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2000 DIGILAW 23 (PAT)

Mahesh Pandey v. State Of Bihar

2000-01-10

D.P.S.CHOUDHARY

body2000
Judgment D.P.S.Choudhary, J. 1. The appellant has been convicted under section 5(2) read with section 5(1) (d) of the Prevention of Corruption Act (herinafter referred to as the P.C. Act) and is sentenced to rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo R.I. for three months under section 5(2) read with section 5(1) (d) of the P.C. Act, 1988. He has been also convicted under section 161 of the Indian Penal Code (hereinafter referred to as the I.P.C.) and sentenced to under go R.I. for one year corresponding to Section 7 of the P.C. Act, 1988. The sentences have been ordered to run concurrently. 2. The brief fact of the prosecution case is as follows : The appellant was posted as Sub-Inspector of Schools of Block No. 2 Lakhisarai in the district of Munger in the year 1987. The wife of the complainant Nageshwar Sharma (P.W. 9) was working as a teacher at Maheshpur Primary School of Block No. 2, Lakhisarai which was under the jurisdiction of the appellant. Due to some personal problems Gayamani Devi (P.W. 8) got herself deputed to Dharanraichak School under Block No. 1, Lakhisarai under the orders of Deputy Inspector of Schools, Lakhisarai. She required permission of the appellant for being relieved from her school at Maheshpur to enable to join her new assignment. The appellant made a demand of Rs. 300/- as illegal gratification for getting her work done. Her husband (P.W. 9) reported the matter to the D.I.G. of Police (Vigilance), Bihar, Patna vide a written complaint (Ext. 6). Thereafter a trap was laid consisting of Dy. S.P., namely, Maheshwar Prasad Mishra (P.W. 10), Hari Shankar Singh (P.W. 4), Ram Dayal Sinha, Inspector of Police (not examined), Ram Naresh Singh (P.W. 2) and Braj Nandan Prasad (P.W. 3), both Sub-Inspectors of Police. The complainant produced a sum of Rs. 300/- comprising of six G.C. notes (Ext. 3) each of Rs. 50/- denomination which was alleged to be given to the appellant before the raiding party. Phenolphthalein powder is alleged to have been sprinkled on the said G.C. notes and thereafter necessary instructions were given to the raiding party. The complainant produced a sum of Rs. 300/- comprising of six G.C. notes (Ext. 3) each of Rs. 50/- denomination which was alleged to be given to the appellant before the raiding party. Phenolphthalein powder is alleged to have been sprinkled on the said G.C. notes and thereafter necessary instructions were given to the raiding party. It is further case of the prosecution that when the raiding party visited his office it was reported that appellant had gone to Dwarika High School at Lakhisarai where his son was appearing at the Matriculation examination. The raiding party proceeded to the aforesaid school and the appellant was found near tea stall at that time. The complainant (P.W. 9) and Harishanker Singh (P.W. 4) came near the appellant and had some talk with him. It is further alleged that thereafter the complainant gave the said amount of Rs. 300/- to the appellant which he accepted. P.W. 4 relayed the pre-arranged signal to the raiding party and after receipt of the signal, rushed and captured the appellant. Thereafter, in the presence of the two independent witnesses, namely, Krishna Chaudhary (P.W. 7) and Chando Sao (P.W. 6) and other members the appellant was searched, in course of which, the tainted currency notes (Material Exts. I to I/5) were recovered from the right pocket of his Bandi. The numbers of the recovered G.C. notes were compared with the numbers of notes mentioned in the memorandum prepared before it were handed over to the complainant which tallied. The search list (Ext. I to I/5) was prepared and a copy of the same was handed over to the appellant. The appellant at the time of search remained perplexed and kept mum. The tainted currency notes and the right pocket of the Bandi were dipped in two separate solutions of the sodium carbonate as a result of which the solutions turned pink from milky while giving rise to the inference that the appellant handled the G.C. notes referred to above and he had put the same in the pocket of his Bandi after receiving from the complainant. The milky while solutions turned pink on account of particulars of phenolphthalein powder which came in contact with the G.C. notes which were treated with phenolphthalen powder. After the seizure the appellant was arrested and remanded to jail custody. After completion of the investigation and receipt of sanction order (Ext. The milky while solutions turned pink on account of particulars of phenolphthalein powder which came in contact with the G.C. notes which were treated with phenolphthalen powder. After the seizure the appellant was arrested and remanded to jail custody. After completion of the investigation and receipt of sanction order (Ext. 1) charge-sheet was submitted and the trial proceeded in the court below. 3. The appellant did not enter into defence. However, from the trends of cross-examination of P.Ws. the defence set up by the appellant deemed to be total denial and false implication. In his statement recorded under section 313 of the Code of Criminal Procedure he stated that he did not demand any illegal gratification nor he accepted the same. The G.C. notes were not recovered from his possession. However, he admitted that his Bandi was seized by the raiding party which he was wearing at that time. 4. From the admitted fact the appellant was a public servant employed as sub-Inspector of Schools at Lakhisarai Block No. 1 and wife of the complainant Gayamani Devi (P.W. 8) was school teacher posted at Maheshpur School. This fact is not in dispute that she was transferred to Dharmaraichak school on deputation by the order of the Deputy Inspector of School in pursuance of her representation and she could have attended her new place of posting only after being relieved from Maheshpur School. This fact is not disputed that appellant being sub-Inspector of School was authorised to relieve the teacher (P.W. 8) to enable her to join new place of posting. Therefore, the only two points are to be decided in this appeal; whether there was a demand of illegal gratification of Rs. 300/- from the complainant by the appellant and whether the said amount was accepted by him as illegal gratification. 5. In support of its case the prosecution examined 14 witnesses, out of which P.W. 1 (Basudeo Ram) is a formal witness, who has proved the sanction order dated 16.4.1990 which has been marked Ext. 1. He was posted as a Typist in the department concerned. P.W. 2 (Ram Naresh Singh), Sub-Inspector of Police in the Vigilance Department stated that on 21.3.1987 he was member of the raiding party and in his presence from the right side pocket of Bandi of the appellant Rs. 300/- were recovered and seized. 1. He was posted as a Typist in the department concerned. P.W. 2 (Ram Naresh Singh), Sub-Inspector of Police in the Vigilance Department stated that on 21.3.1987 he was member of the raiding party and in his presence from the right side pocket of Bandi of the appellant Rs. 300/- were recovered and seized. He identified the seized Bandi in the court which has been marked material Ext. I. He also stated that the numbers of the recovered notes were earlier noted down in the memorandum prepared by the raiding party. P.W. 3 (Bijendra Kumar) was tendered for cross- examination. 6. P.W. 4 (Harishankar Singh) is an Inspector (Vigilance) of Police Department who has proved the endorsement of D.I.G. of Police (Vigilance) on the written complaint of the complainant (Ext. 2). He stated that on the direction of the D.I.G. (Vigilance) the raiding party was constituted under Dy. S.P., Bijendra Kumar. He has named other members of the raiding party. He proceeded from Patna along with raiding party on 21.3.1987 in the morning and reached the petrol pump at Lakhisarai Chawk. The memorandum containing numbers of the G.C. notes was prepared at that place. Rs. 300/- (six G.C. notes) each of Rs. 50/- were produced by the complainant Nageshwar Sharma (P.W. 9) over which phenol-phthlien powder were sprinkled and handed over to the complainant with instruction that on demand of illegal gratification from the accused appellant he would hand over these notes. He stated that he was instructed to follow the complainant and remain present near the complainant and the appellant and will try to hear the conversation in between them. He was further instructed that after the appellant accepts the G.C. notes he would pass over the signal to the raiding party. He has proved the memorandum of the G.C. notes having signatures of Dy. S.P. and another two witnesses (Ext. 3). After receipt of the tainted G.C. notes complainant made endorsement which has been marked Ext. 4. the raiding party went to the school where the appellant was sitting on a tea stall. In his presence appellant demanded Rs. 300/- from the complainant which he gave to him who kept the said amount with his right hand in the right pocket of his Bandi. Thereafter he gave the required signal to the raiding party and immediately the raiding party surrounded the appellant and the Dy. In his presence appellant demanded Rs. 300/- from the complainant which he gave to him who kept the said amount with his right hand in the right pocket of his Bandi. Thereafter he gave the required signal to the raiding party and immediately the raiding party surrounded the appellant and the Dy. S.P. disclosed his identity to the accused appellant and asked him that he would be searched in presence of the witnesses. He was searched after observing the formalities of the search in presence of the two independent witnesses and the Magistrate. Six currency notes of Rs. 50/- each were recovered from his Bandi. Its numbers tallied with the numbers contained in the memorandum. Thereafter, solution of the sodium carbonate was prepared in which the fingers of right hand of the accused were dipped and the white solution became pink. This solution was kept in a bottle and it was sealed. Another solution of sodium carbonate was prepared and the pocket of Bandi of the appellant was dipped and the solution which turned pink was also sealed in a separate bottle. Thereafter, the search list was prepared over which the Magistrate and two independent witnesses signed and its copy was handed over to the appellant. He has proved the signature over the search list (Ext. 4/2) and sub-Inspector, Ram Dayal Sinha member of the raiding party has since died. He identified the appellant in the dock. 7. P.W. 5 Krishna Kumar Jha is an Assistant in the Primary Eduction Department, Secretariat, Patna. He stated that after perusal of the relevant documents and papers and being satisfied the officer concerned accorded the sanction, which he typed on his dictation. The concerned officer has signed over the sanction order in his presence (Ext. 1). 8. P.W. 6 (Chando Sao) is another member of the raiding party who has supported the evidence of P.W. 4 as referred to above and stated that in his presence the accused was searched and these G.C. notes of Rs. 50/- each were recovered. 9. P.W. 7 (Krishna Coudhary) tea shop-keeper has proved his signature on the memorandum (Ext. 4) but this witness was declared hostile because he stated that in his presence the accused was not searched. 10. P.W. 8 (Gayamani Devi) is the wife of the complainant who is lady teacher. 50/- each were recovered. 9. P.W. 7 (Krishna Coudhary) tea shop-keeper has proved his signature on the memorandum (Ext. 4) but this witness was declared hostile because he stated that in his presence the accused was not searched. 10. P.W. 8 (Gayamani Devi) is the wife of the complainant who is lady teacher. She stated that on her representation she was deputed from Maheshpur School to Dharamraichak School, Lakhisarai. The appellant being Sub-Inspector of schools was authorised to relieve her from Maheshpur School. She stated that she requested the appellant several times to relieve her but she was told to spend some for being relieved. She stated it to her husband (complainant). In cross-examination she stated that accused Mahesh Pandey personally did not make any demand of money from her, but his staff in the office made the demand of money. 11. P.W. 9 (Nageshwar Pd. Sharma) is the complainant and husband of P.W. 8. He supported the evidence as made out in his complaint petition and stated that he and his wife requested the accused appellant to relieve her but to no effect. Accused Mahesh Pandey demanded Rs. 300/- to relieve his wife, but he was not inclined to pay Rs. 300/- therefore, he informed to the Vigilance Department by Ext. 6 dated 19.3.1987. He was informed by the Dy. S.P., Vigilance Department to remain present on 21.3.1987 near Lakhisarai Vidyapith Chawk. He went there at about 1.00 P.M. and met the officials of the Vigilance Department. He handed over Rs. 300/- to the Dy. S.P. of the Vigilance Department. The numbers of the currency notes were noted down on a memorandum and a phenolphthalien powder was sprinkled on those notes in his presence. He was instructed that when only there is demand of bribe from the appellant he will hand over the tainted notes to him and pass over the instruction to the raiding party. He met the accused at the tea shop who enquired whether he has brought the amount on which he replied in the affirmative. Thereafter, he handed over Rs. 300/- to the accused which he received and kept it inside the right pocket of his Bandi. The signal was given to the raiding party and thereafter in presence of the two independent witnesses the accused was searched and currency notes were recovered which were treated with the solution of the sodium carbonate. 12. Thereafter, he handed over Rs. 300/- to the accused which he received and kept it inside the right pocket of his Bandi. The signal was given to the raiding party and thereafter in presence of the two independent witnesses the accused was searched and currency notes were recovered which were treated with the solution of the sodium carbonate. 12. P.W. 10 ( Maheshwar Pd. Mishra) is the Special Magistrate, Vigilance who was member of the raiding party. He supported the prosecution case and corroborated the evidence of P.Ws. 4 and 9. In his presence the accused was searched and there was recovery of Rs. 300/- from his possession. 13. P.W. 11 (S. N. Jha) is the part I.O. of the case who after receiving the sanction order submitted charge-sheet. P.W. 12 (Ram Sagar Lal Gupta) is retired Dy. S.P. of Vigilance Department, who was leading the raiding party has since died. He has mentioned about the documents sent to the sanctioning authority. P.W. 13 is senior Scientific officer, Forensic Science Laboratory, Bihar, Patna, has proved the report of the sealed solutions sent to his office for examination (Ext. 9). P.W. 14 is a formal witness who has proved the material Exts. I to I/5 and Ext. II. 14. After considering the evidences on record, the learned court below has come to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubt. 15. The learned lawyer appearing on behalf of the appellant assailed the sanction order (Ext. 1). It does not disclose the application of mind of the sanctioning authority. It was accorded in routine way. The law requires that while according sanction order the relevant facts and documents of the case must be placed before the authority who must come to the conclusion that it is a fit case in which the sanction order is being accorded. From the perusal of the sanction order, it appears that neither the relevant papers were considered nor he applied the judicial mind, but only signed over the typed sanctioned order in a routine way. Therefore, the trial has vitiated. In support of this contention the learned lawyer placed reliance on a decision reported in A.I.R. 1979 Supreme Court page 677 (Md. Iqbal Ahmad vs. State of Andhra Pradesh). Therefore, the trial has vitiated. In support of this contention the learned lawyer placed reliance on a decision reported in A.I.R. 1979 Supreme Court page 677 (Md. Iqbal Ahmad vs. State of Andhra Pradesh). The Apex court has held that what the court has to see is whether or not the sanctioning authority at the time of giving sanction was aware of the facts constituting the offerice and applied its mind for the same. The grant of sanction is not an idle formality or an acrimonious exercise, but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecution and must therefore, be strictly complied with before any prosecution can be launched against the public servant concerned and if the prosecution was launched without any valid sanction the subsequent trial of the case is not in accordance with law and conviction based on such prosecution order is fit to be set aside. 16. In reply to the above contention the learned A.P.P. submitted that the sanction order was given by the competent authority and it is clearly mentioned in the sanction order that he has perused the case diary, search list, F.I.R. and other relevant papers and thereafter became satisfied, that against the accused Mahesh Pandey a Prima-facie case under section 161 of the I.P.C. and under section 5(2) read with Section 5(1)(d) of the P.C. Act is made out. It is also mentioned in the sanction order that after perusal of the conclusion that accused Mahesh Pandey, a public servant, committed the above offence, as he accepted the illegal gratification in course of discharging of his official duty, as such, liable to be prosecuted for the offence mentioned above. The learned A.P.P. referred to the evidence of P.W. 5 (Krishna Kumar Jha). He was posted as an Assistant in the Primary Eduction, Bihar, Patna. He stated that Vigilance Department sent a proposal along with search list, F.I.R., Charge-sheet and other papers which were placed before Shri Shibendu. Shri Shibendu has gone through all the relevant papers and after being satisfied he accorded the sanction and on his dictation he typed the sanction order (Ext.1). His evidence is corroborated from the evidence of P.W. 12 who submitted the proposal along with the case diary, copy of the F.I.R. and memorandum of evidence for sanction for prosecution. Though there is contradiction in between the evidence of P.Ws. His evidence is corroborated from the evidence of P.W. 12 who submitted the proposal along with the case diary, copy of the F.I.R. and memorandum of evidence for sanction for prosecution. Though there is contradiction in between the evidence of P.Ws. 1 and 5, as to who typed Ext. 1 but in cross-examination P.W. 5 admitted that he has not typed it, and the name of P.W. 1 is mentioned over Ext. 1 as Typist. From the evidence of P.Ws. 1, 5 and 12 it is clear that the proposal along with relevant papers which were received from the Vigilance Department were placed before the officer concerned. After going through the relevant papers and applying his mind he accorded the sanction order. In my view the facts of the case reported in A.I.R. 1979 Supreme Court page 679 has got no application with the facts of the present case and accordingly, I come to the conclusion that the sanction order is a valid order and is in accordance with law. 17. Next point that has been raised on behalf of the appellant is that the evidence of complainant (P.W. 9) and his wife (P.W. 8) are contradictory on the point of demand of bribe by the accused and its acceptance by him. P.W. 8 (Gayamani Devi) in para 9 of her evidence stated that accused Mahesh Pandey did not demand money directly from her, but his staff made demand from her. P.W. 9 (complainant) in para 2 stated that accused demanded Rs. 300/- from him for relieving his wife, but in para 18 of his cross-examination, he stated that on the statement of his wife, he filed the written report before the Vigilance Department. Accused Mahesh Pandey did not ask for bribe from him but from his wife. I have gone through the evidence of P.Ws. 8 and 9 and do not find substance in the contentions of the learned appellants lawyer. The evidence of P.W. 8 is consistent. Both in her examination-in-chief and cross-examination she stated the accused did not make demand of bribe from her, but his staff made the demand. However, there is contradiction in the evidence of P.W. 9 because in his examination-in-chief, he stated that accused made the demand directly from him, but subsequently in cross- examination he stated that the demand of bribe was made from his wife and not from him. 18. However, there is contradiction in the evidence of P.W. 9 because in his examination-in-chief, he stated that accused made the demand directly from him, but subsequently in cross- examination he stated that the demand of bribe was made from his wife and not from him. 18. It was submitted on behalf of the appellant that on the alleged date of occurrence there was no motive on the part of the appellant either to demand a bribe of Rs. 300/- from the complainant or to accept the same. P.W. 9 (the complainant) in paragraph 19 of his evidence stated that on 21.3.1987 he came to know that the order of transfer of his wife has been cancelled. If the complainant knew this fact on that date that the order of transfer of his wife has been cancelled, there was no occasion for him to make request to the appellant for relieving his wife from the present place of posting. Therefore, there was no motive on the part of the appellant to demand bribe on this date from the complainant. 19. The learned court below has discussed these points in paragraph 19 onwards in his judgment. This fact is not in dispute that the wife of the complainant (p.w. 8) was posted as a teacher at Maheshpur School and on her representation she was deputed to Dharam-raichak School by the Deputy Inspector of School, Lakhisarai. She was required to be relieved with the permission of the accused under whose jurisdiction Maheshpur school situated. In her evidence P.W. 8 stated that several times asked and requested the appellant to relieve her to enable to join her new assignment but accused paid no heed to her request and went on avoiding for obtaining illegal gratification for relieving her. She also stated that the staff of the accused asked her to make some expenditure only then her work will be done. This fact was narrated by P.W. 8 to her husband (P.W. 9). He also approached the accused and made similar request but he demanded Rs. 300/- as illegal gratification as a precondition for relieving his wife from her present posting. P.W. 9 stated that on 21.3.1987 when the trap was led by the Vigilance Department he went near the accused while he was sitting at a tea shop in Lakhisarai School and there also the accused appellant made demand of money from him. 300/- as illegal gratification as a precondition for relieving his wife from her present posting. P.W. 9 stated that on 21.3.1987 when the trap was led by the Vigilance Department he went near the accused while he was sitting at a tea shop in Lakhisarai School and there also the accused appellant made demand of money from him. P.W. 4 who was a shadow witness of P.W. 9 at the time of trap heard the accused demanding money from P.W. 9. Both P.Ws. 4 and 9 stated that in pursuance of the demand of illegal gratification from the accused P.W. 9 handed over the tainted currency notes (Material Ext. I series) to the accused who took the same with his right hand and put the same in the right pocket of his Bandi (Material Ext. II). This part of the evidence has been fully corroborated by P.W. 4 as discussed above. After payment of money to the accused the signal was transmitted to the raiding party which arrived near the accused immediately and surrounded him. 20. The evidences of P.Ws. 9 and 4 are corroborated by the evidence of the Magistrate (P. W. 10) who was accompanying the raiding party. He stated that at the time of laying of the trap at the tea shop he saw the complainant giving something to the accused who took the same and put it inside the pocket. 21. Apart from the evidence of demand and acceptance of illegal gratification by the accused appellant the factum of recovery of the tainted currency notes from his possession has been proved from the evidences of the witnesses who were members of the raiding party as discussed above. 22. As per the evidences of P. Ws. 4, 9 and 10 a sum of Rs. 300/- consisting of six currency notes denomination of Rs. 50/- each was produced by P. W. 9 before the Dy. S.P. Vijendra Kumar just before the trap was organized. The Dy. S.P. prepared a memorandum (Ext. 3) mentioning therein the numbers of the currency notes. P. Ws. 2 and 10 have put their signatures (Exts. 4 and 4/6) on the said memorandum. The G. C. notes were treated with phenolphthalein powder and they were returned back to P.W. 9 with a direction that on demand of the money by the accused he would hand over these notes to him. P. Ws. 2 and 10 have put their signatures (Exts. 4 and 4/6) on the said memorandum. The G. C. notes were treated with phenolphthalein powder and they were returned back to P.W. 9 with a direction that on demand of the money by the accused he would hand over these notes to him. At that time a demonstration was also made in presence of the raiding party of mutual reaction of phenolphthalein powder with the solution of sodium bicarbonate. The piece of paper and the solution used in the demonstration were sealed, signed and preserved. After receipt of the signal from P.W. 4 that P.W. 9 has handed over the money to the accused on his demand the Dy. S. P. and the Magistrate (P.W. 10) rushed and captured the accused and disclosed their identity. He was searched in presence of two independent witnesses, namely, P.W. 6 (Chando Sao) and P.W. 7 (Krishna Choudhary) and also in presence of the members of the raiding party. The signature of these two independent witnesses on the seizure list have been marked as Exts. 4/3 and 4/5). On search of the person of the accused the tainted currency notes were recovered from the right lower pocket of the Bandi of the accused. The numbers of the recovered notes were compared with the numbers of the G. C. notes mentioned in the memorandum prepared earlier (Ext. 3) and it were found to be identical. After the seizure the solutions of sodium bicarbonate were prepared in two different separate bottles and the right hand fingers of the accused were dipped in one solution while right lower pocket of his Bandi was washed in another glass of solution and both turned pink from milky white suggesting that phenolphthalein powder were tainted with the fingers of the accused and pocket of his Bandi. 23. The evidence of P. W. 13 (Subrato Gupta) who is Senior Scientific Officer, Forensic Science Laboratory, Patna and his report (Ext. 9) supports the above evidences of P.Ws. 4, 9, 10 and 12 which mentions that two Glass files marked Exts. A and B received from the Vigilance Department and said to contain right hand washing and washing of lower right pocket of the Bandi of the accused respectively. The Glass file marked Ext. A containing about 50 ml. 9) supports the above evidences of P.Ws. 4, 9, 10 and 12 which mentions that two Glass files marked Exts. A and B received from the Vigilance Department and said to contain right hand washing and washing of lower right pocket of the Bandi of the accused respectively. The Glass file marked Ext. A containing about 50 ml. of a faint pink colour liquid said to be washing of the right hand of the accused. The Glass file marked Ext. B containing 60 ml. of faint pink colour liquid said to be washing of lower right pocket of the Bandi of the accused. In remarks column of the report it is mentioned that phenolphthalein power and sodium carbonate were detected in the contents of the glass files marked Exts. A and B and this has been corroborated in his evidence. 24. From the above evidences on record it is well established that accused had made demand of Rs. 300/- as illegal gratification from the complainant and on his demand the complainant gave him tainted currency notes worth Rs. 300/- which were recovered and seized from the possession of the accused by the official of the police trap led on the date of occurrence. There is no substance in this contention of the learned appellants lawyer that in view of the evidence of the complainant (P.W. 9) that accused made demand not from him but from his wife is not very material in this case because it appears to be stray admission of P.W. 9 in cross-examination. The trial court has dealt this part of the evidence in paragraph 30 of his judgment and has come to the conclusion that this part of the evidence appears to be made intentionally in order to help the accused because in his earlier part of evidence he has given the detailed descriptions both of the motive for the demand of illegal gratification from him and on the date of occurrence, i.e. 21.3.1987 also when he visited the tea stall where the accused was sitting he made demand from him and thereafter he handed over the tainted money to him which was subsequently recovered from his possession by the raiding party in presence of the independent witnesses (P. Ws. 6 and 7). 6 and 7). The complainant has filed written complaint before the Vigilance Department on 19.3.1987 and he was asked to be present at the place of occurrence on 21.3.1987 in the morning when the raiding party arrived there from Patna. He had accompanied the raiding party. He has handed over Rs. 300/- G.C. notes to the raiding party and numbers of these notes were written in the memorandum prepared by the raiding party in his presence, over which he has also signed as discussed above. In presence of P.W. 4 he has handed over these currency notes to the accused and just thereafter the Dy. S.P., the Magistrate and the other members of the raiding party surrounded the accused and recovered the tainted notes which were treated with the solution of sodium carbonate and found to be tainted with phenolphthalein powder. All the facts and circumstances conclusively proved beyond doubt about the acceptance of the tainted notes by the accused from the complainant and its recovery from his possession. There is also no substance in this contention of the learned appellants lawyer that in view of the evidence of the complainant that he learnt on 21.3.1987 that the order of deputation of his wife has been cancelled there could not be any motive to give bribe to the accused; because this stray evidence of the complainant does not inspire confidence nor it is worthy of credence in view of the earlier part of his evidence which finds corroboration from the other independent witnesses as discussed above. No chit of paper was brought on record on behalf of the defence to show that the deputation of P.W. 8 to Dharamraichak school has been cancelled prior to demand of bribe. No such defence has been taken by the accused in his statement under section 313 of the Code of Criminal Procedure. P.W. 12 (I. O.) stated that he investigated into the matter regarding deputation of wife of the complainant and also on the point of payment of arrears of her pay and bonus in the office of the District Superintendent of Education, Munger and there is nothing in his cross-examination to suggest that her deputation was cancelled on 21.3.1987. 25. Having regard to the fact and the evidence discussed above it is proved beyond doubt that the tainted currency notes amounting to Rs. 25. Having regard to the fact and the evidence discussed above it is proved beyond doubt that the tainted currency notes amounting to Rs. 300/- were recovered from the possession of the accused and after this recovery there can be presumption under section 4 Clause (1) of the Prevention of Corruption Act, 1947, unless the contrary was proved, that the accused accepted or obtained that gratification as a motive or reward as mentioned in section 161 of the I.P.C.; though the presumption is rebuttable, but accused has not brought on record any evience either oral or documentary to rebut this presumption that arises against him. It is true that mere recovery of certain money from the possession of the accused without the proof of its payment on behalf of the prosecution this presumption could not arise. In the instant case there is cogent and reliable evidences, as discussed above, that there was motive on the part of the accused to demand illegal gratification from the complainant and there is consistent evidence that in pursuance of this demand the complainant has paid Rs. 300/- to the appellant which was recovered from his possession by the raiding party. 26. The learned appellants lawyer, in the last, submitted that on the point of recovery of tainted currency notes from the possession the appellant and the alleged seizure list prepared thereafter, has not been supported by the two independent witnesses (P.Ws. 6 & 7). In absence of corroboration of the evidence of interested witnesses comprising the raiding party, by any independent witness, the benefit of doubt should be given to the accused. In this context from the careful scrutiny of the evidences of P.Ws. 6 and 7 it appears that on 21.3.1987 they were present near the tea shop where the said money was handed over to the accused appellant by the complainant. P.Ws. 6 (Chando Sao) has admitted and proved his endorsement and signature on the memorandum (Ext. 3) and the seizure list (Ext. 5) which has been marked Ext. 4/3 and 4/4 respectively. The endorsement with signature (Ext. 4/3) reveals that P.W. 6 went through the memorandum before the search was made and thereafter he recorded his endorsement to that effect, while his endorsement with signature (Ext. 4/4) would reveal that a sum of Rs. 300/- comprising of six currency notes of Rs. 5) which has been marked Ext. 4/3 and 4/4 respectively. The endorsement with signature (Ext. 4/3) reveals that P.W. 6 went through the memorandum before the search was made and thereafter he recorded his endorsement to that effect, while his endorsement with signature (Ext. 4/4) would reveal that a sum of Rs. 300/- comprising of six currency notes of Rs. 50/- each was recovered and seized from the pocket of the Bandi of the accused. P.W. 7 (Krishna Choudhary), the proprietor of the said tea stall stated that on 21.3.1987 Matriculation examination was going on in the High School situated near his tea stall. The police vehicle occupied by some officials was parked near his shop. He further admitted his signature (Ext. 4/5 and 4/6) on the memorandum and the search list. He further stated that P.W. 6 was also present at his shop and in his presence he has put his signature on the above mantioned documents. Both P.Ws, 6 and 7, however, did not support this part of the prosecution case that recovery of the currency notes were made from the possession of the accused in their presence and due to that score they were declared hostile by the prosecution. Their attention was drawn to their previous statement recorded during investigation. The I.O. (P.W.12) contradicted P.W.6 by stating that he has stated before him that while he was at his tea shop he saw the man (complainant) handed over certain currency notes to accused Mahesh Pandey, who accepted the same and put it in the right pocket of his Bandi. He also stated before the I.O. that six currency notes of Rs. 50/- were recovered in his presence from the pocket of the Bandi of the accused and after the recovery his right hand and pocket of the Bandi were dipped in two separate solutions as a result of which the colour of both solutions became pink from milky white and the same were kept in two different bottles and were sealed in his presence. Similar statement was made by P.W.7 before the I.O. (P.W.12). In view of these evidences read together and the admitted evidences of P.Ws. 6 and 7 regarding their endorsement and signature over Ext.3 and Ext.5 mentioned above, leads to the conclusion that they have put their signatures on these documents after fully knowing and understanding the content thereof. Similar statement was made by P.W.7 before the I.O. (P.W.12). In view of these evidences read together and the admitted evidences of P.Ws. 6 and 7 regarding their endorsement and signature over Ext.3 and Ext.5 mentioned above, leads to the conclusion that they have put their signatures on these documents after fully knowing and understanding the content thereof. The trial court has rightly held that these witnesses turned hostile in order to help the accused but it is settled law that the evidence of hostile witness is to be read along with the other evidence adduced on behalf of the prosecution and they have to be considered in totality and not in part. 27. Considering the submissions made on behalf of the appellant and the learned A.P.P. and after scrutinising the evidences on record, I find that the accused appellant Mahesh Pandey has made demand and accepted illegal gratification of Rs.300/- from the complainant and the tainted currency notes worth Rs.300/- were recovered from his possession during the raid led by the Vigilance Department. The trial court after discussing all the facts, evidences and the circumstances has rightly convicted the appellant and it does not require any interference. 28. In the result, the appeal is dismissed having no force in it with modification mentioned below. 29. It was submitted on behalf of the learned appellants lawyer that the accused was aged about 65 years on the date of judgment, i.e. 12th of September, 1995. By now he must be, aged about 70 years. The alleged occurrence is of the year 1987. For all these long years, he has suffered the agony of criminal trial. From the case record it appears that he has been in custody for about 22 days. Under the provisions of Clause (2) of Section 5 of the P.C. Act, 1947 (old Act) there is a provision that such public servant shall be punished for imprisonment for a term which shall not be less than one year and shall also liable to fine. Proviso of this Section mentions that the Court may, for any special reasons recorded in writing imposed with the sentence of imprisonment of less than one year. Proviso of this Section mentions that the Court may, for any special reasons recorded in writing imposed with the sentence of imprisonment of less than one year. In view of the facts mentioned above that accused is an aged person and the trial has prolonged such a long period, his period of sentence of one year may be reduced to the period already undergone and instead the amount of fine from Rs.1,000/- may be enhanced to some extent. The learned A.P.P. does not seriously objected to this submission of the learned appellants lawyer. 30. Considering the facts, nature and circumstances of the case and the old age of the appellant, the judgment of the trial court is modified to the extent that his period of sentence from one year is reduced to the period already undergone in custody. However, the amount of fine imposed against him is enhanced from Rs.1,000/- to Rs.2,000/- and in default of payment of fine to undergo R.I. for six months. 31. With this modification in the judgment and order of the court below the appeal fails.