V. B. Bansal, J. ( 1 ) MADAN Mohan Prasad, Deputy Secretary, Departmentof Mines Government of Bihar, Patna, was tried by Special Judge, Delhi for theoffences under Section 161 Indian Penal Code and Sec. 5 (2) read with Sec. 5 (l) (d) of theprevention of Corruption Act (for short the Act ). ( 2 ) THE following charges were framed against the appellant on 1 6/07/1979 :- "firstly : That on 18. 8. 77 at C-97, South Extension, Part II,new Delhi while you being a public servant posted as Deputysecretary, Department of Mines, Govt. of Bihar, Patna pursuant toyour demand of Rs. 10,000. 00 as bribe from Sh. Viren Pandey,chairman, South Karanpura Coal Company, 11 British Indian Street,calcutta-69 accepted or obtained from said Shri Viren Pandeyrs. 5000. 00 as gratification other than legal remuneration as a motiveor reward for doing a favour to him to wit, manipulating in favourof the South Karanpura Coal Company Ltd. to operate Bunducolliery and create circumstances favourable for the vacation of theorder of the Supreme Court in favour S. D. Coal Company and thereby committed an offence punishable under S. 161 Indian Penal Code and within thecognizance of this Court. Secondly ; That at the abovesaid date and place, you being apublic servant posted as Deputy Secretary, Department of Mines,government of Bihar obtained a sum of Rs. 5000. 00 from Shri Virenpandey, Chairman South Karanpura Coal Co. Ltd. as gratificationother than legal remuneration by corrupt and illegal means or byotherwise abusing your position as public servant and therebycommitted the offence of criminal misconduct punishable unders. 5 (2) r/w Sec. 5 (1) (d) of Prevention of Corruption Act and withinthe cognizance of this Court. " ( 3 ) HE was convicted for the said offences by Shri K. B. Andley, Specialjudge, Delhi and sentenced to one year RI with a fine of Rs. 500. 00 or in defaultto undergo further RI for 6 months under S. 161 Indian Penal Code and under R. I. for twoyears with a fine of Rs. 5000. 00 or in default to undergo R. I. for 9 monthsunder S. 5 (2) read with Sec. 5 (1 ) (d) of the Act vide judgment and order dated 11/03/1982. ( 4 ) FEELING dissatisfied from his conviction and sentence Madan Mohanprasad filed this appeal. ( 5 ) MADAN Mohan Prasad appellant died on 17/09/1986. 5000. 00 or in default to undergo R. I. for 9 monthsunder S. 5 (2) read with Sec. 5 (1 ) (d) of the Act vide judgment and order dated 11/03/1982. ( 4 ) FEELING dissatisfied from his conviction and sentence Madan Mohanprasad filed this appeal. ( 5 ) MADAN Mohan Prasad appellant died on 17/09/1986. Neel Mohan son of Madan Mohan Prasad appellant moved an application unders. 394 (2) read with S. 482 Criminal Procedure Code on which this Court allowed him to continuewith the appeal vide order dated 9/03/1987. ( 6 ) BRIEFLY stated the facts leading to the filing of a challan againstmadan Moban Prasad by the CBI are as under :sbri Viren Pandey was the Chairman of South Karanpura Coalcompany having its registered office at II British Indian Street,calcutta-69 having a property known "bundu Colliery" in Hazaribagh, Bihar, Patna. The lease-hold rights of Bundu Colliery wereowned by the South Karanpura Coal Company. Action taken bythe Govt. of India for terminating the lease-hold rights of thiscompany was challenged by it and ultimately the Supreme Court ofindia injuncted the Coal Mines Nationalisation Amendment Act andpassed interim order directing this. Company to operate the Bunducolliery. ( 7 ) MADAN Mohan Prasad while working as Deputy Secretary ofdepartment of Mines, Govt. of Bihar was dealing with this matter on behalf ofoovt. of Bihar. On the basis of a telephonic message received by him atcalcutta Viren Paudey came to Delhi and met him (Madan Mohan Prasad) atc-97 South Extn. Part II, New Delhi on 17/08/1977. During conversation a demand of Rs. 10,000. 00 was made by Madan Mohan Prasad from Virenpandey for manipulating in favour of the South Karanpura Coal Companyltd. to operate Bundu Colliery and for manipulating and creating circumstanceswhich may result in vacating the order which was passed in favour of S. G. Coalcompany, Viren Pandey expressed his inability to arrange for this amountupon which Madan Moban Prasad asked him to arrange at least Rs. 500 ). 00 andto meet him again in the morning of 18/08/1977. to operate Bundu Colliery and for manipulating and creating circumstanceswhich may result in vacating the order which was passed in favour of S. G. Coalcompany, Viren Pandey expressed his inability to arrange for this amountupon which Madan Moban Prasad asked him to arrange at least Rs. 500 ). 00 andto meet him again in the morning of 18/08/1977. ( 8 ) ON a meeting in the morning of 18/08/1977 Viren Pandeywas told by Madan Mohan Prasad that he will have to give a portion of thecompany s colliery in the name of a person whose name he would let him knowfor which an agreement will have to be signed upon which Viren Pandey toldhim that a resolution in this regard will have to be passed by the Board ofdirectors and he may not be able to do it of his own upon which he insistedthat it will have to be done and by saying so he typed a draft on a typewriterand gave the same to Viren Pandey with a direction that he should bring it dulytyped on his company s letter pad and sign it in his (Madan Mohan Prasad)presence and also to bring a sum of Rs. 5000. 00 at 8. 00 P. M. at the place wherehe was staying. ( 9 ) VIREN Pandey who was staying at 7, Niti Bagh, New Delhi did notwant to make payment of this amount of bribe and so made a written complaint to S. P. (CBI), New Delhi upon which R. C. No. 36/77 was registered andthe case was handed over to deputy S. P. A. A. Khan for investigation. must show that (1) ( 10 ) DEPUTY S. P. A. A. Khan organised a raiding party in which besidesofficials O. K. Chanana, Jr. Analyst and Abrar Hussain Section Officer fromthe Ministry of Health and Family Welfare, Nirman Bhawan, New Delhi werejoined. The original complaint of Viren Pandey was shown to the witnesseswho after going through the same made enquiries from the complainant toascertain the facts. ( 11 ) THE complainant produced draft Ext. PB which was got typedby DSP Khan on a pad of South Karanpura Coal Company Ltd. made available by the complainant who also produced 50 O. C. notes of Rs. 100. 00 each. ( 11 ) THE complainant produced draft Ext. PB which was got typedby DSP Khan on a pad of South Karanpura Coal Company Ltd. made available by the complainant who also produced 50 O. C. notes of Rs. 100. 00 each. These currency notes were treated with Phenolphthalein powder and its demonstration was given to the members of the raiding party explaining to them thereaction of Phenolphthalein powder. The hands touching the treated currencynotes were dipped in a colourless solution of Sodium Carbonate which turnedpink. The solution so prepared was destroyed. ( 12 ) NECESSARY instructions were given to the member of the raidingparty when Shri G. K. Chanana was directed to accompany Viren Pandey posingas Shri R. K. Pandey one of the directors of the said company and brother ofthe complainant. He was also directed to over-hear the conversation betweenthe complainant and Madan Mohan Prasad. Necessary instructions were alsogiven that 0 K. Chanana would come out of the room of Madan Mohan Prasadafter passing of the money and give the agreed signal. The complainant wasalso directed to hand over the G. C. notes to Madan Mohan Prasad only on hisspecific demand. He was permitted to keep the typed draft of the agreementwhich was to be signed by him and G. K. Chanana as R. K. Pandey. A handingover memo was prepared and all the members of the raiding party washed theirhands. It was ensured that none of the members of the raiding party was havingany money but they were allowed to keep their identity cards with them. ( 13 ) MEMBERS of the raiding party reached near House No. C-97, Newdelhi Soutn Exth. Part II, New Delhi at about 8. 00 A. M. Viren Pandey andg. K. Chanana went inside the house while other members of the raiding partytook suitable position nearby. After about 10/15 minutes G. K. Chanana cameout of the house and gave agreed signal upon which DSP Khan along withother members of the rading party went inside and secured both the wrists ofmadan Mohan Prasad after disclosing his identity. Another person namedshri J. Sahai was also sitting whose hands were also secured but was releasedafter making enquiries from G. K. Chanana and Virea Pandey that no moneywas passed on to him. On search the marked G. C. Currency notes ofrs. 5000. 00 and the agreement Ext. PC were recovered from Madan Mohanprasad. Another person namedshri J. Sahai was also sitting whose hands were also secured but was releasedafter making enquiries from G. K. Chanana and Virea Pandey that no moneywas passed on to him. On search the marked G. C. Currency notes ofrs. 5000. 00 and the agreement Ext. PC were recovered from Madan Mohanprasad. ( 14 ) THE number of the recovered currency notes tallied with thenumber which had earlier been noted in the handing over memo. Colourlesssolution of Sodium Carbonate was prepared in which the right hand and lefthand of Madan Mohan Prasad were dipped separately when the solution tamedpink. The pocket of the bushirt accused was wearing was also dipped in anothercolourless solution of Sodium Carbonate which too turned pink and it was alsopreserved in a separate clean bottle which was separately sealed at the spot. DSP Khan recovered one line paper (PE) from the brief case of Madan Mohanprasad while the PC/i copy of the agreement from G. K. Chanana and thesewere also seized. ( 15 ) STATEMENTS of the witness were recorded and it was revealed thatat the instance of Madan Mohan Prasad the complainant produced draft agreement PC on which Viren Pandey signed at point A and O. K. Chanana signedas R. K. Pandey at point B at the instance of Madan Mohan Prasad. It wasalso found that on a demand by Madan Mohan Prasad he was paid Rs. 5000. 00by the complainant which amount was subsequently recovered from him bydsp Khan. Madan Mohan Prasad was arrested and after completing theinvestigation and obtaining sanction for prosecution Madan Mohan Prasad waschallenged. ( 16 ) INSUPPORT of its case the prosecution examined 11 witnesses. Statement of Madan Mohan Prasad was recorded under Scc. 313 Criminal Procedure Code so asto enable him to explain incriminating evidence. He denied all the allegationswith regard to his having made any demand or having accepted illegal gratification from the complainant Viren Pandey. He also denied having given draftpb to the complainant or that he asked Viren Pandey and O. K. Chanana tosign the document Ext. PC. He has claimed that he has falsely been implicatedin this case. He has denied that O. K. . Chanana was introduced to him as R. K. Pandey by the complainant and claimed that in fact father of Viren Pandeywas his senior colleague and they both remained posted as Deputy Collectors. PC. He has claimed that he has falsely been implicatedin this case. He has denied that O. K. . Chanana was introduced to him as R. K. Pandey by the complainant and claimed that in fact father of Viren Pandeywas his senior colleague and they both remained posted as Deputy Collectors. He has also claimed that they were on visiting terms and so he knew the familymembers of the complainant and so there was no question of G. K. Chananabeing introduced to him as brother of the complainant. According to him whensitting in his room the complainant came along with a companion and aftertaking out a piece of paper from the pocket of his bushirt it was offered to himin a folded condition which he thought to be a letter. He went on to statethat the complainant told him to go through this paper and hand over thesame to Arun and on opening the paper he found that it was an agreementcreating a sub-lease of a portion of Bundu Colliery on behalf of South Karanpuracoal Companyin favour of Arun Kumar Sinha. He has further stated that itwas fully known to him that no such sub-lease could be executed without theprior permission of the Government and so he laughed by saying that it waschildish. He has denied this sub-lease PC was signed at his instance or in hispresence. He has claimed that the pen Ext. P 55 did not belong to him andg. K. Chanana did not sign this agreement as R. K. Pandey in his presence. Hehas admitted about the taking of his hand washes. He has also stated that themoney was not accepted by him and, in fact, it was handed over to him by thecomplainant by saying that it may be handed over to Arun when he met him (Arun) and claimed that the amount was put by him in the pocket of hisbushirt which was lying on the Central Table. He has claimed that validsanction for his prosicution was not obtained and that he was innocent. Heexamined 9 witnesses in his defence. ( 17 ) AFTER hearing arguments the learned trial Court convicted andsentenced Madan Mohan Prasad as referred to above. ( 18 ) I have heard Shri M. L. Srivastava learned counsel for the appellantand Shri S. Lal learned counsel for the CBI and have also gone through therecords. Heexamined 9 witnesses in his defence. ( 17 ) AFTER hearing arguments the learned trial Court convicted andsentenced Madan Mohan Prasad as referred to above. ( 18 ) I have heard Shri M. L. Srivastava learned counsel for the appellantand Shri S. Lal learned counsel for the CBI and have also gone through therecords. ( 19 ) LEARNED counsel for the appellant has submitted that in this casethe Law Department was competent to accord sanction for prosecution whilethe sanction order has been issued by the Chief Secretary after the sanction wasaccorded by the Chief Minister. He has, thus, submitted that there has been aviolation of the rules on account of which there was no valid sanction and, thus,the prosecution must fail on this account. He has referred to the statement ofravinder Prasad Sinha, Deputy Secretary, Law Department (DW 9-A ). Thiswitness had stated that he had dealt with the file regarding the sanction forprosecution of Madan Mohan Prasad who was working as Deputy Secretary,department of Mines and Geology, Govt. of Bibar, Patna. According to himat the relevant time the Law Department had the responsibility for accordingsanction of prosecution of public servants under Sec. 197 Crp. C. but not underprevention of Corruption Act which was to be accorded by the concerneddepartment. He has also stated that according to the Rules of Business ofbihar Glovsrnment of the year 1979 if Law Department refused to give sanctionfor prosecution there was no other department which could issue such asanction. He had also claimed that the Law Department would send the file tothe Minister-in-Charge of the Law Department and on his approval the sanctionorder used to be issued by the Secretary-cum-Legal Rememberance. He did notknow what was the position of the Chief Minister qua all departments of thegovernment and that from the CBI along with request for seeking sanction ofprosecution the Law Department had received from the Chief Secretary thereport of S. P. (CBI) Ext. DW4/a. He has also admitted that along with thes. P. s report there was also calender of evidence and copy of statement ofmadan Mohan Prasad. He was not able to say if the Chief Minister wasincharge of all the departments in the State but admitted that Chief Secretarywas the Ex-officio Principal Secretary of all other Departments of Government. He has admitted that sanction for prosecution under the Prevention ofcorruption Act was to be accorded by the Administrative Department. He was not able to say if the Chief Minister wasincharge of all the departments in the State but admitted that Chief Secretarywas the Ex-officio Principal Secretary of all other Departments of Government. He has admitted that sanction for prosecution under the Prevention ofcorruption Act was to be accorded by the Administrative Department. Hehas also admitted that the Administrative Department only consulted thelaw Department but they could act according to their own conclusion andsanction could be given by the Administrative Department even against theadvice of the Law Department but sanction under Sec. 197 was to be issued bythe Law Department. In this case sanction order has been issued under thesignatures of Shri K. A. Ram Subramaniam, Deputy Chairman, Stated Planningboard, Bihar (PW 6 ). He has clearly stated that in August 1978 he was work-ing as Chief Secretary, Bihar Government and that be examined the papers inrespect of accused, i. e. investigation report of CBI and applied his mind andobtained the order of Chief Minister. He has also stated that the sanction orderext. Public Witness 6/a was signed by him on 24/08/1978. During cross-examination he stated that he knew Ravinandan Prasad, an Indian Administrative Service officer but did not knowviren Pandey. He has also claimed that there were statements of facts, prosecution evidence, copy of FIR and report of CBI which was a bulky one. Hewas unable to say for how many days the file remained in his office, but claimedthat he saw the same for the first time in April/may 1978 and that the sanctionorder was as per draft in all details made available by the CBI. He has madea categorical statement that Chief Minister was the Minister Incharge of thepersonnel Department and every such file is to be seen by the Chief Minister. According to him the Law Department delayed the issue of sanction for aboutfour to six months and that he received reminders from the Government ofindia for the issuance of the sanction. According to him even after getting theadvice of the Government Advocate Law Department was delaying the matterand was asking for more documents from the CBI. According to him whenapprised of the matter Chief Minister asked him to issue the sanction withoutfurther reference to the Law Department. According to him in this case theconcerned Minister was the Chief Minister and he as Chief Secretary has aspecial Status. According to him whenapprised of the matter Chief Minister asked him to issue the sanction withoutfurther reference to the Law Department. According to him in this case theconcerned Minister was the Chief Minister and he as Chief Secretary has aspecial Status. He has further stated that he received the file from Law Department on 17/07/1978 and recorded his note Ext. Public Witness 6/dc. He has admittedthat he bad no power to accord sanction for prosecution of Madan Mohanprasad and claimed that he only obtained the order of Chief Minister for sanction and only authenticated the orders of the Government. ( 20 ) SUBMISSION of the learned counsel for the appellant has been thatthe Chief Minister had no power to accord sanction and it was in violationhaving not been issued with the approval of the Law Minister. It is notdisputed that Madaa Mohan Prasad was the Deputy Secretary to the Govt. ofbihar and could be removed by the Chief Minister and not by the Lawminister. It is apparent that sanction for prosecution under Prevention ofcorruption Act could be given by a person competent to remove a Governmentservant from service, In these circumstances, I do not find any thing wrongin the exercise of his powers by the Chief Minister to accord sanction forprosecution of Madan Mohan Prasad. Chief Secretary being the Principalsecretary of all the Departments of the Government was, thus, competent toissue the sanction order as per the directions of the Chief Minister. In casesampuran Singh v. Stale of Punjab, AIR 1982 SC 1407 it has clearly been heldthat Sec. 6 (1) (c) of the Prevention of Corruption Act stipulates that the removing authority will be the sanctioning authority and in view of Article 311 (1)of the Constitution of India removing authority cannot be subordinate in rankto the appointing authority. It was also held that by necessary implication theremoving authority may be higher in rank to the appointing authority. In thesaid case the appointing autturity of the overseer was the Chief Engineer andthe sanction for prosecution was given by the Chief Minister who was holdingthe portfolio of irrigation also. It was held that the sanction was not invalid. It was also held that by necessary implication theremoving authority may be higher in rank to the appointing authority. In thesaid case the appointing autturity of the overseer was the Chief Engineer andthe sanction for prosecution was given by the Chief Minister who was holdingthe portfolio of irrigation also. It was held that the sanction was not invalid. ( 21 ) IN case R. J. Singh Ahluwalia v. The State of Delhi AIR, 1971sc 1552 the admitted case of the prosecution was that sanction for prosecutioncould be accorded by the Home Minister only while it was granted by theministry of Industrial Development and Company Affairs (Department ofindustries Development), ft was in these circumstances that it was consideredby the Government that the sanction being invalid prosecution must fail. Inthe instant. case the sanction for prosecution has been accorded by the Chiefminister who could remove M M Prasad from service. It is also partinent tonote that the advice was sought and the Law Department also gave opinion tothe Administrative Department that it was a fit case for the grant of sanctionfor prosecution- However, submission of learned counsel for the appellant hasbeen that the Law Department was asked to give opinion as to whether it wasnecessary to ask for additional information from the CBI and they were notcompetent to give advice as to whether it was a fit case for the grant of sanction. The fact, however, remains that all the papers were put up before thechief Minister who after application of mind accorded sanction for prosecutionof M. M. Prasad. Considering all these facts, I am clearly of the view thatthere is nothing bad in the sanction accorded for the prosecution of M. M. Prasad. ( 22 ) LEARNED counsel for the appellant has submitted that there hasnot been any demand of illegal gratification by M. M. Prasad nor had heaccepted any illegal gratification. He has also submitted that M. M. Prasad hadbeen pursuing the matter on behalf of Government of Bihar to check illegalmining on account of which Viren Pandey had a grudge who manipulated thefacts and got M. M. Prasad falsely implicated in this case. He has also submitted that in fact the sum of Rs. 5 l00. 00 and document Ext. PC were handedover to M. M. Prasad by the complainant by saying that they were to be handedover to Arun Kumar, his relation and a friend of Viren Pandey. He has also submitted that in fact the sum of Rs. 5 l00. 00 and document Ext. PC were handedover to M. M. Prasad by the complainant by saying that they were to be handedover to Arun Kumar, his relation and a friend of Viren Pandey. According tohim there was no demand of illegal gratification nor any acceptance of the same. He has also submitted that M. M. Prasad was not in a position to give anyassistance to Viren Pandey and that he has failed to examine Arun Kumarwho subsequently died and so could not be produced as a defence witness. Hemust show that (1) the detenuinghas also submitted that there have been wrong facts in the statements of thewitnesses and, thus, prayed that the appeal may be accepted and M. M. Prasadmay be acquitted by giving him at least the benefit of doubt. ( 23 ) LEARNED counsel for the respondent has, on the other hand, submitted that the prosecution has proved by clear, cogent and convincing evidencethat M. M. Prasad made a demand of illegal gratification from the complainantwho did not want to pay the same and that he made a complaint to the CBIand as desired by the accused be got prepared a draft of the sub-lease and itwas signed by the complainant and O. K. Chanana (PW1) as R. K. Pandeybrother of the complainant. He has also stated that a sum of Rs. 5000. 00 waspaid to Madan Mohan Prasad by the complainant as illegal gratification ondemand and that the recovery was effected from Madan Mohan Prasad. Hehas, thus, submitted that there is clear presumption under Sec. 4 of the Actagainst M. M. Prasad who has not been able to discharge the onus on him toestablish that he had not made a demand and accepted illegal gratification. Hehas, thus, submitted that M. M. Prasad has rightly been convicted and sentencedand, thus, prayed that the appeal may be dismissed. ( 24 ) THE first question for consideration is as to whether there was ademand of illegal gratification by M. M. Prasad on 17/08/1978 in theevening and again on the morning of 18/08/1978. In his statement aspw 4 initially Viren Pandey has stated that he did not meet Madan Mohanprasad on 17/08/1978 though he had seen him in the Supreme Courtpremises and considered that he had to see him. In his statement aspw 4 initially Viren Pandey has stated that he did not meet Madan Mohanprasad on 17/08/1978 though he had seen him in the Supreme Courtpremises and considered that he had to see him. However, during the recordingof the examination-in-Chief it self he claimed having gone to the Rest Housewhere Madan Mohan Prasad was staying on 17/08/1978 at about 8. 30p. M. where a demand of money was made from him. ( 25 ) SUBMISSION of learned counsel for the appellant has been that thisstatement about the demand having been made on 17/08/1978 was madeby the complainant only at the instance and suggestion of counsel for the Statewhich fact has been controverted by learned counsel for the respondent. Thereis no doubt that the witness was allowed to go out by the Court during therecording of the statement and it is only thereafter that without a question beingput to this witness he had stated about his meeting with Madan Mohan Prasadon 17/08/1978 in the evening -. It was specifically refuted by the witnessthat she had a talk with anyone or that he was making such a statement onbeing reminded by anyone. The fact remains that there is a mention aboat thisdemand of illegal gratification on 17/08/1978 by Madan Mohan Prasadin the complaint which forms the basis of the FIR. This witness has specificallystated about the demand of illegal gratification even in the morning of 1 8/08/1978 and it is only thereafter that he made a complaint to the CBI thathe did not want to pay this illegal gratification. In these circumstances, I amclearly of the view that merely a lapse on the part of Viren Pandey in notmentioning the factum of the demand of illegal gratification being made bymadan Mohan Prasad on 17/08/1978 in the initial part of his statementwould not make much difference. It may also be noticed that it is only after thecomplainant decided not to pay the illegal gratification that he made a complaintto the CBI on the basis of which raid was conducted and the accused wasapprehended after he had made a demand and accepted the illegal gratification. The subsequent events, thus, clearly indicate that there was a prior demandmade by Madan Mohan Prasad of illegal gratification from the complainant. The subsequent events, thus, clearly indicate that there was a prior demandmade by Madan Mohan Prasad of illegal gratification from the complainant. ( 26 ) LEARNED counsel for the appellant has submitted that no requestwas made for adjournment on behalf of the State of Bihar and it was only atthe instance of counsel for S. D. Coal Company that the case was adjourned to 22/08/1978. la this regard ws miy refer to the statement of Public Witness 9kamal Nain Chobey who was counsel for South Karanpura Coal Company Ltd. in the Supreme Court. He has stated that on 17/08/1977 writ petitionsof Bundu Colliery were adjourned to 22/08/1977 on the request ofcounsel for Vijay Narain Singh and that prayer was made for adjournment bycounsel for State of Bihar also. DW 7 UP. Singh, Advocate has stated that inthe year 1977 he was Standing Counsel for State of Bihar in Supreme Courtand that Madan Mohan Prasad came to instruct him and that Shri Lal Narainsinha, Sr. Advocate and Attorney General appeared as counsel for Bihargovernment. He has also slated that adjournment was given at the request ofs. D. CoalCompany and Attorney General made a statement in the Courtthat if necessary Bihar Government will also file an affidavit as the lease wasconceited by the Government. It would, thus, be clear that though a specificrequest was made for adjournment by counsel for S. D. Coal Company andvijay Narain Singh but the request was not opposed by the State of Bihar andthey also wanted to file a reply before the adjourned date. ( 27 ) THE next question for consideration is with regard to the raidingparty being organised and necessary instructions being given to the witnessesincluding G. K. Chanana (PW 1) and Abrar Hussain (PW 2 ). DSP A. A. Khan (PW 3) has narrated the details as to how after the registration of the case heorganised a raiding party and briefed the members with reference to the complaint of Viren Pandey. He has also stated that G. K. Chanana was asked toaccompany the complainant as a shadow witness to overhear the conversationbetween the complainant and Madan Mohan Prasad and to witness the passingof the money. He was also given instruotious to sign the draft agreement asbrother of Viren Panday. He has also stated that G. K. Chanana was asked toaccompany the complainant as a shadow witness to overhear the conversationbetween the complainant and Madan Mohan Prasad and to witness the passingof the money. He was also given instruotious to sign the draft agreement asbrother of Viren Panday. A demonstration was also held in the presence of thewitnesses indicating to them the reaction of Phenolphthalein in a colourlesssolution of Sodium Carbonate which turned pink G. C. currency notes of Rs. 5000. 00 made available by viren Pandey were treated with Phenolphthaleinand given to the complainant with adirection to pass on the money to theaccused only on his demand. A draft agreement in duplicate was also given tohim with a direction to sign the same in the presence of the accused and thatagreed signal was to bs given to the members of the raiding party by G. K. Chanana on coming out of the Guest House. This part of the testimony ofdsp A. A. Khan (PW 3) stands folly corroborated from the testimony of G. K. Chanana (PW 1), Abrar Hussain (PW 2) and viren Pandey (PW 4 ). There areno material discrepancies in the state mints of these witnesses so as to doubtabout the aforesaid happenings. ( 28 ) THE next question is about the signing of the draft agreement by thecomplainant Viren Pandey and G K Chanana (PW 1 ). In this regard statementof G K Chanana (PW 1) and Viren Pandey (PW 4) are relevant since they bothhad gone inside the premises where Madan Mohan Prasad was staying whileother members of the raiding party had taken suitable positions outside. ( 29 ) PW1 G. K. Chanana has stated that on 18/08/1977 atabout 8. 15 P. M. he accompanied Viren Pandey to the Guest House in Newdelhi South Extension and found the accused sitting on the head side of thedouble bed while one Mr. Sahai of Directorate General, Supplies and Disposalwas sitting on foot side. According to him the accused had stated that neitherhigh Court nor Supreme Court could help Viren Pandey while he could do so,he went on to state that Mr. Madan Mohan Prasad enquired if he had broughtthe papers upon which Viren Pandey produced Ext PC on which he signed atpoint a with the pen of Madan Mohaa Prasad. He has also stated about hishaving signed it at point b with his own pen. Madan Mohan Prasad enquired if he had broughtthe papers upon which Viren Pandey produced Ext PC on which he signed atpoint a with the pen of Madan Mohaa Prasad. He has also stated about hishaving signed it at point b with his own pen. He went on to state thatext. PC was given to Madan Mohan prasad while its carbon copy Ext. PC-1 wasgiven to him to be kept in the resolution book at Calcutta. He has also statedthat he has signed this document as R. K. Pandey and was posing himself asr. K. Pandey younger brother of the complainant. During cross-examination hehas stated that he was asked to sign R. K. Pandey by saying that he was mostlike R. K. . Pandey and claimed having seen and read Ext. PC in the CBI Office. He did not hear Parsad saying that it was a childish act after going through theagreement and claimed that Prasad only asked Pandey to sign it while he signedit at the instance of Viren Pandey. He has denied that Virea Pandey gavethis agreement to Prasad by saying that it be given to Arun Kumar. ( 30 ) VIREN Pandey (PW 4) has stated that on reaching the room of theguest House in New Delhi South Extension he introduced G K. Chanana (PW 1) as his brother to Madan Mohan Prasad. He went on to state thatprasad asked him if he brought the typed agreement upon which he gave (hedraft agreement which was typed in the CBI office on the letter pad of thecompany. He went on to state that Prasad asked him to sign it when he hadno pen and was provided a red pen by Madan Mohan Parsad. He has furtherstated that he told Madan Mohan Prasad that it was red pen upon which hetold that "subh Kaam Ke Liye Isi Se Sign keejiye". He has further stated thatmr. Chanana signed this agreement Ext. PC as R. K. Pandey whom he introduced to Prasad as his younger brother. He has denied the suggestion that onentering the room he enquired from Prasad whether Arun uncle came who wasto arrive and he replied that he did not know anything about it. He has alsodenied that he handed over the agreement to the accused by saying that it wasmeant for Arun and may be handed over to him at Patna. He has denied the suggestion that onentering the room he enquired from Prasad whether Arun uncle came who wasto arrive and he replied that he did not know anything about it. He has alsodenied that he handed over the agreement to the accused by saying that it wasmeant for Arun and may be handed over to him at Patna. He has, in fact,claimed that he did not know Arun Kumar and denied that Prasad had notmade a demand of the agreement. It is also denied that after going through theagreement Prasad laughed and remarked that it was a childish act or that itwas not permissible to create sub-lease. He has also denied that Prasad returnedthe agreement Ext. PC to him. According to him he did not know Arunkumar and so could not say if any such person named Arun Kumar died atpatna in a car accident. ( 31 ) FROM the statements of these two witnesses has clearly been provedby the prosecution that the complainant had produced the draft agreementext. PC before Prasad and it was signed by Viren Pandey complainant withthe pen made available by Prasad and it was signed by G. K. Chanana asr. K. Pandey. There is no material on record to substantiate or corroboratethe plea putforward by Mr. Prasad that this agreement was, in fact, not signedin his presence and at his instance or that it was given to him by the complainant to be handed over to any person named Arun Kumar. ( 32 ) THE most important question now for consideration is as to whetherthere was any demand of illegal gratification and acceptance of Rs. 5000. 00 bymadan Mohan Prasad from the complainant. On this point again theevidence available is the testimony of PW1 G. K. Chanana and PW4 virenpandey. ( 33 ) G. K. Chanana (PW 1) has stated that Prasad enquired about otherthing and during that time Pandey gave reply to Prasad that he could bringrs. 5000. 00 only and gave this money to Prasad. According to him this amountwas kept by Prasad in his left pocket without using his right hand. He hasalso stated that accused has made a demand of one more rupee as shagan when Pandy gave reply that he did not have any such money and that heon enquiry told him that he too did not have any money. According to him this amountwas kept by Prasad in his left pocket without using his right hand. He hasalso stated that accused has made a demand of one more rupee as shagan when Pandy gave reply that he did not have any such money and that heon enquiry told him that he too did not have any money. He has denied thatno money was passed in his presence. ( 34 ) VIREN Pandey (PW4) has stated that Prasad enquired from him ifhad brought money to which he replied in the affirmative and thereafter hegave currency notes in the hand of Prasad and told him that these werers. 5000. 00 and he could count them. According to him Prasad remarked thatthere was no necessity of counting the same and that still more was to bepaid. He has denied that he took out some currency notes from the pocket andoffered them to Prasad asking him to hand over the same to one Arun Kumaror that accused remarked that he should not be involved in that matter. Hehas denied that the accused did not make demand of money or that he hadplaced money and the agreement in the pocket of the bushirt of Prasad lyingon VIP bag. ( 35 ) THE question now for consideration is with regard to the recoveryof the agreement and marked currency notes. G. K. Chanana (PW 1) has statedthat he came out of the room and gave agreed signal to A. A. Khan upon whichthe members of the raiding party came inside and Mr. Khan disclosed hisidentity and held both the wrists of accused Prasad. According to himoneperson named Sahai was present in the room whose hands were secured by Mr. Ghosh but after making enquiries from him the hands of Sahai were released. He has also stated that DSP Khan then took out Rs. 5000. 00 and the agreement besides one two rupee note, two one rupee notes and one coin and a penfrom the pocket of the bushirt which the accused was wearing. He has been fullycorroborated in this regard by Abrar Hussain (PW 2) and DSP A. A. Khan (PW 3 ). They have also stated that the numbers of the G. C. notes Exts. P 1 top 50 were compared with the numbers mentioned in the handing over memoext. PB which was prepared in the CBI Office which tallied. He has been fullycorroborated in this regard by Abrar Hussain (PW 2) and DSP A. A. Khan (PW 3 ). They have also stated that the numbers of the G. C. notes Exts. P 1 top 50 were compared with the numbers mentioned in the handing over memoext. PB which was prepared in the CBI Office which tallied. DSP Khan (PW 3) had specifically denied the suggestion that Prasad was wearing only abanyan and Pyjama or that the bushirt was lying on VIP bag on central table. ( 36 ) PLEA of the learned counsel for the appellant had been that Prasadwas not wearing the bushirt and no recovery was effected from Prasad. However, this argument is not supported by any material on record. Theevidence produced by the prosecution has clearly established that the G. C. Currency notes Exts. P 1 to P 50 worth Rs. 5000. 00 and the agreementext. PC were recovered from the pocket of the bushirt Madan Mohan Prasadwas wearing after A. A. Khan and other members of the raiding party enteredroom with G. K. Chanana who bad come out of the room on the plea of takinga cigarette from the car of Viren Pandey. ( 37 ) THE question now for consideration is as to whether there is anyscientific corroboration to the case of the prosecution about the handling of themarked G. C. notes by Prasad. In this regard again reliance has been placedon the statements of G. K. Chanana (PW 1), Abrar Hussain (PW 2) and DSPA. A. Khan (PW 3 ). They have stated that the right hand and left hand ofprasad were dipped in separate solutions of Sodium Carbonate which turnedpink and were preserved in separate bottles. Similarly, the pocket of the bushwhich Prasad was wearing was dipped in a colourless solution of Sodiumtcarbonate which turned pink which was also preserved in a separate bottle. These bottles were marked as Exts. P. 51, P. 52 and P. 53 while bushirt of theaccused was marked as P. 54 and pen as P. 55. These were taken into possession vide seizure memo Ext. PF. This part of the prosecution story standsfolly corroborated from the testimony of these three witnesses and I do notfind any material discrepancy so as to hold that they were not reliable witnesses. These were taken into possession vide seizure memo Ext. PF. This part of the prosecution story standsfolly corroborated from the testimony of these three witnesses and I do notfind any material discrepancy so as to hold that they were not reliable witnesses. ( 38 ) LEARNED Counsel for the appellant has submitted that Prasad waswas not in a position to render any assistance to the complainant who, in fact,had been pursuing the matters relating to the violation of law while operatingmines and reply affidavit had already been handed over to the Counsel on 1 7/08/1978. In this way, he was unable to give any assistance and, thus, couldnot make any demind. I do not agree with this submission. It is not disputedthat Prasad was working as Deputy Secretary, Govt. of Bihar in the Department of mines and was looking after Litigation Section during the relevantperiod. He had been visiting Delhi to brief the Counsel on behalf of thegovernment of Bihar. This, it was known to the complainant that the accusedis pursuing the matter and thus, was under the impression that the accused wasin a position to help him. The incapacity of a Government Servant to showany favour or render any service in connection with official duty does notnecessarily take the case out of the purview of Sec. 161 Indian Penal Code or Sec. 5 (1) (d) ofthe Act. To attract the provisions aforesaid it is not necessary that the publicservant must do something in connection with his duty and obtain valuablethings or pecuniary benefits. Thus, if money is paid on the belief that a personwill render help the offence under Sec. 161 Indian Penal Code and Sec. 5 (1) (d) of the Actwould be made out. Reference in this regard can be made to the cases Tirlokchond Jain v. State of Delhi, AIR 1977 SC 666 and Ramesh v. The State,1986 Cr. L. J. I 101. ( 39 ) SUBMISSION of learned Counsel for the appellant has been that fromthe very beginning plea taken up by Prasad was that the money was given tohim for being handed over to Arun Kumar who died subsequently and noeffort was made by the Investigating Officer to record the statement of aforesaidarun Kumar. In my view, the mere fact that the 1. 0. In my view, the mere fact that the 1. 0. did not record the statement of any such person named Arun Kumar would not be sufficient todiscard the testimony of these witnesses made on oath and which stood the testof cross-examination and there are no material discrepancies in their testimony. ( 40 ) LEARNED Counsel for the appellant has submitted that claim ofvilen Pandey complainant has been that in those days. he was staying in Biharbhavan which fact stands contradicted from the testimony of S. C. Sahu (DW 2 ). This witness when examined had stated that he brought the recordsof Stay of Guests in Bihar Guests House, 26 Jorbagh New Delhi which showedthat no person by the name of Viren Pandey EX-MLC stayed there during theperiod from 15/08/1977 to 2 5/08/1977. He has during crossexamination admitted that people have been staying in the Guest House asguests and companion of the persons in whose names the booking was made. It would, thus, mean that it is not necessary that a person must have a bookingin his own name for stay at Bihar Guests House and the complainant couldhave stayed there even when the booking was not in his own name but in thename of another. Even otherwise the presence of the complainant in Delhi onthe relevant dates is not in dispute. Even the claim of the complainant ofmeeting the appellant and he being apprehended by DSP Khan is not disputed. In these circumstances, in my view, there is no reason to disbelieve the claim ofviren Pandey that he was staying in the Bihar Guest House and even otherwisethis is not a fact material for the just decision of this case. ( 41 ) LEARNED Counsel for the appellant has also submitted thatin fact the complainant wanted the agreement and Rs. 5000. 00 to be handedover to Arun Kumar and reliance has been placed upon the testimony ofmaheshwar Prashad (DW 4), Sukhdev Prashad (DW 5) and Indrashan Prashad (DW 6 ). The plea was that Viren Pandey had taken money from Arunkumar which he wanted to return and it was in this connection that G. C. notesof Rs. 5000. 00 were given by him to the appellant with a request to pass on themoney to the said Arun Kumar. The plea was that Viren Pandey had taken money from Arunkumar which he wanted to return and it was in this connection that G. C. notesof Rs. 5000. 00 were given by him to the appellant with a request to pass on themoney to the said Arun Kumar. (DW 4) Maheshwar Parshad has stated that inthe year 1976 Sukhdev Parshad (bis sister s son) asked him if he wanted to joina colliery business by saying that one Indershan Babu was starting business inpartnership upon which he expressed his willingness but first wanted to see thesite. He went on to state that he was introduced to Indershan Babu bysukhdev Parshad and in the second week of April 1976 he, Sukhdev Parshad andindershan Babu, Arun Kumar Sinha and Viren Pandey went to a site at Bunducolliery about 10 miles from Ram Bagh Railway Station. According to him hedid not like the surroundings and some persons were found around that placearmed with fire arms and there was a kacha construction having many holes inits walls. He went on to state that they returned to Ram Bagh Railwaystation and that at that time Arun Kumar told Viren Pandey that he had todo the business and he was to spend only and at that time Arun Kumar tookout Rs. 6000. 00 and banded over to Viren Pandey. He has admitted that he didnot know Madan Mohan Prasad and came to the Courts on receipt of summonswhile accompanied by Sukhdev Parshad and Indershan Babu. He has admitted that he met Viren Pandey and Arun Kumar only on that day for the firstand last time. He has nowhere stated having passed on this information to theappellant or any other person. Similar have been the statements of Sukhdevparshad (DW 5) and Indershan Babu (DW 6 ). It is apparent from the statements of these persons that they had notpassed on this information to anyoneand the appellant was not known to then. It is also significant to note that therewas no cross-examination of Viren Pandey with reference to the payment ofthis amount of Rs. 6000. 00 by Arun Kumar to Viren Pandey. It these circumstances; it is not clear as to how these witnesses have been introduced with this plea. The only plausible conclusion could be that it is only an after thought and toshow that Viren Pandey owned a sum of Rs. 6000. 6000. 00 by Arun Kumar to Viren Pandey. It these circumstances; it is not clear as to how these witnesses have been introduced with this plea. The only plausible conclusion could be that it is only an after thought and toshow that Viren Pandey owned a sum of Rs. 6000. 00 to Arun Kumar and that asum of Rs. 5000. 00 was paid to the appellant to be handed over to Arun Kumar. If really any such amount was payable to Arun Kumar by Viren Pandey therewould have been some material to indicate that there was any demand madeof this money by Arun Kumar from the complainant. In these circumstances,i have no hesitation in coming to the conclusion that these witnesses have beenintroduced just to putforward a plea in defence but they cannot be believed andtheir testimony has to be ignored. ( 42 ) FROM the aforesaid evidence it has clearly been proved by theprosecution that Madan Mohan Prasad was dealing with the files on behalf ofgovt. of Bihar in respect of the violation of law relating to the mines of differentpersons including South Karanpura Colliery Co. Ltd. of which Viren Pandeywas the Chairman. There was a feelling in the mind of Viren Pandey that allthe problems were created for him and his company by Madan Mohan Prasadwho could be of help to him and it was in this connection that when approachedprasad made a demand of illegal gratification and a sub-lease in favour of hisnominee. Prosecution has proved from the evidence brought on record thatinitially a demand of Rs. 10,000. 00was made by Madan Mohan Prasad who whenexpressed his inability to pay this amount agreed to take Rs. 5000. 00 and gavea draft of the agreement to be signed in his presence. It has also been provedthat at the instance of the appellant the draft agreement Ext. PC typed on theletter pad of the company in the CBI Office was signed by Viren Pandey andg. K. . Chanana as brother of Pandey and Director of the company at theinstance of Prasad at the Guest House where he was staying. It has also beenproved that on demand a sum of Rs. 5000. 00 was paid to him by viren Pandeyand, these were recovered by DSP A. A. Khan (PW 3 ). K. . Chanana as brother of Pandey and Director of the company at theinstance of Prasad at the Guest House where he was staying. It has also beenproved that on demand a sum of Rs. 5000. 00 was paid to him by viren Pandeyand, these were recovered by DSP A. A. Khan (PW 3 ). The recovery standscorroborated from the chemical test in which the hand washes and the wash ofthe pocket of the bushirt of the appellant when taken separately in colourlesssolution of Sodium Carbonate turned pink indicating that these were bandied bythe appellant. ( 43 ) ONCE these facts are proved a presumption arises under Sec. 4 ofthe Act and the burden lies on the appellant to show that he had not made ademand and accepted illegal gratification. ( 44 ) LEARNED Counsel for the appellant has not been able to show thatthis amount was paid to the complainant in any other connection audit wasnot an illegal gratification. ( 45 ) LEARNED Counsel for the appellant has pointed out certain factswhich have not been correctly mentioned in the impugned judgment. A perusalof the judgment indicates that the learned trial Court has mentioned in para 35that :- " It appears that Ext. PE was admittedly torn out from theregister which was recovered from the possession of the accused on18. 8. 77. How could the complainant, a day earlier, know that theaccused was having any register containing papers similar to that ofext. PB ? This factor alone lends assurance to the credibility of theversion putforth by the complainant in this case. " ( 46 ) I have gone through the evidence and do not find that the prosecution had taken possession of any such register. According to the prosecutionstory the paper Ext. PE was recovered from the brief-case of the appellant. ( 47 ) AGAIN in para 36 of the judgment learned trial Court has observedthat :- " As already indicated above, Public Witness 1 and Public Witness 2 are both independent and respectable witnesses having no animosity towards theaccused. They have both seen and heard what transpired betweenpw 4 and the accused. They had seen the money passed by Public Witness 4to the accused who pocketed the same at once. They have both seen and heard what transpired betweenpw 4 and the accused. They had seen the money passed by Public Witness 4to the accused who pocketed the same at once. " ( 48 ) THIS is again not factually correct since the case of the prosecutionhas been that Public Witness 1 G. K. Chanana and accompanied the complainant Virenpandey (PW 4) inside the room where Madan Mohan Prasad was present andabrar Hussain (PW 2) was standing outside. It is not the case of the prosecution that Abrar Hussain (PW 2) was also a witness of the demand and passingof the money to Madan Mohan Prasad by the complainant. ( 49 ) AGAIN in para 33 of the judgment Kamal Nain Chobey (PW 9)has been shown as a Government Advocate who, in fact, was not a Governmentadvocate as stated by him. ( 50 ) THE question for consideration, however, is as to what is the effectof these mistakes having occurred in the impugned judgment. ( 51 ) I have given my thoughtful consideration to this aspect and I amclearly of the view that discrepancies aforesaid do not have any affect on theappreciation by the learned trial Court. The conclusion arrived at by thelearned trial Court is based on material evidence brought on record and, thus,on account of these minor discrepancies having occurred in the judgment nobenefit can be derived by the appellant. ( 52 ) ONCE the prosecution proves the demand and acceptance of moneyby Madan Mohan Prasad it was for him to prove by clear and convincingevidence that it was not, in fact, an illegal gratification. Not only that he hasnot been able to prove his plea there is not even a plausible explanation thatthis amount was accepted by him not as illegal gratification but for some otherpurpose. ( 53 ) CONSIDERING all the facts and circumstances, I am clearly of theview that Madan Mohon Prasad has rightly been convicted. ( 54 ) AS regards sentence Madan Mohon Prasad has already died and,thus, the question of his undergoing sentence does not arise. He was alsofined Rs. 500. 00 for the offence under Sec. 161 Indian Penal Code and Rs. 5000. 00 for the offenceunder Sec. 5 (2) read with Sec. 5 (1) (d) of the Act. Since Madan Mohan Prasadhas already died it would, in my view, be in the ends of justice if this amount offine is premitted. He was alsofined Rs. 500. 00 for the offence under Sec. 161 Indian Penal Code and Rs. 5000. 00 for the offenceunder Sec. 5 (2) read with Sec. 5 (1) (d) of the Act. Since Madan Mohan Prasadhas already died it would, in my view, be in the ends of justice if this amount offine is premitted. ( 55 ) AS a result the appeal is accepted in part. Conviction of Madanmohan Prasad is upheld. However, the order of sentence is modified to theextent that the amount of fine is remitted. The appellant has already diedand, thus, there is no question of he being asked to undergo sentence ofimprisonment.