- (1.) S. K. Agarwal, J. Heard learned Counsel for the appellant and learned A. G. A.
(2.) IN this case the appellant was con victed for an offence under Section 5 (2) of the Prevention of Corruption Act. He was sentenced to 2 years' R. I. and was directed to pay a fine of Rs. 500/ -. IN default thereof he was sentenced to undergo three months' simple imprisonment. He was also convicted under Section 161, I. P. C. and sentenced to R. I. for two years. Both the sentences were to run concurrently. The brief facts of the case are that Rajendra Singh Kushwaha an employee of the same department was asked to pay a bribe of Rs. 150/- for protecting him from any recovery against any shortage detected against him in his capacity as Assistant Agriculture Inspector, by the appellant. The allegations are also against the Project Officer, Shri Lal Mani Ram. The allega tion made in the application is that the appellant Bhaiya Lal who was an account ant in the same office is demanding illegal money i. e. Rs. 150/- in collusion with the Project Officer Shri Lal Mani Ram for protecting him from the recovery. This application is Ext. Ka-9. This application was given to District Magistrate, Banda. District Magistrate, Banda directed Addi tional District Magistrate (Finance) to take necessary steps in effecting the arrest of the appellant. The A. D. M. (Finance) called Ram Lakhan Gupta P. W. 8 Sub-Divisional Magistrate, Banda to his office and got papers prepared by him including the statement of Rajendra Singh Kush-waha. After preparation of the papers Shri Ram Lakhan Gupta, S. D. M. , Banda had summoned the Circle Officer, Sadar Shri Om Prakash Kakkar to the office of A. D. M. (Finance ). He was handed over all relevant papers so prepared by him. Com plainant Rajendra Singh Kush-waha was also handed over to this Officer P. W. 5. He came out of the office of A. D. M. (Finance) and proceeded towards the place of inci dent, the Agriculture Office, which is situated at about 100 steps from City Telephone Exchange. He came across other Police personnel including S. H. O. P. S. Kotwali, Shiv Nandan Singh. The en tire Police party that accompanied Circle Officer was in regular Police dress. They accompanied the Circle Officer, Sadar, P. W. 6 abandoning their jeep in front of Telephone Exchange towards the office of the appellant and reached there. They found the appellant sitting on a table and talking to a stranger. The complainant entered into the room and handed over the requisite money i. e. Rs. ISO/-, containing a note of Rs. 100/- bearing No. AA/35 377745 and a note of Rs. 50/- bearing No. 3 DH 355825. According to recovery memo statement of Rajendra Singh before pass ing on the money to the appellant was that you have demanded Rs. 150/- for not af fecting the recovery I have brought that money. Please accept it. Stating so that money was handed over to the appellant. He had kept them in his purse. Immedi ately thereafter, the Police party including P. W. 5 entered the room and affected the arrest and recovery of the impugned notes. Recovery memo is Ext. Ka-6. The appellant was thereafter taken to the Police Station concerned and all the formalities pertaining to sealing of notes, sealing of purse containing notes, etc. and lodging of the F. I. R. were completed at 8. 15 p. m. by P. W. 5. Recovery memo were prepared on the dictation of P. W. 5 by another Sub-in spector Shiv Nandan Singh. The sanction was obtained and the appellant was put to trial. The trial ended into conviction of the appellant as stated above. The prosecution in order to sup port its case has examined two public wit nesses who were taken from the said cross ing in front of Telephone Exchange. They are P. W. 1 Mithlesh Kumar Dwivedi and P. W. 2 Shiv Prasad, P. W. 3 Rajendra Singh Kushwaha is complainant. P. W. 4 Akshay Kumar Singh is the Investigating Officer of the case. P. W. 5 Rishi Ram Sharma is Director, U. P. State Seed Certification Organisation, Lucknow. The sanction order is Ext. Ka-5, Om Prakash Kakkar P. W. 5 as earlier stated conducted raid and arrested the appellant along with the bribe money. P. W. 7 is Munna Lal Katiyar. At that time he was Head Moharir at police station, Kotwali, Banda. He had proved various Exts. pertaining to the registration of the case, check F. I. R. and other papers. P. W. 8 is Ram Lakhan Gupta who was Sub- Divisional Magistrate of the District at the relevant time. He has proved the application given to District Magistrate, Banda by the complainant and the fact that applica tion was transmitted to A. D. M. (Finance) on whose call he had co-ordinated with him in preparing Ext. Ka-2. The order given by him to Circle Officer, Sadar for organising trap is Ext. Ka-8. The order of District Magistrate pertaining to A. D. M. (Finance) is Ext. Ka-9. Ext. Ka-10 is the statement of Rajendra Singh Kushwaha. The notes, which was initialled by him are Ext. 3 and 4. Fard pertaining to these notes is Ext. Ka-11. This is the entire evidence that has been brought on record in support of its case by the prosecution.
(3.) THE appellant has denied the char ges and claimed that he had been involved in this offence by Rajendra Singh Kush waha falsely. His further contention is that he was not dealing with the cases of recovery. It was dealt with by Ram Adhar. He had absolutely no concern with the recovery and could not have helped Rajendra Singh Kushwaha in stalling recoveries from him. In support of this contention he has examined D. W. 1 Ram Adhar Awasthi, a dealing Clerk in the Agriculture Office. He was employed as Junior Clerk. Learned Counsel for the appellant has contended before me that in the ab sence of the correct details of talks that had taken place between the appellant and the complainant it will be unsafe to accept the prosecution case. Two independent witnesses have not supported the prosecution case on this point. There is variance in the statement of P. W. 6 and P. W. 3. These dif ferences go to the root of the fact as to what transpired between Rajendra Singh Kush waha and the appellant before alleged ac ceptance of bribe money by the appellant at the time of payment. In the absence of any proof of the dialogue between the two it will not constitute any offence against the appellant under Section 5 (2) of the Prevention of Corruption Act and Section 161, I. P. C. It is further contended that two public witnesses were pocket witnesses. They had admitted their acquaintance with the S. H. O. Shiv Nandan Singh. They had also accepted that they were on visit ing terms with him. These witnesses admit tedly were called by S. H. O. It is further contended that no signature of the appel lant was procured by the Raiding Officer P. W. 6 on the recovery memo. Copy of the recovery memo was not given to him. Ac cording to the learned Counsel the prosecution has failed to establish its case against the appellant of accepting the money for frustrating recovery. It is not proved from the evidence on record beyond reasonable doubt. In order to ap preciate this contention of learned Coun sel for the appellant we have to examine the evidence of these witnesses.;