S. C. Jain ( 1 ) THE facts giving rise to this appeal are that theappellant, Ram Lubhaya was posted as Court Master i. e. Reader in thecourt of Shri J. D. Kapur,metropolitan Magistrate, New Delhi in the year1975. As per the prosecution version, on 6-9-1975 the complainant, Gopalsingh, filed an application in the Court of Shri J. D. Kapur, M. M. for thereturn of his jack and stepney lying in the custody of the police. That application is Ex. Public Witness 1/f, the copy of which is Ex. Public Witness 1/g. Those applicationswere allegedly given by the complainant to Ram Lubhaya, the appellant. The complainant was asked to come on 8-9-1975. The complainant met theappellant. Ram Lubhaya on 8-9-1975, but he was asked to come on the nextday i. e. 9-9-1975 and that the appellant demanded Rs. 10 by way of bribe forgetting the order passed from the Magistrate concerned for the return ofthese articles to the complainant. The complainant promised to pay the saidbribe amount, provided he got favourable orders from the Court. ( 2 ) ON 10-9-1975, the complainant, however, report the matter to theanti Corruption Branch of Delhi Police and his statement was recorded,which is Ex. Public Witness 3/a. On the basis of the statement of the complainant, itwas decided to trap the appellant and S/shri Narinder Vir Singh, working asstorekeeper, Institute of Commercial Practices; and Hawa Singh, Patwari inthe Land Acquisition Branch; D. C. Office were summoned to act as Panchwitnesses. In their presence, the recorded statement of the complainant,ex. PW-3/a was read over to Gopal Singh, complainant, who admitted thesame to be correct. The complainant produced one G. C. note Ex. P-l of thevalue of Rs 10, number whereof was correctly recorded in the raid report Ex. PW1/a G. C. note was treated with phenolphthalein powder and the formaldemonstration test was given through Narinder Vir Sirgh. The G. C. notewas returned back to the complainant with directions to pass on the same tothe accused after having such talk and in such a manner so as to indicatethat the same was passed on by way of bribe. Similar instructions were alsoimparted to the two Panch witnesses to remain close to the complainant,hear the talk, watch the transaction and give the agreed signal as soon as thetainted currency note was passed on to the appellant. At about 1. Similar instructions were alsoimparted to the two Panch witnesses to remain close to the complainant,hear the talk, watch the transaction and give the agreed signal as soon as thetainted currency note was passed on to the appellant. At about 1. 55 p. m. the raiding party reached the Court premises at Parliament Street, Newdelhi. On reaching there the complainant, Gopal Singh along with Narindervir Singh and Hawa Singh PWs proceeded to the Court ofshri J. D. Kapur,judicial Magistrate, New Delhi, while the other members of the raiding partytook up their respective positions. At that time, the Court was not in session,while the appellant was present on his seat. As per the prosecution version,the complainant asked the appellant about his application. The appellantthen asked the complainant to take out Rs. 10. The complainant gavethe tainted G C. note to the appellant, who accepted it in his hand and keptthe same in left pocket of his pant. Thereafter the complainant give theagreed signal which was transmitted to the Inspector by Nawal Singh S. I. the Inspector reached the spot and after disclosing hi? identity, challengedhe appellent if he had accepted the bribe amount of Rs. 10. 00 from Gopalsingh, complainant. The appellant produced the tainted G. C. note Ex. P-l,number whereof on comparison tallied with the number already recorded inthe raid report and that G. C. note was taken into possession vide seizurememo Ex. PW1/b. Left hand of the appellant was dipped in a solution ofsodium carbonate, as a result of which the same turned pink. The solutionwas transferred to bottle Ex. P-2, which was duly labelled, sealed and seized vide memo Ex. PW1/c. Pant Ex. P-4 was removed from the person of theappellant and inner lining of the left pant pocket was dipped in anotherprepared solution, as a result of which it turned pink. The same was transferred to bottle Ex. P-3, which was duly sealed, labelled and seized vide memoex. PW-1/d. Pant P-4 was also taken into possession vide memo Ex. PW1/e. The two applications Ex. PW-l/f and PW-1/g were also taken into possessionvide memo Ex. PW-1/h. Both the Panch Witnesses, Narinder Vir Singh andhawa Singh, PWs while confirming the other details about the actual occurrence reiterated that they did not hear the talk that had transpired betweenthe complainant and the appellant. PW1/e. The two applications Ex. PW-l/f and PW-1/g were also taken into possessionvide memo Ex. PW-1/h. Both the Panch Witnesses, Narinder Vir Singh andhawa Singh, PWs while confirming the other details about the actual occurrence reiterated that they did not hear the talk that had transpired betweenthe complainant and the appellant. ( 3 ) DURING the trial the prosecution examined in all 7 witnesses insupport of its case, including the complainant and the Panch witnesses. ( 4 ) IN his statement under Section 313 Criminal Procedure Code the appellant explainedthat on 6-9-1975 after lunch the complainant, Gopal Singh bad givenapplications Ex. PW-1/f and PW1/g and he gave the applicationex. PWI/g to the Naib Court for report. It was also admittedby the appellant that the complainant met him on 8-9-75 and hetold him that order on his applications was not ready. As regards the incident of 9-9-75, the appellant explained that on that day the complainantcame to the Court alongwith Maghar Singh, against whom a theft case waspending and after the bail order in that case was passed, complainant alongwith Maghar Singh met the appellant during lunch interval and enquiredabout his application. The accused told the complainant that report had notyet been received. At this, the complainant sarcastically remarked "babusof Court would not do any work until they were tipped". He took exceptionto it and retorted back that taxi drivers were cheats. There was a verbalaltercation between the two and the staff members intervened. Thereafter,the appellant advised the complainant to collect the order next day and askedthe Naib Court to bring report positively that day. He further explained thatramesh alias Pappi, his brother-in-law s son, was a tea vendor at taxi standmalai Mandir and that he owed Rs. 10. 00 to him. On 10-9-75 complainant,gopal Singh came to him during lunch interval when he was sitting on hisseat on the left side of the Presiding Officer. Before the appellant could giveapplication to the complainant, he whispered in his ear that Pappi had sentrs. 10 through him. Believing him he took the tainted G. C. note and putthe same in his pocket and thereafter gave application bearing orders of thecourt to the complainant. Immediately thereafter, one SI caught him andinspector Shri Ram asked him if he had taken Rs. 10 from Gopal Singh. Hereplied in the affirmative and produced the tainted note and placed it on thetable. Believing him he took the tainted G. C. note and putthe same in his pocket and thereafter gave application bearing orders of thecourt to the complainant. Immediately thereafter, one SI caught him andinspector Shri Ram asked him if he had taken Rs. 10 from Gopal Singh. Hereplied in the affirmative and produced the tainted note and placed it on thetable. On further interrogation by the Inspector, the appellant had explainedthat Pappi owed him the money and bad sent the same through the complainant and at that time staff members and persons from public were presentin Court room. The appellant denied to have demanded or accepted anybribe from Gopal Singh, complainant and explained that he was falsely implicated by playing a trick as he thought that the appellant was deliberately harassing him and was not getting orders passed on his application. Indefence he examined Abdul Satar, Ahimad of the Court as DW1, M. R. Khurana, steno in the Court as DW 2 and Ramesh alias Pappi his allegedrelation as DW 3 in support of his explanation. ( 5 ) ON the basis of the evidence which came on record, the Specialjudge, by his order dated 22-1-1977 held Ram Lubhaya guilty for offencespunishable under Section 5 (2) read with Section 5 (l) (d) of the Prevention ofcorruption Act and Section 161 IPC, and after giving an opportunityof hearing to the appellant on the point of sentence, the Specialjudge sentenced him to undergo R. I. for one year and a fine of Rs. 50on each of the two counts and in default of payment of fine, the appellantwas to undergo further R. I. , for one month. Both the substantivesentences were made to run concurrently. ( 6 ) AGGRIEVED, the appellant. Ram Lubhaya has filed this appeal. ( 7 ) SHRI Dilbagh Raj Sethi, learned Counsel for the appellant drewmy attention towards the statement of the Panch witnesses namely S/shrinarinder Vir Singh, PW1 and Hawa Singh, Public Witness 4. Both these Witnesses havestated that while passing on the money to the appellant, the complainant,gopal Singh did speak something in the ear of the appellant, but they couldnot hear him as they were at a distance. According to the learned Counselfor the appellant, even the complainant, Gopal Singh Public Witness 3 has stated inhis statement that his talks with Ram Lubhaya. appellant were in a lowtone. According to the learned Counselfor the appellant, even the complainant, Gopal Singh Public Witness 3 has stated inhis statement that his talks with Ram Lubhaya. appellant were in a lowtone. Learned Counsel for the appellant argued that mere recovery ofmoney from the possession of the appellant is not sufficient to convict himfor an offence under the Prevention of Corruption Act. It must be provedthat the money was passed on as a bribe. Reliance has been put on adecision of the Supreme Court in the case of Suraj Mal v. The State {delhiadministration), ( AIR 1979 SC 1408 ) in support of his contention that in caseof bribery, mere recovery of money divorced from the circumstances underwhich it is paid is not sufficient to convict the accused when the substantiveevidence in the case is not reliable. According to the learned Counsel, thestatement of the complainant in that regard is not sufficient unless it iscorroborated by other witnesses. In this case the other witnesses have notsupported the complainant on the point that Rs. 10 were paid to theappellant as a bribe and he accepted the same as such. ( 8 ) LEARNED Counsel relied upon a decision of the Supreme Court inthe case of Panalal Damodar Rathi v. State of Maharashtra, (1979 Cri. LJ. 936) in support of his contention that the complainant is in no better positionthan accomplice and that his conviction cannot be based on the sole testimony of the complainant when it is not corroborated in material particulars. There is no corroboration in this case on the point that Rs. 10 were paid bythe complainant to the appellant as a bribe. ( 9 ) THE next submission made by the learned Counsel for theappellant is that the complainant in his cross-examination has stated thatmaghar Singh, who is his wife s brother, was with him on 9. 9. 75 when theappellant demanded Rs. 10 from him as bribe. Maghar Singh was notexamined by the prosecution in respect of this version of the complainantthat in his presence the appellant demanded Rs. 10 as bribe. He relied upona decision of the Supreme Court in the case of Habeeb Mohammad v. Stateof Hyderabad, ( AIR 1954 SC 51 ) in support of his contention that it is the bounden duty of the prosecution to examine a material witness, particularlywhen no allegation has been made that. if produced. he would not speakthe truth. 10 as bribe. He relied upona decision of the Supreme Court in the case of Habeeb Mohammad v. Stateof Hyderabad, ( AIR 1954 SC 51 ) in support of his contention that it is the bounden duty of the prosecution to examine a material witness, particularlywhen no allegation has been made that. if produced. he would not speakthe truth. According to the learned Counsel, not only does an adverseinference arise against the prosecution case from his non-production as awitness in view of illustration (g) to Section 114 of the Evidence Act. but thecircumstances of his being withheld from the Court casts a serious reflectionon the fairness of the trial. The learned Counsel submitted that the nonexamination of Maghar Singh is fatal to the case of the prosecution. ( 10 ) THE next point raised by the learned Counsel for the appellantchallenging the judgment and order of the Special Judge is that the appellantgave a probable explanation at the time of his apprehension that the currencynote of Rs. 10 recovered from him was handed over by the complainant tohim as he owed Rs. 10 from Pappi, his relation and Pappi, who was runninga tea stall si -"ar the taxi stand where the complainant was running his taxihad sent that currency note through the complainant to be paid So him. Thelearned Special Judge did not rightly appreciate this probable explanationgiven by the appellant regarding the possession of the said Rs. 10 currencynote. According to the learned Counsel, the conviction of the appellantcannot be sustained on the basis of Section 4 (1) of the Prevention of Corruption Act. Section 4 (1) does not permit the drawing of presumption in caseof an offence REFERRED TO to in Clause (d) of Sub-section (3) of Section 5 of theact. The only clauses incorporated in Section 4 (1) are Clauses (a) and (b)of Section 5 (1) and not Clause (d ). He relied upon a decision of the Supremecourt in the case of Sita Ram v. The State of Rajasthan (1975 Cri. LJ. 1224)in support "f his contention. ( 11 ) RELYING upon another decision of the Supreme Court in the caseof Man Singh v~. Delhi Administration (1979" Cri L. J. 1118), the learnedcounsel for the appellant submitted that in a case of bribery, if the accusedgives a probable explanation that should be presumed as correct and thatstrict standard of proof is not necessary. ( 11 ) RELYING upon another decision of the Supreme Court in the caseof Man Singh v~. Delhi Administration (1979" Cri L. J. 1118), the learnedcounsel for the appellant submitted that in a case of bribery, if the accusedgives a probable explanation that should be presumed as correct and thatstrict standard of proof is not necessary. In this case, according to thelearned Counsel, the appellant has given a probable explanation that thecurrency note of Rs. 10 recovered from him was not given to him by thecomplainant as a bride, but it was given by him saying that Pappi had sentthat money to be paid to the appellant as he owed this money to theappellant and Pappi was having a tea stall near Malai Mandir where thecomplainant was running his taxi. ( 12 ) RELIANCE has also been placed on a decision of this Court in thecase of Rajinder Parshad v. The State (Delhi Administration) (1990) (3) Crimes287, that the recovery of bribe money has to be viewed with suspicion andthat the testimony of the complainant should be corroborated in materialparticulars by independent evidence connecting the accused with the commission of the offence. In this case, according to the learned Counsel, thedemand of bribe is not proved beyond reasonable doubt. Counter versiongiven by the appellant is probable and may be true and in such circumstances, the appellant is entitled to acquittal on the basis of benefit of doubt. ( 13 ) THE last submission made by the learned Counsel for the appellantis that the incident took place in 1975; the appellant faced the trial in thecourt of Special Judge till January, 1977 and that this appeal has reached forhearing in August, 1993 i. e. more than 16 years have passed in these proceedings and, therefore, according to the learned Counsel, the period ofimprisonment already undergone by him and the fine imposed by the Specialjudge would meet the ends of justice. He relied upon the decision of thesupreme Court in the case of Tarsem Lal v. State of Haryana (AIR 1987s. C. 806] in support of his contention. ( 14 ) MR. N. K. HANDA. ADDL. Standing Counsel, Delhi Administration countering the arguments advanced by the learned Counsel for theappellant has stated that each case has to be decided on the basis of the factsof that very case. According to the learned Counsel, in this case the recovery of tainted Rs. C. 806] in support of his contention. ( 14 ) MR. N. K. HANDA. ADDL. Standing Counsel, Delhi Administration countering the arguments advanced by the learned Counsel for theappellant has stated that each case has to be decided on the basis of the factsof that very case. According to the learned Counsel, in this case the recovery of tainted Rs. 10 currency note is admitted and the statement of the complainant finds corroboration from the recovery of this currency note. Theexplanation given by the appellant in his statement under Section 313 Cr. P. C. is an afterthought and cannot be relied on at this stage. The witnessesexamined in defence are interested witnesses inasmuch as DWs. and 2 werecolleagues of the appellant and DW3 is a close relation of the accused. Heslated that the Trial Court has correctly appreciated the facts and the lawwhile convicting the accused/appellant for the said offence and no interference is warranted in the facts of the present case ( 15 ) LN this case currency note of Rs. 10 denomination which wastainted with chemical was admittedly recovered from the possession of thisappellant. The number of this recovered note tallred with the number mentioned in the raid report. The complainant has categorically stated that thismoney was handed over to the appellant by way of bribe, which he acceptedand thereafter, the order passed on his application for the return of bisarticles was handed over to him. Statement of the. complainant is corroborated by the admitted recovery of the currency note from the possession ofthe appellant and no further corroboration is needed on this point. Non examination of Maghar Singh as a prosecution witness is also not fatal tothe prosecution case. It is nowhere on record that this fact was brought tothe notice of the 1. 0. that on 9. 9,1975 when the appellant demanded Rs. 10from the complainant, he (Maghar Singh) was with the complainant. It isfor the first time that it has come in the cross-examination of the complainant that Maghar Singh was with him when the appellant/accuseddemanded Rs. 10 from him as bribe on 9. 9. 1975. Had the statement ofmaghar Singh been recorded under Section 161 Cr. P. C. and the prosecutiondid not examine him as a witness, then it could have been said that he wasintentionally withheld raising a presumption against the prosecution. 10 from him as bribe on 9. 9. 1975. Had the statement ofmaghar Singh been recorded under Section 161 Cr. P. C. and the prosecutiondid not examine him as a witness, then it could have been said that he wasintentionally withheld raising a presumption against the prosecution. Thedecision in the case of Habeeb Mohammad v. State of Hyderabad (supra)does not help the appellant in the present circumstances of the case. ( 16 ) THE facts in the case of Suraj Mal v. The State (Delhi Administration (supra) are also different from the facts of this case. In that case, thedefence of the appellant was that he was falsely implicated and nothing wasrecovered from him and nor did he make any demand for the bribe and,therefore, the decision in Suraj Mal s case does not help the appellant in thepresent circumstances of the case where the recovery of the tainted currencynote has been admitted by the appellant himself. The complainant not onlymentioned in his statement made before the Anti-Corruption Branch thatthe appellant, who was posted as a Reader in the Court of Shri J,d. Kapur,m. M. had demanded bribe from him for getting the order passed on hisapplication, but he also stated so in his statement before the Court on oath. He has been subjected to lengthy cross-examination but nothing has comeout discrediting this witness on this point. Both the Panch Witnesses havecorroborated the fact of the complainant passing on the tainted G. C. note tothe appellant who accepted it in his left hand. They have, however, statedthat they did not hear the talks inter se the complainant and the accused onaccount of the distance and the fact that the complainant spoke to theaccused in a whispering tone. The complainant in his statement has provedthe initial demand, his reporting the same to the Anti-Corruption Branchand staling it so before the Court, and the admitted recovery of the tainedcurrency note from the possession of the appellant, show and prove the prosecution version that the tainted currency note so recovered from the appellant was paid to him by way of bribe. No doubt the Panch-Witnesses havenot heard the conversation while passing the currency note by the complainant to the appellant, but it is well known that the bribes are notdemanded in the open, and nobody would say in a loud voice that be waspaying the money by way of bribe. No doubt the Panch-Witnesses havenot heard the conversation while passing the currency note by the complainant to the appellant, but it is well known that the bribes are notdemanded in the open, and nobody would say in a loud voice that be waspaying the money by way of bribe. In Suraj Mal s case (supra) the substantive evidence was not found reliable and the defence of the appellant wasthat he was falsely implicated, and nothing has been recovered from him andin those circumstances it was held that in cases of bribery, mere recovery ofmoney divorced from the circumstances under which it is paid is not sufficient to convict the accused. ( 17 ) REGARDING the explanation given by the appellant, it is for thefirst time that the appellant in his statement under Section 313 Criminal Procedure Code hasgiven this explanation that this currency note of Rs. 10 which the complainant, Gopal Singh gave him was sent through him by one of his relations, Pappi to be paid to him, as he owed that money to the appellant. Hadthis explanation been given by him at the time of his apprehension, thesame would have been recorded by the Inspector, who apprehended him andif at all the Inspector had not recorded the same, the appellant who wasworking in the Court of the Magistrate would have reported the same tothe higher authorities. He has not done so raising a presumption againsthim. Even this suggestion was not put to the Ranch Witnesses, Public Witness 1 andpw4 in their cross-examination that at the time of the recovery of G. C. notethe appellant/accused explained that it was sent by one of his relation Pappithrough this complainant and it was not a bribe money. The witnessesexamined by him in defence on this point, namely, Shri Abdul Satar, DWI,ahlmad of the Court, Shri M. R. Khurana. Steno DW2, attached with thecourt of Shri J. D. Kapur and Shri Ramesh alias Pappi, DW3, the relationof the appellant, who allegedly sent Rs. 10 to the appellant through thecomplainant also did not help the appellant to support him about offeringthis explanation at the time of his apprehension. ( 18 ) DWI, Abdul Satar admitted that he was not present when theappellant was apprehended on 10. 9. 1975, although he came to know aboutit that very day. He further stated about the altercation having taken placein his presence on 9. 9. ( 18 ) DWI, Abdul Satar admitted that he was not present when theappellant was apprehended on 10. 9. 1975, although he came to know aboutit that very day. He further stated about the altercation having taken placein his presence on 9. 9. 1975 but this witness did not report the same to anyone that the police did not record the explanation given by the appellant atthe time of his apprehension or that this money was not by way of bribe. This witness is a colleague of the appellant and the trial Court has rightlyobserved that he does not inspire any confidence. This witness has notreported to any officer about the altercation between the complainant andthe appellant in his presence on 9. 9. 1975. It means that the statement madeby this witness in Court after such a long time without disclosing thesematerial facts to any one earlier raises a doubt about the genuineness of thisexplanation. The statement of Shri M. R. Khurana, DW2 that he had toldinspector Siri Ram to record his statement regarding the explanation givenby the appellant, falls to the ground as he did not report this matter to anyone that Inspector Siri Ram did not record his statement. The incident is of10. 9. 1975 but it is only on 1512 1976 when this witness deposed about thisexplanation alleged to have been given by the appellant/accused. Nowhereearlier he reported this matter to any one. He has also not given any reasonas to why he did not report this matter when his statement was not recorded. It shows that his statement is an afterthought regarding this explanationand the Trial Court has rightly disbelieved the same. ( 19 ) THE statement of Ramesh @ Pappi, the relation of the appellantis also not sufficient to indicate that the explanation of the appellant is probable. No doubt the complainant in his cross-examination has admittedpartially that Ramesh @ Pappi was running a tea stall at Malai Mandir Taxistand; that he knew him and that on 9. 9. 1975 Pappi told him that be owedrs. 10 to his uncle (Phupad), Ram Lubhaya and he should take that moneyand give the same to Ram Lubhaya, but he has specifically denied havingtaken that money from him for giving to Ram Lubhaya. The Special Judgehas rightly disbelieved the statement of Ramesh @ Pappi by giving cogentreasons which I feel need no interference. 10 to his uncle (Phupad), Ram Lubhaya and he should take that moneyand give the same to Ram Lubhaya, but he has specifically denied havingtaken that money from him for giving to Ram Lubhaya. The Special Judgehas rightly disbelieved the statement of Ramesh @ Pappi by giving cogentreasons which I feel need no interference. Besides the fact that he is a closerelation of the appellant, his statement does not inspire confidence. Headmitted that he learnt from the father of the appellant/accused about theapprehension of the appellant one day after his apprehension. He alsocame to know as to who was the person, who got the appellant apprehendedand he also came to know that the appellant was apprehended because hetook Rs. 10 from the complainant. He stated that he had sent throughgopal Singh, complainant, Rs. 10 to be given to the appellant/accused oneday earlier to his apprehension. According to him, he met the accused abouta month after he was released on bail and he told the appellant/accused thathe had sent Rs. 10 through Gopal Singh a day before occurrence. Theappellant/accused did not ask him to give any application to any officer aboutthis fact. This admission on the part of this witness falsifies the statementof this witness on this point. When he came to know about the apprehension of the appellant/accused through his father next day, and he also cameto know that Gopal Singh got him apprehended on the plea of taking bribeof Rs. 10, it was but natural that being his near relation he should haveinformed his father about this. His silence on that day and not informingthis fact to any one thereafter makes this explanation improbable and unbelievable. In the present circumstances of the case, it cannot be said that aprobable explanation was given at the time of the apprehension of theappellant/accused and the Special Judge has wrongly rejected the same. Thedecisions in the cases of Sita Ram v. The State of Rajasthan and Man Singhv. Delhi Administration (supra) on which the learned ounsel for the appellant has put reliance do not help the appellant in the present circumstancesof the case. ( 20 ) I do not find any merit in this appeal. Thedecisions in the cases of Sita Ram v. The State of Rajasthan and Man Singhv. Delhi Administration (supra) on which the learned ounsel for the appellant has put reliance do not help the appellant in the present circumstancesof the case. ( 20 ) I do not find any merit in this appeal. However, on the pointof sentence it is on record that the incident took place in 1975; the appellantfaced trial in the Trial Court till January, 1977 and this appeal has reachedhearing in August, 1993, I. e. more than 16 years have passed in these proceedings. Relying upon the decision of the Supreme Court in the case oftarsern Lal v. Stale of Haryana, AIR 1987 S. C. 806, I am of the view thatin these circumstances, the period of the imprisonment already undergoneand the fine imposed by the Trial Court would meet the ends of justice. Itherefore, uphold the conviction, and dismiss the appeal. However, thesentence is reduced to the period of imprisonment already undergone by theappellant and the fine imposed by the Trial Court. Ordered accordingly.