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2004 DIGILAW 480 (CAL)

PRADIP KUMAR BANERJEE v. STATE THROUGH C. B. I

2004-07-16

P.K.BISWAS

body2004
P. K. BISWAS, J. ( 1 ) THIS appeal is directed against the judgment and order of conviction and sentence passed by the learned Judge, 24 Parganas, 1st Special Court, alipore in Special Court Case No. 8 of 1993 whereby and whereunder the aforesaid appellant was convicted for an offence punishable under Sections 7 and 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988 and was sentenced to undergo R. I. for a 6 months and to pay a fine of Rs. 1,000/- i. d. to suffer R. I. for 2 months more for offence under Section 7 of the Prevention of Corruption Act and was also sentenced to undergo r. I. for one year and to pay a fine of Rs. 2,000/- i. d. R. I. for 3 months more for offences under Section 13 (2) of the PREVENTION OF CORRUPTION ACT, 1988 directing that and both the sentences shall run concurrently. ( 2 ) THE short fact leading to the filing of the prosecution against the present appellant are as under : p. W. 1, Sri Shibnath Pramanik on 29. 4. 1991 lodged one information with the Superintendent of Police, C. B. I. 7s. P. E. /a. C. B. , calcutta allegingthat he was an authorized representative of M/s. Tara Sankar Construction co. and the said firm was awarded a contract for Modification and Enlargement of the Children Park by International Airport Authority of India under Agreement no. 10/e. E-AMD/89-90. The aforesaid work was completed within the extended date and on completion the appellant who was the Assistant Engineer and one Goutam Das (Junior Engineer) were requested to arrange for making payment of the final bill. ( 3 ) IT was further alleged that as per the practice, the bill was to be prepared by said Gautam Das, who was the Junior Engineer and approved by the appellant, who was the Assistant Engineer. But, they, however kept the bill pending In March, 1991, P. W. 1 on behalf of the firm requested the appellant and said Gautam Das for preparation and for passing their Bill without any further delay. On 18. 04. But, they, however kept the bill pending In March, 1991, P. W. 1 on behalf of the firm requested the appellant and said Gautam Das for preparation and for passing their Bill without any further delay. On 18. 04. 1991, P. W. 1 had been to the Office of the appellant and requested him to pass final bill when the appellant called said Gautam Das and after conversation with said Gautam Das, the appellant informed P. W. 1 that unless Rs. 6,000/- was paid none of the bills would be prepared or passed. ( 4 ) AGAIN, on 23. 04. 1991, P. W. 1 went to the Office of the appellant when appellant threatened him that if the amount was not paid, he could cause immense harassment and delay the process of the preparation and payment of the bill and later they agreed to accept Rs. 3,000/- as the first instalment which was agreed to be paid in the chamber of the appellant on 30 04. 1991. The Complainant then informed the matter to the Superintendent of Police, CBI, Anti Corruption Branch Calcutta and the case was accordingly registered on 29. 04. 1991 as R. C. Case No. 27 of 1991 under Section 7 of the PREVENTION OF CORRUPTION ACT, 1988. ( 5 ) ON 30. 04. 1991, it was decided by the C. B. I. Authority that a trap was to be laid whereby it was arranged that the P. W. 1 would as per the proposal of the appellant make the payment in the chamber of the appellant and the Investigating Team along with the witnesses would thereafter enter into the chamber of the appellant to apprehend him. Accordingly, currency notes were treated with phenolphthalein powder in presence of two witnesses. A pre-trap memorandum recording the process and arrangement was prepared. ( 6 ) THEN as per the arrangement, the team reaching the situs, instructed the complainant to enter into the chamber of the appellant at the set time and the witnesses also took up their position. The flash door was arranged to be kept open to be seen. Then complainant in the presence of one Pijush Kanti ghata, Goutam Das made payment to the appellant which in turn was kept by him inside the right side pocket of his trouser. The flash door was arranged to be kept open to be seen. Then complainant in the presence of one Pijush Kanti ghata, Goutam Das made payment to the appellant which in turn was kept by him inside the right side pocket of his trouser. When the witnesses and the officers witnessed that the money had been handed over and received through the opening of the door, then they also entered into the chamber of the appellant and disclosed their identity. It was demanded by them that the money was brought out from the pocket and thereafter, the hand of the complainant was washed first and the hand wash was bottled. Being requested, the appellant also washed his hand in the solution of washing soda and clean water and immediately, the colour of the water turned pink. The pink colour solution was then kept in a clean bottle which was then corked, labelled and sealed and thereafter the signature of the witnesses and other persons present there were taken. The currency note was also compared by the witnesses with a pre trap memorandum when they matched. The trouser, currency notes, the solution, hand wash etc. were then sealed, corked, labelled and signed. The appellant and said Gautam Das both were arrested and post trap memorandum was prepared which was also signed by the witnesses. ( 7 ) ON completion of the investigation, charge sheet was submitted against the appellant and said Goutam Das and on 15. 03. 1995, charges were framed against the said two under trials for commission of offence punishable under Section 7 of the PREVENTION OF CORRUPTION ACT, 1988 and section 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 and the aforesaid charges being read over and explained to the aforesaid accused persons, they pleaded not guilty and claimed to be tried. ( 8 ) IN the trial, the prosecution in support of its case examined 13 witnesses and the defence on the other hand, to substantiate their contention has examined as many as 5 witnesses. ( 9 ) THE defence case as it appears from the trend of the cross- examination of the P. Ws. ( 8 ) IN the trial, the prosecution in support of its case examined 13 witnesses and the defence on the other hand, to substantiate their contention has examined as many as 5 witnesses. ( 9 ) THE defence case as it appears from the trend of the cross- examination of the P. Ws. and from the examination of the appellant under section 313 of the Code and from the examination of the defence witnesses was a total denial of the prosecution allegation and it was further alleged that it was the practice that the labour payment was to be made in presence of the Assistant Engineer and as per the arrangement, the labour contractor, gautam Chatterjee and the complainant had to be present in the chamber of the appellant on 30. 04. 1991 when the labour payment was to be made. It was for this reason the complainant had been to the appellant with the said sum of money of Rs. 3,000/ -. But, in collusion with the complainant and Calcutta police, C. B. l. ,have instituted this false case against this appellant. ( 10 ) THE Trial Judge after examination of the aforesaid witnesses and after examination of the accused persons under Section 313 of Cr. P. C. and after hearing both sides, convicted this accused appellant under Sections 7 and 13 (2) of the PREVENTION OF CORRUPTION ACT, 1988 and sentenced him in accordance with law, as indicated hereinbefore. ( 11 ) BEING aggrieved by and dissatisfied with the aforesaid judgment and order of conviction and sentence passed by the Trial Judge, the convict appellant has come up before this Court in appeal alleging that the judgment passed by the Trial Judge suffers from various infirmities and the judgment of the learned Trial Judge is based upon conjectures, surmises and not warranted by the evidence and materials on record. ( 12 ) IT was further contended on their behalf that ingredients of the offence charged having not been established, the conviction against the appellant is not sustainable in law and the learned Judge has also failed to appreciate the evidence and materials on record in their true perspective and as such there has been miscarriage of justice. Hence, this prayer. Hence, this prayer. ( 13 ) I have heard the learned Counsels appearing for the appellant and also the learned Counsels appearing for the C. B. I. and the learned Counsels appearing for the State of West Bengal. ( 14 ) THE learned Counsels have taken me through the evidence on record adduced in connection with this case. ( 15 ) THE learned Counsel appearing for the appellant with reference to the evidence on record has forcefully contended before me that in the instant case, P. W. 1 Shibnath Pramanik, the de facto complainant although lodged the complaint claiming that he was the authorized representative of Tara sankar Construction Co. yet, in course of his examination, he could neither produce nor filed any such authorization which was issued to him by the proprietor, M/s. Tara Sankar Construction Co. and only one identity card was produced by him but the same was also expired in the year 1989. ( 16 ) SURPRISINGLY, the proprietor of M/s. Tara Sankar Construction Co. , one Sri T. S. Garai has not been examined in this case nor any complaint was lodged by him against the appellant and/or against another accused who has ultimately be acquitted from the charge. ( 17 ) WITH reference to the evidence on record, it has also been contended i by the learned Counsel appearing for the appellant that although P. W. 1 lodged this complaint on 29. 04. 1991 with the allegation that they have completed the work but the final bill which will be prepared by Sri Gautam das, Junior Engineer and which will be passed by Sri P. K. Banerjee, the appellant herein, should have been paid to them much earlier. But from the evidence on record, it has transpired that the appellant has or had the power only where the contract value was up to Rs. 15,000/- and since this particular confract was valued more than Rs. 92,000/- the present appellant has had no -power to pass the final bill of the said Construction Co. only the Executive engineer of International Airport Authority of India (thereinafter referred to as the 'iaai') can pass the said Bill and in fact, P. W. 5, Rati Kanta Sarkar, executive Engineer of I. A. A. I. , in course of his evidence had deposed before this Court admitting the aforesaid fact. only the Executive engineer of International Airport Authority of India (thereinafter referred to as the 'iaai') can pass the said Bill and in fact, P. W. 5, Rati Kanta Sarkar, executive Engineer of I. A. A. I. , in course of his evidence had deposed before this Court admitting the aforesaid fact. It has also been contended by him that this fact has also been admitted by P. W. 10 Mr. Rusty Treasurybala, who was the Airport Director of the Calcutta Airport of I. A. A. I. at the relevant point of time and in fact both the bills of this Contractor were passed by the executive Engineer of I. A. A. I. that is P. W. 5, Rati Kanta Sarkar, Executive engineer of I. A. A. I. and P. W. 7, Malay Kr. Bagchi. ( 18 ) SO, the basic allegation against the appellant that he was the authority to pass bill does not stand to any scrutiny since the contract which was awarded was valued more than Rs. 90,000/ -. ( 19 ) AGAIN, it has been submitted on their behalf that the allegation in the complaint was that although the de facto complainant has completed the contract work, but the said final payment could not be made since the Junior engineer, Gautam Das did not prepare the bill and the appellant as Assistant engineer did not pass the said bill, but during his examination, P. W. 1 has categorically admitted that he or his firm did not submit any bill for the work in question and also they did not get the completion certificate of their work and it was also admitted by him in his evidence that first running bill which was for Rs. 35,355/- was passed for Rs. 25,600/- by the Executive Engineer of I. A. A. I. , namely P. W. 7, Malay Kr. Bagchi. ( 20 ) IT has further been contended by them that the sum total of the prosecution evidence would also reveal that only 58 per cent of the work was completed by the contractor. So, the question of payment and/or passing of and/or preparing the final bill does not and cannot arise at all. Bagchi. ( 20 ) IT has further been contended by them that the sum total of the prosecution evidence would also reveal that only 58 per cent of the work was completed by the contractor. So, the question of payment and/or passing of and/or preparing the final bill does not and cannot arise at all. ( 21 ) FURTHER, it was contended on their behalf that in terms of clause 7 of the Condition of Contract (exhibit 12) final bill shall have to be prepared by the contractor after completion of the entire work and after taking the completion certificate from the Engineer in Charge. But as indicated above, it is evident from the evidence on record that no such certificate was issued by the engineer in Charge that is P. W. 5, Rati Kanta Sarkar. ( 22 ) IT has further been contended on behalf of the appellant that in the instant case the learned Judge proceeded to held on the evidence of P. W. 7, Malay Kr. Bagchi, retired Executive Engineer that P. K. Banerjee, the appellant herein, was in charge of the work in question, but the learned Trial Judge at the same time has also failed to take into consideration the evidence in cross- examination of said P. W. 7 when he clarified and admitted that the Engineer in charge means the Executive Engineer or Assistant Engineer as the case may be, who shall supervise as in charge of the work and who shall sign the contract on behalf of the I. A. A. I. and in the present case, the contract was signed by Mr. Malay Kr. Bagchi, retired Executive Engineer. So, the learned trial Judge has misread and misconstrued the evidence of P. W. 7 in fixing up the responsibility upon the present appellant. ( 23 ) IT has further been contended on behalf of the appellant that in the instant case, the appellant has been implicated in the complaint since this appellant gave caution to the firm to expedite the work and to complete the work at the earliest otherwise the penal action as per the contract would be taken by the I. A. A. I. and since the sum of Rs. 2,000/- was deducted from the first running bill of the complainant firm, the same must have engaged this P. W. 1, the de facto complainant to hatch up a conspiracy against the appellant itself as in course of his evidence, he avoided a direct answer to this question by stating that he does not remember whether a sum of Rs. 2,000/- was deducted or not for slow progress of the work. But Exhibit 2 (1) and 14 give a specific indication in this regard. ( 24 ) IT has again been contended on behalf of the appellant that on 29. 04. 1991, the complaint of this case was lodged against the appellant and gautam Das on the allegation that the appellant in consultation with Sri Das demanded a sum of rs. 6,000/- which was ultimately settled to be paid by two instalments of Rs. 3,000/- each, first of which was to be paid on 30. 04. 1991 for the preparation of the final bill by Sri Gautam Das and for passing the same by the appellant that is the appellant, Assistant Engineer. ( 25 ) BUT, surprisingly on the self-same day, one Sri Gautam Chatterjee (who claims to be an authorized representative of Tara Sankar Construction co) lodged another complaint with SPE : C. B. I. against one Swarup Ghosh, junior Engineer of the Office of I. A. A. I alleging that as Sri Ghosh was not submitting measurement to Sri P. K. Banerjee and Sri Gautam Das and as such they are not in a position to prepare the bills and it was also alleged in the said complaint that Sri Ghosh for that purpose demanded a sum of Rs. 500/- from Sri Chatterjee in order to supply measurement to Sri Banerjee and sri Das for preparation of the final bill and on such complaint, the said case was registered as R. C. Case No. 26791. The lodging of the aforesaid case by Sri Gautam Chatterjee has also been admitted by P. W. 1 (Shibnath pramanik) and other witnesses in course of their deposition. The lodging of the aforesaid case by Sri Gautam Chatterjee has also been admitted by P. W. 1 (Shibnath pramanik) and other witnesses in course of their deposition. P. W. 1 has also admitted that on the day when he lodged the complaint, Gautam Chatterjee also accompanied him to the office of the C. B. I. In such view of the fact, it was contended on behalf of the appellant that in view of the allegation contained in R. C. Case No. 26/91, it will be crystal clear that the appellant did not make any demand of bribe money for passing the final bill as the measurement was not landed over to him and as such in any view of the fact, the appellant was not in a position to pass any final bill and this is more so in view of the clear evidence of P. W. 5 (Rati Kanta Sarkar) and P. W, 7 (Malay Kr. Bagchi) that if is the Executive Engineer who can pass the final bill or other bills relating to contract, which was awarded to the complainant firm since it exceeds Rs. 15,000/ -. ( 26 ) IT has further been contended on behalf of the appellant that it was deposed before the Court by P. W. 1 (Shibnath Pramanik) that Sri Gautam das, since acquitted demanded bribe money of Rs. 3,000/- from the de facto complainant and after the said demand P. W. 1 after taking out the money from his inner pocket handed over the same to the appellant in presence of p. K. Ghata when present appellant kept the same in the pocket of his trouser and such transaction was watched and the conversation during the said transaction was being heard by other witnesses such as P. W. 2 (Ashok dingal), P. W. 3 (Dibakar Paul), P. W. 9 (Swapan Kr. Dasgupta), P. W. 12 (D. N. Biswas) and P. W. 13 (Mr. R. Gambhir) who were standing outside the chamber of the appellant, as claimed by them. The aforesaid witnesses claimed that they saw the alleged incident and overheard the conversation between the complainant and two accused persons by standing outside the appellant's chamber. Dasgupta), P. W. 12 (D. N. Biswas) and P. W. 13 (Mr. R. Gambhir) who were standing outside the chamber of the appellant, as claimed by them. The aforesaid witnesses claimed that they saw the alleged incident and overheard the conversation between the complainant and two accused persons by standing outside the appellant's chamber. ( 27 ) IN this connection, it has been submitted on behalf of the appellant that assuming for the sake of the argument without admitting the same that the alleged purported transaction of bribe money had taken place, yet, in any event, the same cannot be seen and/or any conversation cannot be heard by those witnesses from outside of the chamber of the appellant since the chamber of the appellant is fitted with automatic door closure, which has been admitted by R W. 1 (Shibnath Pramanik) himself and as per the evidence of P. W 1 it has been admitted that the entrance of chamber of Mr. P. K. Banerjee is to the east and having entered there, there is a chair of Mr. Banerjee who sits there facing south and there are some other chairs in front of his table. P. W. 1 has further admitted that the entry door of the room of the appellant is of one leaf flash door attached to northern side wall and one is to pass that door to enter there and the door automatically closes. ( 28 ) IT has, therefore, been contended that in view of the position of the office room of the appellant, there is hardly and chance of any person witnessing any incident that was happening inside the chamber and that being the position, the claim by other witnesses that they saw the alleged incident of offering and accepting a bribe and over-hearing the conversation from outside in that regard are entirely unbelievable and as such no reliance could be placed on such evidence to fix up the responsibility upon the present accused person that is the appellant herein. ( 29 ) FURTHER, it has been contended that P. W. 3, Dibakar Pal, however has admitted in course of his evidence that he could not hear out the conversation although he claimed that he found the transaction through the door. ( 29 ) FURTHER, it has been contended that P. W. 3, Dibakar Pal, however has admitted in course of his evidence that he could not hear out the conversation although he claimed that he found the transaction through the door. But, in view of the admitted position of the location of the chamber, having one leaf flash door with an automatic door closure, hardly there is any chance to see what was happening inside the chamber. ( 30 ) IT has also been contended on behalf of the appellant that the learned Special Judge in refuting the aforesaid contention of the defence placed his reliance on the testimony of P. W. 12 (D. N. Biswas), who, in his evidence, has made a claim that he made an arrangement to keep the door of the chamber of the appellant partly open so that one can see what was happening inside from outside of the chamber, but the said fact, as has been admitted by him, has not been noted in the post trap memorandum that he kept the door of the office room Mr. P. K. Banerjee partly open. ( 31 ) SO, that being the position, it has been contended on their behalf that hardly any reliance could be placed on such evidence of P. W. 1 or the other witnesses named above, that they saw the incident or heard the conversation. ( 32 ) IT has also been contended on behalf of the appellant that there is also another apparent contradiction as on the evidence adduced from the side of the prosecution regarding seeing the incident from outside the chamber and hearing out the conversation from there, P. W. 3 (Dibakar Pal) in his evidence has stated categorically that one gentleman came out from the chamber of the appellant and informed them that the conversation was going on and the transaction was also on the offing and thereafter, he again entered into the chamber of Mr. P. K. Banerjee and the said gentleman was none other than Mr. P. K. Ghata (P. W. 4) and after 5 minutes of such information, received from Mr. Ghata, P. W. 3 (Dibakar Paul) along with the C. B. I. witnesses that is P. W. 2, P. W. 9, P. W. 12 and P. W. 13 entered into the chamber of Mr. Banerjee. P. K. Ghata (P. W. 4) and after 5 minutes of such information, received from Mr. Ghata, P. W. 3 (Dibakar Paul) along with the C. B. I. witnesses that is P. W. 2, P. W. 9, P. W. 12 and P. W. 13 entered into the chamber of Mr. Banerjee. ( 33 ) FROM the side of the appellant, however, serious criticism has been made with regard to the evidence adduced by P. W. 4, P. K. Ghata, who according to them was implanted by the C. B. I. to lend a strong support to their case. As per his evidence, he went to the International Airport Terminal building to meet one of his friends, Kashiswar Roy Cowdhury and was looking for him by pushing the door of the chamber's and at that time one gentleman asked him to stop there when he found three persons were engaged in talking to each other, one of them asked the other whether he brought money or not and the other person then told that he brought the same and then the first person wanted to know the quantum of the amount and the other person told that he had brought Rs. 3. 000/- and the first person then also asked for the balance amount of rs. 3,000/- and as per his further evidence, ultimately, the appellant accepted the sum of Rs. 3,000/- from Mr. Pramanik and kept the money inside the pocket of his trouser and at that time 4/5 persons entered there by pushing the door and disclosed their identity as C. B. I. Personnel. ( 34 ) BUT, in course of his cross-examination he was very candid in admitting that he went to the Terminal Building on that day for the first time to meet his friend, Mr. Roy Chowdhury and he did not know in which department his friend was working then and he was looking for his friend in different chambers from 5 p. m. till he entered into the chamber of Mr. Banerjee. ( 35 ) IT has therefore, been contended on behalf of the appellant that from very nature of the deposition of P. W. 4 (Mr. Banerjee. ( 35 ) IT has therefore, been contended on behalf of the appellant that from very nature of the deposition of P. W. 4 (Mr. Ghata) hardly any reliance can be placed on such evidence nor it can be presumed that when some unknown persons had entered into the chamber, then it was really a case of bribe, then certainly it could not be expected that the appellant, Mr. Banerjee would continue with such nefarious activities such as accepting bribe in presence of some unknown persons and/or carry on conversation in this regard. ( 36 ) FURTHERMORE, it has also been contended that this P. W. 4 (Mr. Ghata) in course of his evidence said that he knew Sri Gautam Chatterjee, another authorized representative of M/s. Tara Sarkar Construction Co. , who lodged the other complaint being R. C. Case No. 26/91, but at the same time, p. W. 4 deposed before the Court that on that day he did not find Sri Gautam chatterjee there. ( 37 ) BUT, R W. 1 (Shibnath Pramanik) in course of his evidence admitted that on the dare of occurrence, Gautam Chatterjee went to the office of the airport Authority and the other prosecution witnesses of this case have also admitted that Sri Chatterjee was also present in the second floor of the said terminal Building on 30. 04. 1991 between 5 p. m. to 6 p. m. So, according to the appellant, no reliance could be placed on the evidence of P. W. 4 Mr. P. K. Ghata. ( 38 ) SIMILARLY, strong criticism has also been made from the side of the appellant regarding the evidence of P. W. 2 (A. K. Dinghal) as it will be evident that Mr. A. K. Dinghal was also in witness on behalf of the C. B. I. in Special case No. 5 of 1993 as has been admitted in the evidence itself. But, even then, the learned Trial Judge has held that the evidence of Mr. Dingal cannot be held to be untrustworthy since another independent witness has corroborated the facts as deposed by P. W, 2, but close scrutiny of the evidence adduced by them would at once reveal that they were at variance with each other. But, even then, the learned Trial Judge has held that the evidence of Mr. Dingal cannot be held to be untrustworthy since another independent witness has corroborated the facts as deposed by P. W, 2, but close scrutiny of the evidence adduced by them would at once reveal that they were at variance with each other. So, according to them, the presence of the stock witness becomes more prejudicial as the entire vital operation like mixing of phenolphthalein power with the notes, counting of the notes just before washing of the pocket etc. were got performed by Mr. Dingal (P. W. 2) with the advice of Mr. D. N. Biswas (P. W. 12) and P. W. 2, (Mr. Ashok Dingal) being an interested witness may have reason for falsely implicating the present appellant. ( 39 ) IN this connection, reliance has been placed by the appellant on a decision reported in 1996 Cr LJ 3623 (State of Gujarat through C. B. I. v. K. C. Pranjivan Shah) wherein it was held that the stock witness, appearing as police witness in number of cases his evidence held to be untrustworthy. ( 40 ) ANOTHER fact was placed from the side of the appellant alleging that the wholesome allegation in the instant case was for the demand of bribe money to the tune of Rs. 6,000/- by the accused persons from the complainant for preparing and/or passing of final bill. But as per the evidence laid in this case, it appears that the complainant was only entitled to a sum of Rs. 7838. 40p. as would be evident from the evidence of P. W. 5 (Rati Kanta sarkar), Executive Engineer and from the measurement book (exhibit : 'e' ). So, when total entitlement was of Rs. Seven thousand and odd then hardly it can be believed that the complainant would be agreeable to pay a sum of rs. 6. 000/- as bribe money. ( 41 ) FURTHERMORE, it has also been contented on their behalf that in the instant case, the learned Trial Judge has failed to consider the evidence of d. Ws. in their true perspective when P. W. 1 (Shibnath Pramanik) himself in course of his evidence has admitted that M/s. Fancy Construction Co. 6. 000/- as bribe money. ( 41 ) FURTHERMORE, it has also been contented on their behalf that in the instant case, the learned Trial Judge has failed to consider the evidence of d. Ws. in their true perspective when P. W. 1 (Shibnath Pramanik) himself in course of his evidence has admitted that M/s. Fancy Construction Co. worked as a Labour Contractor at the final stage and P. W. 1 has further admitted that it was informed by the appellant that he received complaint against them that they did not make all labour payments and he (P. W. 1) then told him that gautam used to pay to the labourers and if there was anything due he would pay the dues in his presence. ( 42 ) SO taking into consideration, the aforesaid evidence together with the deposition of the D. Ws. specially D. W. 1 (Mantu Sk) there could have been only possible conclusion that the money which was allegedly kept on the table of the appellant as has been admitted by P. W. 2 (Ashok Dingal) in course of his cross-examination was not for giving bribe, but for making a labour payment as agreed upon between the P. W. 1 and the appellant. But, the learned Trial Court has overlooked the aforesaid fact and has come to an erroneous finding holding that the appellant is guilty of accepting the bribe and ultimately found him guilty of the offence under Sections 7 and 13 (2) of the PREVENTION OF CORRUPTION ACT, 1988 which is not at all tenable in law and as such should be set aside. ( 43 ) SO, it has been contended by the appellant that since the prosecution has failed to prove the acceptance of the bribe money, no presumption could be raised against he appellant that he accepted the money as bribe and as such question of rebutting a presumption under Section 20 of the Prevention of Corruption Act, 1988 does not at all lie and as such the present appellant should be acquitted from this case. ( 44 ) LASTLY, it was contended on behalf of the appellant that when there is no overwhelming evidence with regard to the offer and acceptance of the bribe money by the appellant and when there is material contradiction with regard to the recovery of such money from the actual possession of the appellant the hardly any reliance can be placed on the evidence adduced from the prosecution side to come to an inevitable conclusion that it is the appellant and none else who was involved in the question of accepting of bribe money for doing something as a motive/reward for passing the bill as an illegal gratification other than the legal remuneration. Hence, they pray for setting aside of the judgment of the trial Judge and acquitting the appellant from this case. ( 45 ) THE learned Counsel for the C. B. I. in opposing the aforesaid contention has submitted before me that from the evidence and materials on record the following facts have emerged : (a) The appellant was looking after the work; (b) The Bill or entries on the measurement book had been forwarded by him for approval and payment; (c Around Rs. 53,043. 92 had been paid out of the total work value of Rs. 92,854. 00 leaving a balance of Rs. 39. 810. 08; (d) The completion certificate nor the dispute had been initiated or settled prior to the lodgement of the complaint ; (e) The threat of deduction of 10 per cent for the delay in the work had not been implemented before the lodgement of the complaint; (f) The balance of the price or the value had been released and paid during the criminal investigation bringing the light of the arrears then due; (g) Endorsement on the measurement book of no dispute of labour Contractor as on 26. 08. 1989; (h) D. W. 1 did not spell out of the period of the purported dispute and his demand of Rs. 3,000/- ; (i) No Civil or any other proceeding had been initiated by the Labour Contractor for the recovery of the said sum of Rs. 08. 1989; (h) D. W. 1 did not spell out of the period of the purported dispute and his demand of Rs. 3,000/- ; (i) No Civil or any other proceeding had been initiated by the Labour Contractor for the recovery of the said sum of Rs. 3,000/- for the amount due to him from the Complainant; (j) From the evidence of P. W. 7 and the endorsement of the Appellant, on Exhibit-2 corroborates the prosecution case that the Appellant was in charge of the overall supervision of the construction; (i) It is the evidence of P. W. 1, P. W. 2, P. W. 3 and P. W. 4 that the Appellant on being asked confessed of his guilt and acceptance of the bribe; (I) D. W. 01 proved exhibit 'd' which was a xerox copy of the bill for labour payment. The original was not asked for, for production. Being secondary evidence, it could not be considered and no reliance or reference could be made to it; (m) D. W. 01 had reported to the Appellant of non payment of the said sum. No reason had been provided why the Appellant was interfering with the function if had nothing to do with the work; (n) D. W. 02 testified that he prepared Exhibit 'd' which did not contained signature or a declaration that it was written and prepared by him. The original or the primary evidence was not called for. How reliance was only placed on a xerox copy? How the document could be said to be proved if he was not able to support his evidence from the document; (o) D. W. 03 deposed that after the registration of the case, a Joint Committee was constituted, measurement taken to prepare the bill and make payment. Payment was made of rs. 53,043. 92. Does it not prove that the Appellant was stalling payment ?; (p) D. W. 03 deposed that exhibit 'b' did not contain the name of the contractor, number of the agreement or the date of joint measurement. How did it relate to the agreement at all: (q) D. W. 03 deposed that Exhibit 'e' was copied from the Original Joint measurement Register. The Joint Measurement Register in original was never produced to be exhibited. How could any reliance be placed on it ?; (r) D. W. 04 produced the Joint Measurement Khata with attested copies. How did it relate to the agreement at all: (q) D. W. 03 deposed that Exhibit 'e' was copied from the Original Joint measurement Register. The Joint Measurement Register in original was never produced to be exhibited. How could any reliance be placed on it ?; (r) D. W. 04 produced the Joint Measurement Khata with attested copies. He had never deposed that Exhibit 'e' tallied with the Joint Measurement Khata. Also, that he attested copies were tallying with Exhibit 'e'. The said Khata was also not proved to be marked and exhibited; (s) D. W. 04 testified that the measurement committed was formed after the registration of the case. No document could be produced to corroborate that Joint Measurement was conducted with prior notice to the complainant P. W. 1. ( 46 ) IT has been contended from the side of the respondent/c. B. I. that the aforesaid facts and circumstances taken together with the evidence of P. Ws. 1, 2, 3, 9, 12 and 13 would unmistakably lead to. this conclusion that there is overwhelming evidence on record with regard to the gratification; its demand and its acceptance by the appellant itself and those are sufficient enough for drawing presumption and establishing the inference that it was nothing but illegal gratification other than the legal remuneration. ( 47 ) THAT being the position, payment or acceptance of gratification was enough and once such is established, it then becomes the duty of the defence to rebut such presumption and since in the instant case, the appellant has failed to discharge such onus by examining his own witnesses, the Appellate court should refuse to interfere in the matter of conviction awarded by the triar Judge against this appellant. ( 48 ) THE learned Counsel appearing for the C. B. I. has however contended that the discrepancies or contradictions as has been pointed out trom the side of the appellant were not of such grave nature so as to demolish the core of the prosecution case leading to a conclusion that the prosecution has failed to prove by any cogent, reliable or trustworthy evidence that offence as alleged had been committed by the appellant. ( 49 ) IT has therefore been submitted on behalf of the C. B. I. that the learned Trial Judge has rightly convicted the appellant and there is no reason for any interference by this Court. ( 49 ) IT has therefore been submitted on behalf of the C. B. I. that the learned Trial Judge has rightly convicted the appellant and there is no reason for any interference by this Court. ( 50 ) I have given my anxious consideration with regard to the submissions made by the respective parties and I have also looked into the evidence, adduced by the parties in the trial itself. ( 51 ) IN the instant case, the prosecution, in order to bring home the guilt of the accused appellant, has placed their reliance mostly on the evidence of p. Ws. 1 to 3, 9, 12 and 13 as also the evidence of P. W. 4 (Mr. P. K. Ghata ). ( 52 ) IT is the cardinal principles of law that the initial onus in a case of this type is upon the prosecution and it is of course true that once offer or acceptance of the gratification is proved, the onus shifts upon the concerned accused to disprove the same. ( 53 ) AS pointed out from the side of the appellant, it has come out that the alleged payment of gratification was made on 30. 04. 1991 in the chamber of the appellant, which was having only one flash door fitted with automatic door closure and the sitting position of the chamber was as such hardly one could see anything from outside that what was happening inside the chamber until and unless some arrangement is made for keeping the flash door partly open. But, due to the non-mentioning of the aforesaid important fact by P. W. 12 (Sri Biswas) in his pre-trap memorandum hardly it could be accepted that he had made some arrangement for keeping the door partly open, giving his witnesses a scope to see and/or to hear out the conversation that was going on inside the aforesaid chamber. But, due to the non-mentioning of the aforesaid important fact by P. W. 12 (Sri Biswas) in his pre-trap memorandum hardly it could be accepted that he had made some arrangement for keeping the door partly open, giving his witnesses a scope to see and/or to hear out the conversation that was going on inside the aforesaid chamber. The nature of the evidence that has been adduced by P. W. 4 (P. K. Ghata) is also very doubtful and it is very hard to pelieve that the person concerned involved in such shady transaction would dare to carry out such transaction in presence of some unknown persons and so taking together the wholesome evidence that has been adduced by those witnesses named above, hardly I find any material to place my reliance on such evidence so as to hold that really some sort of shady transaction as has been alleged from the side of the prosecution was going on in between the appellant on one side and P. W. 1 on the other. ( 54 ) MY aforesaid finding also gets its ample support from the fact that when P. W. 2 (Ashok Dingal) was candid enough to admit that the money was keption the table and he counted those as per the instruction of P. W. 12 (D. N. Biswas ). The said facts taken together with the alibi taken from the side of the accused by examining D. Ws. , specially the D. W. 1 (Mantu Sk.) that it was that money which was required to be paid to the labour contractor in presence of the appellant cast asheavy shadow on the sub-stratum of the prosecution case that such money was paid as a gratification to the appellant for passing the alleged bill. ( 55 ) FURTHERMORE, the allegations in the R. C. Case No. 26/91 by Sri goutam Chatterjee taken together with the allegation in R. C. Case No. 27/91 i. e. the present case cast a serious doubt on the prosecution allegation that really even after receipt of the measurement etc. , the bills were not recommended rather withheld by the present appellant with an ulterior motive to accept the illegal gratification. , the bills were not recommended rather withheld by the present appellant with an ulterior motive to accept the illegal gratification. ( 56 ) IT is quite well settled that the prosecution in securing the conviction against any accused person is required to prove charges levelled against such accused persons beyond all reasonable shadow of doubt but the degree and the standard of proof in establishing a defence case and alibi, set up by the defence are somewhat different from that of the prosecution case and for establishing the defence case, an alibi taken by the defence, on assessing the evidence adduced by the defence, the Court has to come to a finding depending upon the preponderance of probabilities and the defence is not at all required to prove their case beyond all reasonable shadow of doubt. ( 57 ) EXAMINING the defence evidence in the concerned case in the light of the aforesaid parameters and in the context of the evidence tendered from the side of the prosecution, I am rather prompted to hold that the prosecution in the instant case has not able to bring home the guilt of the appellant under section 7 of the PREVENTION OF CORRUPTION ACT, 1988 together with Section 13 (2) of the PREVENTION OF CORRUPTION ACT, 1988 beyond all reasonable shadow of doubt and therefore, the present accused appellant is entitled to get an order of acquittal from this case upon benefit of doubt. The Trial Judge therefore, was not justified in awarding conviction and punishment to the accused appellant as has been done in the instant case. ( 58 ) IN the result, the appeal succeeds accordingly. ( 59 ) THE appeal be and the same is hereby allowed and judgment and order of conviction and sentence passed by the learned Trial Judge are hereby set aside. The accused appellant is, hereby, acquitted from this case. ( 60 ) HE be set at liberty at once if not wanted in any other case.