JUDGMENT
1. Leave granted in the special leave petition. Tagged with Crl. Appeal No. 402 of 1994, which is already on Board.
2. The appellant in Criminal Appeal No. 402 of 1994 is the offender and the appellant in Criminal Appeal arising out of S.L.P. (Crl) No. 2859 of 1992 is the abetor. They stand convicted under Sections 7, 13(1)(d) read with Section 13(2) and under Section 7 read with Section 12 of the Prevention of Corruption Act, 1988.
3. The prosecution case is that the complainant, P.W.1 found a bundle of blankets and bed-sheets lying unclaimed on a road, which he carried to his house. A1 got scent of it and recovered the bundle and got the complainant to the police station. Al demanded a bribe of Rs. 2,000/- from the complainant for not taking any action against him. After haggling, the demand was reduced to Rs. 500/-. Rs. 50/- was paid on an occasion later on 16-12-1985 at another place in Bazargaon, as the complainant to begin with had no money. The balance of Rs. 450/- was to be paid two days later. On the later date, the complainant went to the Anti-Corruption staff and laid a complaint to the afore-effect. Necessary formalities for organising a trap were made and at the appointed place the complainant as also P.W. 3 and P.W. 12 went to Hotel Dinesh. In response to the query made by A1, the complainant told him that he had brought the money. They then went to Baba restaurant as suggested by accused 1 and sat on benches near the counter. Al then told A2, the restaurant-owner to accept money which the complainant, P.W. 1 would give him. After some snacks and tea were served, P.W. 1 gave the money to A2 as per the directions of A1. Thereafter, the green signal was given and the members of the raiding party arrived and the tainted notes were recovered from the possession of accused 2. This is the sum total of the prosecution case.
4. The Court of the Special Judge and the High Court believed the prosecution case and in particular the evidence of P.W.1, P.W.3 and P.W.12 to the successful completion of the trap. Two points however have been urged by learned Counsel appearing for the respective appellants and these are: (1) since the tainted money was found from A2, complicity of A1 is rules out and (2) complicity of A2 is otherwise not established unless the prosecution could lead further evidence to show some meeting of minds between the two accused for acceptance of money, as mere acceptance on the suggestion of A1 did not establish any guilty intent. Insofar as the first question is concerned, the fact that the tainted money in the hands of the complainant were meant to be passed on to Al as bribe is beyond dispute in view of the consistent and cogent evidence of the members of the trap party. P.W.3 is an independent witness is that regard. He is a witness to the effect that it is at the asking of Al that A2 took the tainted money and that beforehand talk had ensued between A1 and the complainant, the bribe money with the complainant was meant to pass on to A1 at the restaurant of A2 the convenient place chosen by him. When the complainant paid the money to A2 on the directions of A1 then it was as good as if A1 had taken the money and passed on to A2. Acceptance is thus established from the conduct of A1. On this understanding of the situation, it is difficult for us to accept the contention of learned Counsel for A1 that he was not guilty of the crime. We reject the contention outright and confirm the conviction of Al, dismissing his appeal. However, we are inclined to reduce his sentence to the minimum impossible, i.e., one year rigorous imprisonment under all counts, while sustaining that of fine with the default clause.
5. Insofar as A2 is concerned, we find considerable merit in the contention raised on his behalf that he could have received the money innocently from the complainant at the asking of A1, without realising that it was bribe money. The argument prevails because the prosecution has nowhere led any other evidence of conduct or consistency of a behavior from which it could be spelled out that A2 was a habitual go – between in facilitating acceptance of bribe by Al. This single instance which has been brought forth does not reveal of any regularity of conduct of this nature. There thus exists an area of doubt the benefit of which shall go to A2. Accordingly, the appeal of A2 is allowed and he is acquitted of the charges.
6. In the end result. Criminal Appeal No. 402 of 1994 is dismissed, subject to the modification in sentence and Criminal Appeal No…of 1995 arising out of S.L.P(Crl.) No. 2859 of 1992 stands allowed, upsetting the convictions and sentence.
