ASHOK KUMAR KAPOOR Vs. C.B.I.

JUDGEMENT

(1.) By the present appeal, the Appellant lays a challenge to the judgment dated 27th February, 2001 passed by the learned Special Judge convicting the Appellant for offence punishable under Section 161 IPC and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 (in short POC Act) and the order on sentence dated 28th February, 2001 directing the Appellant to undergo Rigorous Imprisonment for a period of one year for commission of each offence and to pay a fine of ' 500/- and in default of payment of fine to further undergo simple imprisonment for a period of 15 days on each count.

(2.) Briefly, the prosecution case is that the Complainant Gokal Prasad PW2 reported to the S.P., CBI vide his complaint dated 27th April, 1987 Ex.PW2/A that he was a licensed dealer of kerosene oil and sells the same against the ration card in a shop situated at 125/A, Pul Prahladpur, Sharma Market, New Delhi. The area Inspector Ashok Kumar used to harass him and was demanding ' 500/- monthly and threatens that in case of default in payment, he would get his license cancelled. Ashok Kumar came to his shop in the evening on 24th April, 1987 at about 5:30 p.m. and took into his possession the papers of his shop, license and cash memo and stated that in case he needed them back, he would have to pay ' 2,000/-. On the Complainant appealing to him, he agreed to accept ' 1,500/-. The Complainant was having ' 550/- which the Appellant took and stated that the remaining ' 950/- must be kept ready by Monday, when he will visit the shop between 4.00 to 5.00 p.m. to collect the same. On the basis of this complaint, a trap was laid by treating 19 currency notes of ' 50 denomination each by the chemical. Sh. Anshuman Sharma PW3 working as Assistant in the Ministry of Environment and Forest, Wild Life Section was associated as a shadow witness and Sh. C.L. Dogra, PW4 was associated as a panch witness. PW3 was directed to be close to the Complainant PW2. As per the prosecution case, on 27th April, 1987 when the Appellant came at the shop, he took the Complainant PW2 in the inner room and there he demanded the bribe amount. The said bribe amount of ' 950/was given by PW2 to the Appellant, however, PW2 again requested him to reduce the amount and thus, the Appellant returned ' 500/-. Thereafter, Complainant gave the signal and the Appellant was apprehended along with the tainted currency notes amounting to ' 450/-. On completion of investigation, the charge-sheet was filed against the Appellant. After considering the prosecution evidence, the statement of the Appellant under Section 313 Code of Criminal Procedure and the defense evidence, the learned Special Court convicted and sentenced the Appellant as above.

(3.) Learned Counsel for the Appellant challenging the conviction at the outset, says that the Appellant does not deny receiving ' 550/- on the 24th April, 1987 and ' 450/- on the 27th April, 1987. However, the said money was not the bribe amount but a re-payment of the loan. Learned Counsel for the Appellant contends that the Complainant was short of money and thus on 7th April, 1987, he took a loan of ' 1,000/- from the Appellant for 15 days so that he could receive the supply of kerosene oil. The Complainant however, stated that in case he did not return the money within 15 days, he would pay the amount of ' 1,500/- instead of ' 1,000/-. The Complainant returned ' 550/- on the 24th April, 1987 and the remaining ' 450/- on 27th April, 1987. This version of the Appellant is corroborated from the testimonies of prosecution witnesses PW3 and PW5 itself. PW3 stated that immediately on apprehension, the Appellant stated that this was not the bribe amount but the return of loan amount taken by the Complainant. This plea of the Appellant is also supported by the testimony of Rakesh Kawra, DW1 who had witnessed the Complainant taking loan of ' 1,000/- from the Appellant on 7th April, 1987. Learned Counsel further submits that the defense is entitled to rebut the presumption and it has to prove its defense on the basis of preponderance of probabilities unlike the prosecution which has to prove its case beyond reasonable doubt. If there is a possibility of the defence version being correct, then the accused cannot be convicted for the offence. Reliance in this regard is placed on M. Abbas v. State of Kerala, 2001 4 JT 92; Punjabrao v. State of Maharashtra, 2002 AIR(SC) 486 and T. Subramanian v. State of Tamil Nadu, 2006 AIR(SC) 836.