Jharkhand High Court
Gokuleshwar Banerjee vs State Of Jharkhand on 5 October, 2004
Equivalent citations: 2005CRILJ1535, [2004(4)JCR557(JHR)], 2005 CRI. L. J. 1535, 2005 AIR - JHAR. H. C. R. 297, (2005) 1 JLJR 12, (2005) 1 CRIMES 299, (2005) 3 ALLCRILR 27
Author: Vishnudeo Narayan
Bench: Vishnudeo Narayan
ORDER Vishnudeo Narayan, J.
1. This appeal at the instance of the appellant stands directed against the impugned judgment and order dated 26.2.2001 and 28.2.2001 respectively passed in R.C. Case No. 6(A)/ 92-D by Shri Raj Narain Prasad Singh. Special Judge, CBI, Dhanbad whereby and whereunder the appellant was found guilty for the offence punishable under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the said Act) and he was convicted and sentenced to undergo rigorous imprisonment for one year each under Section 7 and Section 13(2) read with Section 13(1)(d) of the said Act and he was also sentenced to pay a fine of Rs. 500/- for the offence under Section 13(2) of the said Act and in default thereof to undergo rigorous imprisonment for three months. However, the sentences were ordered to run concurrently,
2. The prosecution case has arisen on the basis of the first information report (Ext. 9) lodged before Delhi Special Police Establishment. Dhanbad Branch by PW 10, B.K. Birdi, Inspector, CBI, Dhanbad on 3.6.1992 at 17.00 hours regarding the occurrence which is said to have taken place on that very day on the basis of the written complaint (Ext. 6) of the PW 6 Ram Lal Saw lodged before the Superintendent of Police CBI, Dhanbad.
3. The case of the prosecution, in brief, is that he complainant works as an Electrical General Mazdoor, Civil Department. BCCI. Bhuli Township, Dhanbad and the appellant is employed as Accounts Assistant, Civil Department (Finance), BCCL Koyala Bhawan, Dhanbad and the appellant has made a demand of illegal gratification of Rs. 250/" from him for preparing, processing and making payment of his bills relating to his conveyance allowance and arrear of bus fare and he has asked him to come with the bribe amount aforesaid in his office on 4.6.1992. It is also alleged that he is against giving any illegal gratification and for that he has filed this complaint petition for taking action against the appellant.
4. It is alleged that the allegation made in the complaint petition (Ext. 6) was verified by PW 9 L.M, Manjhi, Inspector, CBI and on submission of his verification report (Ext. 8) to the S.P.. CBI. Dhanbad on that very day confirming the allegation made in the complaint to be correct, this case was registered.
5. The prosecution case further is that after registration of the case, a trap team was constituted and presence of two Independent witnesses, namely, PW 2 D.K. Bharti and PW 4 Ram Chandra Yadav was secured with a view to apprehend the appellant red-handed while demanding and accepting the illegal gratification from the complainant. The members of the CBI trap team headed by PW 10 B.K. Bird! and two independent witnesses aforesaid assembled in the CBI office on 4.6.1992 alongwith complainant aforesaid and they were told the purposes for which they have been called and written complaint of the complainant was also shown to them and they were explained the purpose and use of Phelonphathalein powder and its chemical reaction with the sodium carbonate followed by a practical demonstration and the complainant on demand produced two Government currency notes of Rs. 100/- denomination and one Government currency note of Rs. 50/- denomination which were treated with Phenolphathalein powder. It is alleged that pre-trap formalities were observed in the CBI Office, Dhanbad and that the trap team along with two independent witnesses aforesaid and the complainant left CBI Office for the office of the Civil Engineering Department, BCCL. Koyala Nagar. Dhanbad and reached near the said office and the members of the raiding party took their suitable position in an around the office building and the complainant followed by PW 4 Ram Chandra Yadav proceeded towards the office of the appellant and as soon as the complainant stepped at the entrance of the office he came face to face with the appellant who had just come down the stairs of his office and after wishing him the complainant requested the appellant to make the payment of his conveyance allowance and bus fare arrear and at this, the appellant demanded a sum of Rs. 250/- from him and asked him as to whether he has brought the said money and on reply in the affirmative by the complainant, the appellant demanded the said illegal gratification and the complainant took out Rs. 250/- from his pocket and handed over the same to the appellant who accepted the same with his right hand and after counting the tainted Government currency notes with both of his hands kept the same in his left upper inside chest pocket of his shirt. It is alleged that thereafter PW 4 Ram Chandra Yadav, the shadow witness, gave prefixed signal. It is also alleged that the said conversation between the complainant and the appellant was also heard by other witnesses as well as the members of the trap team. The prosecution case further is that on getting the said prefixed signal, the members of the raiding party rushed towards the spot i.e. the entrance of the building of the said office and PW 10, disclosing his identity. challenged the appellant of having demanded and accepted the sum of Rs.250/- from the complainant as illegal gratification for showing him favour in releasing the conveyance allowance and bus fare arrear payment and at this, the appellant became nervous and he could not offer any explanation, whatsoever, and thereafter the appellant was taken into the office chamber of PW 8 A.C. Ravidas. Assistant Finance Manager of the said office, where the tainted money of Rs. 250/- was recovered from the left inside chest pocket of his shirt by PW 4 Ram Chandra Yadav, the shadow witness, on being pointed out by the complainant in presence of PW 8 A.C. Ravidas aforesaid, besides other independent witness and the members of the trap team. It is alleged that the recovered tainted Government currency notes of Rs. 250/- were compared with the numbers and denominations of the Government currency notes mentioned in the pre-trap memorandum and the same tallied in toto and the recovered tainted currency notes were seized and he was taken into custody. The prosecution case further is that both the right and left hand fingers of the appellant and the said pocket of his shirt were washed in separate solution of sodium carbonate, as a consequence of which, the colour of the solution turned pink and the said solution was preserved in separate phials and the same were sealed and also signed by all present there and the tainted recovered currency notes were kept in an envelop and it was also sealed and signed by the independent witnesses and the members of the trap team and the post-trap memorandum was prepared which was sealed and signed by the members of the trap team and a copy of the post-trap memorandum was also handed over to the appellant under his signature. Lastly, it has been alleged that the appellant was dealing with the conveyance allowance and bus fare arrear of the workers of the Civil Engineering Department and the application of the complainant for his claim of conveyance allowance and bus fare arrear was pending with him at the relevant time.
6. The appellant has pleaded not guilty to the charges levelled against him and he claims himself to be innocent and to have committed no offence and he has been falsely implicated in this case at the instance of the complainant due to grudge and vendetta. It has also been contended that he had prepared the bill of the complainant in the format and has sent the same to the Electronic Data Processing Department for computerization much prior to the institution of the case and there was no occasion for the appellant to make the demand or for the complainant to make payment.
7. The prosecution has in all examined ten witnesses to substantiate its case. PW 6 Ram Lal Saw is the complainant and Ext. 6 is his complaint petition, PW 2 D.K. Bharti and PW 4 Ram Chandra Yadav are the independent witnesses of the trap, recovery and seizure of the tainted currency notes in question. PW 8 A-C. Ravidas, Assistant Finance Officer of BCCL is also the witness of the search, recovery and seizure of the said tainted currency notes. PW 7 K.M.S. Pillai. Finance Manager, BCCL has forwarded the joint application (Ext. 3) of the complainant to the appellant for processing the claim of the complainant and of PW 3. PW 9 L.M. Manjhi and PW 10 B.K. Birdi, both Inspectors of the CB1, 'are the members of the trap team and said PW 10 is the Investigating Officer of this case. PW 5 Sanat Kumar Mukhopadhyay is the Assistant Director, CFSL, Hyderabad, who has proved his report (Ext. 5) which is in respect of the examination of the three phials of the solution of the sodium carbonate in which the fingers of both the hands and the pocket of the shirt of the appellant were washed and he has also proved Ext. 4. the letter with which the aforesaid three phials were sent to him for chemical examination PW 3 Subhas Bauri is the colleague of the complainant working with him at Bhuli. PW 1 Sukumar Mukherjee was the then General Manager (Construction), BCCL, Koyala Bhawan, Dhanbad and being the competent authority he has accorded sanction for the prosecution of the appellant and the sanction order is Ex. 1 in this case. Ext. 3 is the letter bearing signature of the complainant and of PW 3 regarding their claim of conveyance allowance and bus fare arrear addressed to the Salary Payment Manager. Civil, Koyala Nagar, Dhanbad which was endorsed to the appellant on 3.4.1992 for needful and the said endorsement is Ex, 7. Ext. 8 is the verification report regarding the allegation aforesaid per pen of PW 9. Ext. 13 is the letter of PW 10 addressed to the Director, CFSL. Calcutta for examination of the solution of sodium carbonate in which the fingers of both hands of the appellant and the pocket of his shirt were washed. Ext. 2 series are the signature of the members of the trap team on the pre-trap and post-trap memoranda (Ext. 10 and Ext. 11 respectively) besides on the material exhibits. No oral evidence has been brought on the record on behalf of the appellant. Ext. A is the letter of PW 7 K.M.S. Filial, Finance Manager, Civil, addressed to Shri S.N. Mukherjee. Advocate, Gyan Mukherjee Kond. Dhanbad in reply to his letter dated 12.6.1992 disclosing therein that the claim of the complainant has been processed in the first week of May 1992 and the same has been sent and received by E.D.P., Department, BCCL, Koyala Bhawan on 22.5.1992 and Ext. A/a is the signature of PW 7 thereon, Ext. B series are the palsy's for the month of April and May 1992 proved by PW 8 showing the payment of conveyance allowance to the complainant through the aforesaid pay bills.
8. In view of the evidence oral and documentary on the record, the trial Court came to the finding of the guilt of the appellant and accordingly convicted and sentenced him as stated above.
9. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that the impugned judgment is not at all sustainable either in law or on facts of this case and this appellant has been falsely implicated in this got-up case at the instance of PW 6 Ram Lal Saw, the complainant, to wreck vengeance against him in collusion with the CBI officials and the learned Court below did not at all scrutinize and scan the evidence on the record in proper perspective and has committed a manifest error in coming to the finding of the guilt of the appellant. It has been submitted that the learned Court below has recorded a finding in para 43 of the impugned judgment that the evidence of PW 2 and PW 6 is discrepant on the point of recovery in view of the inherent inconsistencies and material contradictions appearing in their evidence and their evidence run counter to the prosecution case and in view of the said finding, the learned Court below has committed a manifest error holding the appellant guilty. It has further been submitted -that long before the lodging of the complaint, the appellant has prepared the bill of the complainant and had already sent the same to the EDP department and thereafter the appellant had no role to play in the said matter and thus, there was neither any occasion for the appellant to ask for illegal gratification nor for the complainant to pay illegal gratification and in support of his contention, a reference has been made to the evidence of PW 8 A.C. Ravidas and ext. A and Ext. B series. It has also been submitted that there are material contradictions and inconsistencies in the evidence of PW 2, PW 6 and FW 9 regarding the place where tainted currency notes were allegedly handed over to the appellant as well as the alleged recovery made from the appellant and thus. there is no iota of legal evidence to prove the fact that the appellant has demanded the illegal gratification and has accepted the same from the complainant. Lastly, it has been contended that in view of the evidence on the record, there cannot be presumption of fact that the appellant has demanded illegal gratification and obtained it from the complainant as a motive or reward as mentioned under Section 7 of the said Act and burden of proving his innocence cannot be cast on the appellant in the facts and circumstances of this case and thus, the impugned judgment is unsustainable.
10. In contra, it has been submitted by the learned Standing Counsel of CBI that the learned trial Court has properly scrutinized and considered the evidence in proper perspective in coming to the finding of the guilty of the appellant. It has also been submitted that having been satisfied with the correctness of the allegation as per the report of PW 9 L.M. Manjhi, the complaint petition of the complainant was entertained and trap team was constituted including the two responsible independent witnesses and after performing the pre-trap formalities, the trap team went to the office of the appellant and the complainant met the appellant at the entrance of the office where on demand, the tainted money was given by the complainant to the appellant in presence of PW 4 Ram Chandra Yadav, the shadow witness, and the same was accepted by the appellant and the members of the trap team including the independent witnesses have testified the demand and acceptance of the tainted money by the appellant from the complainant and said tainted Government currency notes were recovered from the possession of the appellant. It has also been submitted that the fingers of both the hands of the appellant when washed in the solution of the sodium carbonate, it has turned pink and the solution of the sodium carbonate in which the pocket of the shirt of the appellant was washed, has also turned pink and the testimony of the independent witnesses read with the other members of the trap party coupled with the turning of the solution of sodium carbonate into pink colour does establish the fact that the appellant has on demand accepted the tainted money. Lastly. it has been submitted that once it is established by legal evidence on the record that illegal gratification was demanded and accepted by a public servant, presumption arises that it was paid and accepted as a motive or reward to do or to forebear from doing any official act and the mere fact that the currency notes have reached the hands of the appellant is a sufficient corroboration of the trap witnesses and it is for the appellant to prove that the Government currency notes which have been recovered from his conscious possession were not accepted by him as a reward or motive for the official act done by him. In support of his contention reliance has been placed upon the ratio of the cases of State of U.P. v. Zakaullah. 1998 (1) East Cr C 619 (SC) : (1998) 1 SCC 557, Sarupchand v. State of Punjab. AIR 1987 SC 1441, Madhukar Bhaskarrao Joshi v. State of Maharashtra, 2001 Cr LJ 175 and State of A.P. v. Kommaraju Gopala Krishna Murthy, (2000) 9 SCC 752. Thus, there is no illegality in the impugned judgment.
11. There is no denying the fact that appellant Gokuleshwar Banerjee was posted as Accounts Assistant in Civil Department (Finance), BCCL, Koyala Bhawan. Dhanbad at the relevant time and he was entrusted with the work of processing and dealing with the claims of transportation charges of the workers of the Civil Engineering Department, BCCL and he used to prepare bills also for the said purpose. In this connection, evidence of PW 7 in para 1 of his testimony is referred to. The office of the appellant was on the first floor in Koyala Bhawan, BCCL, Dhanbad and for this, the evidence of PW 8 in para 14 is referred to PW 6 Ram Lal saw, the complainant, was employed as an Electrical General Mazdoor. Civil Department, BCCL then posted in Bhuli Township. Dhanbad. PW 6 has deposed that he has submitted an application (Ext. 3) to the appellant for preparing and making payment of his bills relating to his conveyance allowance and arrears of bus fare. It appears from perusal of Ext. 3 aforesaid that PW 6 and PW 3 have jointly field the said application (Ext. 3) before the Salary Payment Manager (Civil). Koyaja Bhawan, Dhanbad for payment of bus fare with effect from 8.9.1990 to January 1992 and conveyance allowance from 8.9.1990 to April 1992. The said application was endorsed by PW 7 to the appellant for the needful on 3.4.1992, which is evident as per the endorsement (Ext. 7) thereon. There is also an endorsement dated 3.4.1992 per pen of one D. Sengupta thereon and the said endorsement is Ext. 7/A. PW 7 has deposed that D. Sengupta forwarded the above application to him on 3.4.1992 and thereafter he had marked that application to appellant on 3.4,1992 itself which was sent to him through official system. He has further deposed that he did not hand over the said application to PW 6 or PW 3 for taking the same to the appellant PW 7 in para 7 of his testimony has deposed that after receiving the said application, the appellant entered the same in the Register for April 1992 and the particulars along with the name of PW 6 and PW 3 have been written by the appellant in the said Register. He has further deposed regarding the procedure in respect of the payments of the bills aforesaid. His evidence is further that the claims re processed after verification of the salary-slips and thereafter it is sent to E.D.P. Section, if payable through pay slips and thereafter the E.D.P. Section has to make the payment through payslips at their end or the cashier may make the payment. He has also deposed that the formats of payment for making the above payments of PW 6 and PW 3 have been processed and sent to E.D.P. Section for making the payment and the office copy of the said formats in respect of PW 6 and PW 3 are available in his office. He has also further deposed in para 12 of his evidence that such arrear payments normally are checked, processed and filled in the formats and then the formats are sent to E.D.P. Section to make payment along with the salary by means of payslip. In the concluding portion of para 10 of his evidence, this witness has deposed that the claims of PW 6 and PW 3 have been processed in the first week of May 1992 and the same was sent to and received by E.D.P. Department on 22.5.1992 where the payslips are prepared. It is pertinent to refer here Ext. B and Ext. B/l, which are the payslips of PW 6 for the month of April and May. 1992 respectively which show the payment of conveyance allowance of Rs. 52.90 and Rs. 43,70 respectively therein Ext. B further shows that there is a deduction of Rs. 170/- in the column of Karyalaya Bus". It further appears from Ext. A, the letter dated 12.6.1992 of PW 7 addressed to the Advocate of the appellant in reply to his letter dated 12.6.1992 that the claim of FW 6 has been processed in the first week of May 1992 and the same has been sent and received by E.D.P. Department, BCCL, Koyala Bhawan on 22.5.1992 as per the record and since then PW 6 has received the above payment also. However, the date of payment regarding the claims of PW 6 has not been specifically and categorically disclosed therein. Here I once again refer the claim of PW 6 regarding the arrears of bus fare and conveyance allowance, which were with effect from 8.9.1990 to January 1992 and 8.9.1990 to April 1992 respectively. Ext. B series read with Ext. A do not evidence the fact of payment of the entire dues of PW 6 as claimed by him in Ext. 3. The payment of the conveyance allowance for the month of April and May, 1992 (Ext. B series) is in respect of the said months and it does not appear to have any co-relation with that of the claim in respect thereof as made in Ext. 3. Thus, the evidence of PW 6 appearing in concluding portion of para-12 that he has received the payment on 4.6.1992 has no co-relation with the claims as made in Ext. 3 and it cannot be taken as a circumstance to cast a cloud of suspicion to the credibility of the prosecution case. It therefore, appears that the arrears of claim as mentioned in Ext. 3 was definitely not settled and paid to PW 6 till the relevant date of the trap of the appellant in question.
12. PW 6. the complainant, has deposed that he has submitted an application (Ext. 3) for preparation of his arrear bills to the appellant and on that date his arrear bills were not prepared. He has further deposed that when he met the appellant and requested him to prepare his arrear bills, the appellant demanded Rs. 250/- as illegal gratification for preparing the bills. PW 3 has also deposed that he along with PW 6 had jointly submitted an application (Ext. 3) for payment of the arrear bill. His evidence is further to the effect that he had met the appellant after the submission of the said application and the appellant had also asked for Rs. 250/- from him as illegal gratification for preparing the bills. He has also deposed that he got the payment of his arrears after the arrest of the appellant. From the evidence of PW 6 and PW 3 it becomes clear that the appellant has made the demand of Rs. 250/- as illegal gratification from each of them for preparing their arrear bills when they had met the appellant in that connection, PW 6 has further deposed that he had lodged a complaint under his signature scribed by Judagi Rajak before the CBI, Dhanbad, a day prior to the trap and PW 9 L.M. Manjhi, Inspeclor, CB1 had made verification regarding the allegation disclosed in his complaint petition. PW 9 has testified the fact that he was directed by the S.P., CB1 to verify the allegations contained in the complaint (Ext. 3) of the complainant and in pursuance to the direction aforesaid he has made verification regarding the same and has also submitted its report (Ext. 8) in respect (hereof in para 15 of his cross- examination he has deposed that he was directed to verily regarding the pendency of the claim of the conveyance allowance and bus Fare of the complainant as well as regarding the general reputation of the appellant and also the fact as to whether the appellant was authorized to process the claim of the complainant and he has verified the correctness of the facts aforesaid from the office of the appellant making enquiry from some of the employees of his office. Ext. 8 reveals that the appellant used to deal with the processing and making of miscellaneous payment in his office and the application regarding the claim of the complainant is pending with the appellant and further the appellant bears ill-reputation among the people. He has further deposed that in course of investigation, the complainant was not with him. Nothing material has been elicited in his cross-examination to discredit the testimony of PW 9 in respect thereof. It appears that after receipt of the verification report, the case was registered against the appellant.
13. PW 6, the complainant, has further deposed that he again came to the CB1 office on 4.6.1992 and on his arrival, he was introduced with the members of the trap team which included two independent persons and pre-trap formalities were observed and he placed the Government currency notes worth Rs. 250/- which was treated with Phenolphathalein powder and thereafter the said currency notes were returned to him with a direction that he shall hand over the same to the appellant on demand. He has also deposed that in course of pre-trap formalities, one paper was treated with Phelonphathalein powder and PW 2 D.K. Bharti touched the said paper and when the fingers of his hand was washed in a solution, its colour turned pink and the said solution was sealed in a glass bottle and it was sealed and he has put his signature thereon. He has further deposed that the said paper was also keep in an envelope and it was sealed and he has put his signature thereon. PW 2, PW 4. PW 9 and PW 10 have in their evidence on oath also testified in respect thereof regarding the pre-trap formalities corroborating the testimony of the complainant. The pre-trap memorandum is Ext, 10. which bears their signatures, and all the other members of the trap team and the witness aforesaid have also proved their respective signature on Ext. 10.
14. PW 6, the complainant, has also deposed that he along with the members of the trap team came to the office of the appellant on that day. His evidence is further to the effect that he along with PW 4 R.C. Yadav was proceeding inside the office of the appellant and he met the appellant near the stair of the said office and after wishing him he enquired from him as to whether the bills in respect of his claim have been prepared by him and the appellant replied that bill has been prepared but the payment of the bill shall be made only after the illegally gratification is paid to him and he demanded the illegal gratification and on his demand he handed over to him the aforesaid Government Currency notes worth Rs. 250/- and the appellant accepted the same by his right hand and thereafter he counted the said tainted money and kept the same in his left upper inside chest pocket of his shirt. He has further deposed that PW 4 Ram Chandra Yadav gave the prefixed signal and the entire trap team rushed there and one Inspector of CB1 challenged the appellant and as a result of that, the appellant became non-pulsed and the appellant denied to have accepted the tainted money but PW 4 besides him pointed to the trap team that, the appellant has kept the tainted money in his left upper inside chest pocket of his shirt. His evidence is further to the effect that the said tainted Government notes were taken out from the said pocket of the appellant by PW 2 D.K. Bahrti and the serial numbers of the recovered Fainted notes were (allied with the pre-trap memorandum and on being allied, it was kept in an envelope which was sealed and signed and there is his signature on the said envelope. He has also deposed that the fingers of both the hands and tile said pocket of the shirt of the appellant were waited in three separate solution of sodium carbonate, the colour of which turned pink and the said solution was kept in three glass bottles and they were scaled and signed by the members of the trap partly including the independent 'witnesses besides him and thereafter the shirt of the appellant was also kept in an envelope and it was sealed an signed by all including him. This witness has deposed to have identified the said shirt in course of evidence which is material Ext. IV. In para 21 of his evidence, PW 6 has categorically deposed that the recovery of the tainted Government currency notes was made on the first floor of the office. It, therefore, appears from the evidence of PW 6 that the appellant demanded and accepted the 'tainted money on the ground floor near the' stair and after his apprehension he was taken on the first floor where the tainted money was recovered by a member of the trap party in presence of other members of the trap party on the first floor of the said office. Pw 4 Ram Chandra Yadav. the independent shadow witness, has deposed that the members of the trap party came to the office of the appellant and he was behind the complainant while going in the said office where the complainant met the appellant. He has specifically deposed that the complainant along with him met the appellant while he was near the stair on the ground floor. He lias further deposed that the complainant enquired from the appellant as to whether he has prepared his bills regarding his claim and at this, the appellant enquired from him as to whether he has brought the money and on getting the reply in affirmative, the appellant demanded the said illegal gratification and the complainant handed over the said tainted money to him which he accepted and kept the same on his left upper inside chest pocket of his shirt. He has further deposed that he gave the prefixed signal to the members of the trap team and they came there and they caught both the hands of the appellant and challenged him and at this, the appellant became nervous and thereafter the appellant was brought in the chamber of an officer and as per the dictates of the CBI officials, he had taken out the tainted currency notes from the said pocket of the appellant and the serial numbers of the said recovered tainted currency notes were verified with the pre-trap memorandum and the same tallied and the said tainted currency notes were kept in an envelope under seal and signed by all present there, His evidence is further to the effect that the fingers of both the hands and the said pocket of the shirt of the appellant were dipped in three separate solution of sodium carbonate and the colour of the said solution turned pink and the said solution were kept in three separate glass bottles under seal and signed by all present there. He has further deposed that the shirt of the appellant was also kept in an envelope and it was sealed and signed by all present there PW 2 D.. Bharti. the other independent witness of the trap team, has deposed that after the pre-trap formalities, he along with the trap team left the CBI office at about 12.30 hours on 4.6.1992 and arrived at the office of the appellant and at that time. the appellant was in his office and the complainant along with PW 2 went in the office of the appellant. He has further deposed that after the completion of the transaction, PW 4 gave prefixed signal and the members of the trap team went there and the appellant was challenged in respect thereof who admitted regarding the accepting the illegal gratification and the members of the trap team caught the hands of the appellant and tainted currency notes were recovered from the left inside chest pocket of his shirt. He has further deposed regarding the comparison of the recovered currency notes with the serial numbers of the currency notes as mentioned in the pre-trap memorandum and also regarding the fact of washing of fingers of both the hands of the appellant as well as pocket of his shirt in the solution of the sodium carbonate, which turned pink and thereafter preparation of the post-trap memorandum PW 9 lias deposed that when he along with the trap team reached the office of the appellant he found the appellant coming to the ground floor from the first floor and when 1 he appellant came to the ground floor, the complainant alongwith PW 4 met him and the complainant made payment of the illegal gratification which the appellant accepted and kept the same in the upper inside chest pocket of his shirt after counting it, He has further deposed to have seen the said transaction. His evidence is further to the effect that after getting the pre- fixed signal, the members of the trap team including him went to the appellant and PW 10 challenged him regarding the accepting of the illegal gratification which the appellant has admitted and both the hands of the appellant were caught by the members of the trap team and on being pointed by PW 4 and PW 6. the said tainted money was taken out from the said pocket of his shirt by PW 4 at the direction of PW 10 and thereafter the said recovered tainted money was compared with the serial numbers as mentioned in the pre-trap memorandum. He has also deposed regarding the washing of the fingers of both the hands of the appellant as well as his shirt in separate solution of the sodium carbonate, the colour of which turned pink. PW 10, the investigating Officer, has deposed that he along with members of the trap team came to the office of the appellant and on arrival there, the complainant along with PW 4 was proceeding inside the office of the appellant and at the same time. the appellant came on the ground floor through the stair where he met the complainant. He has further deposed that the complainant enquired from him regarding the preparation of the bills in respect of his claim and their payment and at this, the appellant demanded Rs. 250/- and the complainant gave him Rs. 250/- which the appellant accepted from his right hand and after counting it with the help of his both hands kept the same in the upper inside chest pocket of his shirt and on getting the prefixed signal given by PW 4, the trap team rushed to the said place and the appellant was challenged, who became nervous and thereafter he admitted to have accepted illegal gratification. He hay also deposed that left hand and the right hand of the appellant were caught by Hawaldar L.K. Sharma and ASI B. Paswan respectively and thereafter the appellant was brought to the chamber of the Finance Manager on the first floor of the office and in presence of PW 8 A.C., Ravidas, Assistant Finance. Officer, the tainted currency notes were taken out from the said pocket of the appellant by PW 4 Ram Chandra Yadav and it was compared with the pre-trap memorandum and the serial numbers of the tainted currency notes tallied with that ,of the serial numbers as mentioned in the pre-trap memorandum and the said recovered tainted currency notes were kept in an. envelope which was sealed and signed by all present there. He has further deposed that thereafter the fingers of both the hands of the appellant and the pocket of his shirt were washed in three separate solution of the sodium carbonate, the colour of which turned pink. PW 8 A.C. Ravidas has deposed that the members of the trap team along with the appellant came to the chamber of the Finance Manager and on being called he went ..here and he saw the appellant and the members of the raiding party there. He has further deposed that one of the members of the trap team was asked to take out the tainted money from the pocket of the appellant and at this, PW 4 took out the tainted currency notes from the pocket of the appellant and counted the same and it was Rs. 250/- and their serial numbers were verified from the pre-trap memorandum and their serial numbers tallied with the pre-trap memorandum and the said recovered tainted currency notes were kept in an envelope on which he has put his signature [Ext. 2/37). He has further deposed in respect of the fact of washing of fingers of both the hands of the appellant and the pocket of his shirt in three separate solution of the sodium carbonate, the colour of which turned pink and the said solution were separately kept in three bottles and they were sealed and signed by all present there including him. In para 15 of his cross-examination, he has deposed that when the appellant was brought to the said chamber of the Finance Officer, the tainted currency notes was in the left upper inside chest pocket of the shirt of the appellant, in course of hearing, much stress was led to the material contradictions and inconsistencies appearing in the evidence of PW 6 and PW 2 on the one hand and PW 4, PW 9. PW 10 and PW 8, on the other hand, and tile finding of the learned trial Court appearing in para 43 of the impugned judgment has also been referred in respect thereof. According to the prosecution case, the complainant and PW 4 Ram Chandra Yadav met the appellant on the ground floor near the stair where the transaction regarding the demand and acceptance of the illegal gratification by the appellant had taken place and the appellant was caught by the members of the trap team and brought to the chamber of the Finance Officer on the first floor of the office where the tainted currency notes were taken out from the said pocket of the shirt of the appellant by PW 4 Ram Chandra Yadav. PW 6 has deposed regarding the transaction of demand and acceptance of illegal gratification having taken place on the ground floor near the stair. In para 21 of his evidence. he has deposed that the recovery of the tainted currency notes was made on the first floor. However, this PW 6 contradicts the testimony of the other witnesses of the prosecution regarding the fact of taking out of the tainted currency notes from the left-upper inside chest pocket of the appellant and according to him, it was PW 2 D.K, Bharti. who had taken out the said tainted currency notes from the said pocket of the appellant- PW 2 in para 2 of his evidence has deposed that the transaction regarding the demand and acceptance of the illegal gratification by the appellant had taken place in his office where the complainant along with PW 4 had come and after getting the prefixed signal, the trap team came there and the tainted currency notes were recovered from the left upper inside chest pocket of the shirt of the appellant.
However. PW 2 does not say specifically that he has taken out he tainted Government currency notes from the said pocket of the appellant PW 4, PW 9 and PW 10 on the other hand, in their evidence have materially corroborated the prosecution case regarding the demand and acceptance of the tainted money near the stair on the ground floor by the appellant and his apprehension at that place and thereafter taking him to the office chamber of the Finance Officer on the first floor where the tainted currency notes were taken out from his pocket by PW 4 in presence of PW 8. It is equally relevant to mention here that PW 8 has also testified the fact of the recovery of the tainted currency notes from the said pocket of the appellant in his presence in the chamber of the Finance Officer on the first floor. In view of the overwhelming evidence on the record as per the testimony of PW 9, PW 10, PW 8 and PW 4, the evidence of PW 2 that the transaction regarding the demand and acceptance of the illegal gratification by the appellant had taken place in his office where the complainant along with PW 4 had come, lacks its credibility and further the testimony of PW 6 that the tainted currency notes were taken out from the pocket of PW 2 has also no bearing in this case. Minor discrepancies or trivial matters appearing in the testimony of PW 2 and PW 6 referred to above in the facts and circumstances of this case do not at all touch the core of the case and thus, a hypertechnical approach in perusal of the evidence of PW 4 and PW 2 as submitted in the course of argument by the learned counsel for the appellant has to be avoided in the facts and circumstances of this case. Therefore, the inconsistencies referred to above has no relevancy at all to cast a cloud of suspicion to the very credibility of the prosecution case. And last but not the least, the evidence of PW 6 and PW 2 referred to above does not at all believe the substratum of the prosecution case and in this view of the matter, it cannot said that their evidence as a whole is counter to the prosecution case. After the recovery of the tainted currency notes, post trap memorandum was prepared in the office of the CBI and PW 10, PW 9, PW 4, PW 2 and PW 8 have deposed in respect thereof and they have further deposed to have witnesses the said post trap memorandum. In the case of Sarupchand. (supra) currency. notes containing Phenolphathalein powder were given to the accused and the colour of solution or sodium carbonate turned pink on dipping of fingers of accused and pocket of coat in which currency notes were kept in the said solution and in the absence of any explanation as to why accused was given money and why he had kept the same in his pocket, the apex Court has found the allegation substantiated. In the case of Madhukar Bhaskarrao Joshi, (supra) the apex Court has also observed that the fact that public servant is found in possession of currency notes smeared with Phenolphathalein powder is sufficient to draw legal presumption and the prosecution does not have any further duty to prove beyond the fact that prosecution witness had paid the demanded money to the appellant, a public servant. It is the settled proposition of law that when it is established by legal evidence that illegal gratification was paid and accepted by a public servant. presumption arises that it was paid and accepted as a motive or reward to do or forebear from doing any official act and the mere fact that the currency notes reached the hand of the appellant is sufficient corroboration of the trapped witness. Here in this case, there is legal evidence on the record to substantiate the fact that tainted currency notes were delivered to the appellant who has accepted the same and I see no reason to discredit the testimony of PW 9. PW 10 and PW 4 read with the evidence of PW 8. To sum-up, for coming to the finding of the guilt for the offence in question firstly, there must be a demand and secondly, there must be acceptance in the sense that the appellant has accepted illegal gratification. The demand by itself is not sufficient to establish the offence. Acceptance is very important and when the tainted currency notes were recovered from the pocket of the shirt of the appellant. It becomes an established fact that the appellant has accepted the tainted money from the complainant. The ratio of the cases State of U.P. v. Zakaullah. (supra) and State of A.P., (supra) also supports the case of the prosecution in the facts and circumstances of this case. There is sufficient legal evidence on the record to establish the fact that the appellant has accepted the illegal gratification on demand from the complainant. PW 1 Sukumar Mukherjee. the then General Manager, Construction, BCCL Koyala Nagar, Dhanbad is the competent authority to accord sanction for the prosecution and he has deposed that he has accorded sanction for the prosecution of the appellant after perusing the police paper. The sanction order is Ext. 1 in this case. I appears that PW 1 after considering all the relevant facts, materials and evidence has accorded sanction for the prosecution of the appellant. Thus, there is no infirmity in the sanction order for the prosecution of the appellant. And last but not the least, nothing has been brought on the record by the appellant to show that failure of justice has, in fact, been occasioned in this case due to any infirmity in the sanction order for the prosecution. The learned Court below has considered the evidence on the record in proper perspective and has rightly come to the finding of the guilt of the appellant and 1 see no illegality in the impugned judgment requiring an interference therein. The sentences awarded to the appellant in the facts and circumstances of this case cannot also be said to be severe.
15. There is no merit in this appeal and it fails. The impugned Judgment of the learned Court below is affirmed and the appeal is dismissed. The bail bond of the appellant is hereby cancelled and he is directed to surrender before the Court below to serve out the sentence, failing which the learned Court below shall take all coercive steps in accordance with law to apprehend the appellant for serving out the sentence.