HARISH CHAND KHURANA v. STATE THR. CBI/ACB NEW DELHI

Judgment

1. Vide the instant Appeal, appellant has challenged the judgment dated

25.11.2004, whereby he was held guilty for the offences punishable under Section 7, 13(2) read with Section 13 (1)(d) of Prevention of Corruption Act and convicted accordingly.

2. Also challenged the order on sentence dated 29.12.2004 vide which he has been sentenced to undergo RI for a period of 02 years and to pay a fine of Rs.10,000/- for the offences punishable Under Section 7 of the Prevention of Corruption Act.

3. He is further sentenced to undergo RI for 03 years and to pay a fine of Crl.A.953/2004 Rs.10,000/- for the offences punishable under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act.

4. Ld. Trial Court has directed that both the substantive sentences shall run concurrently and period of detention already undergone during investigation / trial of the case if any, shall be set off under Section 428 Cr.P.C.

5. The case in brief is that on 17.10.1994, Complainant Ashok Kapoor, Director, M/s. Acon Construction India Pvt. Ltd. submitted a quotation for construction of dust proof Air-conditioned Building Complex at IARI, Pusa along with other pre-qualified Firm, which was invited by Rashtriya Pariyojana, Nirman Nigam Ltd. for the above said construction work.

6. M/s. Acon Construction Pvt. Ltd. was also a pre-qualified firm by RPNN Ltd. The petitioner was functioning as Sr. Executive Engineer cum Unit Incharge, Kirti Nagar, during the year 1994.

7. On 17.10.1994, the tenders were opened at 3 PM by the Tender Committee headed by the petitioner as Chairman of the Tender Committee in presence of all the tenderers. The tender of M/s. Acon Construction India Ltd. was found lowest and it‟s tendered amount was Rs.1,19,99,560/-.

8. On 18.10.1994, when Sh. Ashok Kapoor, Director of the said Firm contacted the petitioner and enquired about his tender, then he asked him to meet in the evening at 7 PM in the United Coffee House at Connaught Circus. When they met as per pre-fixed programme, petitioner demanded illegal gratification @ 8% of the tender amount, out of which he was to pay @2% before award of the contract and 6% during execution of work from Crl.A.953/2004 Sh. Ashok Kapoor. Petitioner clearly asked him that if he was interested that the work should be awarded to him, he had to pay the demanded bribe. Sh. Kapoor was also told that he should pay Rs.20,000/- as token money.

9. On 19.10.1994, Sh. Ashok Kapoor submitted a written complaint to SP CBI, alleging therein the demand of bribe amount of Rs.20,000/- to be paid to the petitioner for award of the above-said contract. He also requested to SP, CBI for taking legal action against Sh. H.C. Khurana, Petitioner.

10. During the course of investigation, Sh. S.K. Peshin, DSP, CBI led a trap on 19.10.1994, after completing all the legal formalities in the presence of the independent witnesses namely, Sh. Ram Kanwar, Sh. Om Prakash and other CBI officials at Unit Office of R.P.N.N Limited, Kirti Nagar, New Delhi. In presence of shadow witness, Sh. Ram Kanwar, petitioner demanded and accepted a bribe of Rs.20,000/- from Sh. Ashok Kapoor, complainant and on passing of pre-fixed signal by Sh. Ram Kanwar, appellant was apprehended by Sh. S.K. Peshin, DSP and other trap team members.

11. In presence of independent witness, the above named DSP after

disclosing his identity, challenged the appellant that he had accepted a sum of Rs.20,000/- as illegal gratification from complainant on which appellant remained silent. The search taken by Sh. Om Prakash and other independent witnesses led to the recovery of Rs.20,000/- in the form of 200 GC notes in the denomination of Rs.100/- each and on comparison the numbers of the GC notes tallied with those numbers mentioned in the Annexure A of the handing over memo. The washes of the drawer of the table of the appellant, Crl.A.953/2004 the plastic cover, the drawing kept in his briefcase, left hand fingers and right hand fingers were taken separately in the colourless solution of Sodium Carbonate and the solution turned into pink colour which were preserved in separate bottles and sealed. All the washes were sent to CFSL for chemical analysis and expert opinion shows positive results.

12. During investigation, other concerned witnesses have been examined and documents were collected which allegedly proved that appellant demanded and accepted illegal gratification of Rs.20,000/- on 19.10.1994 from Sh. Ashok Kapoor for award of the work of construction of dust proof air-conditioned Phytotron Building Complex at IARI, Pusa, hence a case under Section 7 & 13(2) read with Section 13(1)(d) of Prevention of Corruption Act was registered against the appellant and necessary sanction for prosecution also obtained.

13. Vide order dated 26.10.1999, Charges were framed against the appellant for the offences punishable under Section 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, to which he pleaded not guilty and claimed trial.

14. To prove its case, prosecution has examined 7 witnesses in all.

15. Statement under Section 313 Cr.P.C. of petitioner has been recorded to enable him to explain the evidence appearing against him. The appellant examined one witness Sh. Dinesh Bansal, in his defence.

16. Complainant Ashok Kapoor (PW2) deposed that in October, 1994, he was Director of M/s. Acon Construction India Pvt. Ltd. On 17.10.1994, his company submitted a tender for construction of Phytotron Complex for Crl.A.953/2004 IARI, in response to the tender notice issued by NPCC, Govt. of India Enterprise. Vide letter Ex.PW2/A, he requested RPNN Ltd. IARI, Pusa, for issuing tender documents. The tender form Ex.PW2/B was submitted by his Company for executing the work as desired by RPNN with the tender amount of Rs.1,19,93,590/-. This work was allotted to him as his tender was lowest. Appellant was the Unit Officer of RPNN Ltd. at that time. In respect of the complaint Ex.PW2/C, he stated that same bears his signatures at point A, but the language in the complaint was got dictated by Sh. Sharma, DSP, CBI by calling him a few days after the date of trap. Above named Sh. Sharma told him to give one complaint in writing for which dictation was given by him.

17. As the complainant was not supporting the case of the prosecution, he has been cross-examined by ld. Sr. PP for CBI. The complainant denied that his statement was recorded by DSP, Sh. C.S. Sharma on 26.10.1994. He also denied that on 18.10.1994, he contacted the appellant at his residence on phone to know about the fate of his tender and then they decided to meet at 7 PM at United Coffee House, Connaught Place, New Delhi. He has also denied that during that meeting at the Coffee House, appellant demanded 8% of the tender amount, out of which 2% was to be paid before award of the contract and remaining 6% during execution of work. He has also denied that due to his contract work going on at Bareilly, where he has spent huge amount, he showed his inability to pay 2% of the tender amount and therefore, the appellant demanded Rs.20,000/- token money as bribe. He also denied the suggestion that on 19.10.1994, when he contacted the appellant on phone, he repeated the demand and also told him that in case of non payment of the bribe, the contract would not be awarded to him. He Crl.A.953/2004 also denied the suggestion that as he did not want to pay the bribe, so, he visited the office of CBI on 19.10.1994, and contacted Sh. S.K. Peshin, through Inspector A.K. Mishra and lodged a complaint for taking legal action against the appellant for demanding Rs.20,000/-. He further denied that complaint Ex.PW2/C is the same which he lodged with CBI on

19.10.1994, however, he has admitted that the complaint has been written on his letterhead and bears his signature, but the contents have been denied by him.

18. The complainant has also admitted that he had gone to CBI office without trap money and was directed by Mr. Peshin to bring money i.e. Rs.20,000/-, if he wanted legal action in the matter. He has admitted that trap money of Rs.20,000/- was brought by him from his house, but denied that it was withdrawn from the Bank. He also admitted that he brought this money to CBI Office for giving the same to appellant. The complainant could not recollect about arranging of two independent witnesses by CBI and he being introduced to those witnesses. He also could not recollect whether the number of GC notes of Rs.20,000/- produced by him before CBI team were recorded in Annexure Ex.PW1/A, but he has admitted his signature on the Annexure.

19. Complainant (PW2) has, further, admitted that GC notes were treated with powder but denied about the demonstration being given. He has admitted that powder treated notes were given back to him with direction to give the same to appellant or to any other person on direction or put the same at some place, where he direct. He has admitted his signatures in pre- trap proceedings memo Ex.PW1/B. Crl.A.953/2004

20. It is further deposed that from CBI Office, they proceeded to Kirti Nagar and after reaching there, he went to the Office of appellant. He denied that Sh. Ram Kanwar was with him as shadow witnesses. He stated that said Ram Kanwar was with Mr. Peshin and he visited the office of appellant alone. He has also admitted that appellant was not available in his room at that time and he waited for about 10-15 minutes in his office. When appellant did not turn up he came out and asked someone to call appellant. Thereafter, appellant came and they both entered his office room again. He has denied the suggestion that shadow witness Ram Kanwar also entered the office of appellant along with him and he introduced the shadow witness as his Accountant. He also denied the suggestion that in presence of shadow witness, he requested the appellant to reduce the amount as his standard was lowest, but appellant replied that the demand was reasonable.

21. Complainant Ashok Kapoor (PW2) further deposed that on direction of the appellant, he kept the amount of Rs.20,000/- in the right side drawer of his table and came out of his office. After coming out of his office, he gave a signal to CBI, who in turn rushed to appellants office and took possession of Rs.20,000/- lying in the drawer of his table. He denied to the suggestion that while he was giving Rs.20,000/- to appellant, he told him with gesture to send the shadow witness Sh. Ram Kanwar outside the office room and accordingly, he directed him to go. He has denied the suggestion that thereafter, he handed over Rs.20,000/- to appellant, who after accepting the same through his left hand and after transferring the same to his right hand opened the middle drawer of the table through left hand and kept the amount in question in the said drawer. The complainant has denied the suggestion that signal was given by shadow witness however, he has Crl.A.953/2004 admitted that on receipt of signal given by him, the trap team rushed inside the room of the appellant and took the money from the right side drawer of the table of appellant. He also stated that before making the recovery, Sh. Peshin, disclosed his identity and challenged the appellant that he had taken money, which the appellant denied. He has denied having informed the trap team about the conversation that took place between him and the appellant or that it was confirmed by shadow witness Mr. Ram Kanwar. He has also denied that on direction Sh. Om Prakash, the recovery witness had taken search of left side middle drawer of table and found it empty, it containing the impression of the size of GC notes on the dust particles of that drawer. The complainant stated that after the recovery of bribe amount from the drawer he came out of the room and the trap team started the post- trap proceedings.

22. The PW-2 complainant has not supported the case of the prosecution on the aspect of taking washes of the hands of the appellant, table drawer, polythene, portion of drawing and briefcase. The complainant has admitted his signatures on recovery memo Ex.PW1/C, but stated that he put the signatures in the CBI Office without going through the contents of this memo. Regarding the GC notes Ex.P1 to P200, this witness has stated that after seeing the same, he cannot identify, but possibility cannot be ruled out as this can be the same notes. He has admitted Ex.PW2/C is in his own hand, but denied the suggestion that he had introduced new story to save the appellant that the complaint was dictated later on by DSP Mr. Sharma. In cross-examination, he has admitted that he took pre-mature retirement and appellant had taken the charge from him. He has also admitted that he was posted as Superintendent Engineer in RPNN Ltd. and appellant was Senior Crl.A.953/2004 Executive Engineer. He has also admitted that he had visiting terms with appellant as they were working in the same organization. He has further admitted that normally 15 days time is consumed in processing the tender before award of work.

23. PW-2, complainant has not admitted or denied the suggestion that CBI officials made the appellant to count for recovery of GC notes. He stated that there was no briefcase with appellant or on his table. However, he has admitted the suggestion that when appellant came to his office on being called by complainant, he was accompanied by 2-3 persons, who remained present there throughout.

24. Shadow Witness Ram Kanwar (PW1) deposed to the effect that on

19.10.1994, Vigilance Department of FCI deputed him for CBI duty and in response to those directions, he reported to the Trap Officer in CBI Office at around 1 PM. He noticed that Sh. Om Prakash AG-II of his Department already present there. They were introduced to the complainant, who was also present there. The complaint was read over to them by CBI Officer. Trap Officer showed them two packets of Rs.100/- denomination each produced by the complainant. Numbers of those GC notes were recorded on papers (3 sheets) Ex.PW1/A, which he signed at Point A on all the pages. One chemical powder was applied on those GC notes and demonstration was given to explain the purpose of applying the said powder on the GC notes. One CBI Officer touched the said powder treated GC notes and dipped his fingers in plain glass of water and on his doing so, the solution turned pink which was thrown away.

25. Thereafter, on completing all the pre-trap formalities, they all left CBI Crl.A.953/2004 Office at around 3 PM and reached Kirti Nagar at a spot, where some construction work was going on. After getting down from the vehicles, he and complainant were sent ahead to contact the appellant. The complainant took him to the Office of appellant located in a tin shed, but he was not present there. Thereafter, complainant called the appellant through someone and when he arrived there, he took them to his Office where conversation took place between the complainant and appellant about the transaction of money “paise ka len den”. He did not remember the exact details of conversation, but recollect that complainant told the appellant “yeh paise kuch jyada hain, aap thora kam kariye” to which he did not give proper reply and said “job bhi hai yo thik hai”. Thereafter, complainant told appellant “main bees hazar rupaiye as token money laya hoon, wo aap le lijiye”. Thereafter some signal was exchanged between the complainant and the appellant, on which complainant asked him to go out of the room and wait outside in the shedded place. After coming out of the office of the appellant, he stood in shade near one wall. After some time, complainant came out and told him “kaam ho gaya” and on this he gave signal to the trap party.

26. As PW-1 shadow witness also did not support the case of the prosecution, therefore, he was cross-examined by ld. Sr. PP for CBI. The witness failed to recollect whether the trap money of Rs.20,000/- was produced by complainant in his presence or whether his statement under Section 161 Cr.P.C. was recorded by DSP Sh. S.L. Sharma. He could not recollect whether demonstration was given in the CBI by applying powder on the trap money or some water like solution of Sodium Carbonate was prepared. He also could not recollect the time of leaving CBI Office with Crl.A.953/2004 other members of raiding party or the discussion, if any, between the complainant and the appellant in his office that the complainant had brought the token money of Rs.20,000/- as per the discussion held in the Coffee House on 18.10.1994. He did not say if appellant signalled the complainant with his eyes to send him out. He has denied the suggestion that he stood in front of window of office of appellant and he could see the transaction through that.

27. However, this witness admitted that wash of both the hands of appellant were taken separately and the solution was turned pink. The said solutions were transferred in a separate glass bottles and were duly sealed. He admitted his signatures on the cloth wrappers at the labels of the said bottles. He also admitted that recovered GC notes, bottles of washes, drawer of the table of appellant and his briefcase with its contents were seized vide recovery memo Ex.PW1/C and appellant was also arrested at the spot. He has identified the GC notes Ex.P-1 to P-200, bottles Ex.P-201 to P-205, Clothes wrappers Ex.P-206 and P-210, drawer of table Ex.P-211 and briefcase Ex.P-212, file cover Ex.P213 on which BHEL was printed and the drawing / plan Ex.P-214 to be the same which were seized by CBI.

28. In this cross-examination, this witness stated that the trap team left the CBI Office at 1.30 to 2 PM. The vehicles were stopped at a distance of about one furlong from the office of the appellant. From his position inner portion of the office of the appellant was not visible. He did not hear the conversation between the complainant and the appellant. He has admitted the suggestion to be correct that sometime after entering the Office of the appellant, the complainant came and told him the work has been done. He Crl.A.953/2004 has further admitted the suggestion to be correct that thereafter he gave signal to the trap team members, who were standing at some distance from him. He has also stated that he did not know who recovered the tainted money from the drawer of the table of the appellant and further stated that actually the money was recovered from the briefcase either by CBI Officer or by Sh. Om Prakash, who was assigned the duty to recover the money. He denied to the suggestion that immediately after apprehension of the appellant, he was taken away to CBI Office. Washes of drawer etc. were also taken at the spot and appellant was taken to CBI Office after collecting the washes.

29. Recovery witness Om Prakash (PW3) deposed that on 19.10.1994, on the direction of Assistant Vigilance Officer, he reached CBI Office and report to DSP Sh. Peshin. Complainant was already present there and accordingly, he was introduced. Money was lying on the table which was used for trap.

30. As this witness was not fully supporting the case of prosecution, this witness has also been cross-examined at length by ld. Sr. PP for CBI. However, the witness could not recollect whether complainant produced Rs.20,000/- to be used for trap money. He has admitted that number of GC notes were recorded in Ex.PW1/A, which bears his signature. He also admitted that some chemical was applied on GC notes, but could not recollect whether any demonstration was given or not for explaining the purpose of treating those GC notes with chemical powder. He has admitted that Inspector A.K. Kapoor touched the GC notes with his left hand fingers and touched his fingers in freshly prepared solution. Crl.A.953/2004

31. Further, he has admitted that handing over memo Ex.PW1/B was prepared, which was signed by him. He admitted that the trap team left the CBI Office and reached the office at Kirti Nagar at 3 PM. Complainant and Sh. Ram Kanwar went inside the office, whereas the remaining members of the trap had position outside at a distance of about 100 Yds. The witness could not recollect about giving of signal by shadow witness, but admitted that he along with Sh. S.K. Peshin and other trap members reached the Office of appellant, where he was sitting. He also stated that he had recovered the notes from the drawer itself. After taking out of the money from the drawer, it was washed in the solution of Sodium Carbonate and that solution turned pink and that it was transferred into clean bottle and sealed. He signed on the cloth wrapper as well as the label. He could not recollect about taking washes of the file cover, briefcase, etc. He also could not recollect about taking washes of both hands of appellant. Regarding recovery of memo, he has stated that it was not prepared at the spot. After seeing the recovery memo Ex.PW1/C, witness identified his signatures at point C but could not tell when and where he signed the same.

32. During cross-examination by ld. Defence Counsel, he stated that he asked the CBI officials to allow him to read the recovery memo Ex.PW1/C, but they replied that they do not have much time and there was no need to read it. They just asked him to put his signatures. He has admitted the suggestion of the ld. Defence Counsel that appellant was asked to count the GC notes before washes of his hands were taken. He also admitted that he did not tally the numbers of the recovered GC notes. He has admitted the suggestions of ld. Defence Counsel that he has not recovered from the money from the briefcase. Crl.A.953/2004

33. This witness was also re-examined by the prosecution and during his re-examination, witness has stated that his earlier statement before the court on 17.04.2011 that he along with another panch witness tallied the number of recovered GC notes was correct and what he has stated that on that day (28.04.2004) was not correct.

34. Sh. N.K. Prasad (PW4), the Chemical Analyst from CFSL deposed that on 27.10.1994, five sealed bottles sealed with the seal of CBI were received in the Office of CFSL and were bearing Mark-A, B, C, RHW and LHW. The contents of these bottles were got chemically analysed by him under his supervision and on analysis the contents of all the five bottles gave positive test for phenolphthalein and Sodium Carbonate. He proved his report Ex.PW2/A.

35. Sh. S.K. Gupta (PW5), Private Secretary deposed that Sh. K.C. Aggarwal, Sanctioning Authority in this Case expired and he was examined to identify the signature of Sanctioning Authority which he has identified on the sanction order Ex.PW5/A.

36. During cross-examination, he was questioned about the documents which might have been perused by Sanctioning Authority before according the sanction about which this witness has claimed ignorance. He has stated that he can only identify the signature of Sh. K.C. Aggarwal on the sanction order and beyond that he cannot say anything.

37. Sh. S.K. Peshin (PW7), Trap Laying Officer has supported the case fully and proved all the recoveries and documents. After completion of Trap Proceedings further proceedings was entrusted to C.L. Sharma, DSP, who Crl.A.953/2004 has expired.

38. The statement of appellant was recorded under Section 313 Cr.P.C. wherein he admitted that on 18.10.1994, he was working as Senior Executive Engineer-cum-Unit Incharge at Kirti Nagar, B-Type, Industrial Sheds in RPNN Ltd.

39. He further stated that regarding submission of tenders by complainant, he has stated that it is a matter of record. In respect of the lodging of complaint by Sh. Ashok Kapoor in CBI Office alleging demand of money by him, appellant denied that he demanded any money. He has also stated that he had no knowledge about the pre-trap proceedings. He also denied that when the complainant contacted him along with shadow witness in his office, the complainant told him that money demanded was too much and he should reduce the demand to which he did not give proper response and stated that whatever had been demanded was ready. He also denied that when the complainant informed him that he had brought Rs.20,000/- as token money and he should accept the same, he gave a signal to the complainant to send shadow witness outside and thereafter shadow witness left and after that he accepted Rs.20,000/- from the complainant kept the same in the drawer of the office table. He further denied that after the complainant came out of his room, signals were given and the trap team entered his room and challenged him.

40. He also denied that first his table drawer was searched and thereafter tainted money was recovered from his briefcase. Regarding recovery memo Ex.PW1/C also, he has stated that he did not know about the same. In respect of the CFSL Report and sanction order, he has pleaded ignorance. Crl.A.953/2004 Further he has stated that he was innocent and falsely implicated in this case.

41. He further stated that he and the complainant were working in the same Department and he took over the charge from the complainant on

25.02.1994 at PETS Unit of that Department. In the month of June, 1994, a pre-qualification notice was circulated in the leading Newspaper for the works of Construction of Phytotron Building Complex at Pusa by appellant on behalf of his Department. He has further stated that tender Sh. Kapoor / complainant was the lowest and he could not have stopped award of works to him as the award of work in question was not in his power. This fact was also known to the complainant. The complainant has falsely implicated him and he never demanded or accepted any illegal gratification from the complainant at any time and no bribe money has been recovered from him or at his instance.

42. The appellant produced one defence witness, Sh. Dinesh Bansal as DW1. He stated that on 19.10.1994, he was working as Assistant Executive Engineer at NPCC Ltd. and posted at Kirti Nagar Project. On 19.10.1994 at about 3 to 4 PM, while he was present at the site along with the appellant and one Mr. S.S. Bedi, peon came to inform that Mr. Ashok Kapoor / complainant had come to meet the appellant. Since Mr. Kapoor had been working in NPCC earlier, they all left the site to meet him and found Mr. Kapoor alone sitting in the room of the appellant. He stated that he was just passing from there and thought it fit to meet the appellant. There was some casual talk and they had tea. After that Mr. Kapoor made enquiry about his tender and appellant informed him that since his tender was lowest, work would be awarded to him within 8-10 days. It was not in his competency to Crl.A.953/2004 award the work, same was given to the Head Office. Thereafter, 3-4 persons from CBI came and took out the money from the drawer of the table. They also enquired from appellant whether he had accepted bribe from Mr. Kapoor, to which he replied that as the tender of Mr. Kapoor was lowest, there was no reason for him to ask for the money and he has falsely impleaded him in this case.

43. Mr. K.T. S. Tulsi, Sr. Adv. appearing on behalf of the appellant has submitted that PW1 Ram Kanwar (Shadow Witness), PW3 Om Prakash (Recovery Witness) and PW2 Ashok Kapoor (Complainant) have not supported the case of the prosecution. He further submits that conviction of the petitioner is solely based on the deposition of PW7 S.P. Peshin (Addl. S.P.), who being the Investigating Officer was interested in the success of the case.

44. He further submits that essential ingredients of the offence being demand, acceptance and recovery of the amount of illegal gratification are not satisfied in the instant case. Section 20 of the Prevention of Corruption Act raises a rebuttable presumption where the public servant accepts gratification other than legal remuneration. Mere recovery of the money from the drawer of the table or briefcase of the accused person is no conclusive evidence of the offence. It is the duty of the court to separate the grain from the chaff and find out the truth.

45. Ld. Counsel for the petitioner submits that there are material contradictions in the deposition of the material witnesses examined by the prosecution. Crl.A.953/2004

46. Complainant Ashok Kapoor (PW2) during his examination-in-chief deposed that he has seen Ex.PW2/C, which bears his signature at Point A, but the contents state in the complaint were not as given by him, as the language was dictated by one Mr. Sharma, DSP of CBI and it was got written from him after the incident. When he was called to the CBI Office, after the gap of few days from the day of trap, Sh. Sharma, told him that he would give one complaint in the writing for which he gave him dictation.

47. This witness further deposed that CBI officers made him sign on large numbers of papers which he had not read and only put his signatures on the asking of CBI Officer. Further deposed that PW1 Ram Kanwar was not with him when he had gone to the Office of the appellant. Further deposed that he had seen recovery memo Ex.PW1/C which bears his signature at point-B on all the pages but he put the signature in the CBI Office without going through the contents of the recovery memo. He further deposed that it is correct that appellant had not demanded any money from him and no money was recovered from the possession of the appellant or at his pointing out.

48. Shadow Witness Ram Kanwar (PW1) deposed in his examination in chief that appellant was not in his office when he reached there. Thereafter, complainant met someone there and through him he called the appellant. During his cross-examination by the ld. PP, this witness denied the suggestion that from his position he actually saw the transaction of passing money by the Complainant to the appellant.

49. Further deposed that on receipt of signal remaining members of the trap party rushed to the spot where he and complainant were standing. They Crl.A.953/2004 enquired from them where the appellant was. On this, complainant told CBI Officers, that appellant was sitting in his office in the tin shed. On this, the entire trap team rushed into the office of the appellant and he was apprehended by the CBI Officers from his wrists. The trap officer challenged the appellant was having accepted a bribe of Rs.20,000/- from the complainant. On this the appellant protested that they had not taken any bribe. Further deposed that on receiving the direction from the Trap Officer, Om Prakash (Panch witness) started to search the tainted money. He first searched the drawer of the table of the appellant, but the money was not found there. One briefcase was lying in the office of the appellant, he then searched the said briefcase and from there the tainted money Rs.20,000/- was recovered.

50. During cross-examination by ld. Defence Counsel, this witness deposed that from his position, inner portion of the office of appellant was not visible. He has not heard the conversation, which took place between the complainant and the appellant. He deposed that he did not recover the tainted money. He did not remember who recovered the tainted money from the briefcase. This witness neither denied nor admitted the suggestion that GC notes were not recovered from the briefcase of the appellant.

51. Mr. Tulsi, Ld. Counsel for the appellant submitted that evidence of the shadow witness is of higher credibility, as it is the duty of the shadow witness to observe the whole incident and depose to the same effect.

52. Ld. Counsel further submitted that PW3 Recovery witness also declared as hostile by the prosecution. There are material contradictions in the testimony of this witness as well. Crl.A.953/2004

53. PW3, during his cross-examination by ld. PP for CBI stated that he did not remember, whether Ram Kumar came outside the room of the appellant or not. He had not seen Ram Kumar giving any signal. This witness further deposed that he had not seen any briefcase lying on the rack. No recovery memo was prepared at the spot after the trap.

54. During his cross-examination by the ld. Defence Counsel, this witness deposed that he had requested the CBI that he would be allowed to read the recovery memo Ex.PW1/C, but the CBI Officers had told that they did not have much of time and there was no need for reading it. They just told him to put his signatures. He was not allowed by the CBI Officials to read Ex.PW1/C. He did not know as to when Ex.PW1/C or Ex.PW3/A prepared and by whom. This witness admitted that appellant was asked to count the tainted GC notes before his hand washes were taken. Appellant was protesting and shouting on being caught by the CBI that why he was being caught and what was his fault. This witness further deposed that he had not recovered any bribe money from the briefcase of the appellant. In fact, there was no briefcase.

55. PW7/IO of the case during his cross-examination by ld. Defence Counsel denied the suggestion that GC notes were in the drawer. He admitted that Page 2 of Ex.PW1/A is in different Ink & different handwriting than the rest of the pages. Due to paucity of time 2 officers were asked to write down the numbers of GC notes. This witness further admitted that Ex.PW3/A, Ex.PW1/C and Ex.PW1/B are not in his handwriting. Labels on hand washes were not got signed from the appellant. This witness neither denied nor admitted whether the complainant has put Crl.A.953/2004 the money in the drawer of the appellant in his absence as he was not present at that time.

56. Mr. Tulsi, learned Senior Advocate, submitted the CBI Inspectors, who had caught hold of the appellant, being J.S. Emamual and the Mr. A.K. Kapoor, were not produced as witnesses by the prosecution for the reasons best known to them.

57. Ld. Counsel for the appellant further submits that the prosecution has failed to prove essential ingredients of the offence being demand, acceptance and recovery of the amount of illegal gratification as there are material contradictions which are as under:-.. ON DEMAND It is alleged in the FIR that the appellant called the complainant at United Coffee House and there he demanded 8% of the tender amount as bribe. Out of which Rs.20,000/- were to be paid as advance. However, Complainant PW2 during his cross-examination by ld. PP denied the suggestion that appellant demanded bribe from him and 2% amount of the tender amount comes to Rs.2,40,000/- while 8% of the tender amount comes to Rs.9,60,000/-. ON ACCEPTANCE It is the case of the prosecution as alleged in the charge sheet, money was taken by the appellant from his left hand and then transferred it to the right hand and with the left hand the appellant Crl.A.953/2004 opened the drawer and kept the money there. However, as per the recovery memo, no money was recovered by the recovery witness from the drawer of the table of the appellant, and there was an impression of dust particles about the size of the notes. Shadow Witness (PW1) in his deposition has stated that the appellant was not present in his office when the complainant along with him reached his Office. Complainant (PW2) also deposed the same facts and stated that he called the appellant through someone. The said person is neither named nor produced as a witness by the prosecution. ON RECOVERY There is no dispute with regard to the recovery of money. As per PW1 / shadow witness & PW7/IO of the case, money was recovered from the brief case of the petitioner, whereas as per the deposition of PW2 / Complainant and PW3/Recovery Witness money was recovered from the drawer.

58. Ld. Counsel for appellant submits that on the score of the recovery of money the conviction of the appellant is liable to be set aside and he is entitled to be acquitted from all the charges.

59. He further submitted that Section 20 of the Prevention of Corruption Act raises a rebuttable presumption that where the public servant accepts gratification other than legal remuneration, mere recovery of the money from the appellant is no conclusive evidence of the offence. Crl.A.953/2004

60. To strengthen his arguments, ld. Counsel for the appellant has relied upon Banarsi Dass v. State of Haryana 2010 (4) SCC 450 wherein it is held as under:- “In the case of M.K. Harshan v. State of Kerala 1996 (11) SCC 720, this Court in somewhat similar circumstances, where the tainted money was kept in the drawer of the accused who denied the same and said that it was put in the drawer without his knowledge, held as under: ....It is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary. In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification. Unfortunately, on this aspect in the present case we have no other evidence except that of PW-1. Since PW-1's evidence suffers from infirmities, we sought to find some corroboration but in vain. There is no other witness or any other circumstance which supports the evidence of PW-1 that this tainted money as a bribe was put in the drawer, as directed by the accused. Unless we are satisfied on this aspect, it is difficult to hold that the accused tacitly accepted the illegal gratification or obtained the same within the meaning of Section 5(1)(d) of the Act, particularly when the version of the accused appears to be probable.

12. Reliance on behalf of the appellant was placed upon the judgment of this Court in the case of C.M. Girish Babu (supra) where in the facts of the case the Court took the view that mere recovery of money from the accused by itself is not enough in absence of substantive evidence for demand and acceptance. The Court held that there was no voluntary acceptance of the money knowing it to be a bribe and giving Crl.A.953/2004 advantage to the accused of the evidence on record, the Court in para 18 and 20 of the judgment held as under:

18. In Suraj Mal v. State (Delhi Admn.) 1979 (4) SCC 725 this Court took the view that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. 20. A three-Judge Bench in M. Narsinga Rao v. State of A.P. 2001 (1) SCC 691 : SCC (Cri) 258 while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification, observed: (SCC p. 700, para 24)

24. ...we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length. (Vide Madhukar Bhaskarrao Joshi v. State of Maharashtra 2000 (8) SCC 571).The following statement made by us in the said decision would be the answer to the aforesaid contention raised by the learned Counsel: (Madhukar case, SCC p. 577, para 12) `12. The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So the word "gratification" need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions Crl.A.953/2004 adjacent to each other like "gratification or any valuable thing". If acceptance of any valuable thing can help to draw the presumption that it was for doing or accepted as motive or reward forbearing the word to do an official act, "gratification" must be treated in the context to mean any payment for giving satisfaction to the public servant who received it.

13. In fact, the above principle is no way derivative but is a reiteration of the principle enunciated by this Court in Suraj Mal case (supra), where the Court had held that mere recovery by itself cannot prove the charge of prosecution against the accused in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money. Reference can also be made to the judgment of this Court in Sita Ram v. State of Rajasthan 1975 (2) SCC 227, where similar view was taken. 14. The case of C.M. Girish Babu (supra) was registered under the Prevention of Corruption Act, 1988, Section 7of which is in pari materia with Section 5 of the Prevention of Corruption Act, 1947. Section 20 of the 1988 Act raises a rebuttable presumption where the public servant accepts gratification other than legal remuneration, which presumption is absent in the 1947 Act. Despite this, the Court followed the principle that mere recovery of tainted money divorced from the circumstances under which it is paid would not be sufficient to convict the accused despite presumption and, in fact, acquitted the accused in that case.”

61. In case of State of Maharashtra vs. Dnyaneshwari Laxman Rao 2009 (15) SCC 200 it is held as under:- “Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence, viz., demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is laid down Crl.A.953/2004 in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-`-vis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt.

17. Indisputably, the complainant took with him two panch witnesses. One of them Ashok Waghade was a witness in respect of the alleged demand of illegal gratification on the part of the respondent. He having died during pendency of the matter before the learned Special Judge, no other independent witness was available to prove the prosecution case in that behalf. The second panch witness was not a witness of demand. Despite the said fact, the prosecution sought to prove the demand purported to have made by the respondent through him. It is of some significance to notice that although by the said process PW-1 did not support the accused, he was declared hostile and permission to cross-examine him was sought for by the prosecution.”

62. In Suraj Mal Vs. State 1979 (4) SCC 725 it is held as under:- “The defence of the appellant was that he was falsely implicated and nothing was recovered from him nor did he make any demand for bribe. The Special Judge on the basis of the evidence led before the Court held that the evidence was extremely shaky and unconvincing and was not sufficient to convict Ram Narain but nevertheless the trial court convicted the appellant on that very evidence. In upholding the conviction of the appellant the High Court completely overlooked the fact that the very evidence on which the conviction of the appellant was based had been rejected with respect to the same transaction and thus if one integral part of the story given by witnesses was not believable, then the entire case failed. In other words, the Position was that while P.Ws. 6,8 and 9 were disbelieved both in regard to the factum of Crl.A.953/2004 indivisible. Moreover, payment of the bribe and the recovery of the money. Regarding Ram Narain, the very same witnesses were believed so far as the appellant was concerned. It is well-settled that where witnesses make two inconsistent statements in their evidence either at one state or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses. For these reasons, therefore, when the Special Judge disbelieved the evidence of P Ws. 6 8 and 9 in regard to the complicity of Ram Narain, It was not open to him to have convicted the appellant on the same evidence with respect to the appellant, which suffered from same infirmities for which the said evidence was disbelieved regarding the complicity of Ram Narain. If the witnesses drew no distinction in the examination in chief regarding acceptance of bribe by Ram Narain and by the appellant and the witnesses were to be disbelieved with respect to one, they could cot be believed with respect to the other. In other words, the evidence of witnesses against Ram Narain and the appellant was inseparable and is an additional circumstance which throws a serious doubt on the complicity of the appellant Suraj Mai, Although, in his statement of page 71 of the paper-book, the complaisant has clearly stated that all the three accused including the appellant had met him and demanded bribe of Rs. 2000/, the appellant having demanded Rs. 100/-, yet in the report which he lodged before Mr. Katoch, there is no mention of the fact that the appellant at any time demanded any tribe at all. Even the presence of the appellant at the time when the demand was made by Devender Singh has not been mentioned, in this document. This report, undoubtedly contains reference to a demand having been made by the Section H.O. Devender Singh on behalf of the appellant, but there is no statement in this report that any demand was made by Suraj Mal directly from the complainant. If, in fact, the appellant would have demanded bribe from the complainant just on the previous evening, it is not understandable why this fact was not mentioned in the report which the complainant submitted to the D.S P. Katoch and which is the F.I R. constituting the evidence. We have perused the statements of P.W. 6, 8 and 9 and we find that while in the examination in chief they have tried to implicate all the three accused persons equally without any distinction in their cross examination, they have tried to save Ram Narain and made out a different story so far as Ram Narain is Crl.A.953/2004 concerned and have even gone to the extent of stating that he did not demand any money and that he refused to accept the money which was offered to him. In this state of the evidence, we feel that the High Court was not right in convicting the appellant. Mr. Lalit appearing for the State vehemently submitted that whatever be the nature of the evidence in the case, it is an established fact that money had been recovered from the bushirt of the appellant and that by itself is sufficient for the conviction of the accused. In our opinion, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. Moreover, the appellant in his statement under Section 342 has denied the recovery of the mosey and has stated that he had been falsely implicated. The High Court was wrong in holding that the appellant had admitted either the payment of money or recovery of the same as this fact is specifically denied by the appellant in his statement Under Section 342 Cr. PC Thus mere recovery by itself cannot prove the charge of the prosecution against the appellant, in the absence of any evidence to prove payment of bribe or to show that the appellant voluntarily accepted the money. For these reasons, therefore, we are satisfied that the prosecution has not been able to prove the case against the appellant beyond reasonable doubt. We, therefore, allow the appeal set aside the conviction and sentences passed against the appellant. The appellant will now be discharged from his bail bonds.” In Smt. Meena vs. State of Maharashtra 2000 (5) SCC 21, it has been

63. held as under:- “We have bestowed our careful thought to the submissions made on either side, in the light of the evidence on record. We are of the view that neither the quality of the materials produced nor their proper evaluation could, in this case, be held sufficient to convince or satisfy the judicial conscience of any adjudicating Authority to record a verdict of guilt, on such slender evidence. Indisputably, the currency note in question was not recovered from the person or from the table drawer, but when the trap party arrived was found only on the pad on the table and seized from that place only. The question is as to whether the appellant accepted it and placed it on the table or that the currency note fell on the pad on the table in the process of the appellant refusing to receive the same by pushing away the hands of PW-1 and the Crl.A.953/2004 currency, when attempted to be thrust into her hands. PW-2, one of the panch witnesses, who accompanied PW-1, as a shadow witness, when he tried to give the bribe, did not support the prosecution case. He has been treated hostile and his evidence eschewed from consideration by the courts below. The lady Constable, Victoria, another shadow witness, who first arrived on the spot after the signal was given by PW- 1, was not examined at the trial. Law has always favoured the presence and importance of a shadow witness in the trap party, not only to facilitate such witness to see but also overhear what happens and how it happens also. In this case, the role of Victoria was to enter first and hold the hands of the accused immediately after the acceptance of the bribe amount and she was stated to have done that, as planned. For reasons best known, such a vital and important witness has been withheld by the prosecution, from being examined. Jagdish Bokade, who scribed the application dated 13.8.1986 for getting copies and who admittedly was all alongwith PW-1 and gave even the idea of lodging a complaint with the Anti-Corruption Bureau, has also been withheld from being examined. The other person, who was present at the place of occurrence though cited initially as witness, was not examined by the prosecution but later was got examined as DW-1 and evidence of this person completely belies the prosecution story. The corroboration essential in a case like this for what actually transpired at the time of the alleged occurrence and acceptance of bribe is very much wanting in this case. Even the other panch witness, PW-5, categorically admitted that even as the Inspector of Police, PW- 6, arrived, the appellant gave the same version that PW-1 tried to force into her hands the currency note which she turned down by pushing it away, and his evidence also does not lend credibility to the case of the prosecution. The contradictory version of PW-1 of the very incident when earlier examined in departmental proceedings renders his testimony in this case untrustworthy. PW-3, the Head Copyist, seems to be the brain behind all these and that PW-1 as well as Jagdish Bokade appear to be working as a group in this affair and despite the blunt denial by PW-3, his closeness to PW-1 and Jagdish Bokade stand well substantiated. All these relevant aspects of the case seem to have been completely overlooked by the courts below” In case of Prem Raj Meena Vs. CBI 2011 (1) Crimes 730, it has been

64. held as under: Crl.A.953/2004 “15. Now the crucial question which needs determination in this appeal is whether or not the prosecution has been able to establish either the demand or acceptance of illegal gratification by the appellant? The material witnesses to prove demand and acceptance are PW1 Puran Chand Nirala (complainant) and PW3 Surender Kumar Singh, shadow witness. Both of them have turned hostile and they have not supported the prosecution story regarding demand or acceptance of bribe by the appellant at the time of trap proceedings. PW1 Puran Chand Nirala (complainant) has stated that on reaching the office of the appellant along with the trap team, he along with PW3 Surender Kumar Singh went to the office of the appellant P.R. Meena, but Surender Kumar Singh was not allowed to enter the office. He also stated that P.R. Meena was busy on telephone and he gestured him to sit. Thereafter, he kept the amount of ‘. 1,100/- in the brief case of P.R. Meena lying by the side of his chair. After that, he came out of the room and gave signal to the trap team. He also stated that before coming out of the room, he shook hand with the appellant. In the cross-examination, he denied the suggestion of learned APP that the appellant himself kept the money in the brief case after accepting bribe from him. He also denied the suggestion that the appellant P.R. Meena asked him as to how much money he has brought to which he answered that he had brought ‘ 1,100/- and thereafter on his demand, he handed over the tainted money to the appellant who accepted it and kept it in his brief case. PW3 Surender Kumar Singh in his examination-in-chief stated that at the time of the transaction, he was in the adjacent room with a dark glass partition through which he could see the shadows of the persons sitting in the room of the appellant. He stated that the contractor Puran Chand Nirala after having some talks with the appellant came out of the room after shaking hands with him and he gave signal to the trap team. In the cross-examination, this witness denied that from his position in the adjacent room, he could hear the conversation between the complainant and the appellant or see the transaction also. He denied the suggestion that he heard the appellant asking the complainant whether he has brought the money and the complainant responded by asking that he had brought ‘.1,100/- as demanded. Thereafter, the appellant extended his right hand with which he accepted the tainted money and kept it in his brief case. The aforesaid testimony of PW1 and PW3, in my view, is grossly insufficient to prove either the demand of illegal gratification or acceptance of the same. As regards the testimony of the Investigating Officer, admittedly he was not present at the time of transaction. Therefore, his testimony is of no help to the CBI for the reason that he had reached at the spot only after the completion of transaction. The money admittedly was recovered from the brief case and according to the complainant, Crl.A.953/2004 he had kept that money in the brief case without any demand from the appellant. Thus, it cannot be said with conviction that the money reached in the brief case at the instance of the appellant, as such it cannot be said that the appellant obtained or accepted the tainted money from the complainant.

16. Learned counsel for the CBI has contended that, in any case, PW1 Puran Chand Nirala has stated in his testimony that he himself had gone to the CBI office to lodge the complaint and the complaint Crl.A. No.963/2008 Page 12 of 16 Ex.PW1/A was written in his hand. He has also stated that the contents of the complaint are correct. From this, learned prosecutor has urged this court to infer that prosecution has been able to establish the initial demand.

17. I am not impressed with the argument for the reason that according to PW1 Puran Chand Nirala, his bill was pending clearance in the office of PWD. On the relevant day, he had approached the appellant for settling his bill and in the PWD office he met one person from the department, who advised him to pay commission to the appellant and only thereafter the bill would be settled. Therefore, on the next day, he went to the CBI office and lodged the complaint. If this version is true, then initial demand was not made by the appellant, but the complainant was advised by someone else to pay commission to the appellant. Therefore, it is not surprising that in his complaint Ex.PW1/A, the complainant had made allegation of initial demand against the appellant. It is pertinent to note that in the examination-in- chief, Puran Chand NIrala(PW1) has also stated that he had written the complaint in the CBI office on the advice and asking of CBI officials. Therefore, slight distortion of facts to make specific allegation against the appellant is a unique possibility. Otherwise also, complaint Ex.PW1/A is the FIR which set the investigating machinery into motion. It is well settled that the FIR is not a substantive piece of evidence and it can only be used for corroborating or contradicting the testimony of its makers. Therefore, in absence of substantive evidence of demand or acceptance of bribe by the appellant, the contents of the FIR cannot be substituted as proof for demand and acceptance of illegal gratification. In my aforesaid view I find support from the Crl.A.953/2004