JUDGMENT Umeshwar Pandey, J.
1. Heard Sri V.M. Zaidi, learned counsel appearing for the appellant assisted by Sri V.P. Srivastava, Advocate and Sri H.C. Mishra, Advocate and the learned A.G.A.
2. This appeal arises out of the judgment and order dated 16.12.1986 whereby the Special Judge (Prevention of Corruption Act), Meerut, has convicted and sentenced the appellant-Data Ram for the offences punishable under Section 161 I.P.C. and Section 5 (2) of Prevention of Corruption Act, 1947.
3. The background facts giving rise to an occasion for criminal prosecution of the appellant in short: are that the complainant Ram Chandra (PW 3) was allotted a peace of land by the Gaon Samaj on lease (Patta) in a particular plot. He made a request to the appellant accused, who happened to be the Lekhpal of that village to make the measurement of the said allotted land in return whereof the appellant put his condition for giving a sum of Rs. 100/- to him as gratification. The complainant did not relish this demand of illegal gratification by way of bribe and as such, he approached the Vigilance Department of District Meerut by giving an application to this effect (Ext. ka-6) addressed to Dy. S.P., Anti Corruption Organization on 14.12.1983. This application was given by him to O.P. Verma, who was then in charge of the Meerut Unit of Vigilance (Anti Corruption) (PW 6), who immediately acting thereon passed a direction (Ext. Ka-8) deputing Inspector-Raj Pal Singh (PW 5) to lay a trap. It was disclosed in the petition itself that on 14.12.1983 the appellant accused would be coming to the bus stand Kharkhauda to receive the aforesaid sum of Rs. 100/- as illegal gratification. Inspector Raj Pal Singh (PW 5) in compliance to the direction given by the In-charge of the Unit, recorded the statement of the complainant Ram Chandra (Ext. Ka-9) before starting the other formalities and obtained his signature thereon. The complainant had brought one currency note of Rs. 100/-, which the Inspector received from him and after applying phenolphthalein powder quoting thereto and doing other formalities, washed his and the complainant's hand and the solution was got sealed. He also put up his small signature on that currency note and thereafter he returned it to the Ram Chandra instructing him to hand over this note only to the accused as and when demand by him at the bus station. He also prepared a memo of the aforesaid formalities in Ext. Ka-10 and obtained signature of Ram Chandra thereon. The Inspector Raj Pal Singh (PW 5) along with followers and Sub-Inspector Ram Autar proceeded for Kharkhauda and stopped his Jeep nearby the Kharkhauda Police Station and took the witnesses Satya Veer Singh (PW 2) and one Jaipal with him. Therefrom they proceeded for Kharkhauda bus station at about 11.30 a.m. They reached near a tea stall at the bus station. The Pradhan of the village of complainant Hari Kishan (PW 1) was also with them. While the Inspector Raj Pal Singh along with others was standing at a distance of 5 paces from the complainant and Pradhan at the bus station, the appellant Data Ram was seen approaching the bus station. The Pradhan and the accused exchanged their respects with each other and it is alleged that Data Ram asked the Pradhan Hari Kishan as to why others but PW 3 the Complainant, have not come. The Pradhan replied that the others are coming soon and he can reasonably deal first with Ram Chandra. PW 3 Ram Chandra told the accused Data Ram that he could with great difficulty arrange the sum of Rs. 100/- to fulfill his demand and measurement of his land should be done. The appellant Data Ram replied that he had demanded the sum only for that purpose and that the demanded payment when made why he would not do the measurement. Thereafter the complainant took up the currency note of Rs. 100/- and handed it over to Data Ram, which he took by his right hand and then kissed it. PW 5 Inspector Raj Pal Singh along with his followers etc, immediately apprehended him and recovered the said currency note from him. After this recovery he did all the formalities required for the purpose and after comparing the number of the currency note with the number noted in the memo Ext. Ka-10, he further ascertained that it was the same currency note, which was earlier marked by him by putting his signature thereon and returned to the complainant for giving it as gratification to the accused. He got all the materials viz. the currency note, hand wash solutions etc. sealed and prepared its memo (Ext. Ka-11) on the spot.
4. After completing all the formalities on the spot of recovery, the leader of the trap party, PW 5 Raj Pal Singh brought all the materials along with accused and witnesses to the police station and lodged an F.I.R. (Ext. Ka-6) at 4 05 p.m. As the investigation was to be conducted by the vigilance cell, it was taken over by the In-charge of Meerut Unit of Vigilance-PW 6, O.P. Verma. The investigation was started on 28.3 2.2003 and he recorded the statements of witnesses. He also inspected the spot of recovery and prepared its site plan (Ext. Ka-12). He obtained the sanction for prosecution of the appellant accused from S.D.M., Meerut on 03.04.1984 vide Ext. Ka-13 and after completing the entire investigation submitted charge sheet in Ext. Ka-14.
5. The accused appellant when called upon for the trial did not submit to the allegations of the prosecution but admitted that on the relevant date he was working as Lekhpal in the said village and he was a public servant. He however, denied the other allegations of the prosecution and claimed to be tried. He was thereafter charged for the offences punishable under Section 161 I.P.C. and Section 5 of the Prevention of Corruption Act, 1947.
6. In support of its case, the prosecution has examined as many as six witnesses and has proved the documents Ext. Ka 01 to 13. While the defence has examined two witnesses and has also proved few documents.
7. The trial court after having heard the parties and on consideration of the entire material available on record was of the view that the prosecution had succeeded in proving the guilt for the aforesaid offence punishable under Section 161 I.P.C. and Section 5 (2) of Prevention of Corruption Act and as such by the impugned judgment it recorded the conviction of the appellant for those offences and sentenced him to R.I. for a term of two years on each count of the offences and directed the sentences to run concurrently.
8. While assailing the judgment of the trial court, the learned counsel for the appellant accused emphasised that the complainant of this case Ram Chandra (PW 3) did not support the prosecution story and has been declared hostile. Likewise the Pradhan (PW 1) of the village who is said to have been accompanying the complainant to the vigilance unit of Meerut and was actively instrumental in the present trap against the appellant has also not supported the case and was declared hostile. Thus, the learned counsel has emphasised that the root of the case when already damaged by these witnesses, the prosecution should not be treated as having succeeded in proving guilt for the offence of demand and acceptance of the gratification against the appellant accused. The learned counsel has also submitted that mere acceptance of money from an individual by the public servant does not amount to misconduct and does not come within the meaning of acceptance of gratification as referred to in the Provisions of Section 161 I.P.C. and Section 5 of Prevention of Corruption Act. Thus, he emphasised that even if currency note of a sum of Rs. 100/- had been taken by the appellant accused from the complainant - PW 3, it will not amount as gratification. Learned counsel has further added that such acceptance of money even for the purpose of measurement of land, which he was not obliged to do, as such public servant, would not amount to illegal gratification. It is not the case of prosecution that there was any direction from the authorities to the appellant - Lekhpal to do the measurement of the complainant's land allotted to him by the Gaon Samaj.
9. Learned counsel in this context has placed reliance upon the case law of Ram Swaroop Rathore v. State of M.P., 2000 Cr.L.J. 1882 and State of U.P. v. Ram Asrey, A.C.C. 1990 (27) 175.
10. As the provisions of Section 5(2) of Prevention of Corruption Act as well as Section 161 I.P.C. provide punishment for commission of criminal misconduct, it would be worthwhile to reproduce the provisions of Sections 4 and 5 (1) (a) of Prevention of Corruption Act and Section 161 of I.P.C. to under stand as to how such criminal misconduct is committed:
4. Presumption where public servant accepts gratification other than legal remuneration.-- [(1)] Where in any trial of an offence punishable under Section 161 or Section 165 of the Indian Penal Code (45 of 1860) [or of an offence referred to in clause (a) or clause (b) of Sub-section (1) of Section 5 of this Act punishable under Sub-section (2) thereof], it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said Section 161, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
[(2)] Where in any trial of an offence punishable under Section 165A of the Indian Penal Code (45 of 1860) [or under clause (ii) of Sub-section (3) of Section 5 of this Act], it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed unless the contrary is proved that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 161 of the Indian Penal Code or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in Sub-sections (1) and (2), the court may decline to draw the presumption re]"erred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn].
5. Criminal misconduct.--(1) A public servant is said to commit the offence of criminal misconduct -
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in Section 161 of the Indian Penal Code (45 of 1860),....... 161. Whoever, being or expecting to be a public servant, accepts or obtains, or agrees to 'accept, or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person, with the Central or any State Government or Parliament or the Legislature of any State, or with any local authority, corporation or Government company referred to in Section 21, or with any public servant, as such, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
11. The learned counsel for the appellant submits that if the accused had received a sum of Rs. 100/- from the complainant at the place of occurrence at the time when the trap was conducted, such acceptance of money would not amount to acceptance of illegal gratification as has been envisaged under Section 5 (2) of Prevention of Corruption Act or Section 161 I.P.C. The accused cannot be convicted for the alleged offence. In the case of Ram Swaroop Rathore (supra), it has been observed by the learned Single Judge that illegal gratification alleged to have been accepted, should be in connection to an official act to be done by the public servant. The learned counsel has tried to emphasise that this request of the complainant to the accused was also not to do an official work as there was no order from the higher authorities to do the measurement of the plot. In the first place, it may be observed that it has come in the F.I.R. (Ext. Ka-6) given to the Superintendent of Police, Vigilance Unit, Meerut, by the complainant that the land was allotted to the said applicant by the Gaon Samaj and for actual demarcation of the allotted land, the jurisdiction of doing the measurement was available to the village Lekhpal. It has also been the consistent statement of the witnesses examined by the prosecution that such measurement of land is done by the Lekhpal. Even the complainant Ram Chandra (PW 3) has though, not supported the prosecution and has been declared hostile, has stated that the land was allotted to him of which the measurement was assigned by Pradhan to the Lekhpal of the village. Thus, from the substantive evidence on record, it is clear that the accused Lekhpal was under the official obligation to do the measurement of the land, which was allotted to the complainant. Thus, by virtue of case law of Ram Swaroop Rathore (supra), it cannot be said on the facts of the present case that this acceptance of Rs. 100/- by the accused appellant from the PW 3 - Ram Chandra, the complainant, was not by way of accepting an illegal gratification as envisaged within the provisions of Section 161 I.P.C. or Section 5 (1) (a) of Prevention of Corruption Act. Otherwise also in the second place, there is no such case of defence that the appellant had accepted the currency note give by the complainant (PW 3) by way of certain remuneration for the job already done or to be done by him. The case law of State of U.P. v. Ram Asrey (supra) in the same manner, is also not applicable with any force on the facts of the present case.
12. Section 4 (1) of the Prevention of Corruption Act provides that if it is proved in a trial that the accused has accepted for himself or for any other purpose any gratification (other than legal remuneration) it shall be presumed unless contrary is proved that he accepted that gratification as a motive or reward for doing the official duty to be performed by him as referred to in Section 161 I.P.C. and Section 5 (1) (a) Prevention of Corruption Act. Therefore, here in the cases of Prevention of Corruption Act since there is a provision permitting the court to draw the presumption against the accused for commission of the offence if such act is done by him, it is the duty of the accused to rebut that presumption. But in this case, I find no such attempt of rebuttal at all, rather no defence has been taken to this effect in the statement of the accused appellant that he had accepted the sum of Rs. 100/- from the complainant (PW 3) before this trap was conducted and he had accepted it as a reward for doing certain unofficial work or as a reward for some unofficial work already done in the past. Therefore, by virtue of this presumption as available under Section 4 of the Prevention of Corruption Act and also by virtue of sufficient evidence available on record, it is established that the accused had not to do or had done in the past, any favour for which he was not bound officially, to the complainant and as such, if it is proved on record that he had accepted the sum of Rs. 100/- at the time of incident for which the trap was done and was arrested by the trap party, there would definitely be a presumption that he had accepted that money from the complainant as illegal gratification and had thus committed criminal misconduct as contained in Section 161 I.P.C. or Section 5 (1) (a) of Prevention of Corruption Act.
13. Now the substantive evidence as well as the corroborative evidence as available on record is to be scrutinized for the purpose to find out if actually the prosecution had succeeded to prove this fact that the appellant had accepted this alleged sum of Rs. 100/- at the time when the trap was. laid at the place of incident. For this purpose, the prosecution in the present case, has examined as many as six witnesses out of whom the witnesses of fact are PW 3, the complainant - Ram Chandra, PW 5 Inspector Raj Pal Singh, heading the trap party, PW 2 Satya Veer Singh, an independent witness and PW 1 Hari kishan, the Pradhan of the village, who was allegedly accompanying the complainant Ram Chandra on the date of incident. Out of these witnesses, the complainant Ram Chandra (PW 3) and the Pradhan of the village Hari Kishan (PW 1) have not fully supported the prosecution case and as such they were declared hostile before the trial court. PW 5 Raj Pal Singh, the head of the trap party, claims to be standing at a distance of about 5 paces from the accused and the complainant when this delivery of currency note of Rs. 100/- took place. He also claims in his evidence before the trial court that the conversation between the complainant and the accused which had taken place before the actual acceptance of the currency note by the accused was within his hearing. He states in his evidence that after the arrival of the accused at the bus station, he asked the Pradhan Hari Kishan about the lone presence of the complainant Ram Chandra there, which was explained to him by the Pradhan and thereafter the complainant is said to have told the accused that with great difficulty he has arranged the sum of Rs. 100/-towards his demand of bribe to get the measurement of his land, The reply of the accused was that his demand was only to do that job and if the amount is paid, the land would definitely be measured. Thereafter, the complainant took out the currency note and gave it to the accused, which he accepted by his right hand. All these conversations taking place between the complainant and the accused, are said to have been within the hearing of these witnesses and nothing has been elicited in the cross examination of PW 5 by which it could be said that the defence had succeeded to create pin wholes in the veracity of his statement nor it has been stated anywhere that these witnesses had one or the other animus against the accused to get him implicated falsely in this case.
14. The other oral account of the incident, which sufficiently corroborates and supports the statement of the PW 5, is the statement of PW 2, who is also claimed to be an eyewitness of the incident. In order to discredit this witness (PW 2) it is strenuously argued by the learned counsel for the appellant that the evidence given by this witness could not be accepted about those facts relating to the conversation which had transacted between the accused appellant and the complainant Ram Chandra. This witness in addition to his being a witness of actual trap is also a witness of the subsequent, formalities, which were done by the trap party towards the recovery, preparation of hand wash, preparation of fard and sealing work of all the articles etc.. At one place of the cross examination of PW 2 has stated, that when he arrived at the scene when the accused was actually arrested on the spot by the trap party. With this peace of evidence, learned counsel for the appellant has tried to emphasize that this witness could not be presumed to be the actual witness of the conversation which had taken place before handing over and acceptance of the currency note on the spot. It is quite obvious that this witness may not be a witness to the alleged talks which went on between the accused and the complainant but his remaining statement as to the recovery and arrest of the, accused on the spot and subsequent formalities which were done by the trap party on the spot regarding preparation of fard etc. cannot be discredited. PW 2 is also said to have seen the currency note in the hands of the accused, which was subsequently recovered by the trap party from his possession. This witness is not said to be inimical to the accused who belongs to the same village only and he is definitely an independent witness. On the contrary it so appears that the accused with one or the other manipulation had got an affidavit (Ext. Kha-3) signed and verified by him without disclosure of its contents to him. This affidavit is shown to have been executed on 28.12.1983 whereas the statement of PW 2 was recorded before the court on 04.10.1985. This affidavit contains the fact that the PW 2 Satya Veer Singh had not seen the incident, though he was present on the spot and his few signatures were taken on certain papers by the police at the police station. While explaining this affidavit, on being confronted during his cross examination by the defence, this witness has stated that he had not given any affidavit in this case and has further added that the accused appellant Data Ram had got a paper signed by him. He also denies the contents of the affidavit and stated that the contents were not disclosed to him at the time of putting his signature. On the basis of this affidavit, the learned counsel tried to challenge the credibility of the witnesses and emphasised that the total statement of PW 2 should be rejected.
15. The trial court appears to have rightly found no force in such arguments simply because if this affidavit was duly sworn and executed by the PW 2 of his own will, there was hardly any occasion of this document being in possession of the accused, rather it should have been either given to the Investigating Officer or it should have been filed by the witness himself before any competent court. But the appearance of this affidavit suddenly at the time of trial at the instance of the accused himself, makes it quite evident that this affidavit is nothing but a result of deliberate and deceitful procurement by the accused in one or the other manner. Thus, by virtue of this affidavit only, the veracity of statement of PW 2 is not challengeable. Since the defence has not suggested any enmity of the accused with this witness nor any fact upon the record has been brought to show that this witness could possess one or other animus for setting up a false case to implicate the accused in this case, his statement in so far as it relates to the arrest and recovery of the currency note from the accused and preparation of its spot memo etc. is wholly reliable and has rightly been accepted by the trial court. Therefore, the statement of the leader of the trap party arresting the accused on the spot while taking illegal gratification from the complainant and also the statement of this PW 2 Satya Veer Singh have fully succeeded to prove the fact that the accused appellant Data Ram had demanded illegal gratification in pursuance to which the complainant had given a sum of Rs. 100/- to him on the date of incident, which was recovered by the Vigilance trap party. Simply because the complainant Ram Chandra (PW 3) had not supported the prosecution case, it cannot be held that the prosecution had become lame and could not be reasonably held to be successful in its mission of proving the case on the basis of evidence available on the record.
16. The case law of Som Prakash v. State of Punjab, 1992 Cr.L.J. 490 (S.C.), as referred by the learned counsel for the appellant, is not applicable on the facts of this case. Even if PW 5, Inspector Raj Pal Singh, is not said to be an independent witness being leader of the trap party, his statement gets quite good deal and corroboration from the statement of PW 2 Satya Veer Singh, who is definitely an independent witness. Both these witnesses are substantiating each other while they have stated about handing over of the money by the complainant to the accused whereas; PW 5 is also a witness to the actual conversation which had taken place before handing over the currency note to the accsued.
17. Another argument has been advanced from the side of the appellant that the Investigating Officer (PW 6) OP. Verma also being a witness of certain facts of this case, was not legally competent to investigate this case. As such, the investigation of the case itself had vitiated.
18. PW 6 was in-charge of the vigilance unit of Meerut and after his arrival in the office, the complainant had given an application (Ext. Ka-6) which he has proved and he has also proved his endorsement (Ext. Ka-8) whereby he had directed the PW 5 Raj Pal Singh, the Inspector to arrange and lay trap. He is not a witness to any other fact of this case. As such, it does not appear to be a justifiable argument of the learned counsel for the appellant that the whole investigation had been vitiated. This witness as has been referred to above, is a witness simply proving certain formal documents which are only corroborative peace of evidence and do not have strength of being substantive evidence. If an Investigating Officer had received or prepared certain formal documents, which he has proved, it does not amount that such investigation of the case done by him would be vitiated. It is permissible under law for such a witness to prove such documents in the court inspite of his being a person who investigated the matter and submitted report to the court. Therefore, this action of the Investigating Officer is not such which could be treated as a lacuna appearing in the prosecution case as to demolish the whole foundation. There is no legal defect in the investigation or in the evidence of PW 6.
19. From the whole gamut of the evidence and other materials, which are available on the record, it so appears that the court below has rightly found the offences with which the accused appellant was charged, to have been proved to the hilt and beyond the reasonable shadow of doubt. The older of conviction and sentence recorded by the court below does not appear to be at all assailable in this appeal.
20. The appeal having no force is hereby dismissed and the order of conviction and sentence passed against the appellant in the impugned order is hereby affirmed.
21. Let a copy of this judgment be immediately transmitted to the trial court concerned for arrest of the accused appellant and transmitting him to jail with a conviction warrant to undergo the sentence awarded against him and then to submit a compliance report to this court.