Shri Brahm Parkash vs State
2010 Latest Caselaw 4756 Del

                IN THE HIGH COURT OF DELHI: NEW DELHI

+ Crl. A. No. 50/2008

%

SHRI BRAHM PARKASH                                  ..... APPELLANT
                            Through:   Mr. Atul Jain, Adv.

                            Versus

STATE                                             .....RESPONDENT
                            Through:   Mr. Manoj Ohri, APP


                 Judgment reserved on: 28th September, 2010
                 Judgment delivered on: 8th October, 2010

Coram:

HON'BLE MR. JUSTICE A.K. PATHAK


       1. Whether the Reporters of local papers
          may be allowed to see the judgment?         Not Necessary


       2. To be referred to Reporter or not?          Not Necessary


       3. Whether the judgment should be              Not Necessary
          reported in the Digest?


A.K. PATHAK, J.

1. Appellant has been convicted by the Trial Court under

Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of

Corruption Act, 1988 (for short hereinafter referred to as "the Act");

sentenced to face rigorous imprisonment for a period of two years

and fine of ` 10,000/- and in default of payment of fine to undergo

rigorous imprisonment for a period of six months under Section 7 of

the Act; sentenced to face rigorous imprisonment for a period of

three years and fine of ` 15,000/- and in default of payment of fine

to undergo rigorous imprisonment for a period of nine months

under Section 13(2) read with Section 13(1)(d) of the Act. Both the

sentences have been directed to run concurrently. Benefit of

Section 428 Cr.P.C. has also been given to the Appellant.

2. Briefly stated, case of the prosecution is that the complainant

had been running a cycle repairing shop in the name and style M/s.

Pinky Cycle Works from Shop No. 6, Yadav Park, Najafgarh Road,

Nangloi, Delhi. Appellant was the Area Licensing Inspector, posted

in MCD office situated at Najafgarh Road. He had challaned the

complainant on 31st March, 1999 for running the shop without a

license, consequently, fine of ` 500/- was imposed on him by the

Court. Thereafter, complainant applied for a license in the MCD

office on 20th January, 2000. In this connection, complainant met

the Appellant in his office and requested him for early issuance of

his license. Appellant told the complainant that his work would not

be done till he pays some „kharcha pani‟. On one Wednesday in the

month of September, 2000, Appellant visited shop of the

complainant and threatened him that in case a sum of ` 1500/- was

not paid to him in his office by the following Monday, then his

license would not be prepared and articles lying outside his shop

would also be seized. Appellant told him to come to MCD office at

10:15 am on the following Monday with the money. Complainant

went to Anti-Corruption Branch on 20th September, 2000 for lodging

the complaint but he was asked to bring ` 1500/-. Accordingly,

complainant arranged ` 1500/- by taking loan from his friend and

went to Anti-Corruption Branch on 24th September, 2000. He was

directed to come on 25th September, 2000 in the morning.

Complainant reached Anti-Corruption Branch in the morning on

25th September, 2000 and met Inspector Niranjan Singh who

recorded his statement and constituted a raiding party, wherein a

public servant Partha Chakraborty (panch witness) was also joined.

The numbers of fifteen currency notes of ` 100/- denomination were

recorded in the pre-raid report. Currency notes were smeared with

phenolphthalein powder and panch witness was asked to touch

these notes, thereafter, his fingers were dipped in the sodium

carbonate solution which turned pink. This demonstration was

given to the panch witness and the complainant to show the

significance of phenolphthalein powder treated currency notes.

Thereafter, phenolphthalein powder treated currency notes were

handed over to the complainant with the instructions to pass it on

to the Appellant on his demand, in the presence of panch witness

who was asked to accompany the complainant and watch the

transaction and give signal to the raiding party by waving his right

hand over his head after the transaction was over. Pre-raid report

was prepared and duly signed by the Investigating Officer.

3. After completing pre-raid proceedings in the office of Anti-

Corruption Branch, raiding party reached MCD office, Najafgarh

Zone at about 10:00 AM. Complainant and panch witness went to

room No. 12 at the second floor of the building to meet the Appellant

at about 11:30 AM, however, appellant was not found present in his

office. On enquiry it was revealed that he would come at about

12:15 PM. Raid Officer was informed about this fact. Complainant

and panch witness kept on waiting for arrival of the Appellant at the

ground floor of the building. At about 12:30 pm Appellant came

there and went upstairs. Complainant and panch witness followed

him to the second floor. Appellant first attended his office work and

at about 1:00 PM he asked the complainant as to whether he had

brought the bribe money. Complainant replied in affirmative and

handed over phenolphthalein powder treated fifteen currency notes

of ` 100/- denomination to the Appellant, who accepted the same

with his right hand and kept in the right side pocket of his pant.

After the bribe money was passed, the panch witness gave signal to

the raiding party which arrived there. The complainant and panch

witness informed the Raiding Officer that Appellant had demanded

and accepted the bribe money. Appellant was challenged by the

Raiding Officer by saying that he had demanded and obtained bribe

from the complainant. On the direction of the Raid Officer, panch

witness took search of the Appellant and fifteen currency notes of `

100/- denomination were recovered from the right side pocket of his

pant. Numbers of currency notes were tallied with the numbers of

currency notes as mentioned in the pre-raid report. Right hand of

the Appellant was dipped in the freshly prepared sodium carbonate

solution, which turned pink. This solution was then transferred in

two clean glass bottles which were marked as "RHPPW-I" and

"RHPPW-II" and labels of the bottles were signed by the

complainant, panch witness and the Raiding Officer. Thereafter,

bottles were sealed with the seal of "NS". Thereafter, wash of right

side pocket of pant of the Appellant was taken in colourless sodium

carbonate solution, which also turned pink. This solution was also

transferred in two glass bottles which were marked as "RHPPW-I"

and "RHPPW-II". These bottles were also sealed with the seal of NS.

Sample seal impressions were obtained and thereafter all the four

sealed bottles, sample seal impressions and pant of the appellant as

also the currency notes were sealed and taken in possession. Post

raid proceedings were recorded which were signed by the witnesses.

Appellant was arrested. Case property was deposited in the

Malkhana of police station Civil Lines. Later, case property was

sent to FSL, Malviya Nagar. As per the report of FSL, presence of

phenolphthalein and sodium carbonate was detected in the hand

washes and pant wash solutions. Sanction for prosecution of the

Appellant was obtained from Shri K.C. Aggarwal, Deputy

Commissioner, S.P. Zone. Thereafter, appellant was sent to face

trial for having committed offences under Sections 7 and 13 of the

Act, by filing a charge sheet in the Trial Court.

4. Charges under Sections 7 and 13(2) read with 13(1)(d) of the

Act were framed by the Trial Court against the Appellant on 22nd

February, 2002, to which he pleaded not guilty and claimed trial.

5. Prosecution has examined 12 witnesses to prove its story.

Complainant Satish Kumar was examined as PW3. Panch witness

was examined as PW10. Raiding Officer Inspector Niranjan Singh

was examined as PW11. Sh. K.C. Aggarwal, who had accorded

sanction for the prosecution of the Appellant, was examined as PW1

and he has proved the sanction as Ex. PW1/A. PW2 HC Phool

Chand, who was working as Malkhana Moharar at the relevant time

in the police station Civil Lines, had deposed regarding the

depositing of the case property, i.e. currency notes, sealed bottles

containing washes, sample seal impressions and pullanda

containing pant. He has further deposed that on 3rd October, 2000

case property was sent to FSL, Malviya Nagar by Head Constable

Om Parkash; case property was received back from the FSL, Malviya

Nagar in the Malkhana on 9th January, 2001 by PW4 HC Birju

Singh, who has corroborated this version. Other witnesses are

formal in nature. PW5 Rajbir Singh, an official of MCD, has

deposed that he had handed over the file of M/s. Pinky Cycle Works

to the Investigating Officer. PW6 is another MCD official, namely,

Davinder Singh, deposed regarding the procedure for issuance of ad

hoc license and that M/s. Pinky Cycle Works had made an

application for grant of license which was sanctioned; complainant

was to deposit a sum of ` 1700/- towards the registration fee. PW7

Satvir Sharma is also a MCD official and is a formal witness. PW8

Shri Sanjay Kumar, an official of MCD, has proved the photocopy of

dispatch register, which he had handed over to Investigating Officer.

PW9 Charan Dass Gupta an official of MCD is also a formal witness.

PW12 Inspector M.A. Salam was the Investigating Officer of the case

and has deposed about the investigation conducted by him.

6. After the prosecution closed its evidence, statement under

Section 313 Cr.P.C. of the Appellant was recorded wherein entire

incriminating material, which had come on record, was put to him.

Appellant denied that he had demanded or accepted the bribe

money. However, he admitted that he was working as Licensing

Inspector in the MCD and the area of Nafafgarh Road, Nangloi was

under him; complainant was running a cycle repairing shop and

had applied for grant of a license; on 11th August, 2000 he had

collected letter of sanction from his office vide entry No. 1858 made

in the dispatch register. He denied that he had visited the shop of

the complainant on a Wednesday in the month of September, 2000

and threatened to seize the articles lying in front of the shop in case

`1500/- was not paid in his office by the following Monday. He

denied that he had asked the complainant to visit his office at 10:15

am on the following Monday in this connection or else license would

not be issued. He took a plea that there was no occasion for him to

demand bribe since he had already recommended for grant of

license on the basis whereof competent authority had already

sanctioned the license. He denied that complainant met him in his

office on 25th September, 2000 and handed over him the bribe

money on demand, or that same was accepted by him. According to

him, complainant met him in his office and requested him to accept

` 1500/- towards license fee but he refused to accept the same by

saying that he should deposit the same at the counter. On his

refusal, complainant tried to shove the currency notes in his pocket,

which was resisted by him but in the meanwhile raiding party

arrived there and apprehended him and took him to the office of

Anti-Corruption Branch where currency notes were taken in

possession, his hand wash and wash of the right pocket of his pant

was taken. He claimed that the complainant had implicated him

falsely as he had earlier challaned the complainant resulting in

imposition of fine of ` 500/- by the Court for running a cycle

repairing shop without a license.

7. Appellant examined Shri Vinod Kumar, LDC (Licensing

Branch) as DW1, who has deposed that on 25th September, 2000 he

was present in the room No. 12 at the second floor when at about

10:30 AM one person came there and enquired about the Appellant.

He informed the said person that the Appellant was on field duty

and would return at about 12‟ O clock. At about 1:00 PM same

person again came there and offered some money to Appellant as

license fee, but the Appellant refused to accept the same at which

said person tried to shove the money in the Appellant‟s pant pocket.

However, in his cross-examination he has admitted that he did not

make any complaint to any one regarding this incident.

8. Trial Court found the testimony of complainant (PW3), panch

witness (PW10) and Raid Officer (PW11) to be trustworthy and

reliable and sufficient enough to conclude that it is the Appellant

who had demanded and accepted the bribe money of ` 1500 from

the complainant on the fateful day. That apart, Appellant had

himself admitted that he was caught by the raiding party and the

money was recovered from his pant‟s pockets, inasmuch as his

hand wash had been taken which turned pink. Defence taken by

the Appellant of having been falsely implicated by the complainant

in this case since he had earlier challaned the shop of the

complainant had been disbelieved. Trial court also did not find any

force in the defence of the Appellant that it is the complainant who

had forcibly pushed through the currency notes worth ` 1500/- in

his pant‟s pocket, in view of the overwhelming evidence on record

indicating that the bribe money was paid to the Appellant by the

complainant, on his demand.

9. On perusal of the Trial Court record, I do not find any

perversity in the view taken by the Trial Court which appears to be

in conformity with the evidence adduced by the parties during the

trial. PW3, Satish Kumar has fully supported the prosecution

version. In nutshell, he has deposed that he had been running a

cycle repairing shop in the name and style of M/s. Pinki Cycle

Works from a shop at Najafgarh. Appellant was Area Inspector at

the relevant time. He had challaned him for running the shop

without a license. Accordingly, he made an application for grant of

license, in the office of MCD. In this connection he met Appellant

number of times but no satisfactory reply was given, inasmuch as

he told him that without some „kharcha pani‟ his work will not be

done. On a Wednesday, in the month of September, 2000 appellant

came to his shop and told him that in case ` 1500/- was not paid

he would seize the articles lying outside the shop. Appellant asked

him to visit his office on the following Monday at about 10.15 am

with ` 1500/- if he wanted that the license is issued. Accordingly,

he went to Anti-Corruption Branch to make a complaint but he was

asked to come with ` 1500/-. Thereafter, he went to Anti-Corruption

Branch on 25th September, 2000 after arranging ` 1500/- and met

Inspector Niranjan Singh. Panch witness Partha Chakraborty was

already present there. Inspector Niranjan Singh (PW11) recorded

his statement in the presence of Panch witness. He has proved his

this statement as Ex. PW3-A. He further deposed that the numbers

of currency notes were noted on a paper. Thereafter, currency notes

were smeared with phenolphthalein powder. Panch witness was

asked to touch the currency notes and thereafter his hand was

dipped in colourless sodium carbonate solution, which turned pink.

This solution was thrown away. He and panch witness were

informed that if hands of the person, who had touched the currency

notes, are dipped in sodium carbonate solution, the solution would

turn pink. Powder smeared currency notes were handed over to

him with the instructions that he should pass it on to the appellant,

on demand. Panch witness Partha Chakraborty was asked to

remain with him and give signal to the raiding party after

transaction is complete. Inspector Niranjan Singh prepared pre-raid

report which was signed by him and the Panch witness. He has

proved this report as Ex. PW3/B. He further deposed that after pre-

raid proceedings were completed he along with Inspector Niranjan

Singh, panch witness and other police officials reached MCD office

at about 10.00-10.15 am in an official vehicle. Thereafter, he along

with panch witness went to Room No.12 at the second floor where

office of appellant was situated. Appellant was not present in his

office. On enquiry from a person sitting there, it was revealed that

he would come to office at about 11.30 am or 12‟ O clock. This fact

was informed to Inspector Niranjan Singh. Thereafter, he along with

panch witness started waiting for the arrival of appellant at the

ground floor of the building; at about 12.15-12.30 p.m. appellant

entered in the office building and went to his office at second floor.

He along with panch witness followed the appellant. Appellant first

attended his work and around 01.00 pm he could talk to him.

Panch witness was with him at that time. Appellant asked him as

to whether he had brought the money. He replied in affirmative.

Thereafter, appellant asked him to hand over the money to him.

Accordingly, powder smeared currency notes worth ` 1500/- were

handed over by him to the appellant which he accepted from his

right hand and kept in right side pocket of his pant. Panch witness

went out and gave signal to the police party at which Inspector

Niranjan Singh and other officials came there and caught hold of

both the hands of the appellant. Panch witness told Inspector

Niranjan Singh that appellant had kept the bribe money in the right

pocket of his pant. Bribe money was recovered from the right side

pocket of the appellant. The number of currency notes were tallied

from the pre-raid report. Thereafter, sodium carbonate solution was

prepared and right hand of the appellant was dipped therein, as a

result whereof, the solution turned pink. Solution was sealed in two

small bottles. Another solution was prepared wherein right side

pant pocket was dipped which also turned pink. This solution was

also transferred in two bottles and sealed. Currency notes

recovered from the appellant were also sealed. Post-raid report was

prepared which was signed by him and other witness. The report

has been proved as Ex. PW3/C.

10. PW10, Sh. Partha Chakraborty is the Panch witness. He has

fully corroborated the complainant on material points. He has

deposed that he was working as Lower Division Clerk with District

Employment Exchange (Central), K.G. Marg, New Delhi. On 25th

September, 2000 he was asked to report Anti Corruption Branch.

Accordingly, he reached there at 9:30 AM where PW3 Satish Kumar

was present whose statement was recorded by the Inspector

Niranjan Singh, wherein he stated that he had applied for a license

with the MCD; Appellant, who was working as Area Inspector, had

demanded bribe of ` 1500/- from him for issuing the license. He

identified his signatures on Ex. PW3/A, which is a statement of PW3

recorded by Inspector Niranjan Singh. He further deposed that 15

currency notes of ` 100 denominations were produced by PW3

which were then smeared with the phenolphthalein powder. He

touched these currency notes with his right hand which was later

on dipped in the solution of sodium carbonate which turned pink.

The number of currency notes were noted down in the pre-raid

report. PW3 was asked to hand over the bribe money to the

appellant on his demand. He was asked to accompany the

complainant PW2 and watch the transaction. He has identified his

signatures on the pre-raid report Ex. PW3/B. Thereafter, raiding

party reached MCD office at about 11 AM. Complainant along with

him went to the office of the accused at second floor of the building

at about 12‟ O clock but he was not found there. At about 12:30 PM

or 1 PM appellant arrived there. Around 12.45 PM complainant

contacted the appellant at which appellant asked him "kya Laye

Ho". On this complainant handed over the bribe money to the

appellant which he accepted from his right hand. He gave signal to

the members of the raiding party who arrived there and

apprehended the appellant. Raiding officer recovered the money.

The number of recovered notes were compared with the pre-raid

report which tallied. Thereafter, right hand wash of the appellant

was taken, which turned pink. Solution was transferred in two

bottles and sealed. Since full account was not given regarding the

proceedings conducted at the spot, APP for the State declared this

witness hostile on this point and cross-examined him wherein PW10

admitted that right pant pocket wash was also taken in his presence

which turned pink and the solution was thereafter transferred in

two glass bottles which were sealed with the seal of NS. He has

identified his signatures on the relevant memos. Statements of PW3

and PW10 have been duly supported by Inspector Niranjan Singh

who was examined as PW11. On material points, all the above

witnesses have corroborated each other and in my view, their

testimony has rightly been accepted by the Trial Court. From their

statements, in my view, prosecution has succeeded in proving that

it is the appellant who had demanded bribe of ` 1500/- from the

complainant for issuance of a license to him and later accepted it in

his office on 25th September, 2000. The statements of PW3, PW10

and PW11 coupled with the post-raid report clearly show that the

bribe money was recovered from the appellant. That apart, recovery

of bribe money has been admitted by the appellant in his statement

recorded under Section 313 Cr.P.C. He has admitted that the

complainant had met him in his office on 25th September, 2000 and

offered him ` 1500/-. However, he has stated that this money was

towards the license fee. He further stated that he refused to accept

the money by saying that the fee should be deposited at the counter.

According to him, when he refused to accept the money,

complainant tried to shove the currency notes in his pocket and

while he was resisting this act of the complainant, raiding party

came there and apprehended him. He has not disputed that his

hand wash was taken in the sodium carbonate solution which

turned pink. He did not dispute that wash of his pant‟s pocket was

also taken in the sodium carbonate solution which turned pink. He

did not dispute that the same was transferred in glass bottles and

sealed with the seal of NS. His plea is that all these proceedings

were conducted at the Anti-Corruption Branch and not at the spot.

In my view, plea taken by him fully supports the testimony of the

complainant, panch witness and also that of the members of the

Raiding Party with regard to the recovery of tainted money from his

possession. This shows that PW3, PW10 and PW11 are trustworthy

and reliable witnesses.

11. PW3 is the complainant. He has categorically deposed that

the appellant had demanded `1500 from him for issuance of a

license in his favour. There is no reason to disbelieve his this

statement more so, when the bribe money was duly accepted by the

appellant in his office in presence of PW10 and had been later

recovered from his pant‟s pocket. Thus, demand and acceptance of

bribe money stands proved.

12. Even otherwise, the recovery of the tainted money from the

possession of the appellant by itself shows that he was guilty of

accepting the bribe from the complainant. This presumption of his

guilt has to be drawn in view of Section 20 of the Act. Relevant it

would be to refer to Section 20 of the Act which reads as under :-

1) Where, in any trial of an offence punishable under Section 7 or Section 11 or Clause (a) or Clause (b) of sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain from himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may, without consideration or for a consideration which he knows to be inadequate.

2) ............

3) .............

(emphasis supplied)

13. It would also be appropriate to refer to Section 7 of the Act

which reads as under :-

"Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or

attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.

Explanations- ........"

14. A conjoint reading of the aforesaid provisions clearly show

that if the acceptance of the amount by accused is proved a

presumption has to be drawn against him that he had accepted the

money by way of gratification, as a motive or reward for doing or

forbearing to do any official act or for showing or forbearing to show,

in the exercise of his official functions, favour or disfavour to any

person or for rendering or attempting to render any service or

disservice to any person. In such an eventuality burden shifts on

the accused to explain the circumstances to prove his innocence.

The recovery of currency notes from the appellant proves the guilt of

the appellant in view of the presumption arising under Section 20 of

the Act which, of course, is a rebuttable assumption. The language

employed in Section 20 is "shall be presumed" which by itself

indicates that the Court is bound to take the fact as proved until

evidence is adduced to disprove it. In this case, recovery of tainted

money from the appellant has not only been proved but has been

duly admitted, thus, presumption about the guilt of the appellant

has to be presumed unless the explanation offered by him is

accepted as proved.

15. In M.Narsinga Rao vs. State of Andhara Pradesh, 2001

Crl.L.J.515, Supreme Court held that it is obligatory for the court

to draw the statutory presumption under Section 20 of the Act and,

therefore, if it is proved that the accused had accepted or agreed to

accept any gratification, the court must presume that the money

was accepted as a motive or reward for doing any official act. This

presumption, however, is rebuttable. Similar view has been taken

by the Supreme Court in B.Noha Vs. State of Kerala and Anr.

(2006) 12 SCC 277. In Madhukar Bhaskarrao Joshi Vs. State of

Maharashtra, 2001 Crl.L.J.175 the arguments advanced by the

accused that the presumption could be drawn only on the

prosecution, establishing that gratification was paid or accepted by

the public servant and not merely from its proving that he was

found in possession of the currency notes, smeared with

phenolphthalein powder were rejected. The Supreme Court held

that "the premise to be established on the facts for drawing the

presumption is that there was payment or acceptance of

gratification. Once the said premise is established the inference to

be drawn is that the said gratification was accepted "as motive or

reward" for doing or forbearing to do any official act. So the word

'gratification' need not be stretched to mean reward because reward

is the outcome of the presumption which the court has to draw on

the factual premise that there was payment of gratification. This will

again be fortified by looking at the collocation of two expressions

adjacent to each other like "gratification or any valuable thing." If

acceptance of any valuable thing can help to draw the presumption

that it was accepted as motive or reward for doing or forbearing to

do an official act, the word 'gratification' must be treated in the

context to mean any payment for giving satisfaction to the public

servant who received it."

16. In the present case, from the evidence adduced on record, it

can safely be inferred that the explanation offered by the appellant

has remained unproved, inasmuch as it does not inspire any

confidence even by applying principles of preponderance of

probability. No evidence has been led by the appellant to show that

the complainant was to deposit a sum of ` 1500/- towards the

license fee with the MCD office. No demand letter issued by the

MCD to the appellant calling upon him to deposit ` 1500/- towards

the license fee in the office had been produced or proved. In

absence of any such evidence having been led by the appellant in

his defence, it cannot be said that the complainant had approached

the appellant on the fateful day to deposit the license fee and

instead of depositing the same at the counter; he had requested the

appellant to accept it. On the contrary, PW9 Charan Das Gupta,

Zonal Superintendent of MCD, has deposed that license fee of `

500/- was required to be deposited for issuance of the ad hoc

license to Satish Kumar, Proprietor of M/s Pinky Cycle Works. In

view of this statement of PW9, the defence of the appellant falls on

the ground like pack of cards that the complainant had asked the

appellant to accept `1500/- towards the license fee and when he

refused to accept the same complainant tried to shove the money in

his pocket. Statement of DW1 Vinod Kumar also cannot be

accepted in this regard. In his cross-examination DW1 has

categorically deposed that he had not given anything in writing to

anyone that appellant had been falsely implicated or that it is the

complainant who had tried to forcibly shove the money in the

appellant‟s pocket. It appears that this witness has deposed in

favour of the appellant being colleague. Be that as it may, on the

face of statement of PW10 Partha Chakrovarty no weight can be

attached to the version of DW1. PW10 is an independent witness.

He had no enmity with the appellant. He is also a Government

servant. There is no reason as to why he would depose falsely in

order to implicate the appellant, who was totally stranger to him. In

my view, the appellant has failed to explain the circumstances

under which the tainted money was recovered from his pocket.

Thus, a presumption arises under Section 20 of the Act that he is

guilty of committing offence under Section 7 read with Section

13(1)(d) of the Act.

17. I do not find any force in the contention of learned counsel for

the appellant that there was no occasion for the appellant to

demand and accept the bribe money from the complainant since he

had already recommended sanction of the license in favour of M/s

Pinki Cycle Works and pursuant thereof, competent authority had

even accorded sanction for issuance of a license. License having

been sanctioned, its issuance was a mere procedural formality. On

complainant depositing the license fee, license was bound to be

issued to him, therefore, there was no occasion for the appellant to

demand bribe and for the complainant to pay the same to the

appellant. I find that sufficient evidence had come on record to

indicate that the sanction letter was not received by the

complainant. PW3 has categorically deposed that no sanction letter

was received by him nor he was aware about the sanction of the

license. As per the evidence adduced by the prosecution it has been

proved that it is the appellant who had collected the sanction letter

from the Despatch Clerk on the pretext of delivering the same to the

complainant. It is not the case of appellant that he had served this

sanction letter on the complainant nor any evidence in this regard

had been led. Service of this letter on the complainant has

remained unproved. It appears that this sanction letter was very

much available with the appellant. In such an eventuality there was

every possibility of the appellant demanding bribe from the

complainant to hand over the sanction letter to him.

18. I also do not find any force in the contention of learned

counsel for the appellant that testimony of PW3, PW10 and PW11 is

to be discarded in view of the inherent discrepancies in their

statements with regard to time when the complainant and panch

witness had arrived at the Anti Corruption Branch on 25th

September, 2000, reached the MCD office, and met the appellant.

It is contended that PW3 has deposed that he reached Anti

Corruption Branch at 7 AM on 25th September, 2000. As against

this PW11 has disposed that complainant came there at 8 AM and

at that time panch witness was already present; whereas PW10 has

deposed that he had reached Anti Corruption Branch at about 9:30

AM. There is material discrepancy with regard to the time when

panch witness and complainant arrived at the Anti Corruption

Branch. These witnesses have also given different timing about

their departure from the Anti Corruption Branch to the MCD office

as also their arrival there. As per PW10, raiding party started from

Anti Corruption Branch at about 11 am and reached the MCD office

around 12‟ O clock. As per PW3, raiding party started for MCD

office at about 8/8:30 AM and reached there at about 10/10:15 AM.

In my view, the discrepancies as pointed out above are minor in

nature and are not sufficient to discard the version of PW3, PW10

and PW11. Incident took place in the year 2000 while statements of

these witnesses were recorded in the court sometime in 2006 and

2007. Due to lapse of time, memory of a witness is bound to fail

and in such scenario possibility of such minor discrepancies arising

in their statements with regard to timing is probable and is not

sufficient enough to discard their testimony regarding demand and

acceptance of bribe. Accordingly, this contention of learned counsel

for the appellant is also rejected.

19. Learned counsel has next contended that testimony of PW10

with regard to demand of bribe at the spot cannot be accepted as he

had made material improvement on this point. While deposing in

the court PW10 has stated that appellant had asked the

complainant "kya laye ho", however, in his statement under Section

161 Cr.P.C. he had not used these words. The term "kya laye ho"

has been introduced by PW10 for the first time in the court and is

nothing but improvement and this portion cannot be read in

evidence against the appellant. In absence of the demand it cannot

be said that appellant had accepted phenolphthalein smeared

currency notes, as illegal gratification. I do not find any force in this

contention of the counsel for the appellant either. In his statement

under Section 161 Cr.P.C., PW10 has used term "kya wo paise laye

ho" while deposing in the court he has used the term "kya laye ho".

Both these terminology denotes demand of illegal gratification.

From the above it is clear that even in his statement under Section

161 Cr.P.C., PW10 has said about the demand of bribe by the

appellant from the complainant. Use of different terminology to

explain the same fact will not be sufficient to cast doubt on the

credibility of such witness. It is not expected from a normal human

being to have a photographic memory so as to narrate an incident in

the same manner by using the same words at different intervals. As

already stated in the preceding paras, incident relates back to the

year 2000; whereas statement of PW10 was recorded in the court

sometime in the year 2007, that is, after about seven years and in

such an eventuality some variation in his statement regarding use

of exact words at the time of incident is quite natural. Rather, such

minor variation in the deposition of a witness strengthens his

creditworthiness and makes him a natural witness. Thus, this

contention of learned counsel for the appellant is also rejected.

20. For the foregoing reasons I do not find any illegality or

impropriety in the findings of Trial Court. Accordingly, conviction of

the appellant is upheld.

21. Learned counsel for the appellant next contended that the

incident is about a decade old; appellant is now aged about fifty two

years; he has faced agony of trial for the last ten years, therefore,

lenient view may be taken while awarding the sentence. Keeping in

mind the contentions of the counsel, sentence of the Appellant is

reduced to one and a half years under Section 7 as well as under

Section 13(2) read with Section 13 (1) (d) of the Act. Both the

sentences shall run concurrently. Sentences of fine as awarded by

the Trial Court are maintained as it is.

22. Appeal is disposed of in the above terms. The appellant shall

surrender forthwith, before the Trial Court to undergo the remaining

part of the sentence as awarded to him. If he fails to surrender

forthwith, Trial Court shall take appropriate steps to procure his

presence and commit him to prison to undergo the remaining

sentence.

A.K. PATHAK, J.

October 08 , 2010 Rb/cl/ga