S.I.Jafri - (1.) THIS appeal has been preferred by appellant Gauri Shanker hereby impugning his conviction under section 5 (2) of the Prevention of Corruption Act and sentence of 2 1/2 years R. I. By the instant appeal, the appellant also impugns his conviction under section 161 IPC and sentence of two years R. I. recorded by Sri Praduman Kumar, Special Judge Mathura vide his judgment and order dated 16-7-1987 in Special Case No. 3 of 1986.
(2.) BEFORE embarking on the prosecution case, it would be useful to delineate the preliminaries of the case. Appellant Gauri Shanker was ministering as Accounts Clerk in the Canal Department, Mathura from before the occurrence in the instant case. S. K. Gomath, PW 2 being duly appointed Agent of the company M/s. The Indian Cement Pipe Company, Merrut was entrusted with the duties of collecting orders for the Firm viz. the Indian Cement Pipe Company and Ex. ka 3 is a document which testifies to bis appointment by the company as an Agent on 20-12-1983 to perform the aforesaid duties for the Firm. The case of the prosecution is that the aforesaid company had supplied materials to the Canal Department and the payment thereof was being delayed by the Canal Department, Mathura due to the fact that the demand of illegal gratification to the extent of 13% of the total amount due, being demanded by the officers of the Canal Department, was not being met by the Agent. It is further alleged that the Agent S. K. Gomath was under a direction from the Proprietor Indian Cement Pipe Company to part with the amount as illegal gratification to the extent of 1% towards pandering the demand of the Canal Department, Mathura. In the alternative, if the matter is not settled at it, the Agent was directed that those officers who do not relent sans a bigger amount, they may be decoyed and got trapped. In accordance with the directions, S. K. Gomath alongwith Ranvir Singh and Deshraj came to Mathura no 7-4-1984 at about 3.30 p. m. and went to the office of Canal Department at Mathura where he came in contact with Guari Shanker who was the Accounts Clerk in the said Department. Appellant Gauri Shanker demanded illegal gratification to the extent of 13% on the entire sum before releasing the draft in his favour and upon a further discussion, it was agreed that S. K. Gomath would make initial payment of Rs. 950/- which is equivalent to 1% in cash and the remaining 12% shall be paid after the draft is encashed. S. K. Gomath PW 2 walked out of the office stating that he would be coming back shortly after raising the amount of Rs. y50/-. From the office of the Canal Department S. K. Gomath made a beeline to the office of the District Magistrate Mathura where he gave application Ex. ka 4 stating therein that the employees of the Canal Department Mathura were demanding illegal gratification in consideration of releasing the payment which was due to the company aforesaid. Ultimately it was prayed in the said application that those employees who were withholding the payment due to non payment of illegal gratification, be apprehended while accepting the bribe. It was also disclosed in the aforesaid application that the draft for Rs. 96000/- has already been received in the office of the Canal Department from the bank on 31st March 1984 and it was lying in the department undelivered to the company. The said application given by S. K. Gomath was forwarded to the Superintendent of Police Mathura for necessary action. The Supdt. of Police in turn, endorsed the said application to Vijai Shanker Singh, Dy. S. P. Sadabad, Mathura for taking necessary action. Subsequent to it, Vijai Shanker Singh, Dy. S. P. went to his office alongwith S. K. Gomath PW 2 and his two companions Deshraj and Ranvir Singh where he summoned K. P. Singh Yadav, S. I. and others and apprised them of the entire matter. Thereafter, Vijai Raj Singh then recorded the statement of S. K. Gomath with regard to the allegations to the aforesaid effect. Thereafter, S. K. Gomath produced Rs. 900/- of the denomination of 100 (currency notes) and further a note of Rs. 50/- which Sri Vijai Shanker Singh initialled for being delivered to the appellant as illegal gratification. A Fard Ex. ka 5 was also prepared in which number of the currency notes were noted down. Thereafter Vijai Shanker Singh and his partymen left for the office of accused Gauri Shanker in a Car which S. K. Gomath owned while the remaining police personnel named above, drove to the scene of occurrence in the Police Jeep. On reaching the office of Canal Department, Vijai Shanker Singh instructed the Police personnel to keep themselves concealed near the room of appellant Gauri Shanker and that only he and S. K. Gomath and his two companions would gain entry into the office. It was specified that the trap party would barge into the office as soon as he signals them by coughing and signal by coughing would be given as soon as the money passes to the hands of the appellant. Gauri Shanker appellant was on his seat when the party consisting of Vijai Shanker Singh, S. K. Gomath and his two companions approached the appellant. S. K. Gomath offered to deliver the money as promised by him. Gauri Shanker appellant thereafter took in his possession the draft from another employee who was sitting near him and obtained the signatures of S. K. Gomath, in the register in token of receipt of the draft. After obtaining signatures of S. K. Gomath in the register, Gauri Shanker took S. K. Gomath and his two companions alongwith Vijai Shanker Singh Dy. S. P. to the adjoining hall. It was in the aforesaid hall that S. K. Gomath passed the currency notes worth Rs. 950/- to accused Gauri Shanker. As soon as the currency notes worth Rs. 950/- passed to the hands of the appellant, Vijai Shanker Singh, Dy. S. P. caught hold of the hand of the appellant at 4.45 PM and at the same time, he signalled to his men by coughing who rushed to the scene of occurrence and took Gauri Shanker alongwith the aforesaid currency notes in their custody. A fard in token of the recovery made from the appellant, was prepared. The currency notes and the draft were duly sealed and thereafter the appellant was escorted to the Police station Sadar Bazar Mathura where a case was registered against the appellant. Investigation of the case was entrusted to another Dy. S. P. Sri Yadav who after investigation and subsequent to obtaining sanction from the competent Authority for prosecution of the Accounts Clerk Gauri Shanker, submitted charge-sheet in the court. The accused pleaded not guilty to the charge and his case is that of false implication in the case at the instance of S. K. Gomath who had contacted the accused on 6-4-1984 and tried to persuade him to deliver the draft of Rs. 96000/- for onward transmission of the same to the Firm Indian Cement Pipe Company Meerut. It is further setout in his defence by the appellant that that the authority vested in the complainant to transact on behalf of the Firm had been withdrawn and so he was desisting from delivering the draft to the complainant. It is next submitted by the appellant in aid of his defence that neither was he given sum of Rs. 950/- by Sri S. K. Gomath nor was the said amount recovered by Sri Vijai Shanker PW 4 from his possession. To bolster up his defence, the appellant examined Zahir Uddin DW 1 and M. M. Gupta DW 2. The court also examined Lokmani Sharma CW 1 and Virendra Singh CW 2. In support of its case the prosecution has examined in all five witnesses and out of them, K. P. S. Yadav Sub Inspector PW 1, S. K. Gomath PW 2 and Vijai Shanker Singh, PW 4 were examined as ocular witnesses of the occurrence. Out of the aforesaid array of the witnesses, the trial court did not place credence on the testimony of K. P. S. Yadav, SI PW 1, who was also a member of the Raiding party. Hence the conviction now hinges on the testimony of complainant S. K. Gomath and Vijai Shanker Singh, Dy. S. P.
(3.) TO begin with, I take up the testimony of S. K. Gomath for scrutiny. I propose to dwell on those portions of the testimony of the witness which are strictly necessary for the just decision of the case. Dwelling on the preliminary events, he deposed that he was a duly authorised agent of Indian Cement Pipe Company having been appointed as such on 7-4-84 and to testify to his appointment as Agent, Authority letter Ex. ka 3 is on the record. He further deposed that Canal Department Math Branch Bulandshahr owed a sum of Rs. 96000/- to the company against the supply of materials and when the department was approached it was disclosed by Asstt. Engineer, namely, Dhani Ram at Bulandshahr office that in all, an amount to the extent of 13% on the total sum shall be required to facilitate the payment Since the Executive Engineer of Math Branch Bulandshahr used to camp at Mathura, he was directed by the proprietor of the Company to contact the office at Mathura for the sake of payment. It was further deposed by the witness that he had been authorised by the company to give money as illegal gratification to the extent of 1% in consideration of the payment of Rs. 96000/- due to the department. He was accompanied by two persons, namely, Ranvir and Deshraj whom he did not know from before. He also deposed that he had been instructed by the proprietor of the company that the officers of the Department be decoyed and trapped with the aforesaid amount to the extent of 1.%. He alongwith aforesaid two persons arrived at Mathura on 7-4-84 at about 3 or 3.30 P.M. from where he straight away went to the office of the Canal Department. la the office of the department at Mathura, both Executive Engineer and Asstt. Engineer were not forthcoming and hence, the witness contacted the appellant Gauri Shanker. The appellant made a demand to the extent of 13% as illegal gratification as a consideration for releasing the draft in favour of the company and ultimately, it was agreed that initially amount to the extent of 1% as illegal gratification shall be given cash down and the remaining amount to the extent of 12% shall be disbursed after the draft/cheque is encashed. The witness left the office with the assurance that he shall be coming back with the money after a short-while. Thereafter, he contacted the District Magistrate Mathura with an application setting out all the facts with regard to the demand of illegal gratification by the appellant. The aforesaid application of the witness was considered and endorsed by the District Magistrate to the Supdt. of Police. When the aforesaid application was placed before the Supdt. of Police Mathura, he directed Vijai Shanker Singh, Dy. Supdt. of Police to lay trap and decoy the appellant. For the events subsequent to this, I refer to the facts delineated in the preceding part of this judgment. It is also worthwhile to advert to the statement of the witness to the effect that on reaching the seat of the appellant, S. K. Gomath offered to deliver tbe money as a consideration for releasing the draft upon which appellant took the draft in his possession from one of his colleague who was sitting adjacent to his seat, obtained the signature of the witness in a register and headed towards the adjoining room where the transaction took place. I have meticulously traversed on the cross-examination of the witness. The witness denied to have arrived at Mathura on 6-4-1984 preceding the date of occurrence, and also about the altercation having taken place between him and Gauri Shanker on the day preceding the date of occurrence. He also denied the allegation that Vijai Shanker Singh, Dy. Superintendent of Police had threatened the appellant on telephone on 6-4 1984 with dire consequences to the appellant, if the appellant did not deliver the draft to the appellant (?). He also denied that a plot was hatched to falsely implicate the accused in the case as a result of non-delivery of the draft and further that his appointment as Agent had been terminated by the company on 14-3-1984. Further in cross-examination, it was asserted by the witness that the appellant was trapped with bribe money by the Dy. Superintendent of Police in the adjoining small room in his presence. This version of the witness is discrepant with the statement made by him under section 161 CrPC wherein he had stated that the witnesses had been instructed by Vijai Shanker Singh, Dy. Supdt. of Police to follow him on reaching the office of the accused. I advert to the recovery memo Ex. ka 1 which is also signed by S. K. Gomath, in which it is mentioned that all the witnesses including S. K. Gomath, Vijai Shanker Singh had walked upto the seat of the accused and on reaching the seat of the appellant, S. K. Gomath revealed to the appellant that he had brought the money and that he should accept the money and deliver the draft to him. These two statements in contrast of each other clearly go to show that at the initial stage the prosecution case was that the entire party had reached the seat of the accused whereas before the court S. K. Gomath bad deposed that he and Vijai Shanker had gone to the seat of the accused in the big hall and on his telling the accused that he had brought the money, the accused took the draft from another employee and headed towards the adjoining small room followed by him and Vijai Shanker Singh where the bribe money was delivered and the appellant was trapped with the graft money by Vijai Shanker Singh.;