Delhi High Court

Om Prakash vs C.B.I. on 4 August, 2011

Author: M. L. Mehta

*                     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              Crl. A. No. 159/2002
                                                              Reserved On: July 15, 2011
%                                                     Date of Decision: August 04, 2011

OM PRAKASH
                                                                  ....Appellant
                      Through:
                                     Mr. Sidharth     Aggarwal,    Advocate     for     the
                                     appellant.

                      Versus
C.B.I.                                                         .... Respondent
                      Through:       Mr.Narendra Mann, Advocate for the
                                     respondent.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

1.       Whether reporters of Local papers may be allowed to
         see the judgment? - Yes
2.       To be referred to the reporter or not?- Yes
3.       Whether the judgment should be reported in the
         Digest?- Yes

M.L. MEHTA, J.

1. This appeal is directed against the judgment dated 26th February 2002

and order on sentence dated 27th February, 2002 of learned Special Judge

Shri R.K. Gauba whereby the Appellant Om Prakash was convicted for the

offence under Section 120B IPC read with Section 13(1)(d) and 13(2) of the

Prevention of Corruption Act, 1988 (for short, "the Act") and Section 7 and

Section 13(2) read with Section 13(1)(d) of the Act and was sentenced to

undergo rigorous imprisonment for five years with fine of `500/- on each

count and in default of payment of fine to further undergo rigorous

imprisonment for a term of three months each. The substantive sentences

were ordered to run concurrently.

2. The prosecution case as set out was that Rajesh Kumar (PW2/

Complainant) made a complaint to CBI on 7th April, 1995 against the

Appellant/accused. The genesis of the complaint is regarding pendency of an

application made by the father of the complainant for grant of license for

running a floor mill (chakki). The co-accused Manohar Lal was working as

Inspector in the said Licensing Department at the relevant time. PW2 met

him on 6th April, 1995, accompanied by one Pradeep Kumar Berry (PW8), an

acquaintance of his father. The co-accused demanded a bribe of `10,000/- for

issuing license. Of this, he demanded `5,000/- to be paid in his office between

3-5 pm on the next day i.e. 7th April, 1995 and the balance to be paid after

the license was issued. The co-accused also informed the complainant that if

the bribe money was not paid, the work would not be done. Based on this

complaint of PW-2, an FIR was registered which was marked to Inspector R.S.

Tokas (PW7), TLO, who decided to lay a trap. He joined J.C. Sharma (PW4)

and Amar Singh (PW5), the employees of FCI as independent witnesses. As

per the pre-arrangement, the complainant arranged 50 currency notes of

`100/- each. Their numbers were noted down and they were given the usual

treatment of phenolphthalein powder. PW7 arranged a demonstration and

thereafter the treated currency notes were handed over to the complainant

with the instructions to pay the same to the accused only on a specific

demand being made. PW5 Amar Singh was to be a shadow witness and was

instructed to remain close to the complainant. PW8 was allowed to

accompany the complainant and the shadow witness. The trap party went to

the office of Licensing Department of MCD at about 3.45 pm on 7 th April,

1995. PW2 accompanied by PW5 and PW8 went inside the office to contact

the co-accused while other members of the trap party remained outside.

After sometime, the complainant PW2 with PW8 and another person, later

identified as appellant/accused Om Prakash, were seen coming out of the

office and going towards the scooter stand. PW7 accompanied by other

members of trap party also reached that place and apprehended the

appellant. It is alleged that complainant and shadow witness informed that

when they went to the office, the co-accused asked them to hand over the

entire money to appellant Om Prakash. Accordingly, while the appellant was

coming out of the building with the complainant, he demanded the money

from the complainant, upon which the complainant handed over the money

to him. The Appellant accepted the money with his right hand and put the

same into the left side pocket of his pant. The Appellant was apprehended

and brought to the room of Shri Shiv Kumar (PW3), the Administrative Officer

of the Factory Licensing Department. A search of co-accused Manohar Lal

was made, but he had managed to slip out and was later apprehended. PW7

got washes of both the hands of the Appellant in separate solutions of sodium

carbonate which turned pink. The trap money was recovered and seized. The

wash of left side pocket of pant of the Appellant was also taken in separate

solution of sodium carbonate which also turned pink. The three washes were

put into separate empty bottles and were later got analyzed from CFSL vide

report (Ex.PW1/A) confirming the presence of phenolphthalein powder. In the

personal search of the Appellant taken on the spot, in addition to cash

amount, a bunch of some leaves and keys of Bajaj scooter were also

recovered. At the instance of the Appellant, the dickey of the Bajaj scooter

was opened. It was found to contain some documents which included the file

containing some sheets pertaining to the license applied for by the father of

the complainant. The necessary sanction for prosecution was granted by

Assistant Civil Engineer, MCD vide order dated 17th June, 1995.

3. The charge-sheet was filed on 10th October 1995. The Appellant

pleaded not guilty to the charges framed against him under the

aforementioned offences. The prosecution examined as many as 9 witnesses.

In his statement under Section 313 Cr.P.C., the Appellant denied that he had

gone out with the complainant (PW2) and PW8 on the asking of co-accused

Manohar Lal or had demanded money outside the office or that he had

received any such money from the complainant. He claimed that he had gone

to MCD Office on 7th April, 1995 to deposit license fee pertaining to his license

application, where he saw 2-3 CBI officials fighting with security guard of

MCD. He intervened and told the officials that public is not permitted inside

the hall, but CBI officials started fighting with him, whereafter the

complainant forcibly put the tainted money in the left pocket of his pant,

which he had taken out and thrown on the ground. He alleged that CBI

officials and the complainant had then lifted the money from the ground and

forced it into his hand, whereafter he was apprehended and taken to the

office of PW3. He alleged that he had been beaten by CBI officials who had

thereafter seized his scooter from his residence. The Appellant examined two

witnesses namely DW2 and DW3 as his defence witnesses. The co-accused

Manohar Lal (since deceased) had also examined one witness i.e. DW1 in

support of his defence.

4. I have heard learned counsel Mr. Sidharth Aggarwal for the Appellant

and Mr. Narender Mann for CBI and perused the record.

5. Learned defence counsel submitted that the Appellant was falsely

implicated because he had intervened in the quarrel going on between the

CBI and the MCD officials and getting offended by the same, PW2 thrust the

bribe money into his hands and got him falsely implicated as he was carrying

a grudge for not issuing the license in the name of his father. He submitted

that the appellant had gone to the office of MCD in connection with his

license application and was just standing near the co-accused Manohar Lal.

He submitted that the appellant had no role in the issue of licence in the

name of complainant and there was no reason or occasion for him to have

conspired with co accused Manohar Lal in asking for bribe. He submitted that

there was no evidence on record to show any prior meeting of minds between

the appellant and the co accused Manohar Lal nor the appellant had the

knowledge as to what was the transaction money which was thrust upon him.

He submitted that appellant was a stranger and was asked by the co accused

to go and take the money. He submitted that no file was recovered from the

scooter of the appellant, but the same was recovered subsequently in his

absence from the almirah of the co accused Manohar Lal. Learned defence

counsel relied upon Virendranath v State of Maharashtra, AIR 1996 SC 490

6. On the other hand learned public prosecutor has conceded that there

was no case made out against the appellant under Section 7 and 13 of the

Act. He submitted that, however, a case beyond doubt was established

against him under Section 120B IPC. He submitted that from the facts and

circumstances, it would be gathered that there was a conspiracy between co-

accused Manohar Lal and the appellant in taking the bribe from the

complainant. He particularly, referred to the facts such as presence of the

appellant in the company of co-accused Manohar Lal, he being asked by the

co-accused to go out, his coming out of the office for accepting bribe money

from the complainant, his acceptance of money, recovery of the same from

him immediately after apprehension, washes of his hands and the pant

confirming his having handled the bribe money and recovery of files including

that of the complainant from the dickey of his scooter parked within the

premises of MCD office. He also relied upon the judgment of this Court

wherein the evidence of prosecution was relied upon and the co-accused

Manohar Lal was convicted for the said offences.

7. It comes out to be an admitted case of the prosecution that an

application for grant of license made by father of PW2 was pending for quite

a long time with co-accused Manohar Lal, who was working as Factory

Inspector in the Factory Licensing Department of MCD at the relevant time. It

was mentioned by co-accused Manohar Lal in his statement under Section

313 Cr.P.C that the documents as submitted by the father of PW2 were

deficient and some were blank. Though co-accused Manohar Lal had claimed

to have written a letter to the father of PW2 in March, 1995 asking him to do

the needful with regard to the documents pertaining to the said application,

but from the record it would be seen that license file Ex.PW4/D contains a

letter dated 24th October 1994 (Ex.PW2/DA) under the signatures of co-

accused Manohar Lal whereby certain documents were required to be

submitted. It was also stated therein that in case the needful is not done

within time, the application would be rejected. No letter of March, 1995 as

referred to by co-accused Manohar Lal was seen in the file Ex.PW4/D. Despite

the letter dated 24th October 1994 stating that the application will be rejected

in case of non-submission of required documents, the matter was kept

pending by the co-accused Manohar Lal. The learned Special Judge has

rightly recorded that the fact that it was kept pending for quite a long time

rather confirms that the dealing hand i.e. co-accused Manohar Lal was

waiting for some contact by the applicant and this was a circumstance which

rather goes against the co-accused Manohar Lal.

8. As is noted above, the presence of the appellant in the company of co-

accused Manohar Lal at the relevant date, time and place is an admitted fact.

As per pre-arrangement for laying the trap, PW2 along with PW5 and PW8

had gone to meet co-accused Manohar Lal as per the time given by the latter,

a day before. Relevant portion of the testimony of PW2 in this regard is like

this:

"Raiding party left the CBI office at around 3.00 pm and reached near MCD office near Kashmere Gate at around 3.45 pm. Myself, Pardeep Berry and Amar Singh then went to the office of accused Manohar Lal and other members of the raiding party took suitable positions. Manohar Lal accused was present on his seat. I said Nameste to Manohar Lal. Manohar Lal responded by saying "Nameste, paise laye ho". I replied "paise laya hun." Manohar Lal enquired "kitne laye ho" and I replied "paanch hazar laya hun." Accused Om Parkash present in the court was also standing near accused Manohar Lal at that time. Manohar Lal told me "main inhe bahar bhej rahan hun paise inhe de dena." I enquired from him "Sir mera kaam ho jayea". On this Manohar Lal replied "mai aapka kaam pura kar doonga."

Thereafter, I alongwith Pardeep Berry and Amar Singh came out of the building near the scooter stand. 2 or 3 minutes later, accused Om Parkash came to us and said "paise nikalo". I took out `5,000/- from the pocket of my shirt and handed over the same to accused Om Parkash. Accused Om Parkash accepted said tainted money in his right hand and asked "kitna hain". I replied "paanch hazaar hain gin lo". Thereafter accused Om Parkash started counting said GC notes with both of his hands and kept the same in left pocket of his pant. Meanwhile witness Amar Singh gave signal to CBI by placing his hand on his head. On this CBI team came to the spot and accused Om Parkash was apprehended from his wrists by Inspector Ved Parkashand Inspector S.K. Bhati. Thereafter, accused Om Parkash was brought to the office room of Shiv Lal as officer of MCD. PW JC Sharma searched accused Om Parkash and recovered tainted `5,000/- from the left pant pocket. JC Sharma and Amar Singh were asked to compare the numbers of GC notes with the numbers already noted down and after said comparison GC notes were found to be the same.

9. PW2 further deposed about the washes of the hands and the pocket of

pant of the appellant being dipped in separate solutions and their turning

pink. He denied the suggestions that on 7th April, 1995, he had no

conversation with co-accused Manohar Lal or latter did not ask him to pay the

money to appellant outside the office or did not direct the appellant to go

outside and take bribe money from him. He also categorically denied the

suggestion that appellant did not take the money from him, but the same

was forcibly put into his pocket. He also denied that no wash of hands or that

of pant of appellant were taken. This witness stood the lengthy cross

examination, but nothing could be elicited to doubt his testimony. It is seen

that it was nowhere put to him in his cross examination that there was any

quarrel between CBI and MCD officials on the issue of entry into the office

during impermissible hours or that he was carrying a grudge on account of

non-issuing of license in the name of his father.

10. Though PW4, PW5 and PW8 turned hostile on certain aspects, but their

testimonies in entirety would show that they have supported the prosecution

case. PW4 maintained that pre-determined signal was given by PW5 Mr. Amar

Singh and they rushed towards the spot and apprehended the Appellant and

that the tainted money was recovered from the left pocket of his pant. He

also stated about the washes of hands and the pocket of pant having been

taken and the same turning pink in the solution. He categorically denied that

when they reached the spot, complainant and appellant were grappling with

each other or that the complainant thrust the bribe money into the pocket of

the appellant or that the appellant tried to throw that money when he was

apprehended. He also deposed about the recovery of files including Ex.PW4/D

from the dickey of the scooter of the appellant. He stated that these files

were seized vide seizure memo Ex.PW4/C which bear his signatures. PW5,

though initially did not support the prosecution case, but when he was cross

examined by the learned Public Prosecutor, he admitted having made

statement to CBI at the spot after the trap. With regard to the role of the

appellant, he stated as under :

"...Complainant on reaching said counter told that MCD official, "SAHAB MAIN PAISE LE KE AA GAYA HUN". On this said MCD official, signaled with his fingers towards his back where one person was present who is one of the accused present in the

court. (Witness has identify accused Om Prakash as the said person). It is correct that on reaching said counter complainant Rajesh Kumar said "Nameste Sir". And on this MCD official sitting at the counter replied, "Nameste, Ha Paise Laye Ho"-. It is also correct that then complainant said "Ha Sir" and the MCD official enquired "Kitne Hain". And on this complainant replies "Sir Pure Paanch Hazaar Hain". xxxxxx

"It is correct that thereafter we all three came to near the scooter stand behind the hall in which said MCD official was sitting. Accused Om Prakash also came there and said "Lao Kitne Paise Laye Ho". On this complainant Rajesh took out treated GC notes from his pocket and handed over to accused Om Prakash. Accused Om Parkash accepted said money with his right hand and kept it in the right pocket of his pant. I cannot admit or deny if Om Prakash kept said money in the left pocket of his pant. It is correct that accused Om Prakash said "Ha Jaldi Karo Paise Nikalo". It is also correct that after accepting the money accused Om Prakash remarks, "Pure To Hain". It is incorrect to suggest that before keeping said money in his pocket, accused Om Prakash counted the same with both his hands. Actually he checked those GC notes with both his hands and did not properly count the same. (Witness is confronted with portion B to B of his statement Ex.PW5/A where it is so recorded and witness states that he gave said statement to CBI.

11. PW5 also deposed that the scooter of the Appellant was searched vide

memo Ex.PW4/C which bears his signatures and that various files were seized

including Ex.PW4/D (file of Mr. Lakhmi Chand, father of the complainant). He

also stated that all the files were signed by him and Mr. J.C. Sharma (PW4).

Suggestions were put to him, which he denied, that there was exchange of

heated words between complainant and MCD officials and when the appellant

intervened, the complainant dragged the appellant outside the office of MCD

and tried to thrust the tainted money of `5000/- into the pocket of his pant

and when the appellant opposed, the complainant by using force, thrust the

money inside the left pocket of his pant and on this, the appellant tried to

throw out the said money from his pocket. He also denied that co-accused

Manohar Lal did not point towards the Appellant to go outside and pay the

money to him. In answer to a specific question in the cross examination, he

stated as under:

".....My statement recorded by CBI official was read over to me. I stated to CBI that after coming out accused Om Prakash said "Lao Kitne Paise Laye Ho". (Witness is confronted with his statement Ex.PW5/A, where it is no so recorded, but it is mentioned "Ha Jaldi Karo Paise Nikalo"). It is incorrect to suggest that on the relevant day accused Om Prakash neither demanded nor accepted bribe money from the complainant. It is incorrect to suggest that I did not give pre-appointed signal to CBI team. I do not remember whether or not I mentioned in my statement Ex.PW5/A that JC Sharma caught the accused Om Prakash from his neck. (Witness is confronted with statement where it is so recorded).

12. PW5 also denied that the washes of the hands and that of pant of the

appellant were not taken in the manner as stated by him. He further denied

the suggestion that the scooter of appellant was not seized in his presence or

that it was seized around 12 in the night from his residence. He maintained

that the scooter was seized sometime after 5.30 pm. He denied that no file

was recovered or seized from the scooter. He maintained that 13-14 files

were seized from the scooter of appellant.

13. PW8 stated that he had accompanied the complainant to the office of

co-accused Manohar Lal on 6th April, 1995 where the later made a demand of

`10,000/- and asked the complainant to come on the next day along with the

money. He has also corroborated PW2 on all material aspects of the

prosecution case. The relevant part of his examination concerning the

Appellant Om Prakash is like this:

"Myself, complainant Rajesh Kumar and Amar Singh were sent inside the office to contract the accused Manohar Lal. Remaining members of the trap party stayed outside. We all reached at the table of accused Manohar Lal present in the court. Accused Om Prakash was also sitting there. And both of them were having cold drinks. Complainant Rajesh Kumar wished "Nameste" to accused Manohar Lal. On this, Manohar Lal enquired "Paise Laye Ho". Rajesh Kumar replied "Ha Ji Laya Hun" On this Manohar Lal told the complainant to go outside and pay the money to accused Om Prakash, present in the Court (correctly identified). Manohar Lal also said Om Prakash was his own man. On this Rajesh Kumar asked, "Mere Kaam Kaun Karega". Manohar Lal accused then replied, "Kaam to Maine Karna Hain", "Tumara Kaam Ho Jayega". Thereafter, myself, complainant Rajesh Kumar and Amar Singh came out of the building along with accused Om Prakash in the open area at the back of the seat of accused Manohar Lal near the window. There accused Om Prakash asked, "Paise Do Jaldi Karo". On this complainant Rajesh Kumar took out Rs.5000/- from the pocket of his shirt and passed on to accused Om Prakash, who accepted the same with his hand. I do not remember with which hand Om Prakash accepted the money. (Vol.) After accepting the money accused Om Prakash kept it in the pocket of his pant. I cannot admit or deny if accused Om Prakash accepted said money with his right hand and after counting it with both his hands he kept it in left side pocket of his pant. (Witness is confronted with portion B to B of Ex.PW8/A where it is so recorded. Witness states that he did not give such statement to CBI). He further states that accused Om Prakash did not count the money. It is correct that while handing over money to accused Om Prakash, Om Prakash asked "Pure To Hain". And on this complainant Rajesh Kumar said, "Gin Lo". It is correct that transaction of passing of money took place at the scooter stand. It is correct that Amar Singh PW gave signal to the trap party and on this members of trap team came at the spot. It is also correct that accused Om Prakash was apprehended by CBI officials and he was taken from there to the room of Shri Shiv Lal, Administrative Officer, MCD."

14. It was also put to PW8 that there was exchange of heated words

between complainant and MCD officials and that on the intervention of the

appellant, the complainant in the heat of moment dragged him and thrust the

tainted money of `5,000/- in the left pocket of his pant. He denied all of it to

be correct. Likewise, he also denied that co-accused did not demand any

money from the complainant, nor he asked the complainant to come out or

pay the same to the appellant. It was also put to him that CBI officials broke

open the lock of the Almirah of co-accused Manohar Lal and seized 16 files,

which he denied to be correct.

15. From the testimonies of material witnesses namely PW2, PW4, PW5

and PW8, as analyzed above, it would be seen that the appellant was not only

present in the office of MCD at the relevant time, but was taking cold drink in

the company of co-accused Manohar Lal. The conversation that took place

between complainant and co-accused Manohar Lal was within the presence

and hearing of appellant. The said conversation was regarding demand of

money for the work to be done by the co-accused Manohar Lal. On the

pointing out of co-accused towards the appellant, as stated by all the

witnesses in the manner as noted above, the complainant and appellant

came out of the office at the scooter stand. There, on specific demand, the

appellant received money from the complainant, counted the same and kept

it in his pocket. In fact, it is admitted by the appellant that he was present

there and the money was received by him. The plea that was taken by him

was that the money was forcibly thrust in his pocket by the complainant as

he had a grudge against him on account of delay in the issuance of license to

his father and also on account of his having intervened in the quarrel that

was taking place between CBI and MCD officials. It is extremely unbelievable

that PW2 would thrust money into the pocket of the Appellant merely

because he intervened in the quarrel that was between CBI and MCD officials

or complainant and MCD officials. It is true that PW2 might be aggrieved

against co-accused Manohar Lal for pendency of the application of his father

for quite long time and it was in that context that he met him. The factum of

meeting of PW2 with co-accused Manohar Lal on 6th April, 1994 is fully

corroborated by independent witness PW8 who also accompanied him to the

office of co-accused Manohar Lal. Since the co-accused Manohar Lal made a

demand of `10,000/-, PW2 lodged a complaint with CBI which ultimately laid

a trap. It was entirely unbelievable that the Appellant would be falsely

implicated just because of his having intervened in the quarrel. In the given

circumstances, the plea that PW2 had forced the tainted money into his

pocket cannot appeal to any reason.

16. The Appellant in his statement under Section 313 Cr.P.C claimed that

he had gone to the office of MCD on 7th April, 1995 to deposit the license fee

relating to his license application and that in the said office he saw two-three

CBI Officials fighting with security guards of MCD. From the testimony of DW2

it does appear that one Om Prakash Khurana had applied for issuance of

license for running a household industry on 12th December 1994. Though it is

not clear if Om Prakash Khurana was the appellant, but assuming that he was

the appellant who had applied for issuance of license as deposed by DW2,

but it is also stated by him that the issuance of license to Om Prakash

Khurana was sanctioned on 5th April, 1995 and that the receipt in this regard

was issued on 3rd May, 1995. There is nothing on record to suggest as to the

purpose of visit of appellant in the office of MCD, more so to the seat of co-

accused Manohar Lal on 7th April 1995. There is no evidence of any official of

the said department that the Appellant had been officially called or had come

for the official purpose to the office on 7th April, 1995 in connection with his

license application. On the other hand, all the witnesses namely PW2, PW5

and PW8 and also PW7 have deposed about the presence of the Appellant in

the office of co-accused Manohar Lal at the time of their visit on 7th April,

1995. They stated about not only the presence of the Appellant in the office

of co-accused Manohar Lal, but also his having cold drinks with him at the

time of their visit. In the absence of any plausible explanation, it was rightly

recorded by the learned Special Judge that the presence of the Appellant in

the said office in the company of co-accused Manohar Lal, particularly when

the entry of general public at that place was restricted, would rather show

him friendly with co-accused Manohar Lal.

17. As noted above, all the above witnesses have maintained about the

recovery of files from the dickey of scooter of the appellant and also that one

of those files pertained to issue of license in the name of father of the

complainant. They have also maintained about he seizure of scooter of the

appellant at the spot on the same day. The appellant examined his brother

DW3 Chander Prakash in order to prove that the scooter was seized from the

residence of the appellant in the night of 7th April, 1995. The testimony of this

witness is not reliable. At one place, he stated that he had given the said

scooter for repair on 7th April, 1995 and collected the same sometime at 5 pm

and thereafter he went to the residence of his brother/ appellant and

remained there till midnight. He stated that it was at about 11 pm that some

persons from CBI came along with the appellant and took away the scooter

along with them. He stated that there was no document pertaining to the

MCD office in the said scooter at that time. However, in his cross-

examination, he admitted that he did not know as to when the scooter was

given for service/ repair. In an answer to a question he stated that he met the

appellant and his wife three days prior to 7th April, 1995 when his brother

asked him to take delivery of his scooter from the workshop. This was entirely

inconsistent to what he stated in his examination-in-chief. It was put to him

that he did not take any delivery of the scooter from the workshop on 7th

April, 1995 or that the scooter was not seized from the residence.

18. It is undisputed fact that after apprehension, the appellant was brought

before PW3, who was an Administrative Officer in the Department at the

relevant time. It was also put to PW3 that CBI officials seized 17 files by

breaking open the lock of almirah of co-accused Manohar Lal to which he

expressed ignorance. It is not believable that CBI officials will break open the

lock of the Almirah and no official of MCD would come to know about the

same. From the testimony of PW4, 5 and 8, it stands established that the files

were recovered from the dickey of scooter of the appellant.

19. It may be that there was no direct evidence on record to prove any

prior consultation or discussion between the appellant and the co-accused

Manohar Lal regarding the demand and acceptance of bribe money from the

complainant, but from the facts and circumstances coupled with the conduct

and behaviour of appellant, it stands established that it was in the knowledge

of appellant that the co-accused Manohar Lal had demanded money from the

complainant for doing official work. Not only that, he actively aided and

facilitated in commission of the offence by coming out of the office at the

instance of co-accused and accepted the bribe money from the complainant.

The Appellant has not come out with any believable explanation as to why he

was present in the licensing office at the relevant time and sitting with co-

accused Manohar Lal or as to why he had come out of the office at the saying

of co-accused Manohar Lal and took money from PW2 and accepted the same

and after counting, kept it in the pocket of his pant. He has also no

explanation as to how the file pertaining to the license of the father of PW2

was found in the dickey of his scooter. It thus stands established that the

appellant had not only conspired with co-accused Manohar Lal in the

commission of offence, but had aided co-accused Manohar Lal in the

commission of offence of accepting the bribe money. The authority titled as

Virender Nath v State of Maharashtra AIR 1996 SC 490 which was relied upon

by learned defence counsel is distinguishable from the facts of the present

case. In the said case while maintaining the conviction of A1 at whose

instance, the bribe money was accepted by A2, the Supreme Court, in the

facts and circumstances, observed as under: -

"5. Insofar as A2 is concerned, we find considerable merit in the contention raised on his behalf that he could have received the money innocently from the complainant at the asking of A1, without realizing that it was bribe money. The argument prevails because the

prosecution has nowhere led any other evidence of conduct or consistency of a behavior from which it could be spelled out that A2 was a habitual go-between in facilitating acceptance of bribe by A1. This single instance which has been brought forth does not reveal of any regularity of conduct of this nature. There thus exists an area of doubt, the benefit of which shall go to A2.

20. From the above analysis of evidence as done by me, I find no infirmity

or illegality in the impugned judgment of learned Special Judge qua appellant

and in view of my above discussion, the appellant is found to have conspired

and abetted in commission of offence under Section 7 and Section 13(1)(d) of

the Act. However, since the appellant is not a public servant, the provisions of

section 13(1)(d) of the Act would not be applicable. The appellant is,

therefore, convicted under Section 12 of the Act read with Section 120B IPC

and Section 7 of the Act only. Keeping in view the role of the appellant in the

entire episode and also the fact that the co-accused Manohar Lal has been

convicted and since deceased, I think the ends of justice would be met by

sentencing the appellant to rigorous imprisonment for a term of six months

and a fine of `1000/- and in default of payment of which he shall undergo