Dave, J. - (1.) THIS is an appeal by accused Krishna Kumar against the judgment of the learned Special Judge, Kotah, dated 3rd of October, 1960, whereby he has been convicted under sec. 161 I. P. C. and sentenced to 9 months' R. I. and a fine of Rs. 200/- or 6 months' R. I. in default of its payment.
(2.) IT would be proper to first set out a few facts which are not in dispute. The appellant was a clerk in the court of the Second Class Magistrate (Tehsildar) Ladpura (Kotah ). One Kalyan Das, who has appeared as P. W. 1 in the present case, was a driver of truck No. RJR 1451. He was prosecuted under sec. 34 of the Police Act in the above-mentioned court of the Second Class Magistrate (Tehsildar) Ladpura. On 16th February, 1960, when the said case came for hearing before the Magistrate, P. W. 1 Kalyan Das was absent and therefore the court ordered a warrant to be issued against him. A non-bailable warrant (Ex. P. 7) was accordingly issued for his arrest on 17th February, 1960. P. W. 1 came to know that a warrant was issued against him and therefore on 29th February, 1960, he presented an application before the said Magistrate to the effect that he had appeared in the court on 12. 9. 59, but the case was not called out, that thereafter he had gone outside Kotah and on his return he came to know about the warrant, that he had himself appeared in the court and therefore his warrant should be cancelled. On that application, the Magistrate passed an order for the cancellation of the warrant, if P. W. 1 were to furnish personal bound for his appearance in the court for Rs. 100/-together with one surety in the like amount. P. W. 1 accordingly furnished his bond together with one surety on the same day and it was accepted by the Magistrate. The prosecution story was that after P. W. 1 Kalyan Das had furnished the bail-bond, he requested the appellant to intimate the Station House Officer not to arrest him in pursuance of the warrant. Thereupon, the appellant told him that he would write the order, if P. W. 1 would pay him Rs. 10/. P. W. 1 is said to have implored the appellant not to make such a demand, since he was a poor man, but he refused to accede to his request without obtaining that amount. P. W. 1 then left the court and talked about this matter to his friends, who advised him to make a report to the Anti-Corruption Department. On 3rd March, 1960, when P. W. 1 found that no information was sent to the police about the cancellation of the warrant issued against him, he approached the Deputy Superintendent of Police, Anti-Corruption Department, Kotah, with an application which is marked Ex. P. 1. On receiving this application, Shri Mitthanlal (P. W. 6) Deputy Superintendent of Police, Anti-Corruption Department, called two Motbirs through constable Devi Singh. Devisingh brought P. W. 2 Chanan Das and P. W. 3 Kishanlal. In their presence P. W. 6 put his initials on a currency note of Rs. 10/- (No. B/60 455540) which was produced by P. W. 1. After putting his initials, P. W. 6 returned that note to P. W. 1 to be handed over to the appellant on demand. He prepared a memo Ex. P. 3. P. W. 1 was then asked to approach the appellant and P. Ws. 2 and 3 were directed to follow him and watch whatever happened before them. They were also directed that in case the appellant accepted the money, they should light a cigarette (Bidi) and the lighting of the Bidi was to serve as a signal for the police officers. The story proceeds that P. Ws. 1, 2 and 3 then went to the court of the Second Class Magistrate. P. W. 1 entered the room in which the appellant was sitting while P. Ws. 2 and 3 remained in the verandah and kept on watching P. W. 1 and the appellant without being noticed by him. It is said that when P. W. 1 approached the appellant, he again demanded Rs. 10/- for issuing the order about cancellation of the warrant. P. W. 1 thereupon handed over the currency note which was initialled by P. W. 6. The appellant accepted that note and put it in the pocket of his bush-shirt on the right-hand side. This is said to have been noticed by P. Ws. 2 and 3. P. W. 2 then lighted his Bidi and when P. W. 6 got that signal, he went to the appellant and asked him to produce the currency note which he had accepted as bribe. According to the prosecution, the appellant took out the note and handed it over to P. W. 6. That currency note is marked as Article 1. P. W. 6 thereafter prepared a memo Ex. P. 2 about the recovery of Art. 1. He also found on the table of the appellant file No. 229 of 1959 relating to the prosecuting of P. W. 1 under sec, 34 of the Police Act. He arrested the appellant but released him on bail immediately. It is said that after the appellant was released, he gave to P. W. 4 Anar Singh a letter addressed to the Station House Officer, Kotwali, Kotah, for cancellation of the warrant. It was alleged that this letter was issued from the court of the Second Class Magistrate on 3rd March, 1960, and was latter on recovered from the Kotwali Kotah, during the course of investigation. After completing the investigation, the appellant was prosecuted in the court of the Special Judge, Kotah for offences under sec. 161 I. P. C. and sec. 5 (1) (d) read with sec. 5 (2) of the Prevention of Corruption Act, 1947. The prosecution examined 6 witnesses in the trial court. The appellant denied the demand of bribe from P. W. 1. He also denied its acceptance and the recovery of the currency note Article 1 from his pocket. His version was that he had not even noticed the presence of P. W. 1 in his room on 3. 3. 60. His attention was drawn when P. Ws. 1, 2, 6 and others entered his office room. According to him, the Deputy Superintendent of Police had searched his pocket and only one diary and other currency notes of Rs. 15/- were found in the pocket. Thereafter, Chanan Das (P. W. 2) picked up a note from his table saying that this was that note. Thereafter, the Deputy Superintendent of Police returned the diary and the notes belonging to the appellant while he seized the note pointed out by P. W. 2. He was there taken to the room in which the Magistrate used to hold his court and his bush-shirt was seized from his person. His plea was that P. W. 1 had quarrelled with him on 29th February, 1960, and he was under a wrong impression that the appellant was responsible for issuing a non-bailable warrant against him. It was in order to take vengeance against the appellant that P. W. 1 had made a false report against him and the police helped him in fabricating this case. In support of his defence, he examined three witnesses. D. W. 1 Brahmnath was a revenue clerk of the same Tehsil. D. W. 2 Laxman Prasad was reader of the Tehsildar, while D. W. 3 Brahmanand was a clerk of the one Vakil Shri Poonamchand. The version put forward by D. Ws. 1 & 2 was that they were present in the same room in which the appellant was sitting on 3. 3. 60 and that Article 1 was not recovered from the pocket of the appellant. D. W. 3 was also examined to prove that Article 1 was surreptitiously planted on the appellant's table by somebody and that it was pointed out by P. W. 2. The defence version was not believed by the trial court and, relying upon the prosecution story, the appellant was convicted under sec. 161 I. P. C. and sentenced as mentioned above. As regards the offence under sec. 5 (i) (d) read with sec. 5 (2) of the Prevention of Corruption Act, 1947, it was observed by the learned Judge that since that offence was of the same nature, he considered it proper to convict the appellant only under sec. 161 I. P. C. It has been urged by learned counsel for the appellant that the sanction given by the Collector and District Magistrate, Kotah, for the prosecution of his client was not valid inasmuch as he had mentioned 3rd February, 1960, as the date of occurrence in Ex. P8 and thus he had not applied his mind before sanctioning the prosecution of the appellant. It is conceded by learned Assistant Government Advocate that the date given in Ex. P8 is wrong, but it is urged that the mistake had crept in when the order was typed out, that there was no such offence committed on 3. 2. 60 and the objection raised by learned counsel for the appellant is only technical. It is also pointed out that the Collector and District Magistrate had given his due consideration before sanctioning the appellant's prosecution as is evidenced by the statement of P. W. 6 and that a detailed order passed by him also shows that he had given his careful thought before signing Ex. P. 8. Before entering into the question whether the sanction given by the Collector and District Magistrate, Kotah, was valid or not, it may be observed that it is not contested that Shri S. P. Singh Bhandari, who was Collector and District Magistrate, Kotah, on 17th May, 1960, was the proper sanctioning authority. It may be pointed out that when the appellant was examined by the court on 7. 7. 60, it was admitted by him that his appointing authority was Collector Kotah and that the Collector had sanctioned his prosecution. I have gone through the order (Ex. P8) whereby the sanction was given and find that it narrates the detailed occurrence, which according to the prosecution took place on 3. 3. 60. It is true that Ex. P. 8 refers to 3. 2. 60 instead of the correct date 3. 3. 60 as the date of occurrence, but it is obvious that the wrong month was looted in the said order on account of a purely typing error. It is nobody's case if anything relating to this occurrence had taken place on 3. 2. 60. 3rd Feb. , 1960, was not even a date for hearing of case No. 229 pending against P. W. 1. It is not denied even by the accused that it was on 3. 3. 60that P. Ws. 1, 2, 3 and 6 had come to his room in the office and it was on that date that Art. 1 was seized from his table. Thus, it is clear that the wrong month mentioned in Ex. P8 is a purely typing error and, in my opinion, the sanction given by the Collector and District Magistrate, Kotah, does not become invalid on account of this mistake. The perusal of the order shows that all the facts which have been alleged by the prosecution and which are said to have taken place on 3. 3. 60 were brought to the notice of the sanctioning authority and it was after due consideration of the matter placed before him that the Collector had sanctioned the appellant's prosecution. It has been urged by appellant's learned counsel that the Collector seems to have signed the order mechanically; otherwise he should have atonce noticed the error pointed out above. In my opinion, this argument is not correct. Such mistakes do occur not infrequently and simply because it was not noticed by the officer it cannot be presumed that he had signed the order mechanically. All that can be said is, that the mistake escaped the notice of the officer before he signed the order. It cannot be said if the appellant has been prejudiced in any manner on account of the said mistake. , because he was never in doubt if the allegation made against him related to some other incident which had taken place on 3. 2. 60. In fact this mistake does not seem to have been noticed even by the appellant by the time he was examined under sec. 342 Cr. P. C. It was only at the time of arguments that this error was pointed out to the learned special Judge and he has very rightly remarked that it was only a typing error. P. W. 6 Shri Mitthanlal has stated that he had placed all the papers relating to the investigation of the case personally before the Collector and that the Collector had then given the sanction contained in Ex. P8 and signed that order in his presence. The sanction was not given by the Collector sitting at some place distant from Kotah, but at Kotah itself. The appellant was an employee of his own department and therefore I am not prepared to believe that he would sanction his prosecution mechanically. Looking to all these circumstances the objection raised by the appellant's learned counsel is only technical and not substantial. A retrial on account of such an error which is nothing but a printer's devil can only lead to harassment of the accused and witnesses and cannot be conducive to justice. I agree with the trial court that the sanction given by the Collector and District Magistrate was a valid sanction and therefore there is no force in the argument raised by the appellant's learned counsel. The next objection raised by the appellant's learned counsel is that the prosecution evidence about the acceptance of Article 1 by the appellant and its recovery from his possession is discrepant and unreliable and that the trial court has committed an error in accepting that evidence and discarding the defence evidence. It is pointed out by learned counsel that while P. W. 1 Kalyan Das and P. W. 6 Shri Mitthanlal have stated that the currency note (Article 1) was recovered from the right-hand pocket of the appellant's bush-shirt, P. W. 2 Chanan Das and P. W. 3 Kishanlal have deposed that it was recovered from the left-hand pocket. It is also pointed out that there are discrepancies between the statements of P. Ws. 1,2 and 3 with regard to the position in which the appellant is said to be sitting at the time of occurrence. It is also urged that P. Ws. 1, 2 & 3 have knowingly given false statements to the effect that D. W. 1 Brahmnath, D. W. 2 Laxman Prasad, or P. W. 4 Anar Singh were not present in the room at the time of occurrence. It is pointed out that P. W. 4 Anar Singh himself has admitted that he and D. Ws. 1 and 2 were also present in the room. I have given due consideration to these arguments and, in my opinion, the discrepancies pointed out by learned counsel for the appellant are not material. Such discrepancies are observed in the majority of cases and most of them are due to the fact that the witnesses are examined long after the date of occurrence. It may be observed that in the recovery mem.) Ex. P2 it was clearly noted that the signed currency note (Article 1) was produced by the appellant himself from his right-hand pocket of the bush-shirt. P. Ws. 1 & 6 have also given this version. P. Ws. 2 & 3 have also supported P. Ws. 1 and 6 by saying that Article 1 was in the pocket of the appellant's bush-shirt. In cross-examination they have no doubt stated that the pocket was of the left-hand side, while in fact they should have said that it was on the right-hand side. These witnesses were not belying the recovery memo knowingly. It is obvious that since they were examined on 8. 8. 60 and 9. 8. 60 i. e. , about five months after the occurrence, their memory faded and therefore they could not be precise whether it was from the left-hand side pocket or the right-hand side pocket of the bush-shirt that Article 1 was recovered. There was nothing particular about the left-hand side pocket and therefore, in my opinion, the discrepancy is not at all material. Similarly, there is no force in the contention to the sitting position of the appellant inside his office room. P. W. 1 had no doubt stated that the appellant was sitting on the right-hand side with his back towards the room which used to be occupied by the Tehsildar, while P. W. 2 has stated that he was facing the front door. This difference in their observation is also due to lapse of time between the date of occurrence and the date when they were examined. There is no doubt about the fact that all the three witnesses were present and out of them P. W. 1 had gone inside the appellant's room while P. Ws. 2 & 3 had remained outside in the verandah. Their presence is corroborated even by the statement of P. W. 4 Anar Singh. Even the appellant in his statement under sec. 342 Cr. P. C. has admitted that he had noticed P. Ws. 1, 2 and 3. The main questions for determination are : - (1) Whether the appellant had accepted Article 1 as a bribe and, (2) Whether it was recovered from the pocket of his bush-shirt. About these points P. W. 1 is definite. He has stated that when he went to the appellant again on 3. 3. 60, he told him that he should issue the order for cancellation of the warranty since the police wanted to arrest him. Thereupon, the appellant asked him if he had brought Rs. 10/- for his labour (Mehantana ). P. W. 1 replied in the affirmative and handed over the note (Article 1) to him and the appellant then put it in his pocket. He is also definite that this note was recovered from the same pocket when P. W. 6 arrived. P. Ws. 2 and 3 are also definite that they had seen from the verandah that appellant had put the note in his pocket. P. W. 2 further says that after he had seen the appellant pocketing the note, he lighted his Bidi and when that signal was received by the Deputy Superintendent of Police, he came to the appellant's room and recovered the currency note from his person. To the same effect is the statement of P. W. 6. Now if P. W. 2 had not seen the appellant putting the note in his pocket, he could not possibly give a signal to the Deputy Superintendent of Police and P. W. 6 could not come to the office room of the appellant. It has been urged by appellant's learned counsel that P. W. 1 had Concocted a false case against his client, because he was inimical to him. I do not see any force in this argument. P. W. 1 has been cross-examined at great length and nothing has been brought out to show if he bore any grudge against the appellant prior to 29. 2. 60. On 29. 2. 60, he had no doubt requested the appellant to send information to the police about the cancellation of his warrant, and when the appellant did not accede to his request immediately, he could feel aggrieved. I am, however, not prepared to believe that simply because the appellant did not issue the order immediately, P. W. 1 could go to the length of making false report against him to the effect that he was demanding bribe, if the appellant had not actually made that demand from him. It is clear that he did not make any such report on 29. 2. 60 or on the following two days. When he found that no order was issued even by the 2nd of March, 1960, that he made the report Ex. P1 and stated that the appellant had demanded bribe from him and the order was not being-issued for that reason. It has been proved by the statement of P. W. 4 Anar Singh that the order was in fact not issued by the 3rd of March, 1960. Under these circumstances, it cannot be said that P. W. 1 had made the report only out of spite or enmity. P. Ws. 2 & 3 are independent witnesses. They had also no axe to grind against the appellant. Similarly, P. W. 6 is the Deputy Superintendent of Police. He also had no grudge against: the appellant and it cannot be easily believed that he would go to the extent of fabricating a false case against the appellant just to please P. W. 1. It may be pointed out that the appellant has given no satisfactory explanation as to why he did not write out the order immediately to the Station House Officer, Kotwali, Kotah, for cancellation of the warrant issued against P. W. 1, after the latter had furnished his personal bond and surety to the satisfaction of the presiding officer. So long as such an order was not issued, there was an apprehension of the arrest of P. W. 1 by the police. It cannot be denied that such an order should have been issued immediately after the personal bond and surety bond were furnished. It is significant that in the letter Ex. P. 5 the appellant had mentioned 1. 3. 60 as the date on which the order was issued and yet he did not give any good reason why it could not be sent on that date. His signatures on the same order bear the date 2. 3. 60. It was stated by him that he had given that order ion 2. 3. 60 to P. W. 4, but P. W. 4 is quite definite that this letter was given to him by the appellant on 3. 3. 60 at 12 in the noon, i. e. after he was released on bail. It is thus clear that either the appellant knowingly ante-dated this order after the recovery of the currency note in order to create evidence in his own favour or even after signing it on 2. 3. 60 he knowingly withheld it in the hope of receiving illegal gratification from P. W. 1 by the 3rd of March, 1960. It is also noteworthy that this order was signed by the appellant himself. There is no explanation why he did not place it before the presiding officer, who was the proper person to sign such an order. These circumstances go to support the prosecution story very strongly and, in my opinion, it is proved by the prosecution evidence beyond any manner of doubt that the appellant had received Article 1 as illegal gratification from P. W. 1 and it was recovered from the pocket of his bush-shirt. As regards the defence evidence, D. W. 1 Brahmnath and D. W. 2 Laxman Prasad are colleagues of the appellant and the perusal of their statements shows that they had tried to oblige him and extricate him from his difficult position. D. W. 1 says that when P. W. 1 came to the office and told the appellant why he had not communicated the orders about the cancellation of his warrant, the appellant replied that he had sent a letter to the Kotwali and he should find it out there. It is clear that the appellant could not give such a reply when he had not given that order even to P. W. 4 Anar Singh. If the appellant were honest, he should have shown the order to P. W. 1 and told him that he was sending it forthwith. D. W, 1 further says that the note was picked up from the table of the appellant by one of the employees of the Anti-Corruption Department. According to the appellant, the note was picked up by P. W. Chanan Das. Chanan Das was not an employee of the Anti-Corruption Department and thus the statement of D. W. 1 is obviously wrong. The witness goes to the extent of saying that on 29. 2. 60 P. W. 1 had told the appellant that he was nursing grievenance against him and that he would see him (Tumeh dekh lunga ). It is noteworthy that even the accused has not given this statement and the witness has gone a step further in order to oblige him. D. W. 2, on the other hand, says that when Kalyan Das (P. W. 1) came to the appellant on 3. 3. 60 and requested him to send the order for cancellation of the warrant, the appellant replied that he should come next day, because the Tehsildar was on leave. Now, it is clear that if this reply was given by the appellant, he had not written Ex. P. 5 by that time or atleast he had not signed it, because if he had already signed and passed it on to P. W. 4 Anar Singh, he could not possibly give such a reply. It is thus clear that this witness has given a statement which is not in accordance with the plea taken by the appellant. The third defence witness is a clerk of Vakil Shri Poonamchand. He says that he had seen P. W. 1 quarrelling with the appellant on the day of occurrence, that he had once gone out of the room and again entered therein. According to him, the officers of the Anti-Corruption Department then followed into the footsteps of P. W. 1. It is clear that he has given a version which is totally different from the one given by the aforesaid two defence witnesses. If P. W. 1 had quarrelled with the appellant, the appellant's first re-action would have been to complain about this attitude on the part of P. W. 1 to the Deputy Superintendent of Police. All the three defence witnesses have not been believed by the trial court and rightly too. It does not seem necessary to repeat other arguments which have been given by the trial court for discarding the defence evidence. It is very doubtful if these witnesses were present in the room when P. W. 1 had a talk with the appellant and when he handed over Article 1 to him. P. W. 1 is definite that they were not there. P. W. 4 has not denied their presence because they were not on leave. It is clear from the statement of P. W. 4 that the Tehsildar had not come to the court on the day of occurrence since he was on leave. It is therefore not unlikely that D. Ws. 1 & 2 might have gone elsewhere, or busy otherwise, taking advantage of the officer's absence. Even if it be assumed for the sake of argument that they were there, it is certain that they have not come out with truth. On the contrary, they have tried to shield the appellant partly by suppressio veri and partly by suggestio falsi and the trial court has rightly disbelieved their testimony. From the prosecution evidence direct and circumstantial it is established that the appellant received the currency note (Article 1) as bribe and his conviction under sec. 161 I. P. C. is quite correct. The trial court has already given him a lenient sentence and there is no room for further reduction.
(3.) THERE is no force in this appeal and it is hereby dismissed. .;