MANOJ KUMAR GARG,J. - (1.) These two criminal appeals arise out of a common judgment, therefore, are heard together and disposed of by this unison judgment.
(2.) By way of impugned judgment dated 25.02.2016, the learned Sessions Judge (Prevention of Corruption Act), Sriganganagar (for short, hereinafter referred to as 'learned trial Court') convicted the appellants for offence under Section 13(1)(d)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Section 120-B of Indian Penal Code (IPC) in Sessions Case No. 24/2010 and sentenced them as under :- OFFENCE PUNISHMENT Section 13(1)(d)(e) of P.C. Act Two years R.I. and fine of Rs.50,000/-, in default of payment of fine to further undergo six months R.I. Section 13(2) of P.C. Act Two years R.I. and fine of Rs.50,000/- in default of payment of fine to further undergo six months R.I. Section 120-B IPC Two years R.I. and fine of Rs.50,000/-in default of payment of fine to further undergo six months R.I. All the sentences were ordered to run concurrently. Succinctly stated, the facts apposite are that a FIR was lodged at ACB, Hanumangarh by PW/9 Hema Ram stating therein that he received a secret information to the effect that Accounts Officer Shri B.N. Verma and Assistant Accounts Officer Narinder Mohan Sharma who were posted at Border Road Task Force (BRTF), Graph, Hanumangarh have obtained commission money of Rs. 3 lacs for clearance of bill of Rs.3 crores and they will be leaving by Kalka Express train. After receiving this information, he informed the higher authorities telephonically but did not get any search warrant. The complainant called two independent witnesses namely, Bachhu Singh, Assistant Secretary and Jagdish Rai, LDC working in Krishi Upaj Mandi Samiti, Hanumangarh who consented to participate in the proceeding. The complainant alongwith his team reached Hanumangarh Junction Railway station where one vehicle belonging to BRTF graph No. 04B 14301 reached Hanumangarh Junction Railway station and two persons alighted. The police team followed the persons and stopped them. Upon inquiry, both the persons told their names as Baikunth Nath and Narinder Mohan. On personal search of accused Baikunth Nath, a sum of Rs. 1,51,770/- was recovered and on personal search of Narinder Mohan, a sum of Rs. 1,02,630/- was recovered. Accused Baikunth Nath explained that about 3-4 months back he received arrears of salary Rs. 80,000/-, Rs. 3600/- is of DA arrear and remaining amount is commission money received from the contractors. Upon seeking explanation from accused Narinder Mohan, he told that about two months back, he received a sum of Rs. 55,000/- as arrears of salary, out of which the remaining amount of Rs. 30,000/- is being carried by him and rest of amount of Rs.72,000/- he has received as commission.
(3.) The police registered the FIR and investigation commenced. Upon completion of investigation, Anti Corruption Bureau, submitted charge-sheet against both the accused appellants before the court of Sessions Judge, Prevention of Corruption Act, Sriganganagnar where charges of the case were framed. The accused appellants denied the charges. Upon denial to all the charges, the learned trial Court put them on trial. The prosecution in support of charges, examined 13 witnesses. Besides ocular evidence, various documents were produced by the prosecution, which were exhibited. In defence, accused-appellants examined DW/1 Narinder Mohan and DW/2 Baikunth Nath and few documents were exhibited. After conclusion of the evidence, learned trial Court heard final arguments and convicted the appellants for offences with sentences mentioned above. Mr. Rakesh Verma, learned counsel for the appellants strenuously urged that the learned trial Court has failed to appreciate and scrutinize the evidence available on record in correct perspective. Learned counsel contended that FIR in this case was lodged on 29.04.2009 i.e. after 27 days of the occurrence. He argued that no person deposed that they gave commission amount to the appellants. IN the BRTF, tenders were called by the concerned office of the Commandant from various contractors for different jobs and after completion of work the contractors submitted their bills to the concerned Commandant. The appellants worked under the office of Commandant, BRTF, however, the Commandant has not at all been interrogated by the prosecution to prove the fact of payment of commission. No departmental enquiry was initiated against the appellants for any irregularity. It is further argued that no contractor claimed that the appellants demanded money from them. Thus in absence of proof about demand of bribe and acceptance, his conviction for offence under Prevention of Corruption Act is not sustainable. Learned counsel further argued that as per prosecution, both the appellants obtained money for passing the bills of contractors but those bills have not been produced by the prosecution to prove that those bills were cleared under the signature of the appellants or not. Mere recovery of currency notes, not being tainted money is not sufficient to hold appellants guilty of offence under Prevention of Corruption Act. It is vehemently argued that the so called independent witnesses PW/1 Jagdish Rai and PW/3 Bachu Singh who were present at the time of personal search of appellants, have not deposed and corroborated the story put forth by the prosecution and they have been declared hostile. Therefore, learned trial Court has committed grave and serious error in convicting the appellants on the strength of testimony of hostile prosecution witnesses. PW/5 O.P. Verma in his statement has categorically mentioned that no contractor is in direct contact with the Account Officer and in absence of any contractor offering money by way of bribe to the present appellants, the presumption under Section 20 of the Act is not at all applicable in the present case. Therefore, the conviction of the appellants for offence of Prevention of Corruption Act and criminal conspiracy cannot be sustained. In support of contentions, learned counsel for the appellants relied on decision of Hon'ble Apex Court in the case of Amarjeet Kaur Vs. State of Punjab : 2013(4) RCR (Criminal) 551, P. Satynarayana Murthy Vs. Dist. Inspector of Police : 2015(4) RCR (Criminal) 350, Khaleel Ahmed Vs. State of Karnataka : 2016(1) RCR (Criminal) 366, C. Sukumaran Vs. State of kerala : 2015(2) RCR (Criminal) 159, M.r. Purushotham Vs. State of Karnataka : 2014(4) RCR (Criminal) 444, A. Subair Vs. State of Kerala : 2009 (3) RCR (Criminal) 370, P.K. Verma Vs. Central Bureau of Investigation : 2018(3) RCR (Criminal) 716. Per contra, learned Additional Advocate General submits that learned trial Court after considering the evidence meticulously convicted and sentenced the appellants, therefore, no interference with the impugned judgment is called for. Learned Public Prosecutor contended that huge money was recovered from the possession of appellants and no satisfactory explanation was given with regard to the money recovered from them. In fact, the appellants have stated that some of the money was commission received by them from the contractors. Learned Addl. Advocate General submits that in corruption cases, before registration of FIR, Preliminary Inquiry is permissible, and therefore, ground sought to be urged by the learned counsel for the petitioner regarding delay cannot have any ramification on investigation, much less vitiate the proceedings. Learned Additional Advocate General has urged that the learned trial Court, in the backdrop of facts and circumstances of the case and available incriminating material against the appellants, has rightly drawn presumption under Section 20 of the PC Act, therefore, no interference is called for with the impugned judgment. ;