- (1.) THE Special Judge (SPE/CBI)-I, Ernakulam, convicted and sentenced the appellant under S.161, I.P.C. and under S.5(2) read with S.5(1) (b) of the Prevention of Corruption Act to rigorous imprisonment for two years each with an additional sentence of Rs.5,000 fine for the latter with a default sentence of simple imprisonment for 3 months, with permission to suffer the substantive terms concurrently.
(2.) APPELLANT was the Administrative Officer in the Head Office of F.A.C.T. in charge of purchase P.W.1 was the Divisional Manager of a Company by name 'Logic Systems Pvt Limited' with which the F.A.C.T. placed order for purchase of electric typewriters. The charge is that missing his official position the appellant demanded and received Rs.2,000 as illicit gratification from P.W.1. Defence is that there was no demand or receipt and P.W.1 was only arranging an illegitimate trap to save his employment from which he was facing dismissal and the money was actually thrust into the pant pocket of the appellant without his knowledge or consent. There are certain undisputed facts which throw considerable shadow of doubt in the prosecution story and evidence. Pursuant to tender notification from the F.A.C.T. the Logic Systems submitted tenders on 8-12-1983 for supply of electric typewriters at the rate of Rs.32,700 as seen from folio 158 of Ext.P.26. There was negotiation by which the amount was reduced to Rs.27,370 and made in conformity with the D.G.S.& D. rates. This rate was accepted and orders placed by the appellant with the concurrence of the finance for supply of three numbers. Two were supplied in February, 1984 and one on 23-8-1984 and payments were made. Transactions were thus finally closed. As per rules repeat order could be placed without fresh tender notification within six months at the same rates. When fresh supply became necessary the appellant placed orders for supply of two more numbers, one in March and the other in April,1984. Though the order was placed after the expiry of six months and 5 days it was with the approval of the Finance as admitted by P.W.3. In March, 1985 supply of one number was made an payment was also made. The Finance Director then passed orders keeping the supply of April, 1985 in abeyance pending further directions. P.W.3 informed the appellant by Ext.P.11 dated 15-3-1985 and appellant in turn informed P.W.1 by Ext P.12 dated 18-3-1985. At no point of time till the entire supplies and payments were over and upto 9-5-1985 the appellant made any demand for any illicit gratification or create any difficulties. P.W.1 was aware of these facts and that supply was suspended only by the orders of the Finance Director and the appellant had no hand in it This was admitted by P.Was.1, 2 and 5 and P.W.3 gave evidence that if appellant wanted he was not in a position to create any difficulties by himself. The prosecution case as spoken to by P.W.1 and detailed in Ext.P.4 first information is that on 9-5-1985 P.W.1 approached the appellant to persuade him to have the purchase, but he wanted illicit gratification of Rs.4,000 out of which Rs.2,000 was for the supply made in March, 1985 for which payment was also made without any demand for illicit gratification and Rs.2,000 for the purchase to be made in April. Finally the amount was reduced from Rs.4,000 to Rs.2,000 but appellant wanted payment that day (9-5-1985) itself. P.W.1 promised to make the payment, but went and gave Ext.P.4 information to P.W.10, Inspector of C.B.I. He arranged the trap. P.Ws. 2 and 9 are the trap witnesses. P.W.2 alone went with P.W.1 to the appellant and P.W.9 waited outside. P.Ws.4 and 7 are employees having seat in the room of the appellant The initial version was that P.Ws.4 and 7 were also in the room and they heard P.W.2 being introduced by P.W.1 to the appellant was a typewriter mechanic though in fact he is an employee of the Export Inspector Agency. But in the box P.W.2 disowned the presence of P.Ws. 4 and 7 and hence they also fell in line. The further case is that appellant enquired with P.W.1 whether amount was brought and after getting an affirmative answer he took P.Ws.1 and 2 to the office of the Finance Director where P.W.2 was introduce as the typewriter mechanic. The appellant further found fault with P.W.5 for keeping the order in abeyance and got a reply from P.W.5 to the hearing of P.Ws.1 and 2 also that it was only on account of the orders of the Finance Director in which nobody else could do anything. The prosecution version is that immediately thereafter when P.Ws.1 and 2 and the appellant came out the varanda, P.W.1 gave the amount which was received by the right band by the appellant and after transferring it to the left hand he put it in the left front pocket of his trousers. Defence version is that the amount was put into his pocket without his knowledge and consent and when he found fault with P.W.1 and attempted to take the notes out he was trapped.
(3.) EXT.P.5 is the trap mahazar and EXT.P.6 is the recovery mahazar. Recovery is not disputed. Hands and pocket of the appellant were positive to the tests and the notes recovered were also identical. The questions is only whether the payment was as alleged by the prosecution or the defence. The evidence of P.Ws. 1,2,6,9 and 12 is that the amount was recovered from the pocket whereas the defence version is that the appellant was caught when the amount was in his hand in an attempt to give it back. If P.Ws. 1, 2 ,6, 9 and 12 are believed, the defence version of payment may be improbable. Even if that be the position the demand alleged by the prosecution and the attitude of P.W.1 in having a bargain and making an unwilling payment are improbable in view of the facts stated above. It was argued for the C.B.I, on the strength of the decisions in State of Assam v. Krishna Rao and another, A.I.R.1973 S.C.28: (1972) 3 S.C.C.927 and Mar Singh v. State of Haryana, A.I.R.1973 S.C.910, that when money was recovered from the pocket of the appellant and it is shown to be not his legal remuneration, there is no question of further establishing that the money was consciously received. There cannot be any quarrel with the proposition. But it cannot hold good in all circumstances. Those decisions did not lay down a uniform rule of law that in no case when money which is not the legal remuneration is received from the pocket, no defence explanation, however acceptable it is, could be accepted. Each case must depend upon its facts. xx xx xx xx xx xx xx xx (Paras. 9 to 12 omitted being appreciation of evidence). Lastly it was contended on behalf of the appellant that the prosecution evidence cannot be accepted for the reason that P.Ws. 1, 2 and 9 who are the main witnesses who participated in the trap were tied down by their signature in ExtP.6 recovery mahazar which contained their statements under S.161(3) , Cr.P.C. in violation of the prohibition contained in S.162. But I do not think that there is any merit in that contention. It is true that S.162, Cr.P.C. contains a prohibition against obtaining the signature of witness whose statement is recorded during investigation. The policy underlying the rule is that the trial the witnesses should be free to make statements which they wish to make even if they are in favour of the accused, unhampered by anything which they might have been made to say to the police. The signature may tie them to the statements or at least give them an impression that they are not free to make a different statement. But S.162 does not provide that evidence of witness given in court becomes inadmissible for the mere reason that his statement obtained during investigation was signed by him. The signature does not render the evidence inadmissible. It merely puts the court on caution and may necessitate indepth scrutiny of the evidence, that is all. On that account the evidence cannot be rejected outright. (See State of U.P. v. M.K. Anthony, A.I.R.1985 S.C. 48). ;