GAURI SHANKER Vs. STATE OF U.P.

JUDGEMENT

(1.) THIS appeal has been preferred by appellant Gauri Shanker hereby impugning his conviction under Sec. 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 Sec. 161, Cr. P.C. 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, P.W. 2 being duly appointed Agent of the company M/s. Indian Cement Pipe Company, Meerut 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 his 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 has 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 on 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 Gauri 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 P.W. 2 walked out of the office stating that he would be coming back shortly after raising the amount of Rs. 950/-. 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 company aforesaid. Ultimately it was prayed in the said application that those employees who were withholding the payment due to non­payment of illegal gratification, be apprehended while accepting the bribe, k was also disclosed in the aforesaid application that the draft for Rs. 96,000/- 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, P.W. 2 and his two companions Deshra 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 party-men left for the office of accused Gauri Shanker in a Card 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 the 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.I. 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 p.m. and at the same time, he signalled to his men by coughing who rushed to the scene of occurrence and took Gauri Shanker Singh alongwith the aforesaid currency notes in 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.

(3.) IN support of its case the prosecution has examined in all five witnesses and out of them, K.P.S. Yadav, Sub-Inspector P.W.1 S.K. Gomath P.W. 2 rind Vijai Shanker Singh,, I P.W. 4 were examined as ocular "witnesses of the occurrence. Out of the aforesaid array of the witnesses, the trial court did not place credence of the testimony of K.P. S Yadav, S.I. P.W. 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.