S.C. Goel vs The State (Through Cbi)
2011 Latest Caselaw 831 Del

            IN THE HIGH COURT OF DELHI: NEW DELHI

+              CRL. A. No. 47/2008

                      Judgment reserved on 7th February, 2011

%                     Judgment delivered on 11th February, 2011

S.C. GOEL                                         ..... APPELLANT
                           Through:    Mr. S.P. Minocha and
                                       Mr. Gagan Minocha, Advs.

                           Versus

THE STATE (THROUGH CBI)                         .....RESPONDENT

                           Through:    Ms. Sonia Mathur, Adv. for
                                       the CBI.

Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers          No
          may be allowed to see the judgment?

       2. To be referred to Reporter or not?             No

       3. Whether the judgment should be                 Yes
          reported in the Digest?


A.K. PATHAK, J.

1. This Appeal is directed against the judgment of Special

Judge (CBI) whereby Appellant has been convicted 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 undergo rigorous imprisonment of two years with fine

of `10,000/- under Section 7 of the Act and in default of payment

of fine to undergo simple imprisonment for a period of 15 days;

rigorous imprisonment of 2½ years with fine of `15,000/- under

Section 13(2) read with Section 13(1)(d) of the Act and in default of

payment of fine to undergo simple imprisonment of 15 days. Both

the sentences have been directed to run concurrently.

2. Briefly stated, facts involved in this case are that

complainant Manmohan Bhalla, Sole Proprietor of M/s. Bhalla

Constructions had executed certain works of Municipal

Corporation of Delhi (MCD), under the supervision of appellant,

who was working as Junior Engineer (J.E.) in the said department

at the relevant time. Certain bills of the complainant were pending

for payment. On 3rd January, 2003, complainant requested

appellant to get his pending bills cleared at which appellant

demanded bribe of `10,000/- from him. On 6th January, 2003,

appellant telephoned the complainant and asked him to come with

the money at his office in case he wanted to get his pending bills

cleared. Since, the complainant was unwilling to pay bribe, he

approached the office of Central Bureau of Investigation (CBI) and

gave a written complaint in this regard. Inspector A.K. Pandey

constituted a trap team comprising of two independent witnesses,

namely, Shri. Virender Singh, who was working as Lower Division

Clerk (LDC) with DDA and Shri. Mahadeva, an Officer of

Corporation Bank, Inspector C.K. Sharma, Sub-Inspector R.C.

Sharma and Sub-Inspector Prem Nath. Complainant was asked to

contact appellant in order to fix the place of transaction.

Accordingly, complainant contacted appellant on his mobile

number from his mobile, in the presence of independent witness

Mahadeva, wherein appellant confirmed the demand of bribe of

`10,000/- for expediting the payment of bills. This conversation

was recorded on a blank audio cassette in the office of CBI. Since

appellant had asked the complainant to come within 10 minutes to

deliver the bribe money which was not possible as formalities for

laying trap proceedings could not have been completed within such

a short period, therefore, complainant was asked to again contact

appellant to seek some more time for payment of the bribe money.

Accordingly, complainant again contacted Appellant and sought

some time for payment of bribe money, at which appellant asked

him to come on 7th January, 2003 at 10 AM in his office. Since the

demand of bribe was confirmed from this conversation, FIR No. RC

DA1-2003-A-0001 was registered by the CBI.

3. Inspector A.K. Pandey (Trap Laying Officer) decided to lay the

trap on 7th January, 2003. Members of the trap team assembled

at the CBI office on 7th January, 2003 at 7 AM. Complainant

produced `10,000/- comprising of one currency note of `1,000/-

denomination, eight currency notes of `500/- denomination and

fifty currency notes of `100/- denomination. All the currency

notes were treated with phenolphthalein powder. Complainant

and independent witnesses were explained about the importance of

treating these currency notes with phenolphthalein powder. This

amount of `10,000/- was then kept in the left side shirt pocket of

the complainant and he was directed to hand over the same on

specific demand of the appellant. Shri Virender Singh (shadow

witness) was asked to remain with the complainant at the time of

transaction of bribe between the complainant and appellant. He

was also directed to give signal by scratching his head with both

hands after the transaction was over. All the team members

washed their hands with soap and water. Members of trap team

were not allowed to keep anything in their possession except their

identity card. Pre-trap proceedings were recorded vide a memo

signed by all the members of the trap team. Thereafter, all of them

left for the spot in CBI vehicle.

4. At about 9:30 AM trap team reached near the vicinity of the

MCD Store, Jahangir Puri and digital SVR tape recorder was

handed over to the complainant in „on‟ position in order to record

the conversation and the same was kept by the complainant inside

his shirt. At about 9:40 AM, complainant and shadow witness

were asked to go inside the office of appellant and wait for his

arrival. At about 10 AM shadow witness came outside and

informed that appellant had yet not arrived in his office. He again

went inside and at about 10:25 AM shadow witness came out and

gave pre-decided signal. At this stage, trap laying officer along

with other members of the trap team went inside the office

premises. Shadow witness informed the trap laying officer that the

appellant had demanded and accepted the bribe in his presence

and had kept the same in his left inner pocket of the jacket. Trap

laying officer disclosed his identity as also the identity of every

team member and challenged the appellant as to whether he had

demanded and accepted the bribe of `10,000/- from the

complainant at which appellant became perplexed and kept quiet.

Thereafter, colourless solution of sodium carbonate was prepared

in a glass tumbler and appellant was asked to dip his right hand

fingers in the colourless solution. On his doing so, the colourless

solution turned pink. This pink solution was then transferred in a

glass bottle, which was sealed with the seal of CBI. A piece of

paper was pasted on the bottle on which RHW was marked and the

same was also signed by both the witnesses. Thereafter, another

colourless solution of sodium carbonate was prepared in a different

tumbler and appellant was asked to dip his left hand in the said

solution and on his doing so, this colourless solution also turned

pink. This solution was also transferred in a glass bottle, which

was sealed with the seal of CBI. A piece of paper was pasted on

the bottle on which LHW was marked and the same was also

signed by both the witnesses. Again colourless solution of sodium

carbonate was prepared in which inner side pocket of the jacket of

appellant was dipped. This colourless solution also turned pink

and was transferred in a clean bottle, which was also sealed with

the seal of CBI. This bottle was marked as LHJPW. A paper slip

was pasted on the bottle which was signed by both the witnesses.

Digital tape recorder, which was given to the complainant, was

taken back and was played which confirmed the demand and

acceptance of bribe by the Appellant. This conversation was

transferred into a new TDK audio cassette. Both the witnesses

signed on the cassette and also on the sticker pasted on the

cassette. Cassette was also sealed with the seal of CBI. Site plan

was prepared.

5. During the investigation, voice samples of appellant and the

complainant were taken and sent to CFSL. As per the report of

CFSL, these voices matched with the voices as recorded in the

earlier conversation of the complainant and the appellant, which

confirmed the demand of bribe. Samples of hand and jacket

washes were also sent to CFSL for chemical examination. As per

the report of CFSL, presence of sodium carbonate and

phenolphthalein powder in the solution was noticed. Other

documents were also collected during the investigation which

showed that work order Nos. 264, 266 and 901 were executed by

M/s. Bhalla Constructions under the supervision of appellant.

Work done by M/s. Bhalla Constructions was recorded by the

appellant in the measurement books. As regards the work order

Nos. 264 and 266, final bills had been prepared and sent to

Headquarters for release of payment. With regard to the work

order No. 901 relating to the improvement of Gali No. 16 in

Jahangirpuri for `3,78,943.10, 75% work was completed by the

end of the December, 2002 and no running bill had been prepared

by the appellant, who had supervised the whole work. Sanction for

prosecution of the appellant was taken from the Competent

Authority. After completion of the investigation, charge-sheet was

filed before the Special Judge, CBI, New Delhi.

6. Charges under Sections 7 and 13(2) read with Section

13(1)(d) of the Act were framed against the appellant who pleaded

not guilty and claimed trial. Prosecution examined ten witnesses

to prove its story. Complainant Manmohan Bhalla was examined

as PW5; shadow witness Virender Singh was examined as PW4;

panch witness Mahadeva was examined as PW9; trap laying officer

Inspector A.K. Pandey was examined as PW8; Inspector R.K. Rishi,

IO in this case, was examined as PW10. Other witnesses are

formal in nature in the sense as PW1 Sanjay Kumar Saxena, who

had been working as Dy. Commissioner, Civil Lines Zone, MCD,

Delhi on 16th July, 2003 had accorded sanction for the prosecution

against the appellant and has proved the same as Ex. PW1/A.

PW2 Dr. Rajinder Singh has proved his report regarding sample of

voice as Ex. PW2/A. PW3 Sh. C.L. Bansal, Scientific Officer, CFSL,

New Delhi has proved his report as Ex. PW3/A with regard to the

presence of sodium carbonate in the hands wash and jacket wash

of the appellant. PW6 Sh. K.P. Singh, who was working as

Executive Engineer with the MCD, has proved that certain works

were awarded to M/s. Bhalla Constructions vide work order Nos.

264, 266 and 901. These works were executed by M/s. Bhalla

Constructions under the supervision of the Appellant.

Measurement book and other related documents have been proved

by this witness as Ex. PW6/A to PW6/G. PW7 Sh. P.K. Chopra,

Assistant Engineer, MCD has also deposed in line with PW6.

7. After the prosecution closed its evidence, statement under

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

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

Appellant admitted that the complainant had executed certain

works under his supervision. He admitted that complainant had

executed works in respect of work order Nos. 264, 266 and 901.

However, he denied that on 3rd January, 2003 he demanded bribe

of `10,000/- from the complainant for early clearance of his

pending bills. He denied having talked to the complainant on 6th

January, 2003 on the mobile phone. He denied that he demanded

bribe of `10,000/- from the complainant and for that he asked him

to come to his office on 7th January, 2003 at 10 AM with bribe

money. He admitted that on the fateful day he had come to his

office in his Maruti car at about 10 AM. However, he denied that

on that day complainant contacted him in his office and paid a

sum of `10,000/- to him on his demand. At the same time, he has

admitted that his hand wash was taken but he denied that the

same was sealed in his presence. He also denied that his jacket

wash was taken in his presence but he admitted that he was made

to remove his jacket. He admitted that he was arrested at the spot.

He admitted that PW10 had conducted further investigation but he

denied that his statement was recorded by him. He admitted that

PW10 had recorded his specimen voice, as also the specimen voice

of the complainant. He claimed himself to be innocent and stated

that he had been falsely implicated in this case. However, no

evidence has been led by him in his defense.

8. Learned counsel for the appellant has vehemently contended

that complainant Manmohan Bhalla (PW5) and shadow witness

PW4 Virender Singh had been declared hostile and cross-examined

by the Senior Public Prosecutor, thus, are infirm witnesses. They

have not corroborated each other on material points, inasmuch as

their testimonies suffer from material contradictions making them

unreliable and untrustworthy witnesses. Both PW4 and PW5 have

not corroborated each other with regard to demand and acceptance

of bribe by the appellant on 7th January, 2003. PW5 Manmohan

Bhalla has not supported the prosecution case on material

aspects. He has failed to give the date or approximate time of the

alleged demand. He stated that he had not given money to the

appellant in his hand; instead kept it by the side of a file lying on

the table, which is contrary to the prosecution case that the

appellant accepted the bribe money in his right hand, counted the

same with both his hands and kept it in the left side of his jacket

pocket. Suggestion given by the Senior Public Prosecutor to this

witness on this point has been denied by him. PW5 Manmohan

Bhalla has not even corroborated the prosecution case regarding

the recovery of bribe money from the appellant‟s jacket pocket as

he has deposed that he had gone out of the room for some time

and had not witnessed the recovery of money from the appellant.

He had simply stated that he had seen the money lying on the

table. As per the prosecution, PW4 Virender Singh was directed to

remain with PW5 Manmohan Bhalla and witness the transaction

but this witness, while deposing in the court, has denied this fact.

PW4 has deposed that he remained outside the room of the

appellant where the alleged transaction took place, inasmuch as,

in the site plan also, his position has been shown outside the

room. PW4 had neither witnessed the appellant demanding bribe

from PW5 Manmohan Bhalla on 7th January, 2003 nor had seen

PW5 handing over the bribe money to appellant. PW4 even denied

a suggestion in his cross-examination of the prosecutor that he

had informed the CBI officer about the demand and acceptance of

bribe by the appellant in his presence. PW4 has deposed that after

he was informed by PW5 Manmohan Bhalla about the passing of

bribe money, he gave the pre-determined signal, pursuant whereof,

trap team arrived there and apprehended appellant. However,

PW5 has given altogether a different version by saying that he had

given the signal to the trap team from a mobile phone given to him

by the CBI. In nutshell it is contended that the PW4 and PW5 are

wholly untrustworthy and unreliable witnesses. In absence of

their testimony, demand and acceptance of bribe money had

remained unproved. Reliance has been placed on State of H.P.

Vs. Sukhvinder Singh 2004 (1) CCC (SC) 297. It is further

contended that mere demand without proof of acceptance of bribe

was not sufficient to establish offence under the Act. Reliance has

been placed on Banarsi Dass Vs. State of Haryana AIR 2010

SC 1589. It is further contended that mere recovery of tainted

money from the accused by itself was not sufficient to prove the

charge in absence of any evidence of payment of bribe and its

voluntary acceptance by the appellant. Reliance has been placed

on Suraj Mal Vs. State (Delhi Admn.) 1980 SCC (Cri) 159 and

Muluwa Vs. State of Madhya Pradesh (1976) SCC 37.

9. Per contra, learned counsel for the respondent-CBI has

contended that overall testimony of PW4 Virender Singh, PW5

Mamnohan Bhalla, PW8 Inspector A.K. Pandey (Trap Laying

Officer) and PW9 Mahadev (panch witness) has to be read.

Reliance has been placed on Jodhraj Singh Vs. State of

Rajasthan 2007 CRL L.J. 2942 (SC) and Gura Singh Vs. State

of Rajasthan 2001 CRL. L.J. 487 (SC) Crl. A. 1184/1998 to

contend that there is no such law that statement of a hostile

witness has to be discarded as a whole. PW4 and PW5 had not

supported the prosecution story on certain minor points but that

itself was not sufficient to discard their testimony as a whole.

There is probability of such omissions arising in the statements of

these witnesses more so, when they were examined in the court

after about two years of the incident. Since, these witnesses had

waivered on certain points, they were cross-examined by the

Senior Public Prosecutor but that by itself would not be sufficient

to discard their testimony as a whole. PW5 Mammohan Bhalla has

fully supported the prosecution case with regard to demand of

bribe of `10,000/- by the appellant for facilitating the payment of

pending bills. He had stated that after the demand was made by

the appellant he had gone to the office of CBI and made a written

complaint Ex. PW5/A against the appellant on 6th January, 2003.

On the instructions of Trap Laying Officer he talked to the

appellant on mobile phone who asked him to come to Dheerpur

within 10 minutes. Since the time was short for laying the trap, at

the instance of Insp. A.K. Pandey, PW5 again talked to appellant,

who asked him to come on 7th January, 2003 at MCD store,

Jahangir Puri. Independent witness PW4 Virender Singh and PW9

Mahadeva were also present there in the CBI office. On 7th

January, 2003 members of the trap team assembled at CBI office.

He produced currency notes worth `10,000/- before the Trap

Laying Officer, which were treated with powder after the numbers

of currency were noted on the memo Ex. PW4/B. Thereafter, trap

team reached the office of the appellant. He went inside the room

where appellant was sitting along with two/three persons. He had

conversation with the appellant who gesticulated towards a file

which was lying on the table. He kept the money by the side of

said file. PW4 Virender Singh has supported PW5 Manmohan

Singh by saying that on 6th January, 2010 he came to the office of

CBI where PW5 was present. It was settled between the contractor

(complainant) and Junior Engineer (appellant) that bribe will be

paid on 7th January, 2003. Pre trap proceedings were conducted

on 7th January, 2003 where numbers of currency notes were noted

down on a piece of paper. Currency notes were smeared with

powder and handed over to PW5 Manmohan Bhalla with the

direction to hand over the same to the appellant on his demand.

Trap team reached the office of appellant. He was directed to

remain with Manmohan Bhalla. After giving bribe to the appellant

Manmohan Bhalla informed this fact to him, at which he gave pre-

determined signal to the trap team. CBI team arrived there and

caught hold of the appellant. PW9 recovered currency notes from

the jacket pocket of the appellant. Hand washes and jacket pocket

wash of the appellant were taken and the solution turned pink.

Proceedings were conducted at the spot. Learned counsel for the

respondent has further contended that from the overall testimony

of PW4 and PW5, demand and acceptance of bribe money is

proved.

10. It is further contended that PW9 Mahadeva has fully

supported the prosecution case. Recovery of tainted money from

the jacket pocket of the appellant has been duly proved from the

statements of PW4, PW8 and PW9. In his statement under Section

313 Cr.P.C., appellant has admitted that his hand washes were

taken and he was made to remove his jacket. This itself goes to

show that trap, in fact, was laid. As per these witnesses, tainted

money was recovered from the appellant. Thus, a presumption

arises under Section 20 of the Act that the gratification was

accepted by the appellant from the complainant as motive or

reward for doing an official act. Appellant has failed to render any

explanation as to how he came in possession of the tainted money.

Reliance has been placed on Madhukar Bhaskarrao Joshi Vs.

State of Maharashtra (2000) 9 SCC 571, T. Shankar Prasad

Vs. State of A.P. (2004) 3 SCC 753 and M. Narsinga Rao Vs.

State of A.P. (2001) 1 SCC 691. It is further contended that PW8

Inspector A.K. Pandey has fully corroborated the prosecution case

and his testimony alone can be acted upon without corroboration

from any other witness. Reliance has also been placed on State of

U.P. Vs. Zakaullah (1998) 1 SCC 557.

11. I have considered the rival contentions of both the parties

and carefully perused the testimonies of PW4 Virender Singh, PW5

Manmohan Bhalla, PW8 Insp. A.K. Pandey and PW9 Mahadeva. A

perusal of testimony of PW4 and PW5 shows that they have not

completely turned hostile. They have not supported the

prosecution case on certain issues, therefore, were declared hostile

and cross examined by the Senior Public Prosecutor. This by itself

would not be sufficient to discard their testimony as a whole.

Such portion of their testimonies which supports the prosecution

case on the point of demand, acceptance and recovery of bribe

money, can be accepted. Their overall disposition has to be

considered. In Jodhraj Singh‟s case (supra), Supreme Court held

that only because a witness, for one reason or the other, has, to

some extent, resiled from his earlier statement by itself may not be

sufficient to discard the prosecution case in its entirety. Even in

such a situation courts are not powerless. Keeping in view the

material available on record, it is permissible for a court of law to

rely upon a part of the testimony of the witness who has been

declared hostile. In Gura Singh‟s case (supra), Supreme Court has

held that it is a misconceived notion that merely because a witness

is declared hostile his entire evidence should be excluded or

rendered unworthy of consideration. In Bhagwan Singh v. State

of Haryana 1976 Cril LJ 203, Supreme Court held that merely

because the Court gave permission to the Public Prosecutor to

cross-examine his own witness describing him as hostile witness

does not completely efface his evidence. The evidence remains

admissible in the trial and there is no legal bar to base conviction

upon the testimony of such witness. In Rabindra Kumar Dey

v. State of Orissa 1977 Cri LJ 173, Supreme Court held that by

giving permission to cross-examine nothing adverse to the credit of

the witness is decided and the witness does not become unreliable

only by his declaration as hostile. Merely on this ground his whole

testimony cannot be excluded from consideration. In a criminal

trial where a prosecution witness is cross-examined and

contradicted with the leave of the Court by the party calling him for

evidence cannot, as a matter of general rule, be treated as washed

off the record altogether. It is for the court of fact to consider in

each case whether as a result of such cross-examination and

contradiction the witness stands discredited or can still be believed

in regard to any part of his testimony. In appropriate cases the

court can rely upon the part of testimony of such witness if that

part of the deposition is found to be creditworthy.

12. In the backdrop of above legal position, the testimony of PW4

and PW5 cannot be discredited as a whole. That part of their

version which supports the prosecution regarding demand and

acceptance of bribe can still be relied upon. A perusal of statement

of PW5 clearly shows that appellant had demanded `10,000/- from

him for facilitating release of payments of his pending bills. Since

he was not willing to pay the bribe he approached the CBI and

made a written complaint Ex. PW5/A. Independent witnesses PW4

Virender Singh and PW9 Mahadeva were called in the CBI office.

On the instructions of trap team complainant talked to the

appellant on his mobile phone wherein complainant was asked to

meet the appellant at Dheer Pur. Since time was short, on the

asking of Trap Laying Officer, complainant sought some more time

from appellant who asked the complainant to come at MCD store,

Jahangir Puri on 7th January, 2003. On 7th January, 2003 in the

morning complainant, PW4 Virender Singh besides other CBI

officials assembled in the office of CBI. Complainant produced

currency notes worth `10,000/- to Trap Laying Officer. These

currency notes were treated with phenolphthalein powder. The

importance of phenolphthalein powder‟s reaction was explained to

the members of the trap team. Thereafter, powder treated

currency notes were handed over to the complainant with the

direction to hand over the same to the appellant on his specific

demand. Pre trap proceedings were recorded where numbers of

currency notes were recorded. Thereafter, trap team reached at

the spot. PW4 was asked to accompany PW5. Complainant PW5

went inside the room of appellant while PW4 stood at the door of

the room. Site plan corroborates this fact. Complainant had some

conversation with the appellant and he signaled him about money,

at which appellant gesticulated towards a file lying on the table,

whereupon, complainant put the money by the side of said file.

Signal was given at which trap team arrived there. Statements of

PW4, PW8 and PW9 show that Trap Laying Officer challenged the

appellant that he had accepted the bribe, at which he became

perplexed. PW9 Mahadeva took out currency notes from the jacket

pocket of the appellant. Hand washes of his both hands were

taken in sodium carbonate solution which turned pink. Wash of

jacket pocket of the appellant was also taken which also turned

pink. As per CFSL report presence of the phenolphthalein powder

was noticed in the hand washes and jacket washes. Numbers of

currency notes recovered from the appellant were tallied with the

memo prepared in the office of the CBI which tallied. Statements

of PW4, PW5, PW8 and PW9 are in line with each other on material

points to prove the above facts. Merely because PW5 has deposed

that he had given signal to the trap laying officer; whereas as per

the prosecution the signal was given by PW4, by itself would not be

sufficient to disbelieve the whole trap proceeding. While deposing

in the court, PW4 has reiterated that he had given signal to the

Trap Laying Officer and this fact has even been corroborated by

PW9 Mahadeva. Similar is the testimony of PW8. These three

witnesses have corroborated each other on the point of giving

signal by PW4. In view of this, merely because PW5 has come out

with a different version would not be sufficient to disbelieve whole

prosecution case. Similarly, merely because PW5 has stated that

he had gone out of the room for some time while the recovery was

effected would also not be sufficient to discredit the statements of

PW4, PW8 and PW9 on this point. Demand and acceptance of

bribe money is also proved from the statement of PW5 and there is

no reason to disbelieve this part of his statement. In my view, in

this case demand and acceptance of bribe has been proved from

the statement of PW5 and no corroboration on this point is

required from the tape recorded conversations, therefore, I do not

find it necessary to delve upon the arguments of counsel for the

appellant regarding its reliability, creditworthiness and

admissibility.

13. If the matter is viewed from another angle then also the guilt

of appellant is established. From the testimony of PW4, PW8 and

PW9 prosecution has proved beyond reasonable doubt that the

tainted money was recovered from the jacket pocket of the

appellant. PW5 has categorically deposed that he had kept this

money on the table of the appellant in his office at his instance.

Hand washes of appellant were taken in the sodium carbonate

solution. Wash of the pocket of jacket of the appellant was also

taken in sodium carbonate solution. All these solutions turned

pink which shows that appellant had dealt with the tainted money.

In view of recovery of tainted money from the appellant a

presumption can safely be drawn under Section 20 of the Act that

the same was received by the appellant as illegal gratification for

extending favour to PW5.

14. At this stage 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 for 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 be, without consideration or for a consideration which he knows to be Inadequate.

(2) xxxxxxxxxxxxxxxx

(3) Notwithstanding anything contained in sub- section (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn."

15. Appellant has failed to explain as to how this tainted money

came in his possession that is, in the pocket of his jacket as also

the fact that how his hands turned pink on being dipped in the

sodium carbonate solution. In view of Section 20 of the Act onus

was on the appellant to render an explanation on this aspect. It is

not the case of the appellant that PW5 had forcibly stuffed the

money in his jacket despite his opposition in order to falsely

implicate him. Neither any such plea had been taken nor has any

evidence been led by him in this regard. Once it is proved that the

currency was recovered from the possession of the appellant, as

per statutory presumption required by Section 20 of the Act, Court

is bound to presume that the appellant had accepted this money

as a motive or reward for doing an official act in favour of PW5

(Manmohan Bhalla), whose bills were pending for payment. In M.

Narsinga Rao‟s case (supra), 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 or bearing to do any official act. Of course, this presumption

under Section 20 of the Act is a rebuttable presumption. However,

in this case, appellant has not made any attempt to rebut this

presumption. He has not claimed that currency notes were

accepted by him not as a motive or reward but in some other

connection. Banarsi Dass‟s case (supra) does not advance the case

of the appellant any further being in the context of different facts.

In the said case complainant had completely turned hostile. She

disowned her signatures on her statement recorded by the police.

She even denied her signatures on the memo signed by her stating

that she had signed them without reading. She stated that she

had kept the money on the table after some altercation with the

accused. In these facts court held that the prosecution had failed

to establish that the appellant had accepted the money voluntarily

as an illegal gratification.

16. Learned counsel has next contended that appellant had

made a substantive reduction on the bills raised by the firm of the

complainant Manmohan Bhalla. Deduction of `42,946.50 was

made in bill no. 264. Similarly, deduction of `1,29,384.60 was

made in the bill no. 266. Thus, complainant had falsely implicated

the appellant as he was nursing a grudge against him. There was

no reason for the appellant to accept the bribe since running bills

had already been prepared by the appellant after making necessary

entries in the measurement book and sent to the Accounts Section.

Bills were even approved by Executive Engineer. No other bill was

pending. In nutshell, it is contended that appellant had been

falsely implicated by the appellant. I do not find any force in this

contention of learned counsel for the appellant in view of the

overwhelming evidence in the shape of the statements of PW4,

PW5, PW8 and PW9 showing his culpability. PW4 and PW9 are

independent witnesses working in a Government/Public Sector

Organization. There is no reason as to why they would have joined

PW5 in falsely implicating the appellant; more so, when they are

not related to each other. That apart, I find that no such defence

was set up during the trial nor any evidence in this regard was led

by the appellant. Complainant had been working as a Contractor

with Municipal Corporation of Delhi and had executed several

works apart from the above two works. In such a scenario, it

cannot be reasonably expected that he would falsely implicate the

appellant as that would have been detrimental to his business

interests. The arguments of learned counsel in this regard are

rejected.

17. For the foregoing reasons, I have no hesitation in holding

that the appellant had demanded and accepted from the

complainant a sum of `10,000/- towards illegal gratification. He

has thus, committed an offence under Section 7 of the Act.

Appellant is also guilty of offence under Section 13(1)(d) of the Act

since he obtained a pecuniary advantage in the form of cash

amounting to `10,000/- for himself by corrupt and illegal means

and abusing his position as a public servant. He, therefore, is

liable to be punished under Section 13(2) read with Section

13(1)(d) of the Act. Trial court was right in convicting him under

the aforesaid provisions. Accordingly, conviction of the appellant is

maintained.

18. Learned counsel for the appellant has next contended that

appellant has three children who are solely dependent upon him.

Thirteen year old son of the appellant is mentally retarded. His

two daughters are of marriageable age. There is no other male

member in his family to look after them. Accordingly, it is prayed

that appellant be dealt with leniently while awarding the sentence.

Keeping in mind the above facts, sentence of the appellant is

reduced to one year each for both the above offences. Both the

sentences shall run concurrently. So far as sentence of fine is

concerned, same is maintained. Needles to add that appellant

shall be entitled to the benefit of Section 428 Cr.P.C.

19. Appeal is disposed of in the above terms. Personal bond of

the appellant is cancelled and surety bond is discharged.

Appellant shall surrender before the Trial Court forthwith. A copy

of this order be sent to the Trial Court with the direction that if

appellant fails to surrender before it appropriate steps be taken to

take him into custody and send him to jail to serve the remaining

sentence.

A.K. PATHAK, J.

FEBRUARY         11, 2011
rb/ga