Madan Mohan Prasad vs State (Delhi Administration)
1991 Latest Caselaw 452 Del

JUDGMENT

V.B. Bansal, J.

(1) Madan Mohan Prasad, Deputy Secretary, Department of Mines Government of Bihar, Patna, was tried by Special Judge, Delhi for the offences under Section 161 Indian Penal Code and Sec. 5(2) read with Sec. 5(l)(d) of the Prevention of Corruption Act (for short the Act).

(2) The following charges were framed against the appellant on 1 6/07/1979 :- "FIRSTLY: That on 18.8.77 at C-97, South Extension, Part Ii, Delhi while you being a public servant posted as DeputySecretary, Department of Mines, Govt. of Bihar, Patna pursuant to your demand of Rs. 10,000.00 as bribe from Sh. Viren Pandey,Chairman, South Karanpura Coal Company, 11 British Indian Street,Calcutta-69 accepted or obtained from said Shri Viren PandeyRs. 5000.00 as gratification other than legal remuneration as a motive or reward for doing a favor to him to wit, manipulating in favor of the South Karanpura Coal Company Ltd. to operate Bundu Colliery and create circumstances favorable for the vacation of the order of the Supreme Court in favor S.D. Coal Company and thereby committed an offence punishable under S. 161 Indian Penal Code and within the cognizance of this Court.Secondly ; That at the above said date and place, you being a public servant posted as Deputy Secretary, Department of Mines,Government of Bihar obtained a sum of Rs. 5000.00 from Shri VirenPandey, Chairman South Karanpura Coal Co. Ltd. as gratification other than legal remuneration by corrupt and illegal means or by otherwise abusing your position as public servant and there by committed the offence of criminal misconduct punishable under. 5(2) r/w Sec. 5(1)(d) of Prevention of Corruption Act and within the cognizance of this Court."

(3) He was convicted for the said offences by Shri K.B. Andley, SpecialJudge, Delhi and sentenced to one year Ri with a fine of Rs. 500.00 or in default to undergo further Ri for 6 months under S. 161 Indian Penal Code and under R.I. for two years with a fine of Rs. 5000.00 or in default to undergo R.I. for 9 months under S. 5(2) read with Sec. 5(1)(d) of the Act vide judgment and order dated 11/03/1982.

(4) Feeling dissatisfied from his conviction and sentence Madan Mohan Prasad filed this appeal.

(5) Madan Mohan Prasad appellant died on 17/09/1986.Neel Mohan son of Madan Mohan Prasad appellant moved an application under. 394(2) read with S. 482 Criminal Procedure Code on which this Court allowed him to continue with the appeal vide order dated 9/03/1987.

(6) Briefly stated the facts leading to the filing of a challan against Madan Mohan Prasad by the Cbi are as under :Sbri Viren Pandey was the Chairman of South Karanpura Coal Company having its registered office at Ii British Indian Street,Calcutta-69 having a property known "Bundu Colliery" in HazariBagh, Bihar, Patna. The lease-hold rights of Bundu Colliery were owned by the South Karanpura Coal Company. Action taken by the Govt. of India for terminating the lease-hold rights of this Company was challenged by it and ultimately the Supreme Court of India injuncted the Coal Mines Nationalisation Amendment Act and passed interim order directing this. Company to operate the BunduColliery.

(7) Madan Mohan Prasad while working as Deputy Secretary of Department of Mines, Govt. of Bihar was dealing with this matter on behalf ofOovt. of Bihar. On the basis of a telephonic message received by him at Calcutta Viren Pandey came to Delhi and met him (Madan Mohan Prasad) atC-97 South Extn. Part Ii, New Delhi on 17/08/1977. During conversation a demand of Rs. 10,000.00 was made by Madan Mohan Prasad from Viren Pandey for manipulating in favor of the South Karanpura Coal CompanyLtd. to operate Bundu Colliery and for manipulating and creating circumstances which may result in vacating the order which was passed in favor of S.G. CoalCompany, Viren Pandey expressed his inability to arrange for this amount upon which Madan Moban Prasad asked him to arrange at least Rs. 500').00 and to meet him again in the morning of 18/08/1977.

(8) On a meeting in the morning of 18/08/1977 Viren Pandey was told by Madan Mohan Prasad that he will have to give a portion of thecompany's colliery in the name of a person whose name he would let him know for which an agreement will have to be signed upon which Viren Pandey told him that a resolution in this regard will have to be passed by the Board of Directors and he may not be able to do it of his own upon which he insisted that it will have to be done and by saying so he typed a draft on a type writer and gave the same to Viren Pandey with a direction that he should bring it duly typed on his company's letter pad and sign it in his (Madan Mohan Prasad)presence and also to bring a sum of Rs. 5000.00 at 8.00 P.M. at the place where he was staying.

(9) Viren Pandey who was staying at 7, Niti Bagh, New Delhi did not want to make payment of this amount of bribe and so made a written complaint to S.P. (CBI), New Delhi upon which R.C. No. 36/77 was registered and the case was handed over to deputy S.P. A.A. Khan for investigation.must show that (1)

(10) Deputy S.P. A.A. Khan organized a raiding party in which besides officials O.K. Chanana, Jr. Analyst and Abrar Hussain Section Officer from the Ministry of Health and Family Welfare, Nirman Bhawan, New Delhi werejoined. The original complaint of Viren Pandey was shown to the witnesses who after going through the same made enquiries from the complainant to as certain the facts.

(11) The complainant produced draft Ext. Pb which was got typed by Dsp Khan on a pad of South Karanpura Coal Company Ltd. made available by the complainant who also produced 50 O.C. notes of Rs. 100.00 each.These currency notes were treated with Phenolphthalein powder and its demonstration was given to the members of the raiding party explaining to them the reaction of Phenolphthalein powder. The hands touching the treated currency notes were dipped in a colourless solution of Sodium Carbonate which turnedpink. The solution so prepared was destroyed.

(12) Necessary instructions were given to the member of the raiding postings party when Shri G.K. Chanana was directed to accompany Viren Pandey postings Shri R.K. Pandey one of the directors of the said company and brother of the complainant. He was also directed to over-hear the conversation between the complainant and Madan Mohan Prasad. Necessary instructions were also given that 0 K. Chanana would come out of the room of Madan Mohan Prasad after passing of the money and give the agreed signal. The complainant was also directed to hand over the G.C. notes to Madan Mohan Prasad only on his specific demand. He was permitted to keep the typed draft of the agreement which was to be signed by him and G.K. Chanana as R.K. Pandey. A handing over memo was prepared and all the members of the raiding party washed theirhands. It was ensured that none of the members of the raiding party was having any money but they were allowed to keep their identity cards with them.

(13) Members of the raiding party reached near House No. C-97, New Delhi South Exth. Part Ii, New Delhi at about 8.00 A.M. Viren Pandey andG.K. Chanana went inside the house while other members of the raiding party took suitable position nearby. After about 10/15 minutes G.K. Chanana came out of the house and gave agreed signal upon which Dsp Khan along with other members of the rading party went inside and secured both the wrists of Madan Mohan Prasad after disclosing his identity. Another person named Shri J. Sahai was also sitting whose hands were also secured but was released after making enquiries from G.K. Chanana and Virea Pandey that no money was passed on to him. On search the marked G.C. Currency notes ofRs. 5000.00 and the agreement Ext. Pc were recovered from Madan MohanPrasad.

(14) The number of the recovered currency notes tallied with the number which had earlier been noted in the handing over memo. Colour less solution of Sodium Carbonate was prepared in which the right hand and left hand of Madan Mohan Prasad were dipped separately when the solution tamedpink. The pocket of the bushirt accused was wearing was also dipped in another colour less solution of Sodium Carbonate which too turned pink and it was also preserved in a separate clean bottle which was separately sealed at the spot.DSP Khan recovered one line paper (PE) from the brief case of Madan MohanPrasad while the PC/I copy of the agreement from G.K. Chanana and these were also seized.

(15) Statements of the witness were recorded and it was revealed that at the instance of Madan Mohan Prasad the complainant produced draft agreement Pc on which Viren Pandey signed at point A and O.K. Chanana signed as R.K. Pandey at point B at the instance of Madan Mohan Prasad. It wasalso found that on a demand by Madan Mohan Prasad he was paid Rs. 5000.00by the complainant which amount was subsequently recovered from him by DSP Khan. Madan Mohan Prasad was arrested and after completing the investigation and obtaining sanction for prosecution Madan Mohan Prasad waschallenged.

(16) In support of its case the prosecution examined 11 witnesses.Statement of Madan Mohan Prasad was recorded under Scc. 313 Criminal Procedure Code so asto enable him to explain incriminating evidence. He denied all the allegations with regard to his having made any demand or having accepted illegal gratification from the complainant Viren Pandey. He also denied having given draft PB to the complainant or that he asked Viren Pandey and O.K. Chanana to sign the document Ext. PC. He has claimed that he has falsely been implicated in this case. He has denied that O.K.. Chanana was introduced to him as R.K.Pandey by the complainant and claimed that in fact father of Viren Pandeywas his senior colleague and they both remained posted as Deputy Collectors.He has also claimed that they were on visiting terms and so he knew the family members of the complainant and so there was no question of G.K. Chanana being introduced to him as brother of the complainant. According to him when sitting in his room the complainant came along with a companion and after taking out a piece of paper from the pocket of his bushirt it was offered to him in a folded condition which he thought to be a letter. He went on to state that the complainant told him to go through this paper and hand over the same to Arun and on opening the paper he found that it was an agreement creating a sub-lease of a portion of Bundu Colliery on behalf of South Karanpura Coal Company in favor of Arun Kumar Sinha. He has further stated that it was fully known to him that no such sub-lease could be executed without the prior permission of the Government and so he laughed by saying that it waschildish. He has denied this sub-lease Pc was signed at his instance or in hispresence. He has claimed that the pen Ext. P 55 did not belong to him andG.K. Chanana did not sign this agreement as R.K. Pandey in his presence. He has admitted about the taking of his hand washes. He has also stated that the money was not accepted by him and, in fact, it was handed over to him by the complainant by saying that it may be handed over to Arun when he met him(Arun) and claimed that the amount was put by him in the pocket of his bushirt which was lying on the Central Table. He has claimed that valid sanction for his prosecution was not obtained and that he was innocent. He examined 9 witnesses in his defense.

(17) After hearing arguments the learned trial Court convicted and sentenced Madan Mohan Prasad as referred to above.

(18) I have heard Shri M.L. Srivastava learned counsel for the appellant and Shri S. Lal learned counsel for the Cbi and have also gone through therecords.

(19) Learned counsel for the appellant has submitted that in this case the Law Department was competent to accord sanction for prosecution while the sanction order has been issued by the Chief Secretary after the sanction was accorded by the Chief Minister. He has, thus, submitted that there has been a violation of the rules on account of which there was no valid sanction and, thus,the prosecution must fail on this account. He has referred to the statement of Ravinder Prasad Sinha, Deputy Secretary, Law Department (DW 9-A). This witness had stated that he had dealt with the file regarding the sanction for prosecution of Madan Mohan Prasad who was working as Deputy Secretary,Department of Mines and Geology, Govt. of Bibar, Patna. According to him at the relevant time the Law Department had the responsibility for according sanction of prosecution of public servants under Sec. 197 CrP.C. but not under Prevention of Corruption Act which was to be accorded by the concerneddepartment. He has also stated that according to the Rules of Business of Bihar Government of the year 1979 if Law Department refused to give sanction for prosecution there was no other department which could issue such asanction. He had also claimed that the Law Department would send the file to the Minister-in-Charge of the Law Department and on his approval the sanction order used to be issued by the Secretary-cum-Legal Rememberance. He did not know what was the position of the Chief Minister qua all departments of the Government and that from the Cbi along with request for seeking sanction of prosecution the Law Department had received from the Chief Secretary the report of S.P. (CBI) Ext.DW4/A. He has also admitted that along with theS.P.'s report there was also calender of evidence and copy of statement ofMadan Mohan Prasad. He was not able to say if the Chief Minister was in charge of all the departments in the State but admitted that Chief Secretary was the Ex-officio Principal Secretary of all other Departments of Government.He has admitted that sanction for prosecution under the Prevention of Corruption Act was to be accorded by the Administrative Department. Hehas also admitted that the Administrative Department only consulted the Law Department but they could act according to their own conclusion and sanction could be given by the Administrative Department even against the advice of the Law Department but sanction under Sec. 197 was to be issued bythe Law Department. In this case sanction order has been issued under the signatures of Shri K.A. Ram Subramaniam, Deputy Chairman, Stated PlanningBoard, Bihar (PW 6). He has clearly stated that in August 1978 he was working as Chief Secretary, Bihar Government and that be examined the papers in respect of accused, i.e. investigation report of Cbi 'and applied his mind and obtained the order of Chief Minister. He has also stated that the sanction orderExt. Public Witness 6/A was signed by him on 24/08/1978. During cross-examination he stated that he knew Ravinandan Prasad, an Indian Administrative Service officer but did not knowViren Pandey. He has also claimed that there were statements of facts, prosecution evidence, copy of Fir and report of Cbi which was a bulky one. He was unable to say for how many days the file remained in his office, but claimed that he saw the same for the first time in April/May 1978 and that the sanctionorder was as per draft in all details made available by the CBI. He has made a categorical statement that Chief Minister was the Minister in charge of the Personnel Department and every such file is to be seen by the Chief Minister.According to him the Law Department delayed the issue of sanction for about four to six months and that he received reminders from the Government ofIndia for the issuance of the sanction. According to him even after getting theadvice of the Government Advocate Law Department was delaying the matter and was asking for more documents from the CBI. According to him when apprised of the matter Chief Minister asked him to issue the sanction without further reference to the Law Department. According to him in this case the concerned Minister was the Chief Minister and he as Chief Secretary has a Special Status. He has further stated that he received the file from Law Department on 17/07/1978 and recorded his note Ext. Public Witness 6/DC. He has admitted that he bad no power to accord sanction for prosecution of Madan MohanPrasad and claimed that he only obtained the order of Chief Minister for sanction and only authenticated the orders of the Government.

(20) Submission of the learned counsel for the appellant has been that the Chief Minister had no power to accord sanction and it was in violation having not been issued with the approval of the Law Minister. It is not disputed that Madan Mohan Prasad was the Deputy Secretary to the Govt. ofBihar and could be removed by the Chief Minister and not by the LawMinister. It is apparent that sanction for prosecution under Prevention ofCorruption Act could be given by a person competent to remove a Government Servant from service, In these circumstances, I do not find any thing wrong in the exercise of his powers by the Chief Minister to accord sanction forprosecution of Madan Mohan Prasad. Chief Secretary being the Principal Secretary of all the Departments of the Government was, thus, competent to issue the sanction order as per the directions of the Chief Minister. In case Sampuran Singh v. Stale of Punjab, it has clearly been held that Sec. 6(1)(c) of the Prevention of Corruption Act stipulates that the removing authority will be the sanctioning authority and in view of Article 311(1)of the Constitution of India removing authority cannot be subordinate in rank to the appointing authority. It was also held that by necessary implication the removing authority may be higher in rank to the appointing authority. In the said case the appointing authority of the overseer was the Chief Engineer andthe sanction for prosecution was given by the Chief Minister who was holding the portfolio of irrigation also. It was held that the sanction was not invalid.

(21) In case R. J. Singh Ahluwalia v. The State of Delhi the admitted case of the prosecution was that sanction for prosecution could be accorded by the Home Minister only while it was granted by the Ministry of Industrial Development and Company Affairs (Department of Industries Development), ft was in these circumstances that it was considered by the Government that the sanction being invalid prosecution must fail. Inthe instant .case the sanction for prosecution has been accorded by the Chief Minister who could remove M M Prasad from service. It is also pertinent to note that the advice was sought and the Law Department also gave opinion tothe Administrative Department that it was a fit case for the grant of sanctionfor prosecution- However, submission of learned counsel for the appellant has been that the Law Department was asked to give opinion as to whether it was necessary to ask for additional information from the Cbi and they were not competent to give advice as to whether it was a fit case for the grant of sanction. The fact, however, remains that all the papers were put up before the Chief Minister who after application of mind accorded sanction for prosecution of M.M.Prasad. Considering all these facts, I am clearly of the view that there is nothing bad in the sanction accorded for the prosecution of M.M.Prasad.

(22) Learned counsel for the appellant has submitted that there has not been any demand of illegal gratification by M.M. Prasad nor had he accepted any illegal gratification. He has also submitted that M.M. Prasad had been pursuing the matter on behalf of Government of Bihar to check illegal mining on account of which Viren Pandey had a grudge who manipulated the facts and got M.M. Prasad falsely implicated in this case. He has also submitted that in fact the sum of Rs. 5'l00.00 and document Ext. Pc were handed over to M.M. Prasad by the complainant by saying that they were to be handedover to Arun Kumar, his relation and a friend of Viren Pandey. According to him there was no demand of illegal gratification nor any acceptance of the same.He has also submitted that M.M. Prasad was not in a position to give any assistance to Viren Pandey and that he has failed to examine Arun Kumar who subsequently died and so could not be produced as a defense witness. He must show that (1) the detenuing has also submitted that there have been wrong facts in the statements of the witnesses and, thus, prayed that the appeal may be accepted and M.M. Prasad may be acquitted by giving him at least the benefit of doubt.

(23) Learned counsel for the respondent has, on the other hand, submitted that the prosecution has proved by clear, cogent and convincing evidence that M.M. Prasad made a demand of illegal gratification from the complainant who did not want to pay the same and that he made a complaint to the CBI and as desired by the accused be got prepared a draft of the sub-lease and itwas signed by the complainant and O.K. Chanana (PW1) as R.K. Pandey brother of the complainant. He has also stated that a sum of Rs. 5000.00 was paid to Madan Mohan Prasad by the complainant as illegal gratification on demand and that the recovery was effected from Madan Mohan Prasad. Hehas, thus, submitted that there is clear presumption under Sec. 4 of the Act against M.M. Prasad who has not been able to discharge the onus on him to establish that he had not made a demand and accepted illegal gratification. Hehas, thus, submitted that M.M. Prasad has rightly been convicted and sentencedand, thus, prayed that the appeal may be dismissed.

(24) The first question for consideration is as to whether there was a demand of illegal gratification by M. M. Prasad on 17/08/1978 in the evening and again on the morning of 18/08/1978. In his statement as PW 4 initially Viren Pandey has stated that he did not meet Madan MohanPrasad on 17/08/1978 though he had seen him in the Supreme Court premises and considered that he had to see him. However, during the recording of the examination-in-Chief it self he claimed having gone to the Rest House where Madan Mohan Prasad was staying on 17/08/1978 at about 8.30P.M. where a demand of money was made from him.

(25) Submission of learned counsel for the appellant has been that this statement about the demand having been made on 17/08/1978 was made by the complainant only at the instance and suggestion of counsel for the State which fact has been controverter by learned counsel for the respondent. There is no doubt that the witness was allowed to go out by the Court during the recording of the statement and it is only thereafter that without a question being put to this witness he had stated about his meeting with Madan Mohan Prasad on 17/08/1978 in the evening-. It was specifically refuted by the witness that she had a talk with anyone or that he was making such a statement on being reminded by anyone. The fact remains that there is a mention about this demand of illegal gratification on 17/08/1978 by Madan Mohan Prasad in the complaint which forms the basis of the FIR. This witness has specifically stated about the demand of illegal gratification even in the morning of 1 8/08/1978 and it is only thereafter that he made a complaint to the Cbi that he did not want to pay this illegal gratification. In these circumstances, I am clearly of the view that merely a lapse on the part of Viren Pandey in not mentioning the factum of the demand of illegal gratification being made by Madan Mohan Prasad on 17/08/1978 in the initial part of his statement would not make much difference. It may also be noticed that it is only after thecomplainant decided not to pay the illegal gratification that he made a complaint to the Cbi on the basis of which raid was conducted and the accused was apprehended after he had made a demand and accepted the illegal gratification.The subsequent events, thus, clearly indicate that there was a prior demand made by Madan Mohan Prasad of illegal gratification from the complainant.

(26) Learned counsel for the appellant has submitted that no request was made for adjournment on behalf of the State of Bihar and it was only atthe instance of counsel for S.D. Coal Company that the case was adjourned to 22/08/1978. la this regard ws miy refer to the statement of Public Witness 9Kamal Nain Chobey who was counsel for South Karanpura Coal Company Ltd.in the Supreme Court. He has stated that on 17/08/1977 writ petitions of Bundu Colliery were adjourned to 22/08/1977 on the request of counsel for Vijay Narain Singh and that prayer was made for adjournment by counsel for State of Bihar also. Dw 7 UP. Singh, Advocate has stated that inthe year 1977 he was Standing Counsel for State of Bihar in Supreme Court and that Madan Mohan Prasad came to instruct him and that Shri Lal NarainSinha, Sr. Advocate and Attorney General appeared as counsel for BiharGovernment. He has also slated that adjournment was given at the request ofS.D. Coal Company and Attorney General made a statement in the Court that if necessary Bihar Government will also file an affidavit as the lease was conceited by the Government. It would, thus, be clear that though a specific request was made for adjournment by counsel for S.D. Coal Company and Vijay Narain Singh but the request was not opposed by the State of Bihar and they also wanted to file a reply before the adjourned date.

(27) The next question for consideration is with regard to the raidingparty being organized and necessary instructions being given to the witnesses including G.K.Chanana (PW 1) and Abrar Hussain (PW 2). Dsp A.A. Khan(PW 3) has narrated the details as to how after the registration of the case he organized a raiding party and briefed the members with reference to the complaint of Viren Pandey. He has also stated that G.K. Chanana was asked to accompany the complainant as a shadow witness to overhear the conversation between the complainant and Madan Mohan Prasad and to witness the passing of the money. He was also given instructions to sign the draft agreement as brother of Viren Panday. A demonstration was also held in the presence of thewitnesses indicating to them the reaction of Phenolphthalein in a colourlesssolution of Sodium Carbonate which turned pink G.C. currency notes of Rs. 5000.00 made available by viren Pandey were treated with Phenolphthalein and given to the complainant with a direction to pass on the money to the accused only on his demand. A draft agreement in duplicate was also given tohim with a direction to sign the same in the presence of the accused and that agreed signal was to bs given to the members of the raiding party by G.K.Chanana on coming out of the Guest House. This part of the testimony of DSP A.A. Khan (PW 3) stands folly corroborated from the testimony of G.K.Chanana (PW 1), Abrar Hussain (PW 2) and viren Pandey (PW 4). There are no material discrepancies in the state mints of these witnesses so as to doubt about the aforesaid happenings.

(28) The next question is about the signing of the draft agreement by thecomplainant Viren Pandey and G K Chanana (PW 1). In this regard statement of G K Chanana (PW 1) and Viren Pandey (PW 4) are relevant since they both had gone inside the premises where Madan Mohan Prasad was staying while other members of the raiding party had taken suitable positions outside.

(29) PW1 G.K. Chanana has stated that on 18/08/1977 at about 8.15 P.M. he accompanied Viren Pandey to the Guest House in NewDelhi South Extension and found the accused sitting on the head side of the double bed while one Mr. Sahai of Directorate General, Supplies and Disposal was sitting on foot side. According to him the accused had stated that neither High Court nor Supreme Court could help Viren Pandey while he could do so,He went on to state that Mr. Madan Mohan Prasad enquired if he had brought the papers upon which Viren Pandey produced Ext Pc on which he signed at point 'A' with the pen of Madan Mohan Prasad. He has also stated about his having signed it at point 'B' with his own pen. He went on to state thatExt. Pc was given to Madan Mohan prasad while its carbon copy Ext. PC-1 was given to him to be kept in the resolution book at Calcutta. He has also stated that he has signed this document as R.K. Pandey and was posing himself asR.K. Pandey younger brother of the complainant. During cross-examination hehas stated that he was asked to sign R.K. Pandey by saying that he was most like R.K.. Pandey and claimed having seen and read Ext. Pc in the Cbi Office.He did not hear Parsad saying that it was a childish act after going through the agreement and claimed that Prasad only asked Pandey to sign it while he signed it at the instance of Viren Pandey. He has denied that Virea Pandey gave this agreement to Prasad by saying that it be given to Arun Kumar.

(30) Viren Pandey (PW 4) has stated that on reaching the room of the Guest House in New Delhi South Extension he introduced G K. Chanana(PW 1) as his brother to Madan Mohan Prasad. He went on to state that Prasad asked him if he brought the typed agreement upon which he gave (he draft agreement which was typed in the Cbi office on the letter pad of thecompany. He went on to state that Prasad asked him to sign it when he had no pen and was provided a red pen by Madan Mohan Parsad. He has further stated that he told Madan Mohan Prasad that it was red pen upon which he told that "Subh Kaam Ke Liye Isi Se Sign keejiye". He has further stated thatMr. Chanana signed this agreement Ext. Pc as R.K. Pandey whom he introduced to Prasad as his younger brother. He has denied the suggestion that on entering the room he enquired from Prasad whether Arun uncle came who was to arrive and he replied that he did not know anything about it. He has also denied that he handed over the agreement to the accused by saying that it was meant for Arun and may be handed over to him at Patna. He has, in fact,claimed that he did not know Arun Kumar and denied that Prasad had not made a demand of the agreement. It is also denied that after going through theagreement Prasad laughed and remarked that it was a childish act or that itwas not permissible to create sub-lease. He has also denied that Prasad returned the agreement Ext. Pc to him. According to him he did not know Arun Kumar and so could not say if any such person named Arun Kumar died at Patna in a car accident.

(31) From the statements of these two witnesses has clearly been proved by the prosecution that the complainant had produced the draft agreementExt. Pc before Prasad and it was signed by Viren Pandey complainant with the pen made available by Prasad and it was signed by G.K. Chanana asR.K. Pandey. There is no material on record to substantiate or corroborate the plea put forward by Mr. Prasad that this agreement was, in fact, not signed in his presence and at his instance or that it was given to him by the complainant to be handed over to any person named Arun Kumar.

(32) The most important question now for consideration is as to whether there was any demand of illegal gratification and acceptance of Rs. 5000.00 byMadan Mohan Prasad from the complainant. On this point again the evidence available is the testimony of PW1 G.K. Chanana and PW4 virenPandey.

(33) G.K. Chanana (PW 1) has stated that Prasad enquired about other thing and during that time Pandey gave reply to Prasad that he could bringRs. 5000.00 only and gave this money to Prasad. According to him this amount was kept by Prasad in his left pocket without using his right hand. He has also stated that accused has made a demand of one more rupee as 'shagan'when Pandy gave reply that he did not have any such money and that he on enquiry told him that he too did not have any money. He has denied that no money was passed in his presence.

(34) Viren Pandey (PW4) has stated that Prasad enquired from him if had brought money to which he replied in the affirmative and thereafter he gave currency notes in the hand of Prasad and told him that these wereRs. 5000.00 and he could count them. According to him Prasad remarked that there was no necessity of counting the same and that still more was to bepaid. He has denied that he took out some currency notes from the pocket and offered them to Prasad asking him to hand over the same to one Arun Kumar or that accused remarked that he should not be involved in that matter. Hehas denied that the accused did not make demand of money or that he had placed money and the agreement in the pocket of the bushirt of Prasad lying on Vip bag.

(35) The question now for consideration is with regard to the recovery of the agreement and marked currency notes. G.K. Chanana (PW 1) has statedthat he came out of the room and gave agreed signal to A.A. Khan upon which the members of the raiding party came inside and Mr. Khan disclosed his identity and held both the wrists of accused Prasad. According to him one person named Sahai was present in the room whose hands were secured by Mr.Ghosh but after making enquiries from him the hands of Sahai were released.He has also stated that Dsp Khan then took out Rs. 5000.00 and the agreement besides one two rupee note, two one rupee notes and one coin and a pen from the pocket of the bushirt which the accused was wearing. He has been fully corroborated in this regard by Abrar Hussain (PW 2) and Dsp A.A. Khan(PW 3). They have also stated that the numbers of the G.C. notes Exts. P 1 toP 50 were compared with the numbers mentioned in the handing over memoExt. Pb which was prepared in the Cbi Office which tallied. Dsp Khan(PW 3) had specifically denied the suggestion that Prasad was wearing only a Banyan and Pyjama or that the bushirt was lying on Vip bag on central table.

(36) Plea of the learned counsel for the appellant had been that Prasad was not wearing the bushirt and no recovery was effected from Prasad.However, this argument is not supported by any material on record. Theevidence produced by the prosecution has clearly established that the G.C.Currency notes Exts. P 1 to P 50 worth Rs. 5000.00 and the agreementExt. Pc were recovered from the pocket of the bushirt Madan Mohan Prasadwas wearing after A.A. Khan and other members of the raiding party entered room with G.K. Chanana who bad come out of the room on the plea of taking a cigarette from the car of Viren Pandey.

(37) The question now for consideration is as to whether there is any scientific corroboration to the case of the prosecution about the handling of the marked G.C. notes by Prasad. In this regard again reliance has been placed on the statements of G.K. Chanana (PW 1), Abrar Hussain (PW 2) and DSPA.A. Khan (PW 3). They have stated that the right hand and left hand of Prasad were dipped in separate solutions of Sodium Carbonate which turned pink and were preserved in separate bottles. Similarly, the pocket of the bush which Prasad was wearing was dipped in a colourless solution of Sodiumt Carbonate which turned pink which was also preserved in a separate bottle.These bottles were marked as Exts. P. 51, P. 52 and P. 53 while bushirt of the accused was marked as P. 54 and pen as P .55. These were taken into possession vide seizure memo Ext. PF. This part of the prosecution story stands folly corroborated from the testimony of these three witnesses and I do not find any material discrepancy so as to hold that they were not reliable witnesses.

(38) Learned Counsel for the appellant has submitted that Prasad was not in a position to render any assistance to the complainant who, in fact,had been pursuing the matters relating to the violation of law while operating mines and reply affidavit had already been handed over to the Counsel on 1 7/08/1978. In this way, he was unable to give any assistance and, thus, could not make any demind. I do not agree with this submission. It is not disputed that Prasad was working as Deputy Secretary, Govt. of Bihar in the Department of mines and was looking after Litigation Section during the relevantperiod. He had been visiting Delhi to brief the Counsel on behalf of theGovernment of Bihar. This, it was known to the complainant that the accused is pursuing the matter and thus, was under the impression that the accused wasin a position to help him. The incapacity of a Government Servant to show any favor or render any service in connection with official duty does not necessarily take the case out of the purview of Sec. 161 Indian Penal Code or Sec. 5(1)(d) of the Act. To attract the provisions aforesaid it is not necessary that the public servant must do something in connection with his duty and obtain valuable things or pecuniary benefits. Thus, if money is paid on the belief that a person will render help the offence under Sec. 161 Indian Penal Code and Sec. 5(1)(d) of the Act would be made out. Reference in this regard can be made to the cases Tirlok Chand Jain v. State of Delhi, and Ramesh v. The State,1986 Cr. L.J.I 101.

(39) Submission of learned Counsel for the appellant has been that from the very beginning plea taken up by Prasad was that the money was given tohim for being handed over to Arun Kumar who died subsequently and no effort was made by the Investigating Officer to record the statement of aforesaid Arun Kumar. In my view, the mere fact that the 1.0. did not record the statement of any such person named Arun Kumar would not be sufficient to discard the testimony of these witnesses made on oath and which stood the test of cross-examination and there are no material discrepancies in their testimony.

(40) Learned Counsel for the appellant has submitted that claim of Vilen Pandey complainant has been that in those days. he was staying in Bihar Bhavan which fact stands contradicted from the testimony of S.C. Sahu(DW 2). This witness when examined had stated that he brought the records of Stay of Guests in Bihar Guests House, 26 Jorbagh New Delhi which showed that no person by the name of Viren Pandey EX-MLC stayed there during the period from 15/08/1977 to 2 5/08/1977. He has during crossexamination admitted that people have been staying in the Guest House as Guests and companion of the persons in whose names the booking was made.It would, thus, mean that it is not necessary that a person must have a booking in his own name for stay at Bihar Guests House and the complainant could have stayed there even when the booking was not in his own name but in the name of another. Even otherwise the presence of the complainant in Delhi on the relevant dates is not in dispute. Even the claim of the complainant of meeting the appellant and he being apprehended by Dsp Khan is not disputed.In these circumstances, in my view, there is no reason to disbelieve the claim ofViren Pandey that he was staying in the Bihar Guest House and even otherwise this is not a fact material for the just decision of this case.

(41) Learned Counsel for the appellant has also submitted that in fact the complainant wanted the agreement and Rs. 5000.00 to be handedover to Arun Kumar and reliance has been placed upon the testimony of Maheshwar Prashad (DW 4), Sukhdev Prashad (DW 5) and Indrashan Prashad(DW 6). The plea was that Viren Pandey had taken money from ArunKumar which he wanted to return and it was in this connection that G.C. notes of Rs. 5000.00 were given by him to the appellant with a request to pass on themoney to the said Arun Kumar. (DW 4) Maheshwar Parshad has stated that inthe year 1976 Sukhdev Parshad (bis sister's son) asked him if he wanted to join a colliery business by saying that one Indershan Babu was starting business in partnership upon which he expressed his willingness but first wanted to see thesite. He went on to state that he was introduced to Indershan Babu by Sukhdev Parshad and in the second week of April 1976 he, Sukhdev Parshad andIndershan Babu, Arun Kumar Sinha and Viren Pandey went to a site at BunduColliery about 10 miles from Ram Bagh Railway Station. According to him he did not like the surroundings and some persons were found around that place armed with fire arms and there was a kacha construction having many holes in its walls. He went on to state that they returned to Ram Bagh Railway Station and that at that time Arun Kumar told Viren Pandey that he had to do the business and he was to spend only and at that time Arun Kumar took out Rs. 6000.00 and banded over to Viren Pandey. He has admitted that he did not know Madan Mohan Prasad and came to the Courts on receipt of summons while accompanied by Sukhdev Parshad and Indershan Babu. He has admitted that he met Viren Pandey and Arun Kumar only on that day for the first and last time. He has nowhere stated having passed on this information to the appellant or any other person. Similar have been the statements of Sukhdev Parshad (DW 5) and Indershan Babu (DW 6). It is apparent from the statements of these persons that they had not passed on this information to anyone and the appellant was not known to then. It is also significant to note that there was no cross-examination of Viren Pandey with reference to the payment of this amount of Rs. 6000.00 by Arun Kumar to Viren Pandey. It these circumstances; it is not clear as to how these witnesses have been introduced with this plea.The only plausible conclusion could be that it is only an after thought and to show that Viren Pandey owned a sum of Rs. 6000.00 to Arun Kumar and that a sum of Rs. 5000.00 was paid to the appellant to be handed over to Arun Kumar.If really any such amount was payable to Arun Kumar by Viren Pandey there would have been some material to indicate that there was any demand made of this money by Arun Kumar from the complainant. In these circumstances,I have no hesitation in coming to the conclusion that these witnesses have been introduced just to putforward a plea in defense but they cannot be believed and their testimony has to be ignored.

(42) From the aforesaid evidence it has clearly been proved by the prosecution that Madan Mohan Prasad was dealing with the files on behalf ofGovt. of Bihar in respect of the violation of law relating to the mines of different persons including South Karanpura Colliery Co. Ltd. of which Viren Pandeywas the Chairman. There was a feeling in the mind of Viren Pandey that all the problems were created for him and his company by Madan Mohan Prasad who could be of help to him and it was in this connection that when approached Prasad made a demand of illegal gratification and a sub-lease in favor of hisnominee. Prosecution has proved from the evidence brought on record that initially a demand of Rs. 10,000.00was made by Madan Mohan Prasad who when expressed his inability to pay this amount agreed to take Rs. 5000.00 and gave a draft of the agreement to be signed in his presence. It has also been proved that at the instance of the appellant the draft agreement Ext. Pc typed on the letter pad of the company in the Cbi Office was signed by Viren Pandey andG.K.. Chanana as brother of Pandey and Director of the company at the instance of Prasad at the Guest House where he was staying. It has also been proved that on demand a sum of Rs. 5000.00 was paid to him by viren Pandeyand, these were recovered by Dsp A.A. Khan (PW 3). The recovery stands corroborated from the Chemical test in which the hand washes and the wash of the pocket of the bushirt of the appellant when taken separately in colourlesssolution of Sodium Carbonate turned pink indicating that these were bandied bythe appellant.

(43) Once these facts are proved a presumption arises under Sec. 4 of the Act and the burden lies on the appellant to show that he had not made ademand and accepted illegal gratification.

(44) Learned Counsel for the appellant has not been able to show that this amount was paid to the complainant in any other connection audit was not an illegal gratification.

(45) Learned Counsel for the appellant has pointed out certain facts which have not been correctly mentioned in the impugned judgment. A perusal of the judgment indicates that the learned trial Court has mentioned in para 35that :- "It appears that Ext. Pe was admittedly torn out from the register which was recovered from the possession of the accused on18.8.77. How could the complainant, a day earlier, know that the accused was having any register containing papers similar to that ofExt. Pb ? This factor alone lends assurance to the credibility of the version put forth by the complainant in this case."

(46) I have gone through the evidence and do not find that the prosecution had taken possession of any such register. According to the prosecution story the paper Ext. Pe was recovered from the brief-case of the appellant.

(47) Again in para 36 of the judgment learned trial Court has observed that :-    "As already indicated above, Public Witness 1 and Public Witness 2 are both independent and respectable witnesses having no animosity towards the accused. They have both seen and heard what transpired between PW 4 and the accused. They had seen the money passed by Public Witness 4to the accused who pocketed the same at once."  

(48) This is again not factually correct since the case of the prosecution has been that Public Witness 1 G.K. Chanana and accompanied the complainant VirenPandey (PW 4) inside the room where Madan Mohan Prasad was present and Abrar Hussain (PW 2) was standing outside. It is not the case of the prosecution that Abrar Hussain (PW 2) was also a witness of the demand and passingof the money to Madan Mohan Prasad by the complainant.  

(49) Again in para 33 of the judgment Kamal Nain Chobey (PW 9)has been shown as a Government Advocate who, in fact, was not a Government Advocate as stated by him.  

(50) The question for consideration, however, is as to what is the effect of these mistakes having occurred in the impugned judgment.  

(51) I have given my thoughtful consideration to this aspect and I amclearly of the view that discrepancies aforesaid do not have any affect on the appreciation by the learned trial Court. The conclusion arrived at by the learned trial Court is based on material evidence brought on record and, thus,on account of these minor discrepancies having occurred in the judgment no benefit can be derived by the appellant.  

(52) Once the prosecution proves the demand and acceptance of money by Madan Mohan Prasad it was for him to prove by clear and convincing evidence that it was not, in fact, an illegal gratification. Not only that he has not been able to prove his plea there is not even a plausible explanation thatthis amount was accepted by him not as illegal gratification but for some otherpurpose.  

(53) Considering all the facts and circumstances, I am clearly of the view that Madan Mohon Prasad has rightly been convicted.  

(54) As regards sentence Madan Mohon Prasad has already died and,thus, the question of his undergoing sentence does not arise. He was also fined Rs. 500.00 for the offence under Sec. 161 Indian Penal Code and Rs. 5000.00 for the offence under Sec. 5(2) read with Sec. 5(1)(d) of the Act. Since Madan Mohan Prasad has already died it would, in my view, be in the ends of justice if this amount of fine is premitted.  

(55) As a result the appeal is accepted in part. Conviction of Madan Mohan Prasad is upheld. However, the order of sentence is modified to the extent that the amount of fine is remitted. The appellant has already diedand, thus, there is no question of he being asked to undergo sentence ofimprisonment.