Delhi High Court

R.K.P. Nishad vs C.B.I. on 8 July, 2011

Author: M. L. Mehta

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+         Crl. A. No.602/2002 & Crl. M.A. No.2010/2002
                                           Reserved On: May 04, 2011
%                                 Date of Decision: July 08, 2011
     R.K.P. Nishad                                           ....Appellant
                  Through:    Mr. K.B. Andley, Sr. Advocate with Mr. M.
                              Shamikh, Advocates for the appellant.
                   Versus
     C.B.I.                                            .... Respondent

Through:

Mr. Narender Maan, Special Public Prosecutor for the State/CBI.

CORAM:

HON‟BLE MR. JUSTICE M.L.MEHTA

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


M.L. MEHTA, J.*

1. The Appellant has been convicted by learned Special Judge in a

corruption case number 52/94 vide judgment dated 18th July,

2002 and sentenced vide order dated 22nd July, 2002 as under:

"Sentenced to undergo imprisonment for a period of three years R.I. under Section 7 as well as under Section 13(1)(d) of Prevention of Corruption Act and also to pay a fine of `1,000/- each for both these offences and in default of payment of fine to undergo imprisonment for a period of three months each.

2. By virtue of present appeal, the Appellant/ convict has assailed

the judgment and order of conviction and sentence. The

prosecution case as set out in brief is that the Appellant was

employed as Producer, Grade-II, in Doordarshan Kendra,

Directorate of Doordarshan. Neeraj Kumar (PW1) had

approached him for telecasting his drama "Dahej" in Krishi

Darshan programme of Doordarshan on TV. The drama was

approved by the Department, but the Appellant was allegedly

shifting the dates of rehearsal for some reason or the other.

Since the Appellant was demanding bribe money for doing favour

for telecasting the said drama and the complainant PW1 not

being willing to pay, filed a complaint Ex.PW1/A against the

Appellant with CBI mentioning these allegations. It was

specifically alleged in the complaint that on 21st September 1990

when the complainant met the accused for approval of his

drama, the latter told him that his drama would be approved

only if he was paid `1800/- which the drama team were to get

from Doordarshan, and another sum of ` 6500/-. It was alleged

by the complainant that a sum of `1900/- was lying with him and

another sum of ` 5500/- with Ms. Vimal Bhatnagar known as

Mataji and in this way `7400/- were supposed to be paid to the

Appellant on 22nd September 1999 for approval /shooting of the

drama and that the Appellant wanted that this money should be

paid to him at the residence of Mataji(PW5 Mrs. Vimal

Bhatnagar). Mataji was also one of the artists of the said drama

"Dahej". As per the complaint, the complainant came to the

office of CBI on 21st September 1990 and talked to the Appellant

on phone from there. A meeting was fixed at the residence of

PW5 where rehearsal of the drama was to be watched by the

Appellant and he was also to be paid the bribe money as

demanded. This telephonic conversation between the

complainant and the Appellant was recorded by CBI officials and

transcript thereof was also prepared. From the office of CBI, the

complainant also talked to Mataji on telephone and told her to

keep the amount of `5500/- ready for paying the same to the

Appellant as bribe as per the talks with him. This conversation

was also recorded by CBI officials and its transcript prepared. CBI

Inspector A.G.L Kaul (PW12) verified the reputation of the

Appellant and after confirming his reputation to be a corrupt

official, decided to lay a trap. A raiding party consisting of PW12,

two independent witnesses Ms.Poonam (PW3), Mr.S.D. Roy

(PW10), complainant and other officials of CBI was organized.

The complainant, as directed, produced 16 currency notes of

denomination of `100/- each and 6 currency notes of `50/- each

before Inspector A.G.L. Kaul who noted down the numbers of

those notes in the handing over memo (Ex.PW3/C). The usual

pre-trap proceedings comprised of treating these currency notes

with phenolphthalein powder, giving of demonstration to the

complainant and the witnesses as to how this powder will react

with the solution of sodium carbonate, giving of directions to the

complainant to give money to the Appellant on a specific

demand and advising of the shadow witness Poonam to give a

predetermined signal etc. PW3 Poonam was also instructed to

remain close to the complainant to hear the conversation and

watch the transaction. PW3 Poonam was also carrying a cassette

tape recorder in her purse for recording the conversation. As per

pre-decided programme, the complainant and PW3 Poonam went

to the house of PW5 Mataji where other members of the raiding

party also arrived and took their positions. The Appellant came to

the house of PW5 and on his demand, he was paid `7400/- by the

complainant which included 22 phenolphthalein power treated

currency notes in possession of the complainant and `5500/-

lying with PW5 Mataji. PW3 gave pre-arranged signal to the CBI

officials, whereupon they came in and challenged the Appellant.

The Appellant became perplexed and confused and on the

pointing out of PW3 Poonam, the amount of `7400/-, taken as

bribe by the Appellant, was recovered from the briefcase of the

Appellant. The numbers of treated currency notes Ex.P1 to P22

totaling `1900/- tallied with the numbers of already noted down

currency notes vide pre-raid memo Ex.PW3/C. Both the hands of

the Appellant and the polythene bag from which the notes were

recovered were dipped separately in the sodium carbonate

solution. The solutions turned pink which confirmed that the

Appellant had handled the tainted money. Later two washes of

the hands and one wash of the pocket pant were got analyzed

from CFSL vide report Ex.PW6/A. All the three solutions gave

positive tests for presence of phenolphthalein in the solution of

sodium carbonate thereby further confirming the handling of

currency notes by the Appellant. After obtaining sanction under

Section 19 of the Act for the prosecution of the Appellant, he was

charge-sheeted. In the Court, charges were framed against the

Appellant under Section 7 and 13(1)(d) of the Act, to which he

pleaded not guilty and claimed trial.

3. The prosecution examined 13 witnesses which included

complainant (PW1), panch witnesses Poonam (PW3) and Mr.Roy

(PW10) and the raiding officer AGL Kaul (PW12).

4. The statement of accused was recorded under Section 313 Cr.P.C

wherein the incriminating evidence was put to him. The

Appellant denied the prosecution allegations and pleaded

innocence. He denied having demanded and accepted bribe from

the complainant. He also filed his written statement stating

therein that he was working as a Producer, Grade-II in

Doordarshan and knew the complainant Neeraj Kumar(PW1) as

he was an actor and organizer of T.V short plays for Krishi

Darshan programme and that earlier also his plays were

supervised and approved by the Appellant for telecasting the

same on television. He admitted that he was supervising the

complainant‟s play "Dahej". He pleaded that the play had

already been approved and sanctioned by Doordarshan on 20th

September 1990 vide letter Ex.PW7/DA. He also pleaded that the

complainant was carrying a grudge against him since he

(complainant) had earlier teased one lady artist Kiran and on the

matter being reported to him (Appellant), he reprimanded the

complainant in presence of PW5 Mataji, and other artists. He also

alleged that final rehearsal of the play "Dahej" was fixed for 22nd

September 1990 and on that day, decision was to be taken

regarding place, time and date for holding a Bhagwati Jagran. He

pleaded that it was for Bhagwati Jagran that the artists had

collected some money which was kept with PW5 and the

complainant and that they all agreed to keep that money with

him and requested him that he should organize the Jagran, to

which he had agreed being a religious minded person. He

pleaded that on 22nd September 1990 he had gone at the

residence of PW5 Mataji where he was given the money collected

by the artists for Jagran. It was this money which he had kept in

the briefcase and was later recovered by the raiding team.

5. Learned Senior Counsel Mr. K.B. Andley contends for the

Appellant that when the drama "Dahej" had already been

approved on 20th September 1990 by the Department, there was

neither any occasion nor any reason for the Appellant to have

demanded or the complainant to give any bribe to the Appellant.

Learned Senior Counsel submits that both the complainant (PW1)

as well as PW5 Mataji have admitted that the said payment of

`7400/- to the Appellant was the money collected for organizing

Jagran by him and that there is no evidence against the

Appellant with regard to the demand or acceptance of any bribe

money from the complainant. Learned Senior Counsel further

submits that the complainant was carrying a grudge against the

Appellant for the reason that the Appellant had reprimanded him

because of his misbehavior with a lady artist Kiran on an earlier

occasion and because of the Appellant having changed her role

from heroine to that of sister.

6. Learned Prosecutor Mr. Narender Maan submits that the initial

statement of complainant (PW1) recorded on 5th February 1998

supports the allegations made in the complaint, but later in his

cross examination recorded after three years on 1st March, 2001,

he resiled therefrom and came out with the version that the

money was given to the Appellant for organizing Bhagwati

Jagran. He submits that PW5 also resiled from her statement

(Ex.PW5/A) made during investigation, wherein she had

confirmed the demand of bribe by the Appellant from the

complainant and that a sum of `1900/- was kept with the

complainant for giving the same to the Appellant. He submits

that both the complainant as well as PW5 Mataji have resiled

from their statements because of having been won over by the

Appellant during the long period of the incident and their

deposition made in the Court. He also submits that though the

drama "Dahej" had already been approved and confirmed, but

the telecasting of the same was subject to approval and

rehearsal by the Appellant. He further submits that from the

admissible part of evidence of PW1, PW5 and testimony of

independent witnesses PW3 Poonam, it stood proved that the

Appellant demanded as well as accepted `7400/- as bribe for

doing favour to complainant for telecasting their serial.

7. It is an undisputed fact that the Appellant was employed in

Doordarshan Kendra, New Delhi at the relevant time and being a

Producer Grade-II was in-charge and responsible for approving

the serials for telecasting the same on Doordarshan. It is also not

disputed that the complainant and the Appellant were known to

each other as the Appellant had already supervised and

approved the earlier serials of the complainant. The Appellant

also admits that as a producer, he had the authority to approve

telecasting of the plays at Doordarshan Channel on Television.

He admits that he was present at the house of PW5 Mataji on

22nd September 1990 and that a sum of `7400/- including `1900/-

treated with phenolphthalein power were recovered from his

briefcase. The defence of the Appellant that he received this

money as collection from artists for organizing Bhagwati Jagran,

will be dealt with later.

8. It is settled law that for establishing an offence under Section

13(1) (d), it is required to be proved that the accused, as a public

servant, obtained for himself or any other person any valuable

thing or pecuniary advantage by corrupt or illegal means or that

he misused his position in obtaining for himself or any other

person any valuable thing or pecuniary advantage. In the case of

Subash Parbat Sonvane v State of Gujarat, AIR 2003 SC 2169, the

Supreme Court held as under:

"7. In Sections 7 and 13(1)(a) and (b) of the Act, the Legislature has specifically used the words 'accepts' or 'obtains'. As against this, there is departure in the language used in clause (1) (d) of Section 13 and it has omitted the word 'accepts' and

has emphasized the word 'obtains'. Further, the ingredient of sub-clause (i) is that by corrupt or illegal means, a public servant obtains any valuable thing or pecuniary advantage; under clause (ii), he obtains such thing by abusing his position as public servant; and sub-clause (iii) contemplates that while holding office as the public servant, he obtains for any person any valuable thing or pecuniary advantage without any public interest. Therefore, for convicting the person under Section 13(1)(d), there must be evidence on record that accused 'obtained' for himself or for any other person any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or he obtained for any person any valuable thing or pecuniary advantage without any public interest."

9. After the recovery of tainted money from an accused is proved, a

presumption under Section 20 of the Act is available to be drawn

against him that he accepted gratification as a motive or reward

as mentioned in Section 7 or, as the case may be, without

consideration or for a consideration which he knows to be

inadequate. The requirement of this Section is only that it must

be proved that the accused has accepted or obtained or agreed

to accept or attempted to obtain gratification. At the same time

it is settled proposition of law that the said presumption is

rebuttable and the same could be rebutted by the accused either

from the cross examination of prosecution witnesses or by

leading defence evidence. In this regard, reference is made to

the case of C.M. Girish Babu v CBI, Cochin, High Court of Kerala

(2009) 3 SCC 779, wherein it is held:

"21. It is well settled that the presumption to be drawn under Section 20 is not an inviolable one. The accused charged with the offence could rebut it either through the cross examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption the same would stick and then it can be held by the Court that the prosecution has proved that the accused received the amount towards gratification."

10. In case of M.W. Mohiuddin v State of Maharashtra 1995 (2) SCR

864, the Supreme Court referring to the case of Ram Krishan and

another v State of Delhi (1956) SCR 183 as well as dictionary

meaning of the word "obtains" observed as under:

"...whether there was an acceptance of what is given as a bribe and whether there was an effort on the part of the receiver to obtain the pecuniary advantage by way of acceptance of the bribe depends on the facts and circumstances of each case. In that case, the Court held that it was proved

that accused made a demand and also got the affirmation from the complainant that he had brought the demanded money and at his instance, the complainant wrapped the money in the handkerchief given by the accused and placed the same in the bag which was brought by the accused and as asked by him, these steps have been taken into consideration in arriving at the conclusion that the accused had in fact "obtained" the pecuniary advantage, namely, that he received the illegal gratification. Therefore, the Court upheld the conviction under Section 13(1)(d).

11. In the case of C.K. Damodaran Nair v Govt. of India 1997 Crl.L.J.

739, the Supreme Court considered the word "obtain" used in

Section 5(1)(d) and held as under:

"12. The position will, however, be different so far as an offence under Section 5(1)(d) read with Section 5(2) of the Act is concerned. For such an offence, prosecution has to prove that the accused "obtained the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption under Section 4(1) of the Act as it is available only in respect of offences under Section 5(1)(a) and (b)--and not under Section 5(1)(c), (d) or (e) of the Act, "Obtain" means to secure or gain (something) as the result of request or

effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5(1)(d) of the Act unlike an offence under Section 161 IPC, which as noticed above can be, established by proof of either "acceptance" or "obtainment".

12. In view of above propositions of law, it is recapitulated that the

statutory presumption under Section 20 of the Act is available for

the offence punishable under Section 7 or Section 11 or Clause

(a) and Clause (b) of Section 13(1) and not for Clause (d) of

Section 13(1). For offence under Section 13(1)(d), it will be

required to be proved that some initiative was taken by a person

who receives and in that context demand or request from him

will be a pre-requisite.

13. We may now proceed to see as to whether the prosecution is

able to establish this pre-requisite of demand or request

emanating from the Appellant in accepting the tainted money.

For establishing this fact, the prosecution has relied upon the

testimony of the complainant (PW1), panch witnesses Poonam

(PW3), raiding officer Mr. A.G.L. Kaul (PW12), recovery of tainted

money from the Appellant, tape-recorded conversation between

the Complainant and the Appellant and CFSL report Ex.PW6/A.

Though PW1 was allowed to be cross examined by the learned

Public Prosecutor after cross examination by the learned defence

counsel, but reading his testimony as a whole it would be seen

that he supported the prosecution case throughout in his

examination-in-chief as recorded on 5th February 1998, but later

on in his cross examination recorded after a lapse of three years,

while again supporting the prosecution case, he resiled to the

extent by stating that he and other artists had collected money

for organizing the Jagran and that the Appellant had also told the

raiding officer that he had accepted the money and kept the

same in his briefcase as the same was given to him for

organizing Bhagwati Jagran before telecasting the drama

"Dahej". He deviated from his earlier statement by stating that

the Appellant had merely demanded the money from him and he

never used the word "bribe" in his talks with him. He also stated

that he felt sorry over the trap of the Appellant on coming to

know the truth that the money was collected for giving him for

organizing Bhagwati Jagran.

14. In his examination-in-chief PW1 deposed that he knew the

Appellant as he had been meeting him in connection with

telecast of his plays on television. He approached the Appellant

for telecasting his play "Dahej". Although the Appellant watched

3-4 rehearsals initially, but then he started putting him under

pressure and finally told him that he will have to pay him an

amount of two cheques of `900/- each which would be received

by him and PW5 from Doordarshan and another sum of `6500/-.

He stated that the Appellant told him that till the payment is

made, shooting of the play cannot be done and that he will

arrange the telecasting of play only when he is paid the aforesaid

money. He stated that there are no telecasting charges and in

fact the money is paid to the artists for performing such

programmes. He went on to depose that he was to get a cheque

of `900/-from Doordarshan and the Appellant wanted to take that

amount plus ` 6500/- i.e. `7400/- from him and cheque amount

of `900/- from PW5 which she was also to get from Doordarshan.

This was all in conformity with the complaint made by him with

CBI vide Ex.PW1/A. He further deposed that he went to CBI office

on 21st September 1990 and lodged a complaint Ex.PW1/A

against the Appellant regarding his demand of bribe for

telecasting the play "Dahej". He has further deposed with regard

to association of two public witnesses, his making telephone calls

to the Appellant at the office of CBI and the Appellant asking him

to bring money on 22nd September 1990 at about 1-2 pm, his

asking PW5 Mataji to keep `5500/- ready and the recording of the

said conversation. He also deposed about making of transcription

of the conversation with the Appellant and PW5 Mataji as

Ex.PW1/B and the other one as Ex.PW1/C. The cassette

Ex.PW1/F in which the conversations between the complainant

and the accused and between complainant and Mataji (PW-5)

were recorded was played in the court also during the

examination-in-chief of PW1 and then he proved the transcript

Ex.PW1/B. He then deposed about association of panch

witnesses i.e. PW3 Ms. Poonam and PW10 Mr.Roy and his

handing over 16 currency notes of `100/- each and 6 currency

notes of `50/- each to CBI officials, the treatment of

phenolphthalein powder on the currency notes and noting down

their numbers in handing over memo Ex.PW3/C. He deposed

about the demonstration by Mr. S.P. Peshin by getting the fingers

of PW3 Poonam dipped in the solution, the same turning pink, he

being instructed to hand over the treated currency notes to the

Appellant on specific demand and PW3 Ms. Poonam being

directed to act as a shadow witness by giving signal by

scratching her head with her hand. He also deposed about arrival

of raiding party at the residence of PW5 and also arrival of

Appellant there at about 2 pm. He specifically stated about the

Appellant having asked for the money after the rehearsal and the

amount of `7400/- being given to him, including `1900/-,

currency notes treated with phenolphthalein powder and the

remaining amount of `5500/- taken from PW5 Mataji. In his cross

examination, there is no challenge to this incriminating part of

his evidence. Major part of his cross examination centered

around the questions relating to collection of money for Bhagwati

Jagran as noted above. This defence of the Appellant shall be

dealt with little later.

15. Now coming back to the cross examination of PW1, the

complainant, it is noted that he admitted that earlier also, he had

come in contact with the Appellant and that he was conversant

with the procedure as to how the telecast of the drama was to be

approved by Doordarshan. He admitted that this drama "Dahej"

had been approved on or before 20th September, 1990 for

telecasting on television and he had signed the documents in

token of acknowledgment that the drama has been approved

and he had also executed a pre-receipt of ` 900/-. Since he took

the plea that money was to be given to the Appellant for

organizing Bhagwati Jagran which is inconsistent with his

complaint and previous statement, the learned Public Prosecutor

chose to cross examine him, wherein significantly he admitted

that he had not told to CBI in his statement recorded earlier that

the money was given to the Appellant for organizing Bhagwati

Jagran.

16. Also significantly, the Complainant also admitted that he did not

mention in his complaint that the money was demanded for

Bhagwati Jagran. It was specifically suggested to him by learned

prosecutor that the money was given to appellant for getting

approval of his drama "Dahej" and not for organizing Bhagwati

Jagran. That being so, the deviation made by complainant is

apparently for some extraneous reasons. Though, denied that

on being challenged, the Appellant told that he did not know

anything and became perplexed. He was confronted with his

statement Ex.PW1/Y recorded by CBI after the raid, wherein it

was found to be so recorded. In his cross examination by the

learned defence counsel, he had also stated that he had given an

affidavit to CBI stating misunderstanding in lodging a complaint

against the Appellant. However, in his cross examination by

learned public prosecutor, though he denied that he stated to the

Deputy S.P Mr. J.C. Surari that the affidavit was given by him to

CBI at the instance of the Appellant, but when confronted with

his statement Ex.PW1/Z, it was found to be so recorded there. It

was specifically put to him that he had been won over by the

Appellant and was deposing falsely to help him.

17. Since PW5 Mataji also did not support the case, she was declared

hostile and was cross examined by learned Public Prosecutor. It

is to be noted that though the Appellant had himself admitted

recovery of `7400/- from complainant, but PW5 denied that the

recovery was effected from the briefcase of the Appellant. She

also denied that on comparison the number of currency notes of

`1900/- tallied with the numbers already noted in handing over

memo PW1/C. Then she admitted that the recovery memo

Ex.PW3/E bears her signatures and that the currency notes Ex.P1

to P22 are the same which were recovered from the Appellant. It

was also put to her that she has been won over by the Appellant

and she wanted to help him.

18. PW3 Ms. Poonam confirmed the allegations made in the

complaint and also examination-in-chief of PW1. She specifically

stated that the complainant had reported that the Appellant was

demanding bribe from him and the money was to be given at the

house of PW5. She also deposed about her carrying micro

cassette recorder and recording of conversation between

complainant and the Appellant. She proved the handing over

memo Ex.PW1/C containing pre-trap proceedings. She

specifically stated that the Appellant asked the complainant if he

had brought the money and how much it was, to which the

complainant replied in affirmative stating, Yes, Laya Hoon

`1900/- and that `5500/- was kept and available with Mataji. She

stated that on the Appellant‟s demand, the complainant first

gave him `1900/- which he counted with his both hands and

simultaneously PW5 Mataji also gave `5500/-. The said amount of

`5500/- was kept in a polythene bag. The Appellant opened the

same and then put `1900/- inside the said bag and then kept the

polythene bag in the upper pocket of his briefcase. She further

stated that the Appellant had also demanded `2,000/- from her.

She maintained in her cross examination what she stated in her

examination-in-chief. Nothing could be elicited in her cross-

examination to doubt her testimony. It is to be noted that the

tape-recorded cassette was played in the Court by learned

Special Judge and she identified the conversation that took place

between her and the Appellant from the transcript Ex.PW1/X

which was prepared at the spot on 22 nd September 1990. In her

cross examination also she denied that the Appellant did not

demand `2000/- from her or that she was deposing falsely on

that count.

19. Though PW1 diverted from his previous statement to some

extent as noted above and PW5 also turned hostile, the

acceptance and recovery of tainted money has been admitted by

Appellant. The defence of the Appellant that the said money was

for the purpose of organizing a Jagran, is highly improbable and

an afterthought and admittedly it was not stated by the

complainant initially either in his complaint or in his examination-

in-chief. It was only after lapse of three years of his examination-

in-chief when he was cross examined that he came out with this

plea apparently after having been won over by the Appellant.

20. In the fact situation, it appears to be probable also since the

Appellant was producer of plays and the authority of approving

the same vested with him. Neither complainant nor PW5 could

have taken any risk of their career in future in not supporting the

Appellant to come out of the initial complaint. After discussion in

detail the evidence and arguments in this regard, the learned

Special Judge recorded as under:

"It is undisputed fact that the accused was the authority concerned for the telecast of plays on TV and so he could very well be expected to put hurdles in the way of the complainant in spite of his dram having been approved. If a person in authority tells someone, like the accused in this case told to the complainant, that a particular thing would not be done unless bribe is paid then the persons in need, like the complainant in this case, will have the

options of either paying the bribe or to report the matter to seniors of the persons demanding illegal gratification or to the police. In this case the complainant chose to report the matter to CBI and that action he must have decided to take only after having felt frustrated because of the possibility of his play not being telecast in spite of its having been approved for telecast. There is nothing improbable in accused making a demand of money for the telecast of complainant‟s play in spite of it having been approved by him and his seniors because that was only a paper approval and without accused‟s actual green signal complainant‟s play would not have been telecast automatically."

21. There appears to be no reason for them to have given the money

to the Appellant for organizing a Jagran which was neither the job

nor the specialization of Appellant. He was a government servant

and was not supposed to be involved in organizing Jagrans for

others. The defence taken by the Appellant is also inconsistent

inasmuch as on the one hand he stated that the complainant was

carrying grudge against him and on the other hand the

complainant gave him money for organizing Jagran. It seems that

all this has been manipulated by the Appellant either by

extending some direct or indirect influence or threats to the

complainant and PW5 or on account of some extraneous

reasons. Assuming that the artists had collected some money for

organizing a Jagran, there is nothing to show that the money

accepted by the Appellant was meant for organizing a Jagran.

Nothing has been brought on record by him to show that there

was any prior understanding between him and Complainant or

PW5 Mataji or other artists regarding organization of Jagran.

There is also nothing to show that the Appellant had ever in the

past organized any such Jagran for telecast of dramas. It is also

to be noted that PW11 is also an artist and was present at the

time of the trap. She deposed about the presence of the

Appellant in the house of PW5 on 22nd September 1990. In her

cross examination, she stated that she did not contribute any

money for organizing a Jagran and that she did not know if any

money was collected for Jagran. This would show that no money

was collected for organizing a Jagran. Assuming for the sake of

argument that the money was collected from artists for the

purpose of organizing the Jagran, but that money was passed on

to the Appellant as bribe money for getting favour of telecasting

the play "Dahej".

22. With regard to the defence plea that the complainant was

annoyed with him because of his having reprimanded him on an

earlier occasion for having teased one artist Kiran, it may be

noted that PW5 Mataji, who turned hostile for the reasons as

noted above, did admit about this fact in her cross-examination.

But, the fact of the matter is that since she had turned hostile,

therefore, no credence can be given to this part of her

statement. It is more so, because this was nowhere put to the

complainant in his cross-examination either by way of suggestion

or otherwise. Even no evidence much less of Kiran has been

adduced by the appellant to substantiate this defence. In any

case, this fact alone was not enough to discredit the prosecution

case, which otherwise stands established for the reasons as

discussed above.

23. The accused when apprehended with the bribe money became

perplexed and confused. This could not be assumed to be

normal behavior of a person, if he was not guilty. The conduct

itself was one of the determinative factors pointing towards the

guilt of the accused. In this regard reference can be made to the

case of Rao Shiv Bahadur v. State of Vindhya Pradesh, AIR 1954

SC 322 and State of Madras v. A. Vidyanatha Iyer, AIR 1958 SC

61, the Apex Court relied on the evidence relating to the conduct

of the accused when confronted by the police officials with the

allegation that he had received bribe. In the case of Rao Shiv

Bahadur (supra) the evidence relating to conduct on which

reliance was placed was to the effect that the accused was

confused and could not furnish any explanation when questioned

by the officer. Likewise, in the case of Vidyanatha (supra) also

evidence to the effect that the accused was seen trembling and

that he silently produced the notes was acted upon for recording

conviction.

24. From the above discussion, it stands concluded that the

Appellant was rightly held guilty of offence under Section 7 as

well as under Section 13(1)(d) of PC Act and was convicted

thereunder by the learned Special Judge. There is no infirmity

and illegality in the impugned judgment.

25. With regard to quantum of sentence, learned defence counsel

prayed for a lenient view stating the case to be above 20 years

old and the Appellant having undergone lot of hardships during

trial. The Courts are daily confronted with such arguments

invariably in all cases. In this regard, the Supreme Court in the

case of State of A.P. v V. Vasudeva Rao, (2004) 9 SCC 319, the

Supreme Court observed thus:

"In the present case, how could the mere fact that this was

pending for such a long time be considered as a "special

reason"? That is a general feature in almost all convictions

under the Act and it is not a specialty of this particular

case. It is a defect inherent in implementation of the

system that longevity of the cases tried under the Act is

too lengthy. If that is to be regarded as sufficient for

reducing the minimum sentence mandated for reducing

the minimum sentence mandated by Parliament the

legislative exercise would stand defeated." (para 31)

26. Keeping in view the entire factual matrix, as discussed above,

while maintaining the conviction of the Appellant under Section 7

and 13(1)(d) read with Section 13(2) of the Act, I am of the view

that ends of justice would be met in sentencing the Appellant to

two years rigorous imprisonment. Thus, to that extent, the

impugned order of sentence dated 22nd July, 2002 of the learned

Special Judge is modified in that, the Appellant shall undergo

rigorous imprisonment for a period of two years each under

Section 7 as well as under Section 13(1)(d) read with Section

13(2) of the Act.

27. With this modification in the impugned order of sentence, the

rest remain maintained. The substantive sentences awarded