Calcutta High Court
Kailash Chandra Pandey vs State Of West Bengal on 9 December, 2002
Equivalent citations: (2003)2CALLT430(HC), 2003CRILJ4286
JUDGMENT P.K. Biswas, J.
1. This appeal is directed against the judgment and order of conviction and sentence passed by the learned Additional District and Sessions Judge and Special Judge, 3rd Court, Barasat, 24 Parganas(N) in Special Case No. 2 of 1997, whereby and whereunder the appellant was convicted for an offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and sentenced to suffer an imprisonment for one year and to pay a fine of Rs. 1000/- in default to suffer rigorous imprisonment for one -month more.
2. The facts leading to the filing of prosecution against the present . appellant are as under:
On May 23, 1996, one Sri Shankar Prasad Sengupta (PW 3), the Proprietor of M/s. Rakshak Security Services lodged a complaint before the Superintendent of Police, Central Bureau of Investigation, Anti Corruption Branch, Calcutta, stating that he was awarded a cleaning contract at New Domestic Terminal Complex at Netaji Subhas Chandra Bose International Airport, Calcutta vide Award letter dated 3rd December 1994 of two years with effect from December 21, 1994. As per practice, he was required to submit the bills in the office of DGM (Airport) and thereafter the bills on presentation were processed by the House Keeping Department functioning under the appellant.
3. The House Keeping Department after due process put up the bills with the appellant who was the final authority in passing of the bills for payment.
4. It has further been alleged that the appellant had been demanding illegal money for passing the bills, which he (PW 3) had managed without payment till May 21, 1996. PW 3 submitted a bill for Rs. 1,39,557/- on May 23, 1996 and at that time he made a request to the appellant to pass the bill. At that time it was given out to him by the appellant that unless a sum of Rs. 5000/- was paid it would not be passed/approved by him and PW 3 was directed to pay a sum of Rs. 5000/- on May 24, 1996 after lunch hours in his office, but PW 3 had no intention to pay the said amount.
5. This PW 3 thereafter lodged a written complaint to the CBI expressing everything and the said written complaint was lodged on 23rd May 1996 and on the basis of the aforesaid written complaint, a case was registered against the appellant for commission of an offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and Inspector M.S Hazari was entrusted with the investigation.
6. It has further been alleged that subsequently PW 3 was called by the SP, CBI to his office at the Nizam Palace, Calcutta on 24.5.96 for laying a trap.
7. The registration of the crime against the appellant was followed by the preparation of pre-trap memorandum, which provided all necessary particulars with regard to such process.
8. Pursuant to the aforesaid decision after the assemblage of the witnesses the party including the PW 3 left for the office of the appellant to lay a trap. As per schedule, the de facto complainant with two other witnesses namely PW 4 and PW 15 had been to the office of the appellant, when the money was received and pocketed by the appellant.
9. Soon, thereafter, the Investigating Officer being accompanied by others entered into the room, seized the money and arrested the appellant. The post trap formalities were followed and complied with and memorandum was prepared. On December 10, 1996 the sanction was accorded by the Chairman, Airport Authority of India and on January 31, 1997 charge sheet was submitted in connection with this case under Section 7 of the Prevention of Corruption Act, 1988. In the instant case, charge was framed against the convict/appellant for demand and acceptance of Rs. 5000/-from the complainant on May 24, 1996 in his chamber as a motive/reward in the matter of passing of the bill of Rs. 1,39,000/- as an illegal gratification other than the legal remuneration.
10. The defence case as it appears from the trend of cross-examination of the prosecution and from the examination of the accused/appellant under Section 313 of Code is a total denial of the prosecution's allegation. It was further alleged by the convict/appellant that he has been falsely implicated in this case with ulterior motive.
11. To bring home the guilt against the convict/appellant. The prosecution in this case has examined as many as 16 witnesses. From the side of the defence, no witness, has, however, been examined.
12. The trial Judge, after examination of the aforesaid witnesses and after examination of the accused persons under Section 313 of CrPC and after hearing the argument of both sides, convicted this accused appellant under Section 7 of the Prevention of Corruption Act, 1988 and sentenced him to suffer rigorous imprisonment for one year and also to pay a fine of Rs. 1000/- in default to suffer further rigorous imprisonment for one month.
13. Being aggrieved by and dissatisfied with the aforesaid Judgment and order of conviction and sentence passed by the trial Judge, the convict/ appellant has come up before this Court in appeal alleging that the judgment passed by the learned Judge suffers from various infirmities and the judgment of the learned trial Judge is based upon conjectures and surmises and not warranted by the evidence on record.
14. It has also been alleged that the ingredients of the offence, charged having not been established, the conviction against this appellant is not sustainable in law and the learned Judge has failed to appreciate the evidence and materials on record in their true perspective and as such there has been miscarriage of justice. Hence, he has come up with this appeal.
15. I have heard the learned senior counsel Sri Dilip Dutta appearing for the appellant as also Sri Ranjan Kumar Roy, appearing for the CBI and Sri S. Moitra appearing for the State of West Bengal. Sri Dutta has taken me through the evidence on record and similarly Sri Ranjan Roy and Sri Moitra have taken me through the evidence on record.
16. Sri Dutta with reference to the evidence on record has forcefully contended that there are various discrepancies in the prosecution story as alleged in the letter of complaint and other available papers such as pre trap memorandum, post trap memorandum and those are completely at variance with the evidence which are elicited through the examination of the prosecution witnesses. Sri Dutta has further contended that the letter of complaint dated 23.5.96 (Ext. 10) discloses that the de facto complainant Sri Shankar Prasad Sehgupta (PW 3) on 23.5.96 requested the present convict/appellant to pass the bill for the month of April, 1996 which was submitted by him on 21,5.96 as he was in urgent need of money and whereupon the appellant demanded Rs. 5000/- to be paid on 24.5.96 after lunch time in his office for passing the bill for the month of April, 1996. In the petition of complaint, PW 3 has indicated the procedure for processing the bills and has also indicated that the convict/appellant was the final authority to pass the bill for payment. But PW 3, Sri Shankar Prosad Sengupta in course of his evidence has stated that since he did not get any relief from the Airport Director, he again had been to the Deputy General Manager, Airport, Mr. K.C. Pandey when Mr. Pandey told him that he was to be paid Rs. 5000/- per month for permanent relief against any future deduction from his bill and also for getting payment in time. Sri Dutta has further contended that from the available evidence it is clear that this thing allegedly happened either on 21.5.96 or 23.5.96, though this witness was not exactly sure about the date. But he did not agree with the demand of Mr. Pandey, the present accused appellant and thereafter, he lodged this written complaint before the CBI expressing everything on 23.5.96.
17. PW 3 in course of his evidence has also admitted that it was not possible to enter into the chamber of DGM (Airport) without going through the cubicle of Mr. Munshi (PW 5), PA to DGM (Airport) and this witness (PW 3) in his evidence has admitted further that he did not meet Mr. Munshi on 23rd May, 1996 and he has further said that even on 24.5.96 also he did not find any other person in the cubicle meant for Mr. Munshi before going to the chamber of Mr. Pandey.
18. Mr. Dutta, drawing my attention to the evidence of PW 5, Mr. Munshi, has stated further that it has been admitted by PW 5 that in the aforesaid cubicle apart from him AG-II and AG-HI and a messenger also sit and PW 5 has clearly asserted in his evidence that none can enter into the chamber of DGM (Airport) without passing through the cubicle and it is not possible for any person to go straight to the chamber of DGM (Airport) evading notice of any of the employees sitting in the cubicle and this witness has further asserted in his evidence that some employees always remain present in the cubicle.
19. It has, therefore, been contended by Sri Dutta that in view of the evidence adduced by the aforesaid two witnesses, it becomes doubtful whether Sri S.P. Sengupta really met the appellant on the date or not.
20. Further it has been contended by Sri Dutta that the evidence of PW 9 Sriraman, (House Keeping Superintendent) discloses clearly the work done by the appellant on 23.5.96 and the official who accompanied him for inspection along with PW 12, Sri U.R. Khaladkar, Senior Airport Manager and other officials of various department and this has also been disclosed from his evidence that appellant along with others made preparation for the visit of Mr. Khan.
21. Drawing my attention to the evidence of PW 10, Mr. Y. Agarwal, the then DGM (GFS) it has been contended by Mr. Dutta that evidence of aforesaid witness clearly Indicates that inspection is done one day before the visit of top officials of the Airport and such inspection lasts for about 4-5 hours and it has also been indicated from his evidence that after such inspection, officials had lunch together in the chamber of DGM (Airport) and the same has also been confirmed by PW 12, Sri U.R. Khaladkar, Senior Airport Manager.
22. Sri Dutta has further pointed out that the close scrutiny of the aforesaid evidence, as has been adduced by the prosecution, make it clear that on that day, hardly there was any scope for this de facto complainant PW 3 to meet the accused/appellant in his chamber as sought to be suggested by them in the petition of complaint as also in the evidence on record. This has further been confirmed by the evidence of PW 5, Mr. Munshi, PA to DGM (Airport) when he has confirmed that one special security meeting was held before the Airport Coordination meeting and Airport Security meeting on the last Friday in May 24, 1996 and in such meeting Mr. M.A. Khan, Executive Director (Commercial) was also present.
23. Sri Dutta has further contended that in view of the aforesaid evidence, it could be regarded not only improbable but also impossible to hold that the appellant has asked this PW 3 to come on 24.5.96 around 2.30 p.m. when it has come from the evidence on record that on that day he was required to attend two major meetings and he was also the convenor of the first meeting of the Airport coordination committee which was scheduled to commence at 2.30 hrs., on 24.5.96. The aforesaid fact proves unmistakably that there was least chance and probability to meet PW 3 on that day far less to accept the bribe as alleged.
24. Sri Dutta has further contended that as per the materials available, the complainant has submitted a bill dated 20.5.96 of M/s. Rakshak Security Services for Rs. 1,30,567/- (Ext. 7) for the month of April, 1996 and the same was submitted in the office of the Deputy General Manager (Airport) on 21.5.96.
25. PW 3 (S.P. Sengupta) in course of his evidence has further stated that in connection with the deduction from the bill from his bill of April, 1996, he went to the Airport (Director) with his grievance but he failed to get any relief from the Airport Director and he then came to the appellant, the then DGM (Airport) and at that time, the appellant allegedly demanded a sum of Rs. 5000/- per month for permanent relief against any future deduction from his bill and also for getting payment in time.
26. Pointing out to the above evidence it has been contended by Sri Dutta that it is rather surprising that when the de facto complainant met the senior most officer i.e. Airport Director and when such senior most officer failed/refused to give any relief to the de facto complainant in connection with the deduction of the bills then how could he again meet the appellant for relief who is a subordinate officer to the Airport Director for having a relief in connection with self-same deduction of the bill.
27. It was further contended by Mr. Dutta that from the evidence of PW 8 (Sri K. Roy Chowdhury) as also from the evidence of PW 6 (Sri A. Mondal) it could be seen that from the bill for the month of April, 1996 (Ext. 7), the deduction of Rs. 445.50 p. has been made against uniform charges of Rs. 4,950/- and the same was approved by the Senior Accounts Manager (Sri A. Mondal) vide payment voucher dated 27.5.96 (Ext. 8). So, obviously, therefore, PW 3 could not have made his claim of meeting Airport Director and DGM (Airport) before 28.5.96 whereas DGM (Airport) was arrested by CBI Officer on 24.5.96 and as per the procedure of the office, the appellant did not have any authority to deduct any amount from the bill.
28. From the evidence of PW 5 (D. Munshi), PW 6 (Ambar K. Mondal), PW 7 (M. Pal) and PW 8 (K. Roy Chowdhury) it has further come out that these witnesses have stated in course of their evidence that the complainant Contractor PW 3 (Shankar Prasad Sengupta) never came to them to ascertain the position of the bill between 21.5.96 till 24.5.96 and PW 3, the de facto complainant in course of his evidence has further stated that he does not remember whether he had been to PW 9 (Sriraman) and PW 12 (Sri U.R. Khaladkar) to pursue the amount of the said bill and he also stated that he does not remember whether he had been to PA to DGM Sri Munshi for pursuing the said bill. So, in view of the above position of the evidence, it is stated by Sri Dutta that hardly it can be held that PW 3 had any knowledge about the deduction of the bill so as to approach the appellant for his redressal of the grievances in connection with the bill for the month of April 1996.
29. Sri Dutta has further pointed out that regarding entry into the chamber of DGM (Airport) that is the appellant, there is also conflicting evidence adduced by the witnesses. As per the evidence of PW 3 Shankar Prasad it is seen that he along with Sanjay Kumar, PW 15 and another person, PW 4 entered into the chamber PW 4, Ratan Kumar Das, one of the alleged trap witnesses in course of his evidence has admitted that he did not enter into the chamber of the appellant along with PW 15 and PW 3. PW 5 (D. Munshi) PA to the DGM (Airport) in course of his evidence has stated that on last Friday of May, 1996, he found Shankar Sengupta (PW 3) to enter into their cubicle along with another person (PW 15) and this witness has further stated that at that point of time PW 3 was not accompanied with any third person and PW 3 was standing inside their cubicle while the person who accompanied him (PW 15) was sitting on the visitor's chair and as per his evidence it was not possible for a person to hear the conversation inside the chamber of the DGM Airport while sitting on the visitor's chair in their cubicle and it was also not possible for him to ascertain that what was happening inside the chamber of the DGM (Airport) from that position. PW 15 (Sanjay Kumar) in course of his evidence has stated that he along with Mr. Sengupta entered into the chamber of DGM Airport and at that time another person was also standing there and he subsequently went out of the room.
30. Pointing out to the evidence of PW 5, Mr. D. Munshi it has been submitted by Sri Dutta that this witness has stated that when PW 3 came inside their cubicle along with other person (PW 15) one Manager of Singapore Airlines was inside the chamber of DGM Airport and their messenger informed PW 3 about the same and PW 3 (Shankar Sengupta) was stopped by the messenger at the door of the DGM (Airport) and at that time he showed one envelope to the messenger and entered into the chamber of the DGM. So, as per the above evidence it is certain that when PW 3 entered into the chamber then reportedly Manager of the Singapore Airlines was present inside the said chamber and in such a situation hardly it can be believed that the appellant would accept the alleged bribe money in the presence of a stranger who is none else than a Manager of Singapore Airlines.
31. Pointing out the aforesaid inconsistencies in the evidence it has been submitted on behalf of Mr. Dutta that on the face of such evidence, as discussed, hardly it can be believed and accepted that the appellant in fact had taken money as a bribe from PW 3, Shankar Prasad Sengupta and this may be a simple case of trap to harass and humiliate the appellant engineered by the persons inimically disposed of towards the appellant.
32. It has been submitted by Sri Dutta further that as per the evidence available, here in this case the decoy (here the PW 3, Shankar Prasad Sengupta) was asked to make over the chemically treated currency notes on demand and not otherwise. But, curiously enough, in course of evidence adduced by PW 3 (Shankar Prasad) and PW 15 (Sanjay Kumar) these witnesses have never said that the appellant on the fateful date made any demand of the bribe money. So, how the money as alleged could be handed over the appellant at the relevant time when admittedly there is nothing in the evidence that the appellant made demand of money from PW 3 on that date.
33. Sri Dutta has further pointed out from the evidence of PW 5 (Mr. Munshi) that Sri Munshi confirmed that when appellant left the chamber on 24.5.96, he informed him that he (appellant) was going to the conference room and appellant returned to his chamber after 15 minutes. Sri Khaladkar, PW 12 has also confirmed in course of his evidence that DGM (Airport) i.e., the appellant was the Convenor of the said meeting of the Airport Coordination Committee and as such the appellant came to the conference room before 14.30 hrs. i.e., the scheduled time of starting of meeting.
34. It has also come out from the evidence of PW 12 (Sri Khaladkar) that the appellant and Sri Joginder Singh, Singapore Airlines Manager entered into the conference room together and the appellant left the conference room after 10-15 minutes saying that he was going to Airport Director's Office, which is located opposite to the conference room. And this witness has further confirmed that the appellant came back after some time and reentered the conference room and after some time went back to his chamber.
35. It has further come out from the evidence of PW 15 (Sanjay Kumar) that immediately after signal was given from their side with regard to the acceptance of bribe money by appellant, the appellant came out of his chamber and walked along the corridor before the eyes of waiting CBI Officers numbering about 2 or 3 on the corridor and entered into the conference room.
36. So, from the trend of available evidence it is certain that the appellant went to the conference room after accepting the alleged bribe money and he was allowed to walk freely although as per the pre-arranged plan signal was given by PW 3 and in such a situation it is not normal and easy to understand that what prevented the CBI Officials to apprehend Mr. Pandey (appellant) either in the conference room or in the Airport Director's Office if really he had the bribe money in his possession at the relevant time and it would have been better that in such event to nab the appellant in the meeting premises when admittedly Senior Officers representing different departments were present including Commandant of CRPF and Superintendent of Police (Airport), who could have been the most trust worthy witnesses to prove acceptance and recovery of the bribe money from the appellant.
37. Sri Dutta has further pointed out certain discrepancies in the evidence of PW 3 (S.P. Sengupta), PW 4 (Ratan Kr. Das), PW 13 (Prasun K. Mitra), Inspector, CBI and PW 14 (S.K. Tripathy) another Inspector of CBI with regard to the place of apprehension and, the persons present in the alleged trap. Sri Dutta further drawing my attention to the evidence of PW 5 (Sri Munshi) has submitted that it was stated by PW 5 that the complainant showed an envelope to the messenger and entered into the chamber of DGM Airport. Of course, PW 3 Shankar has denied the defence suggestion that he told Mr. Munshi, PW 5 that he would go inside the chamber of Mr. Pandey to hand over a letter in an envelope and PW 3 has also denied the defence suggestion that he kept the currency notes on the table after appellant left his chamber, yet, in view of the evidence of PW 3 it may be that after taking the entry inside the chamber of accused/appellant, PW 3 might have kept the aforesaid envelope containing money to entangle Mr. Pandey in the present situation and PW 3 has at last confirmed that one show cause notice was served upon him by S.R. Hindolia, the then Senior Commercial Manager of the Airport authority of India dated 14.5.1996 for poor performance and for breach of other contractual terms. The aforesaid fact taken together with the suggestion of the defence given to the witness (PW 3) that in presence of CBI officers Mr. Pandey was made to handle the currency note left by him on his table cannot at all be ruled out. The aforesaid situation taken together with the absence of personal body search, being one of the essential formalities that has to be followed in searching a person is that the searching officer and others assisting him should give their personal search to the appellant before searching the aforesaid appellant and this rule is meant to avoid the possibility of implanting the object which was brought out by the search and failure to offer to have a personal body search of the searching party will lead to the conclusion that possibility of implanting cannot be ruled out in a situation like that.
38. Sri Dutta has further pointed out that for proving the prosecution allegation of accepting bribe by the accused appellant although there were some materials witnesses available such as Airport Director, Mr. Treasurywala, Sri Hindolia, Senior Commercial Manager, Sri Jogindar Singh, Singapore Airlines Manager and Others, yet none of them has been examined in connection with this for proving the prosecution allegation. Nor any explanation has been offered for their non-examination and in view of the non-examination of such vital witnesses, adverse presumption under Section 114(G) of the Evidence Act should have been drawn against the prosecution for purposely withholding the examination of the aforesaid witnesses. Further it has been contended by Sri Dutta that some vital documents such as award letter No. AAC/Com/446/83-88 dated 3.12.94, show-cause notice issued by the Director to the de facto complainant indicating termination of contract with effect from 1.6.96 etc. have not been produced before the Court for perusal and scrutiny of the Court in coming to a decision in the present case. So, for non-examination of those vital witnesses and non-production of the material documents adverse presumption should have been drawn and taken against the prosecution in the present case.
39. Sri Dutta therefore submits that when there is no overwhelming evidence with regard to the offer and acceptance of the bribe money by the appellant and when there is material contradiction with regard to the recovery of such money from the actual possession of the appellant and when there is no evidence with regard to the offer of personal search of the searching party by the appellant hardly any reliance can be placed on such evidence to come to an inevitable conclusion that it is the appellant and none else who was involved in the question of accepting bribe money for doing something as a motive/reward for passing the bill as an illegal gratification other than the legal remuneration.
40. Sri R. Roy, learned counsel appearing for the CBI in opposing the contention of Sri Dutta, learned counsel appearing for the appellant has submitted before me that from the materials and the evidence available, it has come out that the appellant was attached to the Calcutta Airport as the Deputy General Manager; complainant was the proprietor of the Rakshak Security Service, who was engaged in the cleaning contract of the Calcutta Airport and the complainant had submitted the bill for the month of April, 1996 with the appellant; the Investigating Officer M.S. Hazari had arrested the appellant in connection with the case; a sum of Rs. 5000/- was collected from his possession; none challenged the testimony of the PW 3 that the appellant never demanded the money of illegal gratification of Rs. 5000/-; nor the testimony of PW Nos. 4, 13 and 15 was shaken on material points and as such there was no reason to disbelieve such witnesses.
41. Sri Roy has further contended that in view of the above position of the evidence it is therefore clear that the appellant had demanded Rs. 5000/ - and as regards the payment besides the pre-trap memorandum formalities PW 3 along with PW 15 and another person had been to the chamber of the appellant and' the money was handed over to the appellant and he after receiving the sum kept the sum in his pocket and then the complainant came out of his office and the officers of the CBI thereafter entered into the chamber and apprehended the appellant and from his pocket the above sum of money was recovered. On these grounds PW 4 has testified that the currency notes were recovered from the possession of the appellant and PW 13 also testified of the hand wash. PW 15 also testified about the recovery of money from the pocket of the appellant. From their evidence it has clearly transpired that the money was in the possession of the appellant and there is nothing to disbelieve the evidence of the above witnesses in particular.
42. Sri Roy further contended that true it is that in the FIR the details of the incidents have not been narrated but under the established principles of law FIR being the first recorded version, it cannot be regarded as to be encyclopedia of the occurrence nor was it required to provide minutest details and moreover it cannot be also regarded as the substantive piece of evidence but only a document which can be utilised either to corroborate or to contradict its maker.
43. Obviously, with regard to the aforesaid proposition there cannot be any dispute and as such for non-mentioning of the incident in connection with every minutest detail no adverse inference can be taken against the prosecution.
44. Mr. Roy again placing his reliance upon a decision reported in 2001 SCC Cr. 34 in the case of Madhukar Bhaskar Rao Joshi v. State of Maharashtra has submitted that since in this case there is evidence on record with regard to the gratification; its demands and acceptance it is certain that the amount reached the hands of the appellant itself, and that itself was sufficient corroboration of the testimony of the witnesses that the amount was paid to the appellant and for drawing presumption and establish the inference, payment or acceptance for gratification was enough and once such is established it then becomes the duty of the defence to rebut such presumption. In this connection, he has further placed his reliance on a decision reported in 2001 SCC (Cri) 258 in the case of N. Narsingha v. State of Andhra Pradesh.
45. Sri Roy has further contended that in the instant case, the defence taken by the appellant was required to be established by him to the satisfaction of the Court and since in this case, from the available materials it has come out that appellant has failed to discharge such onus, the appellant Court would refuse to interfere in the matter of conviction, awarded by the trial Judge against this appellant.
46. Sri Roy has further contended that from the side of the appellant an attempt was made to establish by his statement under Section 313 of the Code that a show cause notice had been issued at the instance of the Airport Director to the defacto-complainant whereby he was threatened of cancellation of the contract for violations and in connection with the above, he was required to submit his reply or face cancellation and in connection with the above, the complainant had been to the appellant to submit his reply and when the envelope was tendered, the appellant had directed the complainant to submit the same with the Currency Department/ Commercial Department, but nothing was produced in support of that and in the absence of that or in the absence of any order or a direction to that effect, it must be held that the appellant had failed to establish the alibi to draw any benefit thereof.
47. Sri Roy has pointed out that the appellant has taken another plea that at the relevant time, there was one Joginder Singh who was allegedly the Manager of Singapore Airlines, but in furtherance of that plea neither said Joginder Singh was examined by the defence, nor any witness has been examined to establish such fact. And in such a situation, it should be regarded that the defence has also failed to establish that alibi.
48. Sri Roy has further pointed out that in view of the failure by the appellant to establish the alibi taken by him, the circumstances could be utilised by the prosecution to strengthen their case further.
49. He has further submitted that the above fact taken together with the evidence of PW 3, the complainant himself being corroborated by PW 4, PW 13, PW 14 and PW 15 suggests clearly that the appellant being a public servant has accepted gratification other than the legal remuneration as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show in the exercise of his official function, favour or disfavour to accept or for rendering or attempting to render any service or disservice to any person.
50. He has further submitted that discrepancies or contradictions in the testimonies of the prosecution witnesses as has been pointed out from the side of the appellant were not of such grave nature so as to demolish the core of the prosecution case leading to a conclusion that the prosecution had failed to prove by any cogent, reliable or trustworthy evidence that no offence at all had been committed by the appellant.
51. Sri Roy has therefore submitted that the learned trial Judge has rigidly convicted the accused appellant and there is no reason for interference by this Court.
52. I have given my anxious consideration with regard to the submissions made by the respective parties. Of course it is true that once offer or acceptance of the gratification is proved, the onus shifts upon the concerned accused to disprove the same.
53. The allegation that has been levelled against this accused appellant in the first information is that he had been demanding illegal money for passing the bills. But the case that was sought to be developed by the prosecution in course of trial is that it had been a continuous process and was not limited to any particular bill of a month and the de facto complainant i.e. PW 3 by adducing evidence wanted to establish that the appellant had been demanding money of Rs. 5000/- regularly in each month so that the bill could be processed and to find support to this contention, prosecution has also relied upon the evidence of PW Nos. 4, 13, 14, 15 and 16.
54. Upon scrutiny of the evidence and upon hearing the parties, it has come out that there were some contradictions and discrepancies in the evidence adduced by the prosecution with regard to the following.
55. Although it was alleged from the side of the prosecution that PW 4 and PW 15 were present along with PW 3 at the time of the alleged payment, but on close scrutiny of the evidence, it has come out that the presence of PW 4 and PW 15 was doubtful at the time of alleged payment.
56. Moreover, it has also come out from the evidence on record that at the time of alleged payment, one Joginder Singh, Manager of the Singapore Airlines was present in the chamber of the appellant. Apart from the aforesaid two important aspects, some other discrepancies have also been noted in the evidence, which are as follows:
1. No signature of the appellant was taken on the seizure list.
2. GC notes and the pant were not sent to the Forensic Laboratory for Chemical Examination. The pyjama allegedly handed over to the appellant in place of the pant that was taken off has not been produced.
3. Money was allegedly received by the right hand of the appellant, kept in the left hand pocket, but hand wash was taken of the right hand only.
4. The amount covered by the Impugned bills had already been releases prior to alleged tender of the money to the appellant.
5. The envelope containing the alleged money had not been produced.
57. And lastly it has come out that there was no evidence with regard to the offer of personal search of the searching party by the appellant.
58. It is quite settled principles of law that the minor discrepancy and the contradiction in the testimony of the prosecution witnesses, which do not affect the merit of the prosecution case that should be ignored. But, if those were of such grave nature as to demolish the case of the prosecution leading to a conclusion that the prosecution had failed to prove by any cogent, reliable and trustworthy evidence that no offence at all had been committed by the appellant, then appellant deserves to be acquitted from a case.
59. On a close scrutiny of the evidence and the materials of the instant case and looking into the discrepancies and contradictions as has come out in the evidence on record, specially with regard to the presence of the person at the time of the alleged payment of gratification and presence of another person such as Manager of Singapore Airlines in the chamber of the appellant at the relevant time, it is rather difficult to accept that really there was such payment as alleged by the prosecution to the appellant.
60. Apart from the aforesaid fact in the absence of offer to have a personal body search of the searching party by the appellant, the possibility of implanting the alleged money in the chamber of the appellant cannot at all be ruled out and the total chain effect of the discrepancies and contradictions as has come out in this case has prompted me to come to a conclusion that prosecution has failed in the instant case, to prove beyond reasonable shadow of doubt that in fact there was real offer and acceptance of the payment by way of gratification and that being the position, upon sifting the entire materials, I am rather prompted to hold that the prosecution in the instant case has not been able to bring home the guilt of the accused appellant for accepting gratification beyond all reasonable shadow of doubt and as such the appellant, on the existing evidence and materials on record, is entitled to get the advantage of benefit of doubt in this case.
61. Now, in view of the discrepancies noted above in the evidence adduced from the prosecution side and taking into consideration the defence version as has been pushed forward by way of cross-examination of the prosecution witnesses and viewing the same from the point of prepondence of probabilities, I am rather prompted to hold with certainly that in this case, prosecution has failed to bring home the guilt of the accused appellant under Section 7 of the Prevention of Corruption Act, 1988 and this accused-appellant is, therefore, entitled to get an order of acquittal from this case upon benefit of doubt. The trial Judge, therefore, was not justified in awarding conviction and punishment to the accused-appellant.
62. In the result, the appeal succeeds. Accordingly, the appeal be and the same is hereby allowed and the judgment and order of conviction and sentence passed by the learned trial Judge are hereby set aside. The accused appellant is hereby acquitted from this case. He be set at liberty at once, if not wanted in any other case.