PARMANAND Vs. C.B.I.

JUDGEMENT

(1.) The Appellant challenges the judgment dated 30th January, 2004 convicting him for offences punishable under Sections 7 and 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988 (in short the "PC Act") and the order on sentence dated 31st January, 2004 directing him to undergo Rigorous Imprisonment for a period of one year and to pay a fine of Rs. 10,000/- under Section 7 of the PC Act and Rigorous Imprisonment for a period of two years and to pay a fine of Rs. 20,000/- for offence under Section 13 (2) of the PC Act.

(2.) Learned counsel for the Appellant contends that as per the Complainant PW7 Mustafa the alleged initial demand took place in the presence of one Sriniwas Bhati on 21st September, 1998. However Sriniwas Bhati was neither cited as a witness nor examined. Thus the Appellant was constrained to cite him as a defence witness. Sriniwas Bhati DW1 belied the version of the Complainant which has not been considered by the learned Trial Court. It is the case of the prosecution that on 23rd September, 1998 at about 11.30 a.m. the bill was cleared with deduction of Rs. 50,000/- and was sent to the accountant Chaman Lal Gupta for preparation of the cheque. Chaman Lal Gupta was also neither cited as a witness nor examined by the prosecution. Instead one Shri Keshri Singh, Assistant Engineer appeared as PW4. Even he stated that on 23rd September, 1998 the bill was cleared by the Appellant at 11.30 a.m. with deduction of Rs. 50,000/- and thus there was no motive of the Appellant demanding the bribe amount at 7.30 p.m. in the evening. The case of the Appellant is that this deduction of Rs. 50,000/- from the bill at 11.30 a.m. annoyed the Complainant PW7 thus he lodged the complaint at 3.30 p.m. and a raid was conducted at 7.30 p.m. on the same day. The trap team allegedly consisted of PW7 the Complainant, PW6 Ajay Kumar, shadow witness, PW2 Brij Mohan, the recovery witness and four officers of CBI. Out of the four officers of CBI only one, that is, PW10 Inspector Azad the trap laying officer was examined. Though the prosecution had valid reason for not examining Inspector Ved Prakash, as he passed away before he was examined in the Court, however there is no explanation whatsoever as to why Dy. S.P. Shri S.K. Sharma and Inspector P. Balachandran were not examined. PW6 Ajay Kumar was directed by the Investigating Officer to accompany the Complainant when the Complainant enters the room however, as per both PW6 and PW7 the Complainant, Ajay Kumar did not enter the room of the Appellant and thus he witnessed neither the demand nor the acceptance of money. Thus the only witness for demand of bribe was PW7 the Complainant whose testimony is wholly contradictory. In his examination-in-chief, PW7 the Complainant stated that when he entered the room of the Appellant at 7.30 p.m. on 23rd September, 1998 the Appellant stated "paise laye ho" however, in his cross-examination PW7/ Complainant stated that the Appellant demanded the money by gesticulation only. Further no money was recovered from the possession of the Appellant. The alleged recovery was made from the briefcase lying near the visitor's table which was not locked. Though the case of the prosecution is that the money was taken out from the briefcase by PW6 the shadow witness however, PW6 the shadow witness denies taking out the money from briefcase and stated that the CBI officer had taken out money. The learned Trial Court held the offence to be proved against the Appellant only on the basis that the Appellant has not given an explanation as to how money came into his possession. It is well settled that mere recovery of money is not sufficient to hold a person guilty for offence under Sections 7/13 (2) of the PC Act. Reliance is placed on Surajmal vs. State (Delhi Administration), 1979 4 SCC 725; C.M. Girish Babu vs. CBI, Cochin, High Court of Kerala, 2009 3 SCC 779; Banarasi Dass vs. State of Haryana, 2010 4 SCC 450; G.V. Nanjundiah vs. State (Delhi Administration), 1987 Supp1 SCC 266; State of Maharashtra vs. Dnyaneshwar Laxman Rao Wankhede, 2009 15 SCC 200 and Meena (Smt) w/o Balwant Hemke vs. State of Maharashtra, 2000 5 SCC 21. Further the alleged hand wash taken has also not been proved properly as PW2 the independent witness has stated that the official of the CBI held the hand of the Appellant from the fingers and dipped in the solution. Thus when fingers of the Appellant were caught and dipped then the fingers of the CBI officers were also dipped and admittedly the CBI officials had treated the GC notes with the chemical and the solution was bound to turn pink.

(3.) Per contra learned Standing Counsel for the CBI contends that PW7 the Complainant has proved beyond reasonable doubt the recovery and acceptance. On the Complainant giving the signal the trap team entered the room of the Appellant and apprehended him. The briefcase from where the currency notes were recovered was seized vide Ex.PW2/C on the pointing out of the Appellant. This recovery of the briefcase with the tainted currency notes is admissible under Section 27 of the Indian Evidence Act. Further the facts stated in recovery memo Ex. PW2/C are also relevant. The version of PW6 Ajay Kumar, the shadow witness was duly supported by the PW10 qua counting of the money. The number of currency notes recovered tallied with the number of currency notes mentioned in the handing over memo Ex. PW2/A. PW10 the trap laying officer fully supported the prosecution case and thus conviction can be based on the sole testimony of PW10. The Appellant simply denied the questions put to him under Section 313 Cr.P.C. and gave no explanation as to how he came into possession of the currency notes. Ex. PW5/A CFSL report proves that the hand wash solution turned pink thus corroborating the ocular version on record. PW1 the sanctioning authority has stated that she had gone through the documents of SP, CBI and the statement of the witnesses before granting sanction. Reliance is placed on Narayana vs. State of Karnataka, 2010 14 SCC 453. It is thus contended that since the recovery is proved, in view of the presumption under Section 20 of PC Act the conviction can be safely based upon the said evidence.