TMI Blog1997 (1) TMI 528X X X X Extracts X X X X X X X X Extracts X X X X ..... oideenkutty (P.W.1), K.K. Nair (P.W.2) and Haneefa (P.W.9) were the Managing partner, Office Manager and Assistant Manager respectively. There they first met P.W.2 and then, along with him, went to meet P.W.1. Before P.W.1 they disclosed their identities and told that they had come to inspect the records of the Hospital. Accordingly, under directions of P.W.1, P.W.2 handed over the attendance book and wages registers to them. The three accused persons then directed P.W.2 to produce all other relevant records of the Hospital including the partnership deed in their office on March 29, 1984. As directed, P.W.9 took the records to the office of the above three accused persons on the appointed day. Even though, A1 and A3 scrutinised the records on that day they asked P.W.9 to produce the same again on the following day i.e. March 30, 1984. On the day so fixed when P.W.9 and P.W.2, alongwith the records, went to the office of the accused persons they found only A2 present there. A2 directed PWs 3 and 9 to go and meet A1 and A3 who were waiting for them in room No. 17 of the nearby Alakapuri Guest House. P.W. 2 and P.W.9 then went to Alakapuri Guest House and met A1 and A3. A3 told P.Ws 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ok 10 hundred rupee notes from P.W.9 which were to be given to the accused as bribe and got their numbers noted by P.Ws 3 and 4. Thereafter Sodium-phenolpthaline test was demonstrated to the witnesses and the resultant solution was preserved in a bottle which was sealed and attested by the witnesses. The notes were then smeared with phenolpthaline powder and entrusted to P.W.9 with instructions to hand over the same to the accused preferably outside the office on their asking for the bribe. A sign (wiping of the face with a handkerchief), which P.W.9 was to display if the accused received the bribe was also pre-arranged. An entrustment mahazar was then prepared by P.W.10 detailing the above proceedure and the numbers of the notes. Thereafter P.W.3 and P.W.4 were instructed to follow P.W.9 and witness the transaction between P.W.9 and the accused. The party thereafter proceeded to the office of the accused at or about 10 A.M. P.W.9 first went inside the office and met A3. Following him P.W.3 also went inside the office introducing himself as a telephone employee. A3 asked P.W.9 whether he had brought the money. Thereupon P.W.9 gave a proposal that they would go to a nearby hotel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted P.W.9 to take them back but in the meantime the CBI Officers came and arrested him. On consideration of the evidence of the eleven witnesses examined on behalf of the prosecution (no witness was examined on behalf of the defence) and the other materials on record the trial Court observed that the prosecution succeeded in proving recovery of the ten hundred rupee notes, which were entrusted to P.W.9 for handing over to the appellant, from him; but as, according to it, the prosecution failed to prove beyond reasonable doubt that the appellant demanded and accepted the said amount and the defence of the appellant that he was taken to the family room of Motel Nilgiris where P.W.9 thrust the notes into his trousers pocket was a probable one, acquitted him. In setting aside his acquittal the High Court firstly held that the finding of the trial Court that the appellant neither demanded nor accepted the amount of ₹ 1,000/- was perverse. Besides, the High Court held, relying upon the judgment of this Court in Hazari Lal vs. State (Delhi Admn.) AIR 1980 SC 873 that the recovery of the above notes from the appellant coupled with the other attending circumstances on record entit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Where in any trial of an offence punishable under Sec. 161 or Section 165 of the Indian Penal Code or of an offence referred 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 attempt 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 Sec. 161 or as the case may be without consideration or for consideration which he knows to be inadequate. (emphasis supplied) From a combined reading of Section 161 IPC and Section 4 (1) of the Act it is evident that if, in the instant case, the prosecution has succeeded in proving that the appellant was a public servant at the material time and that he had accepted or obtained ₹ 1,000/- from P.W.9 as gratification not only the first two ingredients of the former ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant contended that the same w as thrust into his trouser pocket by P.W.9. From the judgment of the trial Court we find that the principal reason which weighed with it for accepting the case of the defence in preference to that of the prosecution was that P.W.9 w as an interested witness and P.Ws. 3 and 4, the two independent witnesses, who were examined by the prosecution to prove the transaction did not speak about any demand made by the appellant. Having gone through the evidence of the above two witnesses, namely, P.Ws. 3 and 4 we are in complete agreement with the High Court that the finding recorded by the trial Court in this regard is patently perverse. Both these witnesses, who at the material time were holding responsible positions in State Bank of India and Canara Bank respectively, categorically stated that they saw P.W.9 taking out the notes from his shirt s pocket and handing over the same to Damodaran (the appellant), and the appellant, after counting those notes, putting them in the right front pocket of his trousers. The unimpeachable evidence of these two independent witnesses conclusively proves that the transaction was consesual. That necessarily means that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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