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TMI Blog1982 (10) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... ory named 'Krishna Industries' whose proprietor was one Rajendra Dutt. Appellant said that his visit being after a lapse of one and a half year, the proprietor should pay him pocket money. Rajendra Dutt replied that his establishment was not covered by the Factories Act and showed disinclination to grease the palms of the appellant. However, appellant persisted in his demand and told Rajendra Dutt if he did not pay Rs. 150/- he was likely to be entangled in some legal proceedings. So saying appellant and his companion left. Rajendra Dutt was not inclined to give the bribe demanded from him and, therefore, on November 22, 1974, he contacted Dy. S.P., A.C.D., Ajmer, P.W. 7, Mahavir Prasad and gave a written complaint Ext. P-12 complaining about the demand of illegal gratification by the appellant requesting for taking suitable action in the matter. He also produced 15 currency notes each of the denomination of Rs. 10/-. P.W. 7 Dy. S.P. Mahavir Prasad directed P.W. 3 Prahlad Narayan to bring two persons to witness the search and accordingly P.W. 1 Ram Babu and P.W 2 Keshar Mal were requested to join the raiding party. 15 currency notes produced by the complainant were smeared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mahavir Prasad, Clerk Prahlad Narayan, Driver Bajrang Singh and two others. 4. Statement of the accused was recorded under Section 313 of the CrPC and he offered himself as a witness in his defence. In his evidence he stated that on the date of occurrence around 4.30 p.m. when he was sitting in his cot complainant Rajendra Dutt came and took a seat in the chair placed nearby. Appellant enquired why he had come and whether he had brought any written complaint against Clerk Mr. Singhal. According to him, the complainant replied that action be taken against Singhal by recording his statement whereupon the appellant said that if the complainant has any grievance he should come with a written complaint. Appellant further stated that thereafter he went to the bath room for spitting cough and he came out and sat on the cot. Complainant Rajendra Dutt enquired whether he can drink water from a jug which was lying there. Thereafter Rajendra Dutt went out of the room and soon thereafter 8 persons including Rajendra Dutt entered the room. He stated that two of the members of the raiding party caught his hands and when he tried to get himself released from the grip of those persons the grip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase which would convincingly show that the prosecution case cannot be accepted. He enumerated the circumstances as: (i) absence of name of the appellant in the F.I.R. Ext. P-12; (ii) absence of evidence of demand as on November 20, 1974; (iii) absence of any prior arrangement where and when the complainant was to meet the appellant and, therefore, the trap could not be successfully arranged which might permit an inference that the whole story of acceptance of bribe money is concocted; (iv) further two motbirs P.W. 1 Ram Babu and P.W. 2 Keshar Mal were petty clerks specially selected by P.W. 3 Prahlad Narayan; (v) in their evidence they have tried to improve upon the prosecution version which shows their unconcealed interest in the success of the trap which would render them partisan witnesses; (vi) there are certain omissions in the evidence of the prosecution witnesses which may indicate that the defence version of planting the currency notes when the appellant had gone to bath room is probabilised; (vii) that no inference be drawn from the fact that when hands of the appellant were dipped in the sodium carbonate solution it turned pink because admittedly when hands of the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rajendra Dutt is not available for evidence there is no evidence as to the demand of bribe on November 20, 1974, and it is not open to the Court to spell out the demand from the contents of Ext. P-12. It is undoubtedly true that Rajendra Dutt was dead before the commencement of trial. It is equally true that the F.I.R. lodged by him on November 22, 1974, cannot be used as substantive evidence nor the contents of the report can be said to furnish testimony against the appellant. Such an F.I.R. would not be covered by any of the clauses of Sub-sections 32 and 33 of the Evidence Act and would not be admissible as substantive evidence. The question still remains whether there is any evidence of demand of bribe on November 20, 1974, in this case. A fact may be proved either by direct testimony or by circumstantial evidence. If appellant did not visit the Factory of Rajendra Dutt on November 20, 1974, and made no overtures demanding the bribe, on what rational hypothesis can one explain the visit of Rajendra Dutt to the office of Dy. SP, ACD on November 22,1974, his producing currency notes worth Rs. 150; a superior officer like the Dy. SP, ACD, making all arrangements for the trap and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of it would show that there was neither a demand of bribe nor any action was contemplated on November 20, 1974, as is now sought to be made out and, therefore, the court should not accept any evidence with regard to the trap. In view of the admission of the appellant in his evidence that Rajendra Dutt followed by a raiding party came to his house also used as residence-cum-office around 4.30 p.m. on November 22, 1974, omission to mention about the time and place of future meeting in the F.I.R. Ext. P-12 loses all significance. It is equally possible that on the very day when the appellant visited the factory of Rajendra Dutt and demanded bribe, Rajendra Dutt may not have immediately planned to rush to the Anti Corruption Department. He had declined to give the bribe. In his view his factory was not covered by the Factories Act. These are the averments in Ext. P-12. They are not being relied upon as substantive evidence but are used to explain the conduct of Rajendra Dutt which has evidentiary value. If Rajendra Dutt did not negotiate giving the bribe and did not agree to give the bribe though the appellant persisted in the demand and threatened to involve him in court cases th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to reject their testimony. That is a wholly irrelevant consideration. 14. As a second string to the bow it was urged that Ram Babu was serving at the relevant time as a Clerk in the Central Bank of India and Keshar Mal was a teacher in the middle school at Ajmer and both of them were, therefore, by virtue of their service, likely to be under the police influence. It is difficult to appreciate this contention. Undoubtedly Ram Babu was a Clerk in a nationalised bank and it may be that officers of Anti Corruption Department may have jurisdiction to investigate lapses on the part of clerks in nationalised banks. It is not clear whether Keshar Mal who was serving in a Middle School was a Government employee or the school itself was a Government School. It may be that the school may be receiving grant but if all institutions which receive grant from Government and are, therefore, styled as Government Departments, and have to be treated under the police influence then the net will have to be spread so wide not to exclude any one as independent of police influence. We find no justification in the submission that the two motbirs were persons not likely to be independent of police infl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... testimony of both these witnesses. It was pointed out that according to Ram Babu both he and Keshar Mal told the Dy. SP that the currency notes were under the pillow while according to Keshar Mal it was Ram Babu who pointed out that the currency notes were under the pillow. We find no contradiction in this statement because if plural used by Ram Babu was to be relied upon as a contradiction, cross-examination ought to have been directed on this point. It is necessary to point out that the cross-examination of both the witnesses is scrappy, jumpy and not pursuant to any set theory of defence. It is worthwhile to note that there is not the slightest challenge to the statement of both these witnesses that while waiting in the lobby outside the room both of them saw Rajendra Dutt giving marked currency notes to the appellant and appellant accepting the same and keeping them underneath the pillow. It was also urged that both the witnesses in their respective statements in the course of investigation have not referred that they pointed out that the currency notes were kept under the pillow. A further omission was pointed out that while Mahavir Prasad has stated that accused started quarr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olution this task was assigned to SI Satya Narain. Undoubtedly there is nothing to show that his hands were soiled with phenolphthalein powder. The hands of Rajendra Dutt must have been soiled with phenolphthalein powder because he took out the currency notes from his diary and passed them on to the appellant. But it is not suggested that Rajendra Dutt caught the hands of the appellant. Therefore, it is not possible to accept the submission that when the hands of the appellant were caught in the ensuing quarrel between him and the Dy. SP Mahavir Prasad, phenolphthalein powder must have been transmitted by persons holding the hands of the appellant. This tell-tale circumstance would lend ample independent corroboration if there be any need to the evidence of Ram Babu and Keshar Mal that they saw Rajendra Dutt giving marked currency notes to the appellant and the appellant accepting the same and putting them underneath the pillow. 18. Mr. Anthony urged that there are certain tell-tale circumstances in the case which would render the defence plausible. It was urged that the appellant did not disclose any guilty syndrome when the raiding party entered his room and at the first quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lal Yadav v. State of Bihar 1981CriLJ741 . In that case the defence of the accused was that currency notes were thrust in his pocket. Taking cue from this statement, the court held that the acceptance of an amount other than legal remuneration having been admitted the presumption would arise under Section 4(1) and the burden would shift to the accused. It is in this context that this Court held that where the accused says that involuntarily the amount was thrust in his pocket he could not be said to have accepted or obtained for himself any gratification other than legal remuneration which alone permits the presumption to be raised. Facts in this case being a demand and voluntarily acceptance, the presumption would squarely arise and has been rightly raised. 22. Reliance was also placed on the decision of this Court in Sultan Singh v. State of Rajasthan Crl. Appeal No. 26 of 1967 decided on July 28,1969. In that case the explanation of the appellant was that Rs. 100 was paid to him towards the arrears of revenue and in the absence of reliable evidence to the contrary the explanation was held acceptable. This is a decision on the facts of that case and would be hardly of any ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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