the prosecution case has lost its weight and prosecution case has been shattered.
15. I am unable to agree with the views of Mr. Mitra, the learned advocate for the appellant. The settled law is that when prosecution cross-examines its own witness declaring him hostile, the evidence of such hostile witness does not completely effaced. The testimony of hostile witness, if not shaken on material points in cross-examination, such evidence cannot be totally brushed aside. The Supreme Court has made the legal position clear by observing that part of hostile witness which is otherwise acceptable can be acted upon and also stated that evidence of such witness cannot be discarded. In this connection, I rely upon the decisions in Bhagwan Singh v. State of Haryana reported in : 1976CriLJ203 , Sat Paul v. Delhi Administration reported in : 1976CriLJ295 , Mazahar Ali v. State reported in 1976 Cr. LJ 1629, Prakash Chand v. State (Delhi Administration) reported in : 1979CriLJ329 , Syad Akbar v. State of Karnataka reported in : 1979CriLJ1374 and Khujji alias Surendra Tiwari v. State of Madhya Pradesh reported in : 1991CriLJ2653 .
16. I have duly considered the submissions made by the learned advocates for the parties and perused the oral and documentary evidence lying in the record and as reflected in the paper book and also perused the materials on record carefully. It appears that P.W. 2 was examined-in-chief on 24.10.90 and he was cross-examined on 13,12.95. P.W. 3 was examined-in-chief on 3.4.91 and was cross-examined on 13.12.95. Perusing the evidence of P.W. 2 and P.W. 3, I find that in their evidence in examination-in-chief they fully corroborated the prosecution story and stated that on 28.7.86 they were asked to attend CBI office and they were introduced with the complainant Prasanta Agarwal. There the CBI Inspector P.W. 9 told them about the preparations for lying trap and prepared the pre-trap memo and they were asked to attend CBI office on 29th July, 1986 at about 8 a.m. On 29.7.86 they left CBI office for Bamboo Villa at about 9.50 a.m. and reached Bamboo Villa and arrived at 4th floor of the said building and came in front of chamber of the appellant Sat Paul. At about 10/10.10 a.m. P.W. 1 Prasanta Agarwal and P.W. 8 Miss Debjani Bardhan entered into the chamber of appellant. They were waiting outside the chamber and they noticed that the appellant was in his chamber as door of the chamber was open. The appellant then asked P.W. 1 and P.W. 8 in Hindi as to whether they have brought the money with them because he had been waiting for them since 10 a.m. P.W. 1 then informed the appellant that as per his instruction he has brought Rs. 4000/- and the appellant then asked for that amount and P.W. 1 handed over the same to the appellant. The appellant then accepted the money and kept it inside the second drawer on his right side of his secretariat table. Then as per previous instruction given by CBI officers P.W. 1 put his hand on his head to give the signal that money has been paid to the appellant and getting that signal P.W. 2 and P.W. 3 and the CBI officers then entered inside the chamber of the appellant and the CBI officers disclosed their identity and wanted to know from appellant where he had kept the money.
17. It appears from evidence of P.W. 2 and P.W. 3 that the appellant then pointed to his drawer of the table in which money was kept and also said that he accepted the money and kept it in the drawer. Then as per instruction of P.W. 9, P.W. 2 brought out the said money from inside the second drawer of secretariat table of the appellant. P.W. 9 then asked P.W. 2 as to whether the notes were tallying with the notes mentioned in the pre-trap memo and P.W. 2 answered in the affirmative that numbers and denominations of notes were tallying, Thereafter, at the request of P.W. 9 water was brought in a 'bati', i.e. bowl and P.W. 9 took hand wash of the appellant in the said bowl and colour of the water became pink and it was put inside an empty bottle and thereafter it was corked, sealed and labelled on which they all signed including P.W. 1 and P.W. 8. In Court they identified the said bottle which was marked material Ext. II. Thereafter, P.W. 9 seized the G.C. notes by preparing a seizure list which was marked Ext. 6. The concerned file of Capital Electronics were asked to be produced and after production it was seized vide seizure memo marked as Ext. 7.
18. It appears that when five years later P.W. 2 and P.W. 3 were cross-examined they stated something different and P.W. 2 stated that he was standing at a long distance by the side of lift and did not see anybody to accept bribe. P.W. 3 in cross-examination stated that he does not remember anything about the incident dated 29.7.86 after lapse of such a long time. He also stated that he did not see anybody to take any bribe. At that stage they were declared hostile by the prosecution and the learned Public Prosecutor then cross-examinated both P.W. 2 and P.W. 3 and also confronted them that what they stated earlier in their evidence in examination-in-chief. In view of the aforesaid decisions and principles of law concerning evidentiary value of a witness declared hostile, I am of opinion that in the instant case total evidence of P.W. 2 and P.W. 3 cannot be brushed aside and their evidence clearly proves their presence at Bamboo Villa on 29.7.86 along with CBI officers. During the gap of five years between examination-in-chief and cross-examination and gap of nine years from date of incident and cross-examination they failed to remember the entire incident. In such a situation there is no ground at all to discard their entire evidence and their evidence at least in examination-in-chief supports the prosecution case.
19. P.W. 4 at the relevant time was attached to Central Excise office in valuation cell it is clear that the appellant was the Assistant Collector of Central Excise, P.W. 4, therefore, belonged to same office and naturally he had the sympathy on the accused. From evidence it transpires that P.W. 4 was also a member of the raiding party of Central Excise officers on 23.7.86 at M/s. Capital Electronics. In this case considering the nature of his evidence I am of opinion that P.W. 4 was interested to save the accused and his evidence cannot be relied upon. But, in cross-examination he admitted that he gave statement to CBI in this case. Therefore, it has been transpired that even P.W. 4 during investigation was examined by the Investigating Officer. He stated that he does not remember whether CBI officers arrested the appellant in connection with this case. I have already indicated as to why evidence of P.W. 4 is to be discarded as he belonged to the same office where appellant was posted and he was an exployee under the appellant and was a member of the raiding party of Central Excise officers on 23.7.86 at Capital Electronics. He would not definitely state anything against his officer so that his officer is put into trouble and that is why he concealed the truth and this is the ground to reject his evidence being interested person.
20. Mr. Mitra, the learned advocate for the appellant further submitted that the goods of Capital Electronics which were taken into custody on 23.7.86 were released on 28.7.86, before the trap was laid. After release of goods demand of Rs. 4000/- as bribe by the appellant is wholly unbelievable and absurd. He further submitted that from evidence of P.W. 1, P.W, 6 and P.W. 8, it becomes transparent that in adjudication proceeding fine of Rs. 5000/- was imposed and the appeal preferred by the Capital Electronics against fine was dismissed and they paid the fine. Evidence of P.W. 8 reveals that Rs. 3400/- had to be paid as duty and duty is collected in accordance with Excise Rules. After release of the goods and after payment of fine and payment of duty by the complainant the alleged demand of bribe by the appellant is an absurd story. The entire episode clearly establishes that the appellant was falsely implicated in this case out of grudge and animosity.
21. On the contrary, Mr. Ranjan Roy, the learned advocate appearing for the CBI submitted that adjudication proceeding and payment of fine by P.W. 1 is admitted. From the entire evidence it is also clear that raid in Capital Electronics by a team of Central Excise officers led by P.W. 1 is admitted and, it is also admitted that, on that day Central Excise officers seized certain T. v. from the said business concern. It is also admitted that the said goods were released on 28.7.86 on execution of a bond. Here from the evidence of the witnesses it has been transpired that on next day after such raid, i.e. 24.7,86 P.W. 1 was asked by the appellant to meet him in his office and when P.W. 1 met the appellant in his office the appellant demanded bribe. The evidence also discloses that the appellant threatened with harassment in future unless bribe amount is paid. It appears from evidence that when P.W. 1 agreed appellant passed two self-contradictory orders and application of P.W. 6 was torn by him. P.W. 1 collected the said torn papers and assembled the same and it was produced during evidence in Court which is Ext. 1.
22. Mr. Roy further submitted that from evidence of the witnesses and documents it is clear that on 28.7.86 P.W. 1 lodged written complaint and formal FIR was filled up and R.C. Case No. 55/86 was started. A pre-trap memorandum was prepared which is Ext. 5. Thereafter, on 29.7.86 the trap was laid and according to previous instruction P.W. 1 and P.W. 8 entered into chamber of appellant and P.W. 1 paid the money to the appellant which he accepted as bribe. From evidence it is well-established that the bribe money was recovered from the drawer of the appellant. Money was handled by the appellant himself and his hand wash with solution was taken and the colour of the water turned pink and it was kept in a bottle marked B. The pre-trap memo bottle marked A and this bottle marked B were sent to the chemical examiner P.W. 5 who opined in his report (Ext. 12) that Sodium Carbonate and P. Powder were detected in the contents of each of the bottles marked A and B.
23. Mr. Roy further submitted that at the time of apprehending him the appellant did not give any explanation and he also did not give any explanation after recovery of money. There is no evidence that force was applied to take money or that Rs. 4000/- as bribe money was forcibly inserted into his pocket or inside his drawer. During cross-examination of the prosecution witnesses the appellant did not give any specific suggestion relating to defence case. But during his examination under Section 313 of the Code he submitted to Court that during his absence the money was put inside his drawer by CBI officials. This story introduced by the appellant at a later stage during his examination under Section 313 of the Code is wholly unbelievable, without evidence and is afterthought. He submitted that release of the goods on 28.7.86 cannot be a ground that demand of bribe is an absurd story.
24. After hearing the submissions of learned advocates of both parties I am of opinion that the submission of Mr. Mitra is not acceptable and have no force or foundation. It is admitted that the goods taken by Central Excise officers from Capital Electronics on 23.7.86 were released on 28.7.86 on execution of bond. Evidence of P.W. 8 also establishes that they had to pay Rs. 5000/- as penalty. In this connection I cannot ignore the evidence of P.W. 1 who had to meet appellant at least twice in his chamber at Bamboo Villa between 24.7.86 and 28.7.86. P.W. 1 stated that the appellant threatened him for harassment in future unless bribe of Rs. 4000/- is paid to him. P.W. 1 under compelling circumstances agreed to pay the bribe amount, and then only, appellant on 28.7.86 changed his earlier order and passed two different orders. The said two orders Exts. 2. and 3. From evidence the threat of future harassment to P.W. 1 by the appellant has been transpired and evidence of P.W. 1 in this respect cannot be disbelieved. Therefore, release of goods earlier on 28.7.86 and payment of duty earlier before the trap on 29.7,86 cannot be a ground to disbelieve the prosecution case of demand of bribe by the appellant.
25. After carefully scrutinising the evidence of P.W. 1, P.W. 6, P.W. 8, P.W. 9, P.W. 2 and P.W. 3. I am of opinion that the prosecution has been able to prove that on 29.7.86 a trap was laid by the CBI officers in the chamber of the appellant and P.W. 1 and P.W. 8 entered inside the chamber of the appellant. Evidence of P.W. 1 reveals that the appellant even rebuked him as to why they have come late as he was waiting since 10 a.m. The evidence of the witnesses including the alleged hostile witnesses reveal that in Hindi the appellant asked P.W. 1 as to whether money has been brought and, P.W. 1 affirmed it and paid Rs. 4000/- as bribe money to appellant and appellant after taking it kept in the right side drawer of his table. Thereafter, according to previous instruction P.W. 1 by putting his hand on head gave the signal regarding payment of bribe to appellant and the CBI officers then entered inside the chamber of the appellant and intercepted him and interrogated him after disclosing their identity and the appellant admitted demand and receipt of bribe amount. Thereafter, as per instruction of P.W. 9, P.W. 2 brought out the money from the drawer of table of the appellant and the number of G.C. notes as well as denominations of notes were tallied as mentioned in pre-trap memo and everything was found in order. Thereafter, the hand wash solution of the appellant was taken and kept inside the bottle marked B.
26. In cross-examination of prosecution witnesses, the appellant did not give any suggestion that the said money was forcibly paid to him by P.W. 1 or CBI officers. There was no cross-examination or no suggestion to prosecution witnesses that P.W. 1 or CBI officers forcibly kept the said amount inside his drawer of table. In his examination under Section 313 of the Code, the appellant for the first time introduced a new story by saying that he was falsely implicated in this case and the money was kept in his drawer during his absence. The alibi taken by the appellant is wholly unbelievable as over this point there was no cross-examination made by the appellant to the prosecution witnesses and even no suggestion was given to them. The appellant after his examination under Section 313 of the Code was over, could have examined witness in support of his defence to prove that during his absence CBI officers secretly kept the money inside his drawer, but no defence witness was examined nor any kind of evidence was produced by the appellant before the Trial Court to prove that during his absence either P.W. 1 or CBI officers secretly kept the money inside his drawer.
27. The story intruduced by appellant is wholly unbelievable. The appellant was the Assistant Collector of Central Excise and without his permission nobody could have entered inside his chamber. If anybody during his absence tried to enter inside his chamber such person definitely would have been prevented by his orderly or peon or other staff. There is no evidence to that effect that during his absence P.W. 1 or anyone of the CBI officers entered inside his chamber. On the other hand, evidence of P.W. 1 and P.W. 8 proves that as they came to the chamber of appellant after 10/10.10 a.m., the appellant rebuked P.W. 1 by saying that he was waiting for nearly 40 minutes and why they made late in coming to his chamber. Accordingly, the defence alibi regarding keeping the bribe money secretly into his drawer in his absence is wholly unbelievable and absurd story.
28. Evidence of P.W. 1 reveals that on 25.7.86 also P.W. 1 came to the office of the appellant with relevant papers to show that there was no anomaly regarding the T.V. sets and on that date P.W. 1 told the appellant that the said goods belonged to their customers who gave the T.V. sets for repairing. Appellant then instructed Superintendent of Central Excise to release the seized T.V. sets on execution of bond B/II. On 28.7.86 P.W. 1 again met the appellant in his office when the appellant again demanded Rs. 4000/- as illegal gratification and told P.W. 1 that, if the money is paid he would release the goods unconditionally otherwise he will harass him in future. Finding no other alternative, P.W. 1 assured the appellant that money would be paid to him on the next date. Thereafter only, appellant wrote new orders and, in one order the appellant asked the Superintendent of Central Excise to release the goods unconditionally and, in the other order he wrote that on examining the supporting documents he had not detected any excess or less and the mistake was only clerical and technical nature and only an offence case can be booked against them. The said two orders were produced in Court during trial and were marked Exts. 2 and 3. When P.W. 1 asked the appellant as to what would happen to the previous order passed on 25.7.86 over their application, the appellant told P.W. 1 that they often pass such orders and whenever required they torn them out. The order dated 25.7.86 was thereafter torn by appellant and P.W. 1 collected the said torn letter which he assembled by using tape. The said torn letter which P.W. 1 assembled by tape was produced in Court and it was marked Ext. 1.
29. It is true that in cross-examination P.W. 1 stated that he does not know whether penalty of Rs. 5000A was imposed on them and whether they paid the said amount of penalty. P.W. 1 also stated in cross-examination that he cannot say whether the amount of duty of those articles seized by Central Excise was Rs. 3400/- and at that time those articles could be released on edecuting bond of 25% of that amount, i.e. by executing bond of Rs. 850/- only. He could not say how long he was there in the Central Excise office and whether he visited there at noon at afternoon or at morning. He stated that Debjani Bardhan (P.W. 8) is competent to say everything in detail about adjudication proceeding and stated that Debjani Bardhan received all the seized goods in good condition on 28.7.86. Failure of P.W. 1 to state about above facts in his cross-examination did not make his evidence unworthy of credit as these matters are not directly connected with the main point or incident of demand and acceptance of bribe by appellant.
30. P.W. 6, the father of P.W. 1 stated that on 23.7.86 he received a message from Capital Electronics of V.I.P. Road to the effect that a raid has been made by the officers of Central Excise. He thereafter went to that business concern at about 6 p.m. and he found appellant and other Excise officers still there. His evidence also reveals that appellant asked them to meet him in his chamber at Bamboo Villa next day and on 24.7.86 he went there at the office of the Central Excise with P.W. 1 and showed relevant documents to the appellant, but they were not satisfied. His evidence reveals that on 25.7.86 he again visited office of the appellant with his son Prasanta Agarwal. On 25.7.86 he submitted an application before the appellant which he identified in Court which was marked Ext. 1. He stated that thereafter he does not remember the entire incident after a gap of so many years and he instructed his son Prasanta Agarwal (P.W. 1) to do all the formalities. His evidence reveals that after returning from Central Excise Office his son Prasanta informed him that CBI has been informed about the entire episode relating to demand of illegal gratification by the appellant and asked him to arrange for Rs. 4000/- and he paid Rs. 4000/- to his son. His evidence reveals that he also visited Central Excise office with his son 2/3 days after raid made by Central Excise officers in their shop and after getting indication from the appellant they entered into his chamber. His evidence reveals that they were asked to submit B/II bond for the release of the articles and the articles was released and were received by Debjani Bardhan. His evidence clearly proves that he was not present on 29.7.86 at the time of laying trap to apprehend the appellant at the time of accepting the amount of bribe.
31. Evidence of P.W. 8 Debjani Bardhan reveals that on 23.7.86 at about 5.30 p.m. appellant and some other officers of the Central Excise came to their manufacturing division and wanted to see registers and documents. On perusing the papers produced by them the appellant was not satisfied and by the order of the appellant T.V. sets sere seized. After making seizure, the appellant and the Central Excise officers left their office and asked them to come to their office next day. Next day, Prasanta Agarwal (P.W. 1) and Anand Swarup Agarwal (P.W. 6) went to the office of the appellant and after return told her that they would have to execute B/II bond. Her evidence reveals that on 29.7.86 at about 10 a.m. she went to the office of Central Excise accompanied by P.W. 1. On 28.7.86 P.W. 1 told her that a complaint has been lodged by him against the appellant for alleged demand of bribe of Rs. 4000/- for settling the seized goods unconditionally. P.W. 6 asked her to accompany P.W. 1 on 29.7.86 to the office of CBI and thereafter to the office of Central Excise. Accordingly, on 29,7.86 at about 8 a.m. she came to CBI office and thereafter they came to Central Excise office and reached there at about 10/10.05 a.m. Other CBI Officers and independent witnesses also accompanied them as she stated in her evidence.
32. Her evidence further reveals that they went to the 4th floor in the chamber of the appellant and appellant was present there and, P.W. 1 and she entered into the chamber of appellant first. When they entered the appellant told them in Hindi as to whether they had brought money with them and P.W. 1 replied in the affirmative. Thereafter, P.W. 1 handed over the money to the appellant and the appellant kept the money into his right hand side drawer of the table. At that time, P.W. 1 rubbed his right hand by placing on the forehead to give signal to the CBI officers relating to payment of bribe amount to the appellant. Immediately thereafter, the CBI officers and the independent witnesses entered inside the chamber of the appellant and on interrogation the appellant intially denied taking of the money but, finally he told that he had received the money and kept the same in his right hand side drawer of table. P.W. 9 asked Mr. Biswas (P.W. 3) to count the money and compare the numbers of notes with the numbers of notes and denomination of notes mentioned in the pre-trap memo. The hand wash of the appellant was taken and it turned pink and the said hand wash was kept in a bottle marked B.
33. The cross-examination of P.W. 8 reveals that there was adjudication proceeding and a fine of Rs. 5000/- was imposed and they had to pay Rs. 5000/- as fine and their appeal preferred against adjudication order was dismissed. She also stated that she received back the goods by executing a bond on 28.7.86. Her evidence reveals that on 29.7.86 they were in the Central Excise office for about 4/41/2 hours. Her evidence also reveals that when they were about to return some other Central Excise officers gheraoed them and raised protest relating to arrest of the appellant. Over that matter police was informed and a case was also registered at concerned P.S. Her evidence in cross-examination reveals that the notes which were recovered from drawer of the appellant were taken by him and the money was recovered from the right side drawer of the appellant.
34. P.W. 9 is the Inspector of CBI who led the team of trap and he prepared the pre-trap memo and his evidence fully corroborates the evidence of P.W. 1 and P.W. 8. His evidence reveals that when P.W. 1 gave indication that bribe money has been paid to the appellant, they entered inside the chamber of appellant and disclosed their identity. When challenged, the appellant admitted demand and acceptance of Rs. 4000/- as illegal gratification from the complainant. He stated that the appellant pointed out that he kept the money in the right side drawer of his table and he requested S. Banerjee (P.W. 2) to take out the money from the drawer. P.W. 2 brought out the money from the drawer and he requested Mr. Banerjee to comapare the number and denominations of the G.C. notes as to whether those were tallying with pre-trap memo. P.W. 2 confirmed that the numbers of notes and denomination of notes as mentioned in pre-trap memo were tallying with the recovered amount. Thereafter, he asked Shri Banerjee to bring some water in a bowl and hand wash of appellant mixed with soda wash was taken and the solution turned pink. The said solution was kept in a bottle marked B. His evidence reveals that the seized the G.C. notes by preparing seizure list which was marked Ext. 6 and prepared another seizure list relating to seizing of a file concerning Capital. Electronics by preparing a seizure list marked as Ext. 7. His evidence reveals that when they were about to leave the Central Excise office they were gheraoed by 50/60 Central Excise officials and the said officials even assaulted them and tried to snatch away the seized articles and with the help of local police they were rescued. His evidence further reveals that on 31.7.86 he seized a document produced by the complainant by preparing a seizure list which was marked. Ext. 15.
35. The cross-examination of P.W. 9 reveals that independent witness P.W. 3 accompanied him in some other earlier raids, but another witness Mr. Banerjee (P.W. 2) accompanied him in that raid for the first time, P.W. 9 also stated in cross-examination that P.W. 1, P.W. 8 and A. Biswas (P.W. 3) entered inside the chamber of the appellant and they were waiting outside in front of the chamber. There were some discrepancy in evidence relating to denomination of notes but, after perusing the seizure list, pre-trap memo and the seized notes which were material Ext. III (collectively) the learned Trial Judge came to the decision that there was no discrepancy relating to denomination of notes and number of notes. I have gone through the seizure list and pre-trap memo and the number of notes and denomination of notes mentioned in those papers and I do not find any discrepancy relating to number of seized notes and the denomination of the seized notes.
36. Mr. Mitra for the appellant submitted that there are serious discrepancies between evidence of P.W. 1, P.W. 8 and P.W. 9 as to the persons who entered into the chamber of the appellant on 29.7.86 at the time of raid. P.W. 1 and P.W. 8 Stated that they entered inside the chamber of the appellant but, P.W. 9 in cross-examination stated that besides P.W. 1 and P.W. 8, witness A. Biswas (P.W. 3) also entered inside the chamber of the appellant. P.W. 1 stated that P.W. 9 asked Mr. Banerjee (P.W. 2) to take out the money from drawer of the appellant whereas, P.W. 8 stated that P.W. 9 asked Mr. Biswas (P.W. 3) to take out the money from the drawer. P.W. 9 himself stated that he asked Mr. Banerjee (P.W. 2) to take out the money from the drawer of the appellant and to count the same and tally with the number and denomination of G.C. notes as mentioned in pre-trap memo. Mr. Mitra submitted that these discrepancies are very vital and cuts the root of the prosecution case. He further submitted that there is discrepancy between P.W. 1 and P.W. 9 regarding denomination of notes and P.W. 1 properly could not say what were the denomination of notes whose total amount was Rs. 4000/-. Besides that, there are serious discrepancies between independent witnesses. He further submitted that there was no corroboration of evidence of P.W. 1 and P.W. 8 by any other witness and accordingly, no reliance can be placed on the evidence of P.W. 1 and P.W. 8 relating to demand of bribe by the appellant and payment of bribe amount by P.W. 1, the complainant to the appellant.
37. I am unable to agree with the views of Mr. Mitra, the learned advocate for the appellant. In my opinion, the discrepancies pointed out by Mr. Mitra from the evidence of P.W. 1, P.W. 8 and P.W. 9 are minor discrepancies and ignorable. The incident was on 29.7.86 and P.W. 1 was examined-in-chief in 1989 and was cross-examined on 13.12.95 and 12.1.96. P.W. 8 was examined-in-chief on 30.4:92 and she was cross-examined on 2.1.96. P.W. 9 was examined-in-chief in June, 1992 and he was cross-examined on 5.1.96 and 31.1.96. Human memory are not like computer machines and, after a gap of 10 years it is not possible for a human to remember in minutest details relating to the incident as to what happened and what incident took place one after another on 29.7.86. After a gap of 10 years such minor discrepancies are expected. Had there been no discrepancy at all, the presumption would have been that all the witnesses were tutored and untrustworthy witnesses. The discrepancies as pointed out by Mr. Mitra do not throw the prosecution case out of Court at all. It has been well-established that on 24.7.86 and 28.7.86 the appellant asked P.W. 1 to pay Rs. 4000/- as bribe otherwise he would trouble him in future and finding no other alternative P.W. 1 agreed to pay him money and thereafter getting assurance from P.W. 1 appellant released the goods on 28.7.86. From oral and documentary evidence it is well-established that on 29.7.86 the appellant accepted Rs. 4000/- from P.W. 1 as bribe money and kept the said amount in his right side drawer of the table. Immediately thereafter he was apprehended by CBI officers and the appellant disclosed demand and acceptance of bribe amount and also told that he kept the money in right side drawer of table. It is immaterial whether the said amount was kept inside the top drawer or in the second drawer or in the third drawer of the right side of the table of appellant. The fact that money was recovered from the right side drawer of the appellant was well-established and that he handled the money was further established from his hand wash solution which turned pink as the notes were mixed with P. Powder. The chemical analyst report proves that contents of both the bottles marked A and B were mixed with P. Powder and soda wash.
38. In view of the aforesaid discussion I am clearly of opinion that the arguments canvassed before me by Mr. Mitra relating to discrepancies have not at all shattered the prosecution case and all these discrepancies after a gap of 10 years are probable, expected and ignorable being minor discrepancies and not vital. There are catena of decisions to the effect that minor discrepancies which are not vital or fatal should always be ignored. The pronciples of law on this point is well-settled and I do not like to refer too many decisions to make my judgment lengthy; still I refer some of the decisions, namely, State of West Bengal v. Kailash Chandra Pandey reported in 2005 Cr. L.J. 135, Angnoo v. State of Uttar Pradesh reported in : 1971CriLJ285 , Banwari v. State of Rajasthan reported in 1979 Cr. L.J. 161, Appabhai v. State of Gujarat reported in : 1988CriLJ848 and Narotam Singh v. State of Punjab reported in : 1978CriLJ1612 .
39. From evidence and materials on record it appears that just after apprehension the appellant admitted demand as well as acceptance of bribe mondy. The appellant in support of establishing his case that during his absence the money was kept in his drawer did not examine any witness or any officer of Central Excise. While giving answer to the last question during his examination under Section 313 of the Code, the appellant did not state that during his absence the money was kept by the trap party in his unlocked drawer. Even in the answer given by accused to the question No. 23 during examination under Section 313 of the Code he stated that the CBI officers entered with Prasanta (P.W. 1) in his chamber and not the witnesses. This also establishes the fact that on 29.7.86 the trap was laid by CBI officers and complainant and CBI officers came to his chamber, and the appellant was apprehended and bribe money recovered from his drawer. During cross-examination it did not transpire that P.W. 1, P.W. 6, P.W. 8, P.W. 9 and other witnesses had any animosity or bad relation with the appellant. The total evidence and the circumstances clearly establishes the prosecution case and there is no ground to disbelieve the prosecution witnesses except P.W. 4.
40. The decisions cited by Mr. Mitra for the appellant do not help the appellant in this case as facts and circumstances and the evidence in the reported cases are different from the facts, circumstances and evidence that transpired in this case. In Panalal Damodar Rathi v. State of Maharashtra reported in : 1979CriLJ936 , it was held by the Supreme Court that evidence of complainant requires corroboration as complainant is in no better position than accomplice. In that case, the Supreme Court did not find sufficient corroboration in evidence to support the evidence of complainant and accordingly appellant was acquitted.
41. In Suraj Mal v. State (Delhi Administration) reported in : 1979CriLJ1087 it was held by the Supreme Court that, mere recovery of money from accused is not sufficient to prove that it was acceptance of bribe money. It was further indicated by the Supreme Court in the said decision that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in absence of special circumstanes no conviction can be based on the evidence of such witnesses.
42. In J.A. Naidu v. State of Maharashtra reported in : 1979CriLJ962 , the appellant was acquitted as the Supreme Court found that documentary and oral evidence are not reliable. In State of Andhra Pradesh v. T. Venkateswara Rao reported in 2004 AIR SCW 907, Rs. 400/- was recovered from respondent and it was the prosecution case that the respondent demanded and obtained the said amount as illegal gratification to show an official favour to award work order to the complainant. It was found in evidence that the said contract was only under consideration and was not finally accepted. It was held by the Supreme Court that recovery of the amount would not lead to an irresistible conclusion that it was received by the respondent as bribe money in view of the explanation given by him that money in question was kept in advance by complainant before his arrival in house and on being asked by I.O. he brought money.
43. In M. Abbas v. State of Kerala reported in 2001(4) Supreme 405, the appellant, an Overseer of Municipality demanded Rs. 200/- to process application of contrator of PW 2 for refund of an earnest money and security deposit. The appellant in his defence gave the explanation that the amount was received by him not as bribe but to give another contractor who had completed work of removing dump from road which otherwise to be removed by PW 2. PW 2 in cross-examination admited that he had paid Rs. 50/- to the other contrator and had promised to pay Rs. 150/- for removal of dump from road and Rs. 150/- was given to the appellant to be handed over to the other contractor. The said witness was subsequently declared hostile and prosecution did not examine the other contractor or Executive Engineer. The Supreme Court held that there was no ground to disbelieve the explanation given by the appellant and set aside the order of conviction.
44. In State of Uttar Pradesh v. Jagdish Singh Malhotra reported in 2001 C Cr LR (SC) 9, the respondent demanded a sum of Rs. 1000/- from the complainant for providing a fitness certificate in respect of his Matador vehicle. A trap was arranged and when the respondent received Rs. 1000/- from P.W. 6 the police officers came and recovered the money. After considering the evidence of witnesses the Supreme Court found that the fitness certificate had been obtained by P.W. 6 on 14th August, 1981 before 2 O' Clock and the story that bribe amount of Rs. 1000/- was paid for signing the fitness certificate at 3.45 p.m. on that date gets falsified. The Supreme Court accordingly upheld the order of acquittal.
45. None of the aforesaid decisions referred to by the learned advocate for the appellant are applicable in the present case. The appellant in his defence introduced conflicting stories particularly during his examination under Section 313 of the Code. At one place he stated that the said amount was kept in his unlocked drawer during his absence and, at the end of his examination under Section 313 of the Code he stated that he was falsely implicated as he instituted offence case against P.W. 1. His further case was that duty of the goods amounting to Rs. 3400/- was already paid earlier and the goods were released on 28.7.86, and thereafter, on 29.7.86 acceptance of bribe is a false story. Considering the entire evidence I am not convinced with the explanation given by the appellant. In the instant case, it has been proved beyond all reasonable doubts that the money which was recovered from possession of accused was bribe money. The witnesses did not make any conflicting statements and I have already discussed above that due to gap of 10 years from date of incident and evidence of witnesses there were some minor discrepancies which are ignorable. The appellant did not examine any witness to establish his explanation or alibi and there is no ground to disbelieve the prosecution case.
46. Mr. Ranjan Roy for the CBI submitted that even acceptance of money on false promise is also an offence. He submitted that there was no cross examination at all for the accused during examination of prosecution witnesses to the effect that the money was kept in his drawer of the chamber during his absence and no suggestion was also given to the prosecution witnesses to that effect. The evidence that came out during trial clearly proves acceptance of bribe amount of Rs. 4000/- by the appellant and it was recovered from his chamber drawer. The prosecution was able to prove all the charges levelled against the appellant beyond all reasonable doubts. There is no ground to interfere with the judgment and order of conviction passed by the learned Ttrial Court on the appellant. In support of his contention Mr. Roy cited several decisions which are as follows:
Shiv Raj Singh v. Delhi Administration : 1969CriLJ1 ; Sultan Ahmed v. State of Bihar 1974 SCC(Cri) 414; Prakash Chand v. State (Delhi Admn.) (supra); Som Prakash v. State of Delhi 1974 SCC(Cri) 215; Gian Singh v. State of Punjab 1974 SCC(Cri) 406; Raghubir Singh v. State of Haryana : 1974CriLJ1062 ; Trilok Chand Jain v. State of Delhi : AIR1977SC666 ; Hazari Lal v. State (Delhi Admn.) : 1980CriLJ564 ; State of U.P. v. Dr. G.K. Ghosh 1984 SCC(Cri) 46; State of Gujarat v. Raghunath Vamanrao Baxi 1985 SCC(Cri) 304; Madhukar Bhaskarrao Joshi v. State of Maharashtra, 2001 SCC(Cri) 34; M.O. Shamsudhin v. State of Kerala 1995 SCC(Cri) 509; M.W. Mohiuddin v. State of Maharashtra 1995 SCC(Cri) 546; C.K. Damodaran Nair v. Government of India : 1997CriLJ739 ; Mohmoodkhan Mahboobkhan Pathan v. State of Maharashtra 1997 SCC(Cri) 894; State of U.P. v. Zakaullah : 1998CriLJ863 ; Ram Singh v. State of M.P. 2000 SCC(Cri) 886; Government of Andhra Pradesh and Ors. v. P. Venku Reddy 2002 SCC(Cri) 1826; Karamjit Singh v. State (Delhi Adminstration) : 2003CriLJ2021 ; A. Abdul Kaffar v. State of Kerdla 2004 SCC(Cri) 981; State of A.P. v. Uma Maheswara Rao and Anr. 2004 SCC(Cri) 1276 and State of West Bengal v. Kailash Chandra Pandey : 2005CriLJ135 .
47. In my opinion, it is not necessary to discuss in detail the principles of law laid down by the Supreme Court and other High Courts in the aforesaid decisions cited by Mr. Roy for the CBI as principles of law are well-settled. However, I shall refer some of the decisions for the just decision of this case and to make the position of law clear. In Shiv Raj Singh (supra) it was held by the Supreme Court that when a public servant is charged under Section 161 of the IPC and also under Prevention of Corruption Act and it is alleged that the illegal gratification was taken by him for doing or procuring an official act, it is not necessary for the Court to consider whether or not the accused public servant was capable of doing or intended to do such an act. In Sultan Ahmed (supra) the appellant subsequently took a plea that he received currency note of Rs. 5/- with a view to give in exchange five currency notes or Re. 1/- to the complainant. No such plea was taken by the accused at the time of recovery of the currency note by police officers. It was held by the Supreme Court that, in the circumstances the above plea of the accused must be held to be the result of an afterthought. In the present case before us when the bribe money was recovered from the appellant he did not make out a case that during his absence in the chamber the money was kept inside his drawer and during cross-examination of prosecution witnesses no such suggestion was given by the appellant. It is, therefore, clear that in order to save his skin the appellant has introduced this story which is nothing but result of afterthought and such plea is not believable.
48. In Gian Singh. (supra) it was held by the Supreme Court that in a trap case the evidence of police officials cannot be discredited merely for being police officials. It was further held by the Supreme Court that testimony of a trap witness cannot be rejected merely because the witness has been witness for the prosecution on earlier occasions. In Trilok Chand Jain (supra) it was held by the Supreme Court that it is true that in law the incapacity of the Government servant to show any favour or render any service in connection with his official duties does not necessarily take the case out of the mischief of these penal provisions. In Hazari Lal (supra) it was held by the Supreme Court that there is no need of corroboration of evidence of police officer who laid trap if the evidence is found reliable by the Court.
49. In Madhukar Bhaskarrao Joshi (supra) it was held by the Supreme Court that, once prosecution establishes that gratification was paid and accepted by public servant, presumption arises that it was paid and accepted as a motive or reward to do or forbear from doing any official act. It was further held that mere fact that currency notes reached the hands of the appellant is a sufficient corroboration of the trap witnesses.
50. In State of U.P. v. Zakaullah (supra) the delinquent official was caught red-handed in a trap laid by trap officer. Complainant's evidence was fully corroborated by the evidence of the trap officer. It was held by the Supreme Court that complainant's evidence cannot be rejected merely because he was aggrieved against the bribe taker. The fact that trap officer successfully trapped delinquent is no ground to conclude his anomosity against the delinquent. The Supreme Court in the said decision set aside the order of the High Court acquitting the delinquent and convicted the respondent. In the present case there is no ground to disbelieve the evidence of complainant merely because he was aggrieved against the appellant. The fact that P.W. 1 was penalised and had to pay duty is not a ground to disbelieve the prosecution case as evidence of P.W. 1 proves clearly that the appellant gave threat to him that unless bribe amount is paid he would harass the complainant in future.
51. In A. Abdul Kaffar (supra) the Sales Tax-cum-Agricultural Income Tax Officer (Accused) received Rs. 10,000/- for bringing down the proposed assessment of turnover of P.W. 1 form Rs. 8 lakhs to Rs. 2 lakhs. The defence version was that the said amount was received as advance payment of sales tax due from P.W. 1 for which the official receipt was issued and P.W. 1 denied such defence version. The Supreme Court held that the failure of the accused to mention the said fact to I.O. at the first available opportunity showed that the defence taken was not genuine. The only conclusion available was that the receipt was prepared by the accused after he was released on bail. In the present case before me when the appellant was apprehended he did not take the plea that he was falsely implicated by P.W. 1 and that he was innocent. He even did not take the plea that the money was kept inside his drawer during his absence. On the other hand, from evidence of P.W. 1, P.W. 8 and other witnesses it was clearly proved that the appellant was waiting inside his chamber and when P.W. 1 and P.W. 8 entered into his chamber he in Hindi asked the complainant as to whether he has brought the money or not. It clearly proves that the defence taken by the appellant is not genuine and he accepted the money as illegal gratification.
52. In State of West Bengal v. Kailash Chandra Pandey (supra) the Supreme Court held that, what is material is the acceptance of money by the accused which is more than apparent from the evidence of the prosecution witnesses that the money was recovered from the accused and accused's hand which accepted the currency notes was washed and the hand was turned into pink colour water and likewise the accused's pant pocket which was washed the water also turned into pink. Therefore, from the chaim of circumstances the prosecution story stand fully substantiated. Consequently, acquittal of the accused was unjustified and the Supreme Court set aside the order of acquittal passed by the High Court and restored the order of conviction and sentence passed by the learned Trial Court.
53. Besides the decisions placed by the learned advocates for the parties before me, I personally like to refer two decisions in this connection to make the position of law more clear. In Shankerbhai Laljibhai Rot v. State of Gujarat reported in 2006(1) SCC(Cri) 346, it was alleged before the Supreme Court that there was discrepancy relating to mode of demand of bribe in the evidence of witnesses and prosecution case should be disbelieved due to such discrepancies. The Supreme Court held that, the PWs. consistently stating about the demand, the acceptance and the recovery of the money. Considering the facts, minor variance as regards the mode of demand was of no consequence to corrode the credible and cogent evidence of PWs. The conviction imposed by the Court's below was proper and minor contradictions and inconsistencies are immaterial.
54. In State of Maharatshtra v. Rashid Babubhai Mulani reported in 2006 AIR SCW 162 : 2006(1) SCC(Cri) 408, the accused was apprehended while accepting money pursuant to a trap. The accused gave the explanation that money was received by him from complainant as payment towards Government loan and not as a bribe for showing any official favour to complainant. Explanation of the accused for accepting the money was given belatedly in his statement under Section 313 of Cr. PC and not immediately after incident to I.O. The Supreme Court held that Courts are generally slow in accepting such explanation. Mere explanation such as that the money was accepted by accused towards payment of Government dues is not sufficient. The accused must prove, either by direct evidence or on the basis of inferences legally drawn from evidence on record, his position contrary to the statutory presumption under Section 4 of acceptance of gratification by him as a motive or rewared. The Supreme Court finally held that the explanation given by the accused was not reasonable and probable and, setting aside the order of High Court acquitting the accused, restored the order of conviction passed by the learned Trial Court.
55. I have considered and discussed the evidence and circumstances in detail and in the present case it has been proved beyond all reasonable doubts that the appellant demanded illegal gratification and payment of bribe or illegal gratification was made to him by the complainant. The appellant was apprehended immediately after payment of the bribe amount and the bribe amount was recovered from the right side drawer of table of appellant. The explanation given by the appellant in his examination under Section 313 of the Code that during his absence the money was kept in his unlocked drawer is not at all acceptable and believable. Considering the entire evidence, materials on record and circumstances I am of opinion that the learned Ttrial Court made no mistake by convicting the appellant. The prosecution was able to bring home the charges levelled against the appellant beyond all reasonable doubts. The conclusion of guilt arrived at by the learned Trial Court is inescapable.
56. In view of the discussion made above I find no merit in the appeal and accordingly the appeal fails and is set aside.
57. Before conclusion, 1 like to observe that the incident was in the year 1986 and in the meantime 20 years have passed due to the pendency of the case in Trial Court and appeal in this Court. Accordingly, considering the fact that the incident was of 20 years back, I intend to reduce the sentence in respect of charge under Section 5(2) of the Prevention of Corruption Act. The appellant was sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 2000/- i.d. to suffer R.I. for three months for the offence under Section 161 of the IPC and I maintain this sentence. The appellant was sentenced to suffer R.I. for three years and to pay a fine of Rs. 5000/- i.d. to suffer R.I. for nine months for the offence under Section 5(2) of the P.C. Act, 1947. Considering the circumstances mentioned above, I reduce the sentence to one year six months from three years and the amount of fine to Rs. 4000/- instead of Rs. 5000/- i.d. to suffer R.I. for four months for the offence under Section 5(2) of the P.C. Act.
Both the sentences will run concurrently. In view of my observation made above the sentence imposed on the appellant stands modified to the extent as indicated above. The appellant who is on bail is directed to surrender to the Trial Court forthwith to serve out the sentence imposed on him.
58. Criminal Section is directed to send down the Lower Court record along with copy of this judgment and order to the Trial Court forthwith for information and necessary action.
59. Let xerox certified copy of this order be given to the parties within two weeks from the date of making of such application on payment of proper fees and charges.