TMI Blog2003 (12) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... go 2 years' RI under Section 161 IPC and Section 5(1)(d) read with Section 5(2) of the Act, and were further directed to pay a fine of ₹ 500 for an offence punishable under Sections 120B and 161 IPC and Section 5(2) of the Act; in default to undergo further sentence of 6 months' RI. In an appeal filed by the appellants, the High Court of Allahabad, Lucknow, while dismissing the said appeals, reduced the sentence to one year RI. It is against the said order of the High Court that the two appellants are before us in these two appeals. The basic facts necessary for the disposal of these appeals are as follows : At the relevant time, Suleman Tayab A-1 was working as a LDC in 'B' Ward, Circle II, Income Tax Office, Luck ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon which FIR Ex. Ka-9 was registered. Said SP/CBI entrusted the case to Inspector R.K. Singh, PW-6, for laying a trap. For the purpose of having independent witnesses, the investigating agency wrote a letter to the Central Excise Department to depute two Inspectors to the office of the CBI on the same day. The Assistant Collector, Central Excise then directed V.K. Saxena PW-1 and S.L. Banodha PW-2 to attend the CBI office on the same day which they did at about 4.15 p.m. After recording the statement of PW-3, PW-6, the Inspector directed PW-3 the complainant to procure the money which was to be paid as bribe and on receipt of 5 ten-rupee notes the said notes were treated with phenolphthalein powder and PW-3 was instructed to give the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id provisions only if the offence is one punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards. In the instant case, according to them, since no such consent was taken, the trial court could not have taken cognizance of the offence punishable under Section 120B IPC. Section 120B IPC makes it abundantly clear that whoever is charged of a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall where no expressed provision is made in the Code, for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. In the instant case the appellants were charged of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticed earlier, it was so in the instant case having regard to the punishment prescribed for the offences under Section 5(1)(d) of the Act as well as Section 161 IPC. therefore this argument of the appellants has to be rejected. 4. It was then contended that the presumption of guilt available to the prosecution under Section 4 of the Act would not be available for an offence punishable under Section 5(1)(d) of the Act. This argument is based on the language of Section 5(1)(d) which reads thus : 5. Criminal misconduct--(1) A public servant is said to commit the offence of criminal misconduct (a) to (c) x x x (d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the return of the document was an official order and any act which has to be done to fulfil of comply with the said order will also be an official act hence when A-1 was directed to return back the document; A-1 was not acting in a private capacity, he was doing an official act hence if in that process he demands bribe, it would be an offence under Section 161 IPC as it stood then. 7. Having considered the legal arguments we will now consider the factual arguments. Learned counsel appearing for A-2 argued that there is no material to show that A-2 was a party to the conspiracy to demand and receive bribe and the prosecution has failed to establish that the money collected by A-2 was bribe money therefore A-2 cannot be held to be guilt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. Having perused the same we do not find any material in the evidence of this witness which would help the appellant. 9. Mr. S.C. Maheshwari, learned senior counsel, in support of his arguments relied on three judgments of this Court in M.K. Harshan v. State of Kerala 1995CriLJ3978 , Sadashiv Mahadeo Yavaluje and Gajanan Shripatrao Salokhe v. State of Maharashtra 1990CriLJ600 ; and State of Madhya Pradesh v. J.B. Singh 2000CriLJ4591 . We do not think that the said judgments are based on any principle of law and the same were decided on facts of those cases and the facts of this case being not similar, we are of the opinion that the said judgments are of no assistance to the appellants. 10. Then it is argued on behalf of the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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