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Kerala High Court · body

2011 DIGILAW 375 (KER)

P. v. Thankachan VS Y. Chellathurai

2011-03-31

P.S.GOPINATHAN

body2011
JUDGMENT 1. The appellants are the second and third accused in C.C No.38/1998 on the file of the Special Judge (SPE/CBI)-II, Ernakulam. They were prosecuted by PW13, the Deputy Superintendent of Police, CBI, alleging offences under Section 120B IPC r/w Section 7 and 13(1) (d) of the Prevention of Corruption Act (for short hereinafter referred to as 'the PC' Act) and under Section 7 of PC Act r/w Section 34 IPC and Section 13(2) r/w 13(1) (d) of PC Act r/w 34 IPC, along with deceased Kamal Siddique as the first accused. Before framing charge, the first accused left to his heavenly abode. So, the appellants alone were prosecuted. The learned Special Judge on appraisal of the evidence on record arrived at a conclusion of guilt. Consequently, the appellants were convicted and sentenced to rigorous imprisonment for six months and a fine of Rs.3,000/- each with a default sentence of simple imprisonment for a further period of one month for offence under Section 120B IPC r/w Section 7 and 13 (1) (d) of the PC Act. For the offence under Section 7 of the PC Act r/w Section 34 IPC, they were similarly sentenced. For offence under Section 13(2) r/w 13(1)(d) of the PC Act r/w Section 34 IPC, they were sentenced to rigorous imprisonment for one year and fine of Rs.5,000/- with a default sentence of simple imprisonment for a further period of two months. Now these appeals. 2. The prosecution case in brief is that deceased Kamal Siddique (A1) and the second accused were working as Executive Engineer (Electrical) and third accused was working as Assistant Engineer (Electrical) in Airport Authority of India, Thiruvanandapuram, during the year 1997-1998. PW1, A. Rajan, proprietor of M/s.Ajantha Electricals and P.A. Equipments was an electrical contractor in Airport Authority of India and he was awarded five work contracts as per agreement No.6, 10, 22, 44 and 57 from 12.6.1995 for various amounts. Though PW1 had completed the execution of the work and submitted bills, payment were not effected. On 6.4.1998, PW1 met accused one to three in the office of the first accused and requested for payment of bills. The first accused, according to the prosecution, in pursuance to the criminal conspiracy between the accused demanded illegal gratification of Rs.20,000/- each to accused one and two; and Rs.10,000/- to the third accused, to be paid on or before 16.4.1998. The first accused, according to the prosecution, in pursuance to the criminal conspiracy between the accused demanded illegal gratification of Rs.20,000/- each to accused one and two; and Rs.10,000/- to the third accused, to be paid on or before 16.4.1998. When PW1 informed that he was in financial difficulties, it was stated that except one bill all other bills would be passed and after encashing the passed bills, PW1 could make payment on 16.4.1998. The accused also stated that they would help PW1 in future work contracts. On 15.4.1998, PW1 received a cheque for Rs.61,192/- regarding the works executed as per agreement No.44. On that day PW1 again met the accused one to three in the office of the first accused and enquired about his other bills. The accused reiterated the earlier demand for illegal gratification and their offer and asked to pay the demanded amount positively on 16.4.1998. Being aggrieved by the demand, PW1, complained to the CBI Unit, Thiruvananthapuram on 15.4.1998 by Ext.P1 complaint on the basis of which a case as Crime No.R.C.5(A)/98/KER was registered for offence under Section 7 of the PC Act r/w Section 34 IPC by Ext.P59 First Information Report. After registering the case, PW1 was asked to report before the office on the next day along with Rs.50,000/-, the bribe amount. Accordingly, PW1 withdrew a sum of Rs.50,000/- from his overdraft account, the copy of which was marked as Ext.P42 and reported before PW6, the Inspector, CBI. PW6, arranged three independent witnesses of whom two were examined as PWs.4 and 5. PW6, then demonstrated phenolphthalein test after introducing PW1 to PW4 and 5 and other independent witnesses and vice-versa. The currency notes brought by PW1 were having serial No.9 AK 240401 to 240500. PW6 got that amount from PW1. All the currency notes were smeared with phenolphthalein powder and currency notes bearing Sl.No.9 AK 240401 to 240440 were entrusted back to PW1 to keep it in the pocket of his shirt for being paid to the first accused on demand. The next 40 currencies bearing No.9 AK 240441 to 9 AK 240480 were also given to PW1 to be kept in the right side pocket of the pants for being paid to the second accused on demand. The next 40 currencies bearing No.9 AK 240441 to 9 AK 240480 were also given to PW1 to be kept in the right side pocket of the pants for being paid to the second accused on demand. Remaining 20 currencies were also entrusted to PW1 to be kept in the left side pocket of the pants for being paid to the third accused on demand. PW5 was asked to accompany PW1. Thereafter, PW6 and the party along with independent witnesses and PW1 proceeded to the office of the accused. PW5 was sent along with PW1 with instruction to give signal by combing hair with hands on receipt of the amount by the accused. PW5 was also instructed to overhear the conversation between PW1 and the accused and to witness the handing over of the money. PW1 and 5 reached at the office of the accused at about 3.10 pm. Though accused one and two were in their room, the third accused was not found in the room. When a message was conveyed to PW6, PW1 was asked to wait for the arrival of the 3rd accused. A little later, the third accused arrived in his room and suddenly went to accused one and two. From there, they all went out for some purpose. On the way, the first accused asked PW1, who he was standing in the corridor to wait till their return. At about 3.40 p.m., the second accused returned. He demanded money from PW.1. PW1 handed over the bribe money. It was accepted by the second accused. The second accused kept the same in the drawer of his table and locked. Thereupon the second accused took PW1 to the room of the first accused. PW5 also accompanied to that room. PW1 introduced PW5, to accused one and two as his new Supervisor. Following a direction given by the first accused, PW5 went out of the room. The first accused repeated his demand. PW1 gave the currency notes to the first accused. He accepted the same and put it in the pocket of his shirt on the left side. While receiving the amount from PW1, the first accused asked whether payment was made to the second and third accused. The second accused volunteered and told 'yes'. When PW1 told that he had brought money for the 3rd accused also, third accused was contacted by the 1st accused through intercom. While receiving the amount from PW1, the first accused asked whether payment was made to the second and third accused. The second accused volunteered and told 'yes'. When PW1 told that he had brought money for the 3rd accused also, third accused was contacted by the 1st accused through intercom. Responding to the call, the third accused arrived at the room of the first accused. PW1 took out the currency notes and gave to the third accused who accepted the same and kept in the left pocket of his pants. Thereupon, PW1 came out and signal was given. PW6 along with the party, rushed to the room of the first accused. He disclosed his identity to the accused and introduced the other members of the team. PW1 prepared sodium carbonate solution and asked the first accused to dip his right hand. There was no response. PW6 asked the first accused to dip his left hand fingers in another glass of solution. Thereupon, the solution turned pink. PW6 asked the first accused about the bribe amount received from PW1. Responding to the enquiry by PW6, the first accused took out the currency notes from the pocket of the shirt and handed over to PW5 as directed by PW6. The currency notes were scrutinized with reference to Ext.P5 mahazar and found that the descriptions tally with the descriptions noted in Ext.P5. The sodium carbonate solutions were separately corked and sealed in bottles. PW6 then asked the second accused to dip his right hand in another set of solution. The result was negative. Then asked to dip the left hand fingers in the sodium carbonate solution. Thereupon the solution turned pink. When asked about the bribe amount the second accused stated that he had kept the same in the drawer of his table. The third accused was then asked to undergo phenolphthalein test. The test was positive on his left hand and negative on the right hand. When asked about the bribe amount the third accused took out the currency notes from the left side pocket of his pants and gave to PW5 as directed by PW6. The currency notes were compared with the descriptions given in Ext.P5 and found tallying. Thereupon, the second accused was taken to his room. When asked about the bribe amount the third accused took out the currency notes from the left side pocket of his pants and gave to PW5 as directed by PW6. The currency notes were compared with the descriptions given in Ext.P5 and found tallying. Thereupon, the second accused was taken to his room. The second accused opened the right upper drawer of his table with the key kept by him, took out the currencies and handed over to PW4 as directed by PW6. The description of the currencies were verified with reference to ExtP5 and found tallying. Phenolphthalein test was also conducted on the pocket of the shirt of the first accused as well as on the pocket of the pants of the third accused. The result was positive. Phenolphthalein solutions used for testing were separately corked and sealed in bottles. MO12 series are the currencies recovered from the first accused, MO13 series are the currencies recovered from the second accused and MO14 series are the currency notes recovered from the third accused. Ext.P6 mahazar was prepared then and there, wherein PWs.4, 5 and others are attesters. The accused were arrested by PW6. Thereafter, the body of the accused, the office room and residence were searched. From the drawer of the table of the first accused, a bill pertaining to agreement No.6 was recovered. Other articles searched out, being not required for the investigation and trial, were returned back to the accused. 3. PW13 took over the investigation. On completing the investigation the files were sent to PW11. PW11, a Member, Planning, Airport Authority of India, who is competent to appoint and remove the appellants from service issued Ext.P58 order according sanction to prosecute the appellants. After getting Ext.P58, PW13 laid the charge for the above said offences. The learned Special Judge took cognizance and issued process responding to which all the accused entered appearance. They were furnished with copies of the final report and connected records. It is thereafter the first accused expired. After hearing the appellants and on finding that there are materials to send the appellants for trial, a charge was framed for the said offences. When it was read over and explained, the appellants pleaded not guilty. Hence they were sent for trial. On the side of the prosecution PWs. 1 to 13 were examined. Exts. P1 to P68 and MOs. When it was read over and explained, the appellants pleaded not guilty. Hence they were sent for trial. On the side of the prosecution PWs. 1 to 13 were examined. Exts. P1 to P68 and MOs. 1 to 23 series were marked. During the course of the cross examination, Ext.D1 to D14 were marked. After closing the evidence for the prosecution, the appellants were questioned under Section 313(1)(b) of the Code of Criminal Procedure. The second accused denied the incriminating evidence and further stated that he never demanded any money from PW1. Neither he accepted any money. He did not put any money in the drawer of the table. He was not provided with a separate room. The table had no lock. While he was sitting in his cabin, the CBI officers took him to the room of the first accused and he was detained there. He further stated that when his hand was put into the glass which had a solution, the CBI officers were holding his hand and their fingers also were dipped into the solution. Between PWs.1 and 9 (an Assistant Engineer), there was serious dispute. Though the second accused attempted to solve out the dispute, it was in vain. When the matter was brought to the notice of the first accused, PW9 was assaulted by PW1. It was also reported to the first accused. PW1 apprehended that there would be strong action against him. In order to wreak vengeance, he went to CBI and gave a false complaint and that not a single bill was pending payment in the Engineering Department. All the bills pertaining to agreement No.10, 22, 44 and 57 were sent long before 6.4.1998 and that fact was known to PW1. Once the bill was passed and sent to Finance Department, Engineers had no role and that the cheques were being issued from the Department of Finance. The second accused had further stated that the first accused told him that PW1 cheated the first accused on the pretext of returning the money borrowed by PW1 from the first accused for which he had given a card which was marked as Ext.D1. 4. The third accused also denied the incriminating evidence. He further stated that neither did he demand any money nor accepted from PW1. There was neither any recovery from his pocket. 4. The third accused also denied the incriminating evidence. He further stated that neither did he demand any money nor accepted from PW1. There was neither any recovery from his pocket. While he was sitting in his seat, he was called by the CBI officials and took him to the room of the first accused. His hands were dipped into a solution kept in a glass along with the hands of the CBI officer. He was not involved with the work relating to agreement No.6. The work in respect of the all other agreements were completed and the bills were forwarded to Finance Department before 6.4.1998 for payment and issuance of cheque. There was a complaint against PW1 for manhandling Babu Rajendra Prasad, who was examined as PW9 and who was in charge of the work relating to agreement No.6. The third accused seriously objected the same. Apprehending that the department would seriously take the issue, the complaint was lodged by PW1 before CBI and that PW1 had borrowed money from the first accused and in the pretext of returning the borrowed amount he was deceived. Though the appellants were called upon to enter their defence, no defence evidence was adduced. The learned special Judge, on appraisal of the evidence, as I mentioned earlier, arrived at a conclusion of guilt consequent to which the conviction and sentence under challenge. 5. The fact that the appellants(accused No.2 and 3) were the Executive Engineer, (Electrical) and Assistant Engineer (Electrical) employed in Airport Authority of India and as such they would come within the definition of public servant as defined under Section 2(c)of the PC Act is not at all disputed. On the other hand, their official status is admitted. The evidence of PW11 would show that he had gone through the records of the investigation and had accorded sanction to prosecute the appellants for which Ext.P58 order was issued. The admissibility and legality of Ext.P58 was not at all assailed. The conclusion of the learned Special Judge regarding the status of the appellants and that there was due sanction to prosecute them, in the above circumstances, require no interference and I hereby confirm the same. 6. Regarding the acceptance of the bribe from PW1 by the appellants the prosecution would rely upon the testimonies of PWs. 1 ,4, 5 and 6 coupled with Exts.P5 and P6 mahazers. 6. Regarding the acceptance of the bribe from PW1 by the appellants the prosecution would rely upon the testimonies of PWs. 1 ,4, 5 and 6 coupled with Exts.P5 and P6 mahazers. PW1 had given evidence generally corroborating with the allegations in the final report regarding the demand, acceptance and recovery of MO12 series, MO13 series and MO14 series from all the three accused. PW4 was the Manager of the Canara Bank, Circle Office, Thiruvananthapuram. He had also given evidence in support of the evidence of PW1 regarding the recovery of MOs.12, 13 and 14 series from the pockets of accused one and three and from the drawer of the table of the second accused. PW5, a Sub Divisional Engineer in Telecom Department had also given evidence regarding the recovery of Mos.12, 13 and 14 series. PW6, the officer who had laid with trap had given evidence regarding the arrangements for trapping the accused, the production of the currency notes by PW1, the demonstration of the phenolphthalein test and trapping of the accused as well as the recovery of MO12, 13 and MO14 series. Ext.P5 and P6 corroborate with the above evidence. 7. Adv.Sri. B Raman Pillai, the learned counsel for the second accused and Adv. Sri J. Jose, the learned counsel appearing for the third accused would heavily assail the testimonies of the above witnesses and would argue that their evidence regarding the demand, acceptance, recovery and Ext.P6 mahazar are totally false, unbelievable and unreliable; and that the conviction and sentence under challenge are not at all sustainable. Ad.Sri.Jose, after reading the evidence on record in detail, canvassed my attention to certain discrepancies in the evidence of PWs.1, 4, 5 and 6 and further argued that no bill of PW1 was detained by the Engineering Department much less by the third accused and that PW1, being motivated, had falsely implicated the appellants. Ad.Sri.Jose, after reading the evidence on record in detail, canvassed my attention to certain discrepancies in the evidence of PWs.1, 4, 5 and 6 and further argued that no bill of PW1 was detained by the Engineering Department much less by the third accused and that PW1, being motivated, had falsely implicated the appellants. Both counsels appearing for the second and third accused, after referring to the decision reported in G.V.Nanjundiah v. State(Delhi Administration) [1988 Supreme Court Cases (Cri) 77], C.M.Girish Babu v. CBI [(2009) 2 Supreme Court Cases (Cri) 1], M.K.Harshan v. State of Kerala [AIR 1995 SC 2178], and Banarsi Dass v. State of Haryana [AIR 2010 SC 1589], would argue that there is utter failure on the side of prosecution to prove the demand, acceptance and recovery and that even if there is recovery that alone is not sufficient to arrive at a conclusion regarding the demand and acceptance of illegal gratification for obtaining undue pecuniary advantage by the appellants. On the other hand, Sri. Chandrasekharapillai, the learned standing counsel for the CBI would submit that there is no reason at all to disbelieve PWs.1, 4, 5 and 6 or to reject Ext.P6 and that there is sufficient evidence on record to arrive at a conclusion regarding the demand and acceptance of MOs.12, 13, and 14 series, totaling amounting to Rs.50,000/- from PW1 by accused 1 to 3 and that the acceptance of the money by the accused from PW1 would canvass presumption under Section 20 of the PC Act that it was demanded and accepted as illegal gratification for discharging the official duties and that the evidence on record would show that the bills pertaining to the works undertaken by PW1 were withheld by the accused and that the demand was made for clearing the bills. According to the learned standing counsel the bills submitted by PW1, since March 1997 were withheld and illegal gratification was demanded and accepted for passing the bills. Regarding that aspect, there is ample evidence on record coupled with the attendant circumstances. In support of his argument, the learned counsel relied upon the decisions in State of U.P v. G.K.Ghosh [AIR 1984 SC 1453] and M.Narasinga Rao v. State of A.P. (2001 SCC (Cri) 258). 8. Regarding that aspect, there is ample evidence on record coupled with the attendant circumstances. In support of his argument, the learned counsel relied upon the decisions in State of U.P v. G.K.Ghosh [AIR 1984 SC 1453] and M.Narasinga Rao v. State of A.P. (2001 SCC (Cri) 258). 8. In Nanjundiah's case(Supra) at paragraph 26, it is held: "The question as to the handing over of any bribe and recovery of the same from the accused should be considered along with other material circumstance one of which is the question whether any demand was at all made by the appellant for the bribe. When it is found that no such demand was made by the accused and prosecution has given a false story in that regard, the court will view the allegation of payment of the bribe to and recovery of the same from the accused with suspicion." It is a case in which referring to the evidence on record the Apex Court had come to a conclusion that the prosecution story is not at all believable. Consequently, the appeal was allowed and the appellants therein were acquitted. 9. In Girish Babu's case, (supra) the Apex Court referring to a decision in Suraj Mal v.State (Delhi Administration) [(1979) 4 SCC 725], at para 18, it was held: "that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe." Consequently, the Apex Court set aside the conviction and the appellants were set at liberty. It was a case in which the trap witnesses were found not independent and reliable. 10. In Harshan v. State, the recovery of the bribe amount was from the drawer of the table of the appellant. The Phenolphthalein Test on the hands of the appellant was negative. Though this Court believed the evidence of the prosecution and arrived at a finding that the defence version that the money was put in the table without the acknowledgment of the appellant cannot be said to be improbable. The Phenolphthalein Test on the hands of the appellant was negative. Though this Court believed the evidence of the prosecution and arrived at a finding that the defence version that the money was put in the table without the acknowledgment of the appellant cannot be said to be improbable. Consequently, the conviction and sentence under challenge were set aside and the appellant was acquitted. 11. In G.K.Ghosh's case (AIR 1984 SC 1453), a three Bench of the Apex Court at para 10 observed as follows:- "10. By and large a citizen is somewhat reluctant, rather than anxious, to complain to the Vigilance Department and to have a trap arranged even if illegal gratification is demanded by a government servant. There are numerous reasons for the reluctance. In the first place, he has to make a number of visits to the office of Vigilance Department and to wait on a number of officers. He has to provide his own currency notes for arranging a trap. He has to comply with several formalities and sign several statements. He has to accompany the officers and participants of the raiding party and play the main role. All the while he has to remain away from his job, work, or avocation. He has to sacrifice his time and and effort whilst doing so. Thereafter, he has to attend the Court at the time of the trial from day-to-day. He has to withstand the searching cross examination by the defence counsel as if he himself is guilty of some fault. In the result, a citizen who has been harassed by a Government officer, has to face all these hazards. And if the explanation offered by the accused is accepted by the court, he has to face the humiliation of being considered as a person who tried to falsely implicate a Government Servant not to speak of facing the wrath of the Government servants of the department concerned, in this future dealings with the department. No one would therefore be too keen or too anxious to face such an ordeal. Ordinarily, it is only when a citizen feels oppressed by a feeling of being wronged and finds the situation to be beyond endurance, that he adopts the course of approaching the Vigilance Department for laying a trap. His evidence cannot therefore be easily or lightly brushed aside. Ordinarily, it is only when a citizen feels oppressed by a feeling of being wronged and finds the situation to be beyond endurance, that he adopts the course of approaching the Vigilance Department for laying a trap. His evidence cannot therefore be easily or lightly brushed aside. Of course, it cannot be gainsaid that it does not mean that the court should be oblivious of the need for caution and circumspection bearing in mind that one can conceive of cases where an honest or strict Government official may be falsely implicated by a vindictive person to whose demand, for showing favours, or for according a special treatment by giving a go-by to the rules, the official refuses to yield." Again at para 11 it is held as follows:- "11. It is now time to deal with the criticism urged as a matter of course in the context of the police officer leading the raiding party-namely that he is an interested witness. This is true, but only to an extent-a very limited extent. He is interested in the success of the trap to ensure that a citizen, who complains of harassment by a Government Officer making a demand for illegal gratification is protected and the role of his department in the protection of such citizens is vindicated. Perhaps it can be contended that he is interested in the success of the trap so that his ego is satisfied or that he earns a feather in his cap. At the same it must be realised that it is not frequently that a police officer himself being a Government servant would resort to perjury and concoct evidence in order to rope in an innocent Government servant. In the event of the Government servant concerned refusing to accept the currency notes offered by the complainant, it would not be reasonable to expect the police officer to go to the length of concocting a false seizure memo for prosecuting and humiliating him merely in order to save the face of the complainant, thereby compromising his own conscience. The court may therefore, depending the circumstances of a case, feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the police officers even if the trap witnesses turn hostile or are found not to be independent. The court may therefore, depending the circumstances of a case, feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the police officers even if the trap witnesses turn hostile or are found not to be independent. when therefore besides such evidence there is circumstantial evidence which is consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty in upholding the prosecution case. The present appears to be a case of that nature. If the circumstantial evidence is of such a nature that it affords adequate corroboration to the prosecution case, as held by the learned Special Judge, the appeal must succeed. If on the other hand the circumstantial evidence is considered to be inadequate to buttress the oral testimony, the appeal necessarily must fail." 12. In Narsinga Rao's case (supra), another three Judge Bench of the Apex Court, referring to [(2008) SCC 571] Madhukar Bhaskarrao Joshi v. State of Maharashtra, [(1998) 7 SCC 337] Suresh Budharmal Kalani v. State of Maharashtra, [(1980) 2 SCC 390] Hazari Lal v. State (Delhi Admn.), [(1979) 4 SCC 725] Suraj Mal v. State (Delh Admn.), [(1975) 2 SCC 227] Sita Ram v. State of Rajasthan, [(1974) 4 SCC 560] Raghubir Singh v. State of Haryana and [(1911) 1 KB 988; 1911 WN 53] Hawkins v. Powells Tillery Steam Coal Co. Ltd) held that the presumption u/s 20(1) of the PC Act have the same impact of compulsion and once it is found that the accused was in possession of tainted currency notes, illustration (a) to Section 114 of the Evidence Act can be profitably used. It was case in which the bribe given denied the prosecution case. The Apex Court, after referring to the precedents, at para 25, in conclusion held that once the prosecution succeeded to establish the acceptance of gratification- "...The court is under a legal compulsion to draw the legal presumption that such gratification was accepted as a reward for doing the public duty." 13. Now the evidence on record can be analysed in the background of the dictum laid down in the above cases by the Apex Court. As I mentioned earlier, there is no recovery from the person of the second accused. The recovery was from the drawer of the table under his lock and key. Now the evidence on record can be analysed in the background of the dictum laid down in the above cases by the Apex Court. As I mentioned earlier, there is no recovery from the person of the second accused. The recovery was from the drawer of the table under his lock and key. From the third accused, the recovery is from the pocket of the shirt. Regarding the demand and acceptance there is the oral testimony of PW1. The fact that PW1 was an electrical contractor under Airport Authority of India at Thiruvananthapuram and that he had executed agreement No. 6, 10, 22, 44 and 67 was not at all challenged. According to PW1, in respect of the completion of the work, the payments were not passed by the accused. If Ext.P1 is given reliance, as regards agreement No.10, the period of completion of the work expired long back. According to PW1, he could not complete the work because of the adamant attitude of the accused and that he had made request for the extension of time for completion. When PW1 approached the first accused in the presence of accused 2 and 3, the first accused demanded Rs.20,000/- for himself, Rs.20,000/- for second accused and Rs.10,000/- for third accused and offered for granting extension of time for completing the work and passing the bills. When PW1 stated that he had no money with him, the first accused offered to clear all the payments except one and PW1 was asked to enchash the cheque and then to make payment on or before 16.4.1998 for which PW1 agreed. According to PW1, it is there after, two cheques were released, as evidenced by Ext.P2 and P3 cheques proved by the testimonies of PW3, the Manager of the Canara Bank. Ext.P2 and P3 are dated 7.4.1998 and 13.4.1998 for Rs.94,570/- and Rs.61,192/-. The cheques were enchashed by PW1. The evidence of PW1 and 2 coupled with the evidence of PW2, the Assistant Manager of the Indian Oversees Bank, Trivandrum Branch would show that through Ext.P4 cheque, the appellant withdrew a sum of Rs.50,000/-. The evidence of PW2 on that aspect was not at all challenged. According to PW1, it was that amount which was handed over to PW6 for trapping the appellant and the other accused. The evidence of PW2 on that aspect was not at all challenged. According to PW1, it was that amount which was handed over to PW6 for trapping the appellant and the other accused. Ext.P42, the statement of accounts of PW1 would show that, as he deposed, he was on overdraft and it was from the overdraft facility, the withdrawal was made through Ext.P4 cheque. PW1 had deposed that on 15.4.1998 when again he met the accused they repeated the demand and on 16.4.1998 the payment was made only after further demand. 14. PW5 was sent by PW6 along with PW1 to witness the transaction between PW1 and the accused. The evidence of PW1 would show that at the time when he paid the amount to the second accused PW5 was sitting in the chamber of PW7. The payments to accused one and three were made at the room of the first accused. Though PW5 was introduced by PW1 to the first accused as a new Supervisor engaged by PW1, the first accused asked PW5 to go out and it was thereafter, the 1st accused accepted the money from PW1. So also, when the third accused accepted the money, PW5 was remaing outside. Therefore, PW5 had no occasion to witness the acceptance of money from PW1 by any of the accused. In the above circumstances, the question remains is whether the evidence of PW1 with attendant circumstance including the recovery of money as alleged by the prosecution is believable or not. Since the first accused is no more, it is not at all necessary to go through the evidence regarding the acceptance of the bribe by the first accused. Heavily assailing the evidence of PW1, the learned counsel for the appellants submitted that PW1 was a highly influential and rich person and he had bad antecedents and that he had not only locked horns with PW9 but also assaulted PW9 and apprehending that the first accused might take strong action against PW1 on a complaint by PW9, the case was falsely foisted. It was also alleged that PW1 had close contact with Sri.Raman Sreevashtava, the then Inspector General of Police and appropriating that relationship, the Trap Officer was influenced. Regarding the influence of PW1 on Sri.Raman Sreevasthava or any other police officials, absolutely, there is no evidence other than evasive allegations. It was also alleged that PW1 had close contact with Sri.Raman Sreevashtava, the then Inspector General of Police and appropriating that relationship, the Trap Officer was influenced. Regarding the influence of PW1 on Sri.Raman Sreevasthava or any other police officials, absolutely, there is no evidence other than evasive allegations. So also, regarding the antecedents of PW1 or the so called assault by PW1 on PW9 other than the repeated suggestions there is no evidence on record. In the light of the allegation that the case was falsely foisted at the instance of PW1, I had a very careful scrutiny of the evidence of PW13 along with the evidence on Pws.1, 4, 5 and 6. I fail to find that there is any suggestion to PWs.4 or 5 or 6 that they were susceptible to the influence by PW1 so as to persuade PW13 to cook up a case like the one on hand under the influence of PW1. Therefore, I find that the allegation of the defence that the case on hand was cooked up at the instance of PW1 is not at all convincing, even not probate. 15. Regarding the recovery of MO13 series from the drawer of the table of the second accused, the learned counsel for the appellant canvased my attention to certain discrepancies in the evidence of PWs.1 and 4 to 6 with reference to Ext.P6. As I mentioned earlier, the very defence case is that the second accused had no independent room with lock and key. He had also no table with a drawer having lock and key. The learned counsel had canvased my attention to Ext.P6 and argued that regarding the key of the room, there is no mention in Ext.P6. On the other hand in Ext.P6, it is mentioned that the second accused opened the drawer of the table with a key and the tainted currencies were taken out after opening the drawer. PW1 had deposed that the door of the room as well as the drawer of the table was opened with the key, by the 2nd accused. PW4 had mentioned that the door was opened by the key but there is no mention about the opening of the drawer of the table. PW5 had also deposed that the room was opened with a key. PW4 had mentioned that the door was opened by the key but there is no mention about the opening of the drawer of the table. PW5 had also deposed that the room was opened with a key. But his evidence is silent as to whether the drawer of the table was locked or whether the same was opened with a key. According to the learned counsel for the second accused, the second accused was sitting in a room, a portion of which was shared by another officer by name Lacker. PW1 had admitted that Lacker was sharing another portion of the room. But he has been consistent that the portion in the possession of the second accused was with a separate door and key. Repeatedly, taking through the evidence of PWs. 1, 4, 5, and 6, it was argued that in the given set of evidence on record, the prosecution case that second accused had an independent room with lock and key as well as a table with drawer and key is to be disbelieved in total. Going by Ext.P6, though there is mention about the lock and key of the drawer of the table, there is no mention about the lock and key of the door of the room of the second accused. PW1 is very consistent that the room of the second accused was with a separate lock and key. I had carefully gone through the cross examination of PWs.1 and 4 to 6 regarding the lock and key of the room as well as that of the drawer of the table. There are some minor discrepancies in the evidence of those witnesses regarding the lock and key of the door of the room as well as drawer of the table. According to the learned Standing Counsel, for CBI the trap occurred in the year 1998, and the evidence was recorded in the year 2003 and that those discrepancies occurred only because of the laps of time and fading of the memory. The learned standing counsel had further submitted that their evidence is to be disbelieved only if there is no discrepancies at all. The learned standing counsel had further submitted that their evidence is to be disbelieved only if there is no discrepancies at all. It is pertinent to note that in the cross examination of PWs.1 and 4 to 6, nothing was revealed out to conclude that the lock and key of the room as well as that of the drawer of the table were deposed with any ulterior motive. As I mentioned earlier, PW4 was an officer in Canara Bank and PW5 was an officer in the Telecom Department. There is no suggestion to PWs.4 and 5 that they had got any ulterior motive to give any false evidence. Going by the evidence on record, it is seen that PW1 was subjected to a very lengthy cross examination extending to 2 = days. PWs.4 to 6 were also subjected to a very lengthy and searching cross examination though not so extensive as that of PW1. In such circumstances there may be possibility for having some minor variations in the evidence, that too when the evidence was recorded after a lapse of five years. It is also pertinent to note that the acquaintance of PWs.4 to 6 with the office of the second accused was only for one day. Probably, PW1 might be having a little more experience. Ext.P6 mahazar is a document prepared by PW6 in the presence of Pws.1, 4, and 5 in which they are attesters also. It is a contemporaneous document in which what they had seen at the spot is recorded. In Ext.P6, it is specifically mentioned that the drawer of the table was opened with a key. That aspect is corroborated by the evidence of PW1. It is true that PW4 and 5 had no mention that the drawer was opened with a key but they had stated that it was opened by the accused. Mere fact that there is omission on the side of PWs.4 and 5 to depose that the drawer was opened with the key is not at all a reason to reject Ext.P6 or the evidence of PW1 on that aspect. Adding to the above, it is significant to note that there is no case for the defence and there is no suggestion to PWs.1, 4, 5 or 6 that any other person had implanted MO.13 series inside the drawer of the table of the second accused. 16. Adding to the above, it is significant to note that there is no case for the defence and there is no suggestion to PWs.1, 4, 5 or 6 that any other person had implanted MO.13 series inside the drawer of the table of the second accused. 16. Regarding the key of the door PWs.1, 4 and 5 are consistent that the door was opened by the second accused with a key that he had in his hand. In cross examination, PW6 had deposed that, he had not enquired about the key of the door of the Cabin of the second accused. In re-examination, he would depose, it appears that he was reminded with a reference to Ext.P6, that the room of the second accused has got separate lock and key. That evidence of PW6 was not at all challenged in further cross examination. It is also pertinent to note that there is no suggestion to PWs. 7, 8 or 9 that the room of the second accused has no separate door, lock or key. In the above factual background, I find that the contention of the second accused that the room and the drawer of the table of the second accused had no lock and key is devoid of merit. The learned counsel for the second accused had also mentioned that in the search conducted in the room of the second accused, there is no mention about the key of the door or the drawer of the table. In the event the key is put on the lock, it would form part of the table or the door, as the case may be. The mere fact that there is no mention in the search list about the availability of the key is not at all a reason to reject the consistent evidence of PWs.1 and 4 to 6. 17. I had earlier mentioned that PWs. 1 and 4 to 6 had given evidence in support of the prosecution case that Rs.20,000/- was recovered from the drawer of the table of the second accused and Rs.10,000/- was recovered from the pocket of the pants of the third accused. That evidence is corroborated by Ext.P6 mahazar. When questioned under Section 313 (1) (d) of Code of Criminal Procedure, the accused had not denied the recovery. They had no good explanation against the evidence of PWs. That evidence is corroborated by Ext.P6 mahazar. When questioned under Section 313 (1) (d) of Code of Criminal Procedure, the accused had not denied the recovery. They had no good explanation against the evidence of PWs. 1 and 4 to 6 regarding the recovery. They have also not accounted the possession of tainted currency notes. I had carefully gone through the evidence of PWs.1 and 4 to 6. Regarding the recovery, of course, against PW1, there is embarrassing allegations. But against PWs. 4 to 6, there is no allegation at all. There is no suggestion to PWs. 4 to 6 that they were any way motivated against the accused to implicate them with an offence like this or concocting documents. I do not omit to note that the appellants have got a case that Ext P6 was not prepared at the spot. In the light of the consistent evidence of PWs. 1 and 4 to 6, I find little merit in the submission. It is also pertinent to note that the evidence of PWs. 4 to 6 coupled with evidence of PW1 would show that Mos.12, 13 and 14 series were entrusted to PW1 by PW6 at the office of the PW6 after smearing phenolphthalein powder. It is specifically recorded in Ext.P5 also. There is no suggestion to PWs. 1, and 4 to 6 that the notes were not entrusted to PW1 as noted in Ext.P5. The evidence of PWs. 1 and 4 to 6 coupled with P6 would show that very same currencies given to PW1 by virtue of Ext.P5 was recovered from the drawer of the table of the second accused and from the pockets of the first and third accused. There is no suggestion to PWs.1 and 4 to 6 in cross examination that Mos.12, 13 and 14 series were either recovered from the possession of PW1 at the office of the accused or that PW1 had implanted Mos.12, 13 and 14 series at the pockets of the 1st and 3rd accused or at the drawer of the table of the second accused. It is also pertinent to note that regarding the investigation conducted by PW13, there is no allegation at all. There is nothing on record to show that PW13 also colluded against the appellant. It is also pertinent to note that regarding the investigation conducted by PW13, there is no allegation at all. There is nothing on record to show that PW13 also colluded against the appellant. In the above circumstance, I find little reason to disbelieve the evidence of Pws.1 and 4 to 6 regarding the recovery of Mos.12, 13 and 14 series from the accused. 18. The next question that arises is whether the recovery of the money from the accused would amount to acceptance by the accused. From what is discussed earlier, it can be seen that, the second accused had kept locked MO13 series inside the drawer of the table. The second accused had no good explanation at the time when it was seized by PW6 in the presence of PWs.1, 4 and 5. So also MO14 series were seized from the pockets of the pants of the third accused. He has also no good explanation. The evidence of PW1 would show that while he was waiting in the varanda the second accused called him to his room and asked about the cash and it was handed over. It was accepted by the second accused. The payment to the third accused was made at the room of the first accused, after the first accused receiving the amount. While the first accused receiving the amount, he had asked whether the payment was made to third accused. It is also very significant to note that the second accused after keeping MO13 series under lock, took PW1 to the room of the first accused. Thereupon, the payment was made by PW1 to the first accused. When it was stated that third accused was not paid and PW1 had brought the money, the first accused asked the second accused to call the third accused and accordingly, the third accused was summoned to the room of the first accused through intercom and thereafter the payment was made to the accused. Common intention to take illegal gratification is very evident. There is no suggestion to PW1 that at the time when he offered the amount there was any refusal by the appellants. Adding to that, the seizure was much later to the acceptance in the sense that the seizure was after the appellants safely keeping the tainted currency notes. The voluntary acceptance is proved by yet another evidence. PWs. There is no suggestion to PW1 that at the time when he offered the amount there was any refusal by the appellants. Adding to that, the seizure was much later to the acceptance in the sense that the seizure was after the appellants safely keeping the tainted currency notes. The voluntary acceptance is proved by yet another evidence. PWs. 1 and 4 to 6 are harmonious that phenolphthalein test on the left hands of the appellants was positive. It indicates that there is acceptance of tainted notes by the hands. Appellants have an explanation that CBI officers were holding their hands when the test was conducted. But there is no supporting evidence. The evidence of PW1 and 4 to 6 didn't support that plea. There is nothing revealed out to show that any of the CBI Official had even touched the appellant before they dipping their hands in the Sodium Carbonate solution. Adding to the above, the pocket of the pants of the 3rd accused also responded positively to the phenolphthalein test. Regarding that the 3rd accused has no explanation. Result of the phenolphthalein test stares at the appellants. The evidence of PW1 and 4 to 6 is corroborated by the result of the phenolphthalein test which is specifically recorded in Ext.P6. Phenolphthalein test itself tell-tale the acceptance or bribe by the appellant. There is nothing to show that the phenolphthalein test was anyway vitiated. So, on a reappraisal of the evidence on record, I find no reason to diverge with the conclusion of trial court that there is acceptance of MO13 and 14 series by the appellants. 19. The appellants had got a case that no bill was pending with the appellants at the time when the so called payment of illegal gratification. The very consistent case of PW1 that after March 1977 all the bills were withheld. According to PW1, when the first accused demanded illegal gratification in the presence of the second and third accused he stated that he had no money with him and he was on overdraft. Then the first accused, stated that except one bill, all the bills would be cleared including extension of time in respect of one of the agreements. According to PW1, it is in pursuance to that two bills were passed and payments were effected. That is evidenced by Ext.P2 and P3 as well as by Ext.P42 statement of accounts. Then the first accused, stated that except one bill, all the bills would be cleared including extension of time in respect of one of the agreements. According to PW1, it is in pursuance to that two bills were passed and payments were effected. That is evidenced by Ext.P2 and P3 as well as by Ext.P42 statement of accounts. Ext.P42 statement of accounts would show that as stated by PW1, he was on overdraft facilities. Though the appellants had got a case that earlier bills were passed and no bills were pending with the appellants, they had not cared to bring in evidence that there was any payment subsequent to March 1977 till Ext.P2 and P3 payments. It is very pertinent to note that PW1 had deposed that after the trap, he got payment exceeding Rs.10 lakhs. The evidence of PW1 on that aspect was much ridiculed by the learned counsel for the appellant stating that there was no much amount due as alleged by PW1. However, it is pertinent to note that the evidence of PW1 on that aspect remains unimpeached. Adding to that there is supporting evidence of PW10, the Accounts Manager. He had deposed that as per Exts.P16, 29, 37, and 20 agreements, the amounts due to pw1 was Rs.13 lakhs, Rs.3,20,688/-, Rs.1,81,720/-, Rs.3,39,912/- respectively. So, the evidence of PW1 that after the trap many bills were passed and he had received more than 10 lakhs is convincing. So also, it was admitted by PW10 that regarding agreement No. 10 there was delay in passing a bill for Rs.1,39,000/- and that Rs.1,26,000/- was withheld for want of extension of time of the contract. The evidence of PW6 would show that after the recovery of the illegal gratification, a search of the office of the first accused was made and in the search, documents were seized as per Ext.P52, the list of such documents searched out from the office of the first accused. It would contain a bill in respect of agreement No.2. When the evidence of PW1 is analysed in this background, I find merit in the evidence of PW1 that the accused were withholding the payments and PW1 was constrained to pay illegal gratification. It would contain a bill in respect of agreement No.2. When the evidence of PW1 is analysed in this background, I find merit in the evidence of PW1 that the accused were withholding the payments and PW1 was constrained to pay illegal gratification. It was also stated by PW1 that he was persuaded to make payment in compelling circumstances and unless the complaint was made he had to pay lakhs and lakhs by occasions as illegal gratification. That evidence of PW1 is also convincing. As observed by the Apex Court in G.K.Ghosh's case, that those who were making complaint against the illegal gratification has to suffer so many hurdles and hardships. The evidence on PW1 would show that in this case also, he had suffered so many hurdles and hardships. He had to advance sum of Rs.50,000/- despite the fact that he was on overdraft and that amount is held up in court as material objects for the last 13 years. He had also deposed that after 1999 he could not get any work of the Airport Authority. Whereas his supervisor was wow over by the officers and he had been doing the work of the Airport Authority. So, in the normal course, only on compelling circumstances one would dare to make allegation regarding demand for illegal gratification. I do not now omit to note that the appellants have got a reason for PW1 making a complaint regarding illegal gratification. According to the appellants, PW1 assaulted PW9. If the evidence of PW9 in cross examination is taken into account, he was not only physically assaulted but he was deterred from discharging his official duties. But, it is curious to note that he had no any such complaint filed before any authority. No good reason is coming forward for not making complaint. The evidence of PW9 regarding assault is not at all convincing. According to the appellants, apprehending that the first accused might take up action against PW1, Ext.P1 complaint was lodged. That allegation is also not at all convincing. In the event PW1 had any grievance against PW9, in the normal course, the attempt should have been to trap PW9. So also in the event PW9 was assaulted by PW1 there should have been complaint to the police. But, nothing of that sort. That allegation is also not at all convincing. In the event PW1 had any grievance against PW9, in the normal course, the attempt should have been to trap PW9. So also in the event PW9 was assaulted by PW1 there should have been complaint to the police. But, nothing of that sort. In the absence of both, on a careful scrutiny of the evidence PW1 who was subjected to an aggressive searching and lengthy cross examination extending to 2 = days I find that, other than the minor discrepancies, no material is disclosed to disbelieve PW1. The evidence of PW1 regarding the demand of illegal gratification is supported by the evidence regarding acceptance, which is corroborated by the recovery of Mos.12, 13 and 14 series. 20. The Apex court in Narasinga Rao's case (supra) at para 15 and 16, held as follows: "15. The word "proof" need be understood in the sense in which it is defined in the Evidence Act because proof depends upon the admissibility of evidence. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist , or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This is the definition given for the word "proved" in the Evidence Act. What is required is the production of such materials on which the court can reasonably act to reach the supposition that a fact exists. Proof of the facts depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher Moulton L.J. in Hawkins V Powells Tillery Steam Coal Co Ltd. observed like this proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion. 16. The said observation has stood the test of time and can now be followed as the standard of proof. In reaching the conclusion the court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. 16. The said observation has stood the test of time and can now be followed as the standard of proof. In reaching the conclusion the court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the court to presume the existence of any fact which it thinks likely to have happened. In that process the court may have regard to common course of natural events, human conduct, public or private business vis-a-vis the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act." 21. On a critical reappraisal of the evidence on record, in the light of the decision laid down by the Apex Court,I find that the learned Special Judge had correctly analyzed the evidence on record and arrived at a conclusion that there was conspiracy between the appellants and the first accused regarding demand and acceptance of illegal gratification and the appellants along with the deceased first accused had demanded and accepted illegal gratification from PW1. The conviction is based upon cogent evidence and requires no interference. The sentence awarded by the trial court is neither harsh nor disproportionate. I find no reason to interfere with the sentence also. In the result, both the appeals fail. Accordingly, the appeals are dismissed.