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IN THE COURT OF SPECIAL JUDGE, CBI, ASSAM, ADDITIONAL CBI

COURT NO-II, CHANDMARI, GUWAHATI-3

Special Case No. 7/2012

State(CBI) Vs

Md. Wahidur Rahman

u/s 7 & 13 (1)(d) r/w 13(2) of P.C. Act, 1988.

Present: Sri B.K. Chetri (A.J.S), Special Judge, CBI, Assam, Additional CBI Court No-II, Chandmari, Guwahati-3.

APPEARANCE

For the state…………… Mr. S.K. Singh……………….. Learned P.P., CBI.

For the accused……….Mr. D.C. Kath Hazarika &

Miss Jubi kalita……………… Learned Defence Counsel.

Date of Evidence : 13-05-2013, 14-05-2013, 20-07-2013, 12-12-2013, 21-02-

2014, 12-05-2014, 30-05-2014, 18-06-2014, 27-06-2014,

08-09-2014, 25-09-2014, 26-02-2015, 08-06-2015, 17-09-

2015, 09-12-2015, 20-01-2016, 29-02-2016, 03-05-2016,

01-06-2016, 21-06-2016, 02-08-2016, 18-08-2016, 25-10-

2016.

Date of Statement u/s 313 Cr.P. C. : 11-11-2016

Date of Argument : 05-12-2016 and 13-12-2016

Date of Judgement : 26.12.2016

JUDGEMENT & ORDER

The prosecution case as per the FIR dated 18-10-2011 of Sri H.C.

Nath, IPS, HOB, CBI, ACB, Guwahati is that one Sri Ratan Choudhury has sent a

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complaint dated 14-10-2011 through fax alleging that Mr. Wahidur Rahman, the

Senior Tax Assistant at Income Tax Office, Ward No-II, Nagaon, Assam has

demanded a bribe of Rs.300/- for giving refund for the assessment year 2008-09

and as Mr. Choudhury was not willing to give the bribe has forwarded the

complaint by fax. After discreet verification it was revealed that the accused was

the Sr. Tax Assistant in the office of Income Tax Office, Nagaon and having a

habit of taking bribe.

The complaint was registered as FIR on 18-10-2011 vide

RC0172011A0015. The date of suspected offence is mentioned as 21-09-2011.

Trap was laid on 19-10-2011 to apprehend the accused red handed. Pre-trap

formalities were done in the BSNL Guest House at Nagaon under the direction of

Trap Laying Officer (TLO) M.R. Hajong, Inspector Of Police in presence of

Inspector Pranab Das, S.I. Ram Nath Ram, Constables B. Basumatary and Jitu

Deka (since deceased) along with the complainant Ratan Choudhury and

independent witnesses Krishna Kanta Ghosh and Dichong Meidinbui. The

proceeding was completed around 01.00 P.M. and the pre-trap memorandum

completed accordingly.

At around 13.05 hrs, the trap laying team proceeded towards the

office of the accused and as per the instructions and procedures laid down in the

pre-trap memo, the trap was laid in the office chamber of the accused and was

caught red handed while demanding and accepting the bribe money of Rs.300/-,

which was kept by the accused on the left pocket of his t-shirt. After completion

of necessary formalities, the trap team along with the accused left the office of

the accused at around 06-00 P.M. and went to the BSNL Guest House. Further

formalities were observed and accused Wahidur Rahman was arrested at around

20.45 hrs and all the formalities were completed by 21.30 hrs. Post Trap memo

prepared accordingly.

The accused was produced before the court on 20-10-2011 and

after perusal of the case diary ,he was released on bail vide order dated 01-11-

2011.

During investigation, prosecution sanction was obtained and after

completion of investigation, the charge sheet was submitted by the I.O. Sri N.G.

Deb, Inspector of Police, CBI, ACB, Guwahati on 29-08-2012 and same

forwarded to the Court on the same day along with the forwarding by DIG and

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HOB, CBI, ACB, Guwahati. The charge sheet was submitted against the accused

for offence U/S 7 & 13(1)(d) r/w 13(2) of P.C. Act, 1988.

On receipt of summon the accused appeared before the court and

necessary documents were furnished to him and also allowed the opportunity for

inspection of other documents. Ld. PP and the defence Counsel were heard on

charge and the court finding prima facie case against the accused framed charge

against the accused for offence U/S 7 & 13(1)(d) r/w 13(2) of P.C. Act, 1988 vide

order dated 11-04-2013, which the accused pleaded not guilty.

In support of its contention, prosecution examined as many as 12

witnesses as follows:

P.W.-1 Sri Paristosh Ch. Saha ………….Income Tax Officer, Nagaon,

P.W.-2 Sri Raju Tayeng……… Commssioner of Income Tax, Jorhat,

P.W.-3 Ratan Choudhury…. Sahara Agent,

P.W.-4 Krishna Kanta Ghosh…… Senior Manager, UCO Bank, Nagaon,

P.W.-5 Prabin Kumar Singh……. Income Tax Officer, Nagaon,

P.W.-6 Maharishi Ray Hazong…… Deputy SP, CBI(TLO),

P.W.-7 Bhagawan Ram Teke…….. Senior Scientific Officer,

P.W.-8 D.Meidinbui………. Assistant Manager, UCO Bank, Nagaon,

P.W.-9 Suresh Bagh…… Tax Consultant,

P.W.-10 Ram Nath Ram ………SI., CBI,

P.W.-11 Pranab Das ……Inspector, CBI,

P.W.-12 Naru Gopal Deb……. Sub Inspector of Police, (I.O.).

The prosecution exhibited the following documents:

Ext. 1 Staff Attendance Register of Income Tax Office, Nagaon,

Ext. 2 Duty Card File of ITO Nagaon,

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Ext. 3 Income Tax Return of Ratan Choudhury,

Ext. 4 Seizure Memo regarding seizure of Ext.1 and Ext.2,

Ext. 5 Note Book of accused,

Ext. 6 Certified copy of letter dated 26-03-2003 with duty list of Income Tax

Dept,

Ext. 7 Seizure Memo regarding seizure of Ext.6,

Ext. 8 and Ext.9 Manual office Procedure, Income Tax Department,

Ext. 10 Certified copy of hard copy of screen printout in respect of PAN

AEWPC7478J for assessment year 2008-09 of complainant,

Ext. 11 Certified true hard copy of screen printout of rectification order dated 24-

10-2011 in respect of Ext.10,

Ext. 12 Certified true hard copy of screen printout of TDS details as on 19-10-

2011 in respect of Ext.10,

Ext. 13 Seizure memo regarding seizure of Ext.8 to Ext.11,

Ext. 14 Seizure Memo regarding seizure of Ext.12,

Ext. 15 Sanction order,

Ext. 16 Acknowledgement of I.T. Office,

Ext. 17 Original Complaint of Ratan Choudhury,

Ext. 18 Fax Copy of Complaint(proved in original),

Ext. 19 Pre-trap memorandum,

Ext. 20 Search List regarding seizure of Ext. 5,

Ext. 21 Post Trap Memorandum,

Ext. 22 Sketch Map,

Ext. 23 Seizure Memo dated 14.11.2011 regarding seizure of Ext. 16,

Ext. 24 Certified true copy of promotion order dated 29.01.2008,

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Ext. 25 Joining report dated 30.01.2008 of Mr. W. Rahman,

Ext. 26 Seizure Memo dated 22-12-2011 for seizure of Ext. 24 and Ext. 25,

Ext. 27 FIR,

Ext. 28 Forwarding letter of FIR,

Ext. 29 Arrest cum personal search memo,

Ext. 30 Letter dated 17.11.2011 forwarding the material exhibits to CFSL,

Ext. 31 CFSL Report dated 21.12.2011,

Ext. 32 Facsimile of Brass Official Seal,

Ext. 33 Report dated 17.11.2011,

Ext. 34 Copy of forwarding letter,

Ext. 35 Charge Sheet,

Ext. 36 Forwarding letter of charge sheet,

M. Ext. 1 Pre trap hand wash,

M. Ext. 2 Right hand wash of accused,

M. Ext. 3 Left hand wash of accused,

M. Ext. 4 T-shirt wash of accused,

M. Ext. Envelope containing trap money,

M. Ext. 6 Envelope containing T-shirt,

M. Ext. 7 to 10 Removed CBI seal impressions,

M. Ext. 11 Envelope containing M. Ext. 7 to 10.

The statement of accused was recorded U/S 313 Cr.P.C.. He

denied the allegations and declined to adduce evidence. His plea is that the

Sahara India did not deposit the TDS in respect of the complainant for the year

2007-08 for which it was not reflected while processing return online. Deduction

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of TDS was introduced in the year 2007-08 in the electronic system for which

Sahara India did not deposit the TDS online for that year. They realized the same

subsequently and started to deposit the TDS from the next year onwards.

Complainant did not approach the income tax office of the accused on earlier

occasion for refund of TDS for the year 2007-08, though he has received TDS for

the next 2-3 years. His further contention is that he is an honest person and the

CBI people during his house search did not find anything against him.

Argument was heard on behalf of both the sides.

Citation referred:

By Prosecution:

1993 supple(1) SCC 323 (B. Hanumantha Rao –Vs- St. of Andhra P.),

Crl. Appeal No.232 of 2006(SC) (CM Sharma- Vs-St. of Andhra Pradesh),

(2015) 3 SCC 220 (Vinod Kr.-Vs-St.of Punjab),

AIR 2000 SC 58 (Madhukar Bhaskar Rao Joshi –Vs- State of Maharashtra)

By Defence:

(2015 )11 SCC 642 R.P.S.Yadav –Vs-CBI.

ARGUMENT ON BEHALF OF PROSECUTION

i) Ld. P.P. submitted that it is a clear case of demand of bribe

money and being caught red-handed. Relying on the judgement of Hon’ble

Supreme court in 1993 supple(1) SCC 323=>AIR 1992 SC

1201(B.Hanumantha Rao –Vs- St. of ANDHRA .P.) submitted that the

amount of illegal gratification was recovered from the possession of the accused

and on being washed his hand in sodium carbonate, the milky solution turned to

pink, leaves no doubt that the said amount was not touched and handled by the

accused.

ii) Another submission is that the prosecution has established that

the illegal gratification was paid to the accused and accepted by him and the

court is under legal compulsion to presume that the said gratification was paid

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and accepted as a motive or reward to do or forbear from doing any official act.

Reliance is made to judgement of the Hon’ble Supreme Court reported in AIR

2000 SC 58 (Madhukar Bhaskar Rao Joshi –Vs- State of Maharashtra),

iii) Another submission of Ld. P.P. is that the positive result of

sodium carbonate test of the fingers and the pocket of the t-shirt of the accused

shows that the accused has voluntarily accepted the bribe. He placed reliance on

the judgement of the Hon’ble Supreme Court reported in Crl. Appeal No.232

of 2006(SC) CM Sharma- Vs-St. of Andhra Pradesh.

iv) Ld. P.P.’s further submission is that there is no rule of law that

evidence of every complainant in a bribery case should be corroborated in all

material particulars and otherwise it cannot be acted upon. Whether

corroboration is necessary and if so, to what extent and what should be its

nature depends upon the facts and circumstances of each case. No general rule

can be laid down with respect of quantum of evidence corroborating the

testimony of a trap witness. Reliance is made on (2015) 3 SCC 220 (Vinod Kr.-

Vs-St.of Punjab).

6) DEFENCE COUNSEL ARGUMENT ARE ON FOLLOWING

POINTS:

i) In the charge sheet dated 29-08-2012, at page 10, it is

mentioned that the complainant finally lodged the complaint through fax on 18-

10-2011 and it is also stated that the accused demanded the money on 21-09-

2011 when the complainant visited the income tax office but nowhere in the

complaint, the date is mentioned. In the FIR form at serial No.3, the date of

offence is mentioned at 21-09-2011 at 12.30 P.M. but it is not there in the

complaint dated 14-10-2011.

ii) Charge sheet at page 10 says the complaint was received

through fax on 18-10-2011 but the fax copy of the complaint i.e. Ext.18 shows

the date of complaint and receipt of the same by the CBI Office is 14-10-2011.

iii) In the complaint, the name of the accused is mentioned as

Mr. Rahman, and not Wahidur Rahman. Where from the officer registering the

FIR on 18-10-2011 mentioned the name of the accused as Wahidur Rahman is

not mentioned in the complaint and as much as PW-3 in his cross stated that in

between 14-10-2011 to 18-10-2011 he did not meet any CBI officer. It is also

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submitted that as per calendar of 2011, 18.10.2011 was holiday for Vijaya

Dashami and the offices were closed on that day.

iv) It is a conspiracy of the CBI to frame the accused in order

to meet their target of registration of cases in as much as the CBI treated the

complainant at the BSNL Guest House by providing fooding and lodging as the

complainant was left with only Rs.100/- out of Rs.600/- which he brought while

coming from Lumding, after payment of Rs. 300/- for the trap and other

expenses, as revealed from his evidence. The so called independent witness

P.W.-4 and P.W.-8 were not independent witnesses as they were brought by the

CBI people by sending a vehicle to bring them and providing them refreshments

during the course of the day.

v) P.W.-10 deposed that the money was kept in the drawer of

Wahidur Rahman whereas other witnesses says it was in the T-Shirt pocket of

the accused. If Rs.300/- was in the drawer kept by the complainant, then how

come the hand and the t-shirt pocket of accused came in contact with

phenolphthalein powder. TLO says P.W.-10 was present in the office of the

accused whereas P.W.-10 says he was in his office.

vi) If bribe money was to be given to the accused why not on

the first time when P.W.-3 and P.W.-4. There was no reason for not paying the

money because of no electricity.

vii) Seizure list do not show the seizure of the bribe money and

same not in compliance with provision of Sec. 102, 165, and 457 Cr.P.C.

viii) Seizure witness Imdad Hussain of CBI, Basumatary and

Jitu Deka (since deceased) not produced to adduce evidence.

ix) There was no occasion for the accused to process and

release the TDS to the complainant as because the Sahara India has not

deposited the same in the first year of introduction of online deposit of TDS.

x) There is no evidence as to the source and purity of the

water alleged to have been used for the making of sodium carbonate solution.

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xi) During house search no incriminating materials found

against the accused, which points towards the honesty of the accused.

POINTS FOR DETERMINATION:

Whether the accused while working as Senior Tax Assistant by

illegal means and abuse of his official position as a public servant demanded

bribe of Rs.300/- from the complainant for release of his Income Tax assessment

refund of Rs.1473/- for the assessment year 2008-09 and was caught red

handed on 19-10-2011 while demanding and accepting bribe of Rs.300/- from

the complainant Ratan Choudhury.

DISCUSSION, DECISION AND REASONS THEREOF:

The Prevention of Corruption Act 1988 is the main anti-corruption

legislation in India. It addresses bribery and corruption offences committed by

public servants. Section 7 of the act deals with public servants taking

gratifications other than legal remuneration in respect of an official act, while

Section 13 of the act pertains to criminal misconduct by public servants. Both

sections are fairly broad in scope, and over the years their scope and ambit has

been interpreted by judicial precedent.

1) The gist of the allegation in this case as per the prosecution, is

that the accused demanded a bribe of Rs.300/- for release of Income Tax Return

of the complainant for the assessment year 2008-09 for which a trap was laid

and accused was caught red handed on 19-10-2011 along with the bribe money.

2) Before proceeding with the discussion of the evidence it is felt

appropriate to discuss in nutshell, the evidence of P.W.-3, the complainant and

P.W.-4, the shadow witness.

3) P.W.-3 deposed that he did not get back the TDS refund of

Rs.584/- and Rs.889/- i.e. total Rs.1473/- in respect of assessment year 2008-09

till 21-09-2011although the income tax office received his return application on

15-09-2008, for which he visited the income tax office (ITO), Nagaon on that

day(21-09-2011) and met Mr.Rahman , the dealing officer, who informed him

that there will be some official expenses of 20% of the refund amount and as

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such he has to pay Rs.300/- to Mr.Rahman for getting the refund. P.W.-3 asked

Mr.Rahman whether that amount is actually to be paid for official purpose at

which Mr.Rahman told him that P.W.-3 is getting clever. P.W.-3 was not willing to

give his hard earned money and conveyed the same to Mr.Rahman, who told

him to come after Durga Puja and pay him Rs.300/- for getting the refund. He

was not willing to pay any money.

4) P.W.-3 deposed that after Durga Puja he received an sms in his

mobile to inform the CBI,Guwahati in the telephone no. provided, if any demand

of bribe etc. is made by any Central Govt.employee. He rang up in that no. and

informed the CBI Officer about the demand made by Mr.Rahman. He was

connected to DIG,CBI,Guwahati and he informed the matter to DIG, who advised

him to give a written complaint. As he was a resident of Lumding and coming to

Guwahati for such a meager amount was expensive for him, he wrote a

complaint and sent it to CBI through fax from a PCO at Lumding on 14-10-2011

in the fax no. provided in the sms. Ext.17 is his original complaint and Ext.18 is

the fax copy proved in original received by the CBI on 14-10-2011.

5) P.W.-3 deposed that on 18-10-2011, CBI Officer Mr.Hazong

rang up him and asked him to come to Nagaon on 19-10-2011 with the original

complaint. Accordingly, he came to Nagaon on 19-10-2011, met Mr.Hazong at

BSNL Guest House Room no.1 at Nagaon, narrated his grievances and handed

over the original complaint. He also produced his acknowledgement and other

documents for perusal of Mr.Hazong.His statement was recorded by Mr.Hazong

and at about 11.45 am other cbi officials and two officers of UCO bank namely

Krishna Kanta Ghosh(P.W.-4), and D.Meidinbui(P.W.-8) assembled there at BSNL

Guest House. He was introduced to all of them. His complaint dated 14-10-2011

and the FIR were read over to the members present by Mr.Hazong that

Mr.Wahidur Rahman demanded bribe of Rs.300/- from him for clearing his

income tax refund for the assessment year 2008-09. He handed over three

Rs.100/- notes to Mr.Hazong, which he brought to give Mr.Wahidur Rahman as

demanded by him. The pre-trap proceeding started and completed at around

1.00 P.M. During the pre trap proceeding the notes were smeared with

phenolphthalein powder and those notes kept in the shirt pocket of PW-3 to be

given to the accused on demand.

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6) P.W.-3 further deposed that at about 1.05 P.M. , he along with

other trap team members except Mr.Ram Nath Ram(P.W.-10) left for the office of

the accused Mr.Wahidur Rahman at Income Tax Office Nagaon along with trap

kit. P.W.-10 remained in the BSNL Guest House. As per the instruction during the

pre trap proceeding , he along with P.W.- 4 went to the office of the

accused located in the 1st floor of ITO Nagaon and other trap team members

remained scattered in the compound. He met the accused and told him about

the purpose of his visit which is refund of his TDS. At that time, there was no

electricity and the accused asked him to come after electricity comes. They

came out of the chamber of the accused and informed Mr. Hazong. The other

trap team members came out of the office and waited outside. He and P.W.-4

remained within the compound of the accused. Accused left for lunch and asked

him to wait. In the mean time electricity was restored and accused returned to

his office at 3.00 P.M. He and P.W.-4 went to the chamber of the accused. Other

trap team members waited outside the office of the accused in a scattered

manner. They sat in front of the accused across the table and he showed his

acknowledgement of income tax return. Accused checked the same in the

computer and after 4-5 mins informed him that there was no link. Accused noted

down his particulars in a diary and when he took the consent of the accused to

leave, the accused demanded the amount of Rs.300/- as per his earlier demand.

He took out those three Rs.100/- notes treated with phenolphthalein powder

from the left side pocket of his t-shirt and gave it to accused, who took it with his

right hand, counted the same using both his hands and kept those Rs.300/- with

his right hand in the left pocket of his t-shirt. P.W.-4 came out from the chamber

of the accused and gave pre-fixed signal to the other team members and

immediately Mr. Hajong (P.W.- 6) and other witnesses rushed inside. Two officials

of CBI caught both the hands of Mr. Rahman and asked him to sit in the chair.

P.W.-4 was asked to narrate the entire conversation of the transaction witnessed

by him and he (p.w.-3) also narrated the same on being requested by P.W.-6.

7) P.W.-3 further deposed that the accused was asked to take out

Rs.300/- from the left side pocket which he was wearing at that time and hand

over the same to independent witness P.W.-8., who counted the money and

tallied the nos. of those notes with the nos. recorded in pre-trap

memorandum(Ext.19) and the nos. tallied. Hand wash of accused and his T-shirt

pocket turned the solution into pink, the solutions were packed and sealed in

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bottle, Post Trap Memorandum (Ext. 21) was prepared along with sketch map

(Ext.22) and seizure memo (Ext.23).

8) P.W.-4 corroborated his presence in the pre-trap and post-trap

proceedings; that he left the BSNL Guest House for ITO at about 1.05 P.M. in a

vehicle along with trap kit, laptop and portable printer along with other trap team

members except P.W.-10, who stayed in the Guest House. He also corroborated

the fact that he and P.W.-3 went to the chamber of Mr. Rahman and P.W.-3

discussed about his income tax refund with Mr. Rahman; that at that time there

was no electricity and the accused asked P.W.-3 to come after electricity

resumes; That they came out and waited in and around the compound of ITO ;

that at about 2.30 P.M. Mr.Rahman left for lunch and before leaving told P.W.-3 to

wait till electricity comes and after he returns from lunch; that at about 3.00 P.M.

Mr. Rahman returns to his chamber and he and p.w.-3 enters the chamber; that

other trap team members remain scattered outside the chamber of Mr.Rahman;

that he and P.W.-3 sat in two chairs across the table of Mr.Rahman; that he sat of

the left side of P.W.-3; that Mr. Rahman tried to check the status of P.W.-3’s

return in computer and after few minutes, Mr.Rahman informed that there was

no link; that Mr. Rahman collected the particulars and noted down in a notebook;

that Mr. Rahman told P.W.-3 that the refund will be deposited in the account of

P.W.-3; that Mr. Rahman to give what he demanded earlier; that P.W.-3 took out

the three phenolphthalein powder smeared notes from his shirt pocket and

handed over to Mr. Rahman, who counted it with both his hands and

put it on left pocket of his wearing t-shirt; that he came out and gave the pre-

fixed signal and immediately Mr. Hajong (P.W.-6)and other trap team members

including P.W.-8 entered into the chamber of Mr. Rahman; that two CBI Officials

caught hold of both the hands of Mr. Rahman; that P.W.6 asked him to narrate

the conversation of the incident; that the hands of Mr. Rahman was washed in a

solution of sodium carbonate that the solution turned pink that Mr. Rahman was

asked to take out the tainted three Rs.100/- notes from the pocket of the t-shirt

which was accordingly taken out by Mr. Rahman. The no. in those notes tallied

with the nos. written in the pre-trap memorandum; The t-shirt of Mr. Rahman

was taken out and provided with a new t-shirt; the left chest pocket of the

wearing t-shirt was washed in a solution of sodium carbonate, the solution

turned pink; that he put his signatures on those bottles where hand wash

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solutions were kept that three Rs. 100/- notes kept in an envelope (M.Ext. 5)

that T-shirt (M.Ext. 6) of accused seized that he put his signatures on that

envelope and T-shirt; that the note book (Ext.5) with Commander written over it

was seized from the office of Mr. Rahman.

9) So far the attendance of the accused in his office on 21-09-

2011 and 19-10-2011, the same is proved from the Ext.1, the attendance

Register and Ext.2, the order of assignment of duty. Ext. 1(1) is the relevant

page showing the attendance on 21-09-2011 and Ext.1(2) is the initial of his

attendance on that day. Similarly, Ext.1(3) is the relevant page for the

attendance on 19-10-2011 and Ext.1(4) is the initial of his attendance in the

office on that day. Ext.2 is the duty card file. Ext.2(1) is the order dated 02-06-

2008 by which the accused was placed under the disposal of ITO ,Ward No-II

,Nagaon w.e.f 02-06-2008. Ext.2(4) is the signature of P.W.-1 who issued the

order dated 08-01-2010 (Ext.2(3)) whereby the accused was assigned to assist

ITO ,Ward No-II ,Nagaon in processing the returns including refund orders etc.in

respect of assessee whose names starts with alphabet Q to Z. The name of the

complainant is Ratan Choudhury(P.W.-3) and Ext.3 is the income tax return in

form no. ITR -4 submitted by Ratan Choudhury, who has enclosed form 16 A

certificates towards tax deducted at source(Ext.3(2) and Ext.3(3)) by Sahara

India Financial Corporation Ltd and Sahara India Commercial Corporation. As per

P.W.-1, the complainant (P.W.-3) claimed refund of Rs.1473/- and as his name

starts with alphabet ‘R’, the duty was on the accused to process the refund of

P.W.-3. Ext.6 is the revised duty list of Grade-C and D cadres of Income Tax

Return issued by Ministry of Finance and Dept of Revenue,Central Board of Direct

taxes.

10) Ext.8 and Ext.9 are the manuals of office procedure vol-1 and

vol-2 respectively, whereby the duty and function of Senior Tax assistant relating

to assessment, procedure of processing the returns including refund, rectification

are laid down. Ext.10, Ext.11 and Ext.12 are the certified true hard copy of

screen print of processing details in respect of PAN-AEWPC7478J for the

assessment year 2008-09 of P.W.-3 dated 02-02-2010, rectification order dated

24-10-2011 and TDS details as per ETDS database maintained in the ITD system

as on 19-10-2011 respectively. P.W.-9, the tax consultant deposed of filing of

income tax return of P.W.-3 from his office and submission of TDS form no.16-A.

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Ext.16 is the income tax return acknowledgement first copy of the year 2008-09.

He stated in his cross that till the year 2008-09 , P.W.-3 was his client. The

accused has also not denied of filing of returns by P.W.-3 and claim of refund by

P.W.-3 for the assessment year 2008-09.

P.W.-5 exhibited the promotion Order No.7 of 2008 dated 29-01-

2008 issued by the Commissioner of Income Tax,Guwahati-2 whereby 11 persons

including the accused Wahidur Rahman were promoted to the post of Senior Tax

Assistant. Ext.25 is the joining report dated 30-01-2008 of Wahidur Rahman as

Senior Tax Asstt. In the Office of Income Tax Officer, Ward No-1,Nagaon.

11) The above evidence establishes the fact P.W.-3 is an income

tax assessee and has filed returns including the assessment year 2008-09 and

has claimed refund of the TDS for the assessment year 2008-09 and that matter

was before the accused. It is to be noted that P.W.-1 deposed that as per Ext.10 ,

credit was not available at the time of processing. As per PW-1 in the cases of

TDS credit not given at the time of processing due to mismatched and the

assessee report about non receipt of refund for any such assessment year, then

the same has to be rectified by the concerned official who is assigned to process

the return and in this case, the accused was assigned to process the return of

P.W.-3 and was to advice P.W.-3 for rectification. P.W.-1 came to know only on the

day of trap i.e. 19-10-2011 from P.W.-3 that his refund for the assessment year

2008-09 was not credited till 19-10-2011.

12) The accused in his statement U/S 313 Cr.P.C. stated that TDS

in respect of P.W.-3 for the financial year 2007-08 was not deposited by the

Sahara India for which it was not reflected while processing return online. Such

online deduction of TDS was introduced in the year 2007-08 for which Sahara

India did not deposit online the TDS for that year and when they realized of new

provision, they started to deposit from the next financial year. P.W.-3 never

approached him or the income tax office on earlier occasion for such refund

though he has received the refund of TDS for the next two-three years after that

period.

13) From above, it is established that P.W.-3 has filed income tax

return and was entitled for refund of TDS in respect of the assessment year

2008-09. It is to be seen when he approached the income tax office or the

accused with rectification for refund of the TDS for the assessment year 2008-

15

09. The allegation is that accused demanded Rs.300/- for processing the refund

of Rs.1473/- .

14) As per P.W.-3, he was not prepared to part with his hard

earned money by paying Rs.300/- to the accused for which on getting an sms in

the mobile phone from the CBI, ACB, Guwahati to report the matter if any

demand of bribe etc. is made by any Central Govt. employee, he called the CBI

office over the telephone no. provided in the sms and informed the demand of

bribe made by Mr. Rahman. He was connected to the DIG of CBI, ACB,

Guwahati, who advised him give a written complaint. He being a resident of

Lumding and coming to Guwahati being expensive , he send his complaint

through fax from a PCO at Lumding. Ext.18 is the said fax copy received by the

CBI office on 14-10-2011. Ext.17 is the original written complaint. On 18-10-

2011, He was telephonically contacted by CBI Officer, Mr.Hazong to come to

Nagaon on 19-10-2011 with the original complaint. P.W.-3 came to Nagaon on

19-10-2011, met Mr.Hazong at BSNL Guest house and verbally narrated him

about the matter. P.W.-3 came to know the full name of the accused form

Mr.Hazong. In Ext.17 and Ext.18, it is alleged that the accused asked the

complainant of bribe amount of Rs.300/- for releasing his refundable amount for

the year 2008-09.

15) Defence Counsel argued that the complainant is silent as to

the date on which P.W.-3 visited the office of the accused in respect of his refund

and on which date the accused demanded the money. It is also pointed out that

the FIR was registered on 18-10-2011 and in column no. 3, the date of

suspected offence is mentioned as 21-09-2011 at 12.30 P.M. P.W.-3 sent the

complaint by fax on 14-10-2011 and thereafter on 18-10-2011, he was asked by

Mr.Hazong to come on 19-10-2011 at Nagaon and in between he did not meet

any CBI Officer, as stated by him in his cross examination and the complaint i.e.

Ext.17 is silent as to any such date. There is no evidence in record as to from

where the date of alleged offence to have taken place on 21-09-2011, as

recorded in the FIR form i.e. Ext.27.

16) No doubt Ext.17 is silent as to the date of visit of P.W.-3 to the

office of the accused but he has categorically deposed while adducing evidence

that when he did not got his TDS refund till 21-09-2011, he went to the ITO

Nagaon on that day along with his ITR acknowledgement(Ext.16) and

16

contacted the dealing officer named Mr.Rahman. The same reiterated in his

cross examination that he stated before the CBI that he visited the Office of

Mr.Rahman on 21-09-2011 though the said fact is not mentioned in his complaint

dated 14-10-2011. Defence Counsel has submitted in course of his argument

that 18-10-2011 was a holiday for Vijaya Dashami for which the presence of CBI

Officers in the office on that day and informing P.W.-3 over phone to come to

Nagaon on 19-10-2011 cannot be believed.

17) Going by the submission of defence Counsel and the copy of

the calendar of the year 2011 published by the Hon’ble Gauhati High Court, as

furnished by the defence Counsel and the list of holiday for the year 2011 for the

Assam Govt. as available in the website reveals that 18-10-2011 was holiday for

Kati Bihu, which is not applicable for Central Govt. Offices. The calendar reveals

that Vijaya Dashami was on 06-10-2011. Going by this fact , the evidence of

P.W.-3 that the accused asked him to come after Puja vacation corroborates the

fact that he visited the office of the accused on 21-09-2011 which was just two

weeks before the Durga Puja and that he received the sms after the Durga Puja

of the CBI and he lodged the complaint on 14-10-2011.

18) The defence has also raised question on the mentioning of

name of accused Wahidur Rahman in Ext.27 on similar ground, as because in the

complaint, pw-3 has only mentioned Mr Rahman. The reply to this can be

deduced from the evidence of P.W.-12 that after receipt of complaint dated 14-

10-2011, a discreet inquiry was made by the CBI and from such inquiry the full

name of the accused could be ascertained. It is to be added here in that there is

no specific evidence as to how the full name of the accused was collected by the

CBI person. But the accused being a Senior Tax Asstt. In the ITO, Nagaon , there

could be no problem for CBI to find the full name of Mr. Rahman by way of

discreet inquiry. Non-mentioning of full name of the accused by itself do not

create doubt on the identity of accused being the Senior Tax Assistant who was

entrusted to assist the IT Officer Nagaon in processing the return including

refund etc. of persons whose name starts from Q to Z. P.W-3’s name starts with

alphabet ‘R’ and being so his file was to be processed by the accused.

19) The defence counsel has also pointed out that in the charge

sheet at page-10, it has been mentioned that the complaint was received

through fax on 18-10-2011 whereas Ext.18 reflects that this was received on 14-

17

10-2011 and the FIR at serial no.3 also speaks about receipt of information on

14-10-2011. From the perusal of the record, it transpires that there was some

typographical error in writing the date as 18-10-2011 instead of 14-10-2011 and

this error do not take away the allegations against the accused.

20) The fifth argument by the defence is that a conspiracy has

been hatched against the accused to meet the target of registration of cases by

the CBI and in the process the complainant was brought from Lumding, provided

accommodation and fooding at Nagaon and made to give evidence against the

accused and also managed P.W.-4 and P.W.-8 as independent witnesses by

proving them with conveyance and refreshment.

21) Though the defence has raised this argument but to establish

the same has neither brought anything as such in the evidence of P.W.s nor

adduce any defence evidence. P.W.-3 has some grievances as regards his refund

of income tax returns and made complaint to the CBI alleging that the accused

demanded Rs.300/- from him. He send his written complaint over fax on 14-10-

2011 and thereafter on being informed by the CBI he came to Nagaon on 18-10-

2011. Unless and until P.W.-3 informed the CBI, there was no occasion for the

CBI to know any such problem of P.W.-3 regarding the refund of his income tax

return at ITO, Nagaon and there was also no occasion for CBI to know the name

of the accused. There is nothing on the record or evidence of P.W.s to remotely

suggest that CBI conspired to frame case against the accused and trap him.

There is no any such reason for the CBI to do so. This argument of the defence

has no basis and as such do not hold ground.

22) The solution of sodium carbonate was milky and when it was

brought in contact with phenolphthalein powder it turned into pink. Prosecution

witness deposed of the hand wash of the accused in the solution of sodium

carbonate after the money was handed over to him and received by him. Prior

to this, the demonstration was done during the pre-trap proceeding and similar

result was there. There is nothing in the evidence of P.W.s about the impurity of

the water. P.W.-7 is a scientific officer who analyzed the solution of sodium

carbonate i.e. M.Ext.1, M.Ext.2, M.Ext.3 and M.Ext.4, which includes the solution

prepared during the pre-trap and post-trap proceedings. The chemical test gave

positive test for the presence of phenolphthalein and sodium carbonate in those

solution and Ext. 31 is the report submitted by P.W.-7. In cross examination of

18

P.W.-7, the defence has inquired him about the receipt of sample of water by

which the said solutions were prepared, to which P.W.-7 replied that he don’t

know what type of water was used and also stated that if the water is found to

be dirty then the solution will also be dirty. It has also come in his cross that

generally in water, chemical impurities remain and depends upon the source of

water collected. But nowhere in the evidence of P.W.-7, it has come that impurity

of water will lead the milky solution of Sodium Carbonate to turn into pink. The

report clearly speaks of the contents of phenolphthalein powder and sodium

carbonate in that solution and the other P.W.s has clearly deposed in this regard.

No evidence as to the source of water for making the solution of Sodium

Carbonate do not negate the result of reaction of phenolphthalein powder with

the solution of Sodium Carbonate as deposed by the witnesses. Thus, the

argument of defence that there is no evidence as to the source and purity of the

water used in making the sodium carbonate solution also do not hold ground.

23) The other argument of defence that the house search of the

accused do not yield any incrementing materials against the accused which

indicates the honesty of the accused, do not justify the submission as because

non finding of any incriminating materials during the house search of the

accused does not if so-facto rule out the commission of alleged offence by the

accused.

24) Defence counsel also raised argument that there was

conspiracy to frame the accused for which there is a discrepancy in the evidence

of PWs with that of the evidence of PW-10 (Ram Nath Ram) as PW-10 has

deposed that after reaching the Income Tax Office Mr. Hajong (PW-6) directed

PW-3 along with PW-4 to go to the chamber of the accused and after about 5

minutes PW-4 came out and gave his signal by rubbing his head then all the

trap team members including PW-10 himself entered the chamber of the

accused. PW-10 further deposed that PW-6 charged the accused of accepting

bribe of Rs. 300/- and on search those three Rs. 100/- denomination notes were

found in the drawer of his (accused) office table.

25) All the PWs except PW-10 has deposed of the trap money of

Rs. 300/- being recovered from the T-shirt pocket of the accused and the pocket

area of the said T-shirt worned by the accused at that time was washed in the

solution of Sodium carbonate and on doing so the milky solution turned into

19

Pink. The other PWs (except the I.O. i.e. PW-12) have deposed that they left

BSNL Guest House for the Income Tax Office at about 1:00 P.M. leaving behind

PW-10 in the BSNL Guest House. The evidence is also that PW-10 demonstrated

the reaction of phenolphthalein powder with the solution of Sodium Carbonate in

the BSNL Guest House at the time of Pre-trap proceedings.

26) From the entire evidence on record, the evidence of PW-10

about his presence in the Income Tax Office during the Post-trap proceedings

cannot be true in as much as PW-10 in his cross stated about the demonstration

given at BSNL Guest House; that “The post Trap proceedings concluded at 12:30

P.M.; that he remained in the BSNL Guest House whole day and whole night on

19.10.2011.”. The evidence on record says that post trap proceedings started

after 1:00 P.M. i.e. from the time when the trap team members left for Income

Tax office. So the question of post trap proceedings over by 12:30 P.M. as told by

Pw-10 cannot be true, in as much as, the pre trap proceedings being over by

11:30 A.M. as stated by PW-10 in his cross is also not found to be correct going

by the evidence of other PWs. If PW-10 was whole day and whole night at the

BSNL Guest House on that day, then how he could be in the Income Tax Office at

the same time. Being so, the evidence of PW-10 cannot be believed and relied

upon.

27) It is to be seen whether the allegation so made by the P.W.-3

against the accused has been proved by the evidence or not. So far, the pre-trap

proceeding, the evidence of P.W.s leaves no doubt of any such formalities not

being done. The evidence of P.W.-3, P.W.-4, P.W.-6, P.W.-8 and P.W.-10 has gone

unrebutted. As regards the evidence on post-trap proceeding also these

witnesses has adduced evidence which remained unshaken by cross

examination, except the evidence of P.W.-10, who deposed about his presence

during the post trap proceeding where as other witnesses said that he was in the

BSNL Guest House and has not accompanied them to the office of the accused.

28) During the post-trap proceeding, specifically after P.W.-3 and

P.W.-4 came out of the office of the accused and gave the signal to the other trap

team members, the evidence establishes that the hands of accused were washed

in the solution of sodium carbonate and it turned into pink. His T-shirt pocket

area was also washed and that solution also turned into pink. Three notes of

Rs.100/- denomination was recovered from the t-shirt pocket of the accused

20

and those notes are also proved to be one of which are mentioned in the pre-

trap memorandum (Ext.19). To this extent, the evidence is beyond doubt. But it

is to be seen whether the accused in fact demanded any such money from P.W.-

3, whether initially when the accused visited his office for the first time and when

P.W.-3 and P.W.-4 went to his office at the time of trap. Supreme Court rules

proof of demand essential for convictions under Prevention of Corruption Act.

29) In a corruption case, four things are required to be

appreciated viz; the initial demand, second demand or subsequent demand in

presence of witness(s) ,voluntary acceptance and recovery of amount from the

possession of the person taking the bribe.

30) Defence pointed out that in the FIR (Ext.27), at Serial No.3,

the date of offence is mentioned as 21-09-2011 at 12.30 P.M., whereas in the

complaint dated 14-10-2011 no such date has been mentioned and he has not

met any CBI Officer before 19-10-2011 and that the FIR was registered on 18-

10-2011 whereas P.W.-3 was not aware of the full name of the accused before

meeting the CBI Officer Mr. Hajong on 19-10-2011. Continuing the argument,

the defence counsel submitted that in view of above the evidence of P.W.-3 it

becomes doubtful as regards the date of his visit to the office of the accused for

the first time and the alleged demands.

31) In the instant case, as per the prosecution , there was two

occasion of demand, i.e. initially when P.W.-3 visited the office of the accused on

21-09-2011 and subsequently on 19-10-2011 when the trap was laid. As regards

the first instance, the date of such visit to the office of the accused or the date of

such demand is no where mentioned in the complaint dated 14-10-2011 but

same is mentioned by PW-3 while adducing evidence before the court, which is

further clarified in his cross examination where he stated that he has not

mentioned the date in his complaint but stated the same before the CBI Officer.

32) In his complaint dated 14-10-2011 (Ext.17), P.W.-3 has stated

that Mr. Rahman asked him a bribe of Rs.300/- for release of refundable amount

very soon and he testified before the Court as P.W.-3 that the accused after

going through the file told him that there is some official expenses of 20% for

clearing the refund amount of Rs.1473/- and as such he has to pay Rs.300/- to

the accused for getting the refund. He was not willing to pay extra money and

21

conveyed the same to the accused but the accused told him to come after

Durga Puja and pay Rs. 300/- for getting the refund.

33) As regards the argument of defence that if in fact, the accused

demanded the money then why PW-3 did not pay the same to the accused when

he met for the first time and what was the need to wait of resumption of

electricity. The evidence is clear that when PW-3 and PW-4 entered the chamber

of the accused, there was no electricity and the accused instructed them to come

after resumption of electricity. P.W.-3 did not get the scope to offer the money at

that time as the accused did not make the demand. The evidence reveals that

there was clear instructions from TLO (P.W.-6) to P.W.-3 to give the money only

on the demand of the accused.

34) The other argument that the seizure list do not show seizure

of Rs.300/-; that seizure witness Imdad Hussain and other witnesses named

Basumatary and Jitu Deka and that Sahara India has not deposited the TDS for

the assessment year 2007-08 so how could the accused process the refund also

do not have any ground to sustain because the trap money has been shown and

seized in the Post Trap Memorandum(Ext.21), the seizure list i.e. Ext.4, Ext.13,

Ext.26 and Ext.29 are regarding seizure of other items and it is not necessary

that all the cited witnesses to be examined. The prosecution case can be

believed even on the basis of evidence of a sole witness provided his evidence is

clear, cogent, sufficient and trustworthy. Sec 131 of the Evidence Act do not

speak for the number of witnesses to be examined to prove any fact and it the

quality of the evidence and not the quantity of the evidence which is required to

be judged by the Court to place credence on the evidence of witness. Reference

is made to the Judgement of Honble Supreme Court reported in 2002 SCC

(Crl.) 1220 (Krishna Mochi & Ors -Vs- State of Bihar), wherein it was held that

the credible evidence of even a solitary witness can form the basis of conviction.

35) P.W.-6 is the DSP, CBI who was present with P.W.-11, the TLO

along with other witnesses during the pre-trap and post-trap proceeding and

P.W.-12 is the officer who submitted the charge sheet(Ext.35)against the accused

for offence U/S 7 and 13(2) r/w 13(1)(d) of P.C. Act.

From the above discussion, the evidence of P.W.s except P.W.-10

remained unshaken and unrebutted so far the filing of return by P.W.-3, his

22

claim for refund for the assessment year 2008-09, the accused being the person

responsible for processing the refund, presence of accused in the office on 21-

09-2011 and 19-10-2011, P.W.-3 handing over Rs.300/- to the accused in

presence of P.W.-4 and recovery of those Rs.300/- from his pocket, those notes

tallied with the description given in the pre-trap proceeding and his hands and

the pocket area of his t-shirt on being washed with the solution of sodium

carbonate turned to pink due to reaction of phenolphthalein powder. The

evidence as regards pre-trap proceeding and post trap proceeding remained

unshaken. It remains to be seen whether the accused demanded those Rs.

300/- from P.W.-3.

The Honble Supreme Court in Crl appeal No.870 of 2012

(Mukut Bihari & ANR –VS-State of Rajasthan ) held that the law on the issue is

well settled that demand of illegal gratification is sine qua non for constituting an

offence under the Act 1988. Mere recovery of tainted money is not sufficient to

convict the accused, when the substantive evidence in the case is not reliable,

unless there is evidence to prove payment of bribe or to show that the money

was taken voluntarily as bribe.

Mere receipt of amount by the accused is not sufficient to fasten

the guilt, in the absence of any evidence with regard to demand and acceptance

of the amount as illegal gratification, but the burden rests on the accused to

displace the statutory presumption raised under Section 20 of the Act 1988, by

bringing on record evidence, either direct or circumstantial, to establish with

reasonable probability, that the money was accepted by him, other than as a

motive or reward as referred to in Section 7 of the P.C. Act, 1988.

While invoking the provisions of Section 20 of the Act, the court is

required to consider the explanation offered by the accused, if any, only on the

touchstone of preponderance of probability and not on the touchstone of proof

beyond all reasonable doubt. However, before the accused is called upon to

explain as to how the amount in question was found in his possession, the

foundational facts must be established by the prosecution.

The Supreme Court in the case of Banarsi Das Vs. State of

Haryana, reported in AIR 2010 SC 1589, the Hon'ble Supreme Court has

observed that mere proof of recovery of bribe money from accused is not

sufficient to prove the offence.

23

In that view of the matter, so far as offence of bribery is

concerned, the demand and acceptance of money is required to be proved

beyond reasonable doubt and mere recovery of bribe money from accused is not

sufficient to prove the offence and to hold the person guilty. Presumption cannot

be raised when demand is not proved.

The first demand was made in the office of the accused on 21-09-

2011 and the second demand again in his office on 19-10-2011, i.e. the first

instance was before the Durga Puja and the second one after the Durga Puja.

The money was accepted by the accused and recovered from his possession.

P.W.-3 was not willing to pay that money to the accused for which he made the

complaint to CBI. Had he been voluntarily willing to pay without any demand of

the accused, he would not have made such complaint. There was no enemity of

PW-3 with the accused for making such allegation. In Ext.17, it has been clearly

mentioned that the accused demanded bribe money of Rs.300/- for processing

the Income tax refund for the assessment year 2008-09. The complainant, as

P.W.-3 deposed that the accused told him to pay Rs.300/- for getting the refund

and being unwilling to pay he conveyed the same to the accused, who told him

to come after Durga Puja and to pay Rs.300/- to get the refund clear. During the

post trap proceeding, after discussion with the accused when P.W.-3 took the

consent of the accused to leave, the accused demanded Rs.300/- as per his

earlier demand. P.W.-4 corroborated that after the discussion between P.W.-3 and

the accused in the office chamber of the accused, the accused asked P.W.-3 to

give what was demanded earlier. There was reason also for such demand in the

form of processing IT Refund of PW-3.

This evidence has gone unrebutted and same corroborated from

the acceptance of Rs.300/- by the accused and recovery of the same from his

possession. By way of cross examination the defence could not shake the

evidence of the P.Ws or could cast any aspersion to their testimony.

The accused could not account for the possession of those

Rs.300/-, though denied of such recovery in his reply while recording his

statement U/S 313 Cr.P.C. He denied of taking Rs.300/- from P.W.-3 and

handing over the same to the witness and stated that two CBI persons caught

hold of his hands and he felt someone putting something in his t-shirt but he

could not notice it. There was no enmity of the P.W.s or the CBI with the accused

so as to lay such a trap and frame him by forcefully thrusting Rs.300/- in his

24

pocket. If he has not touched the money then how could his hand wash in the

solution of sodium carbonate turned to pink. Similarly, there could have been no

reason for his t-shirt wash also turning to pink.

The positive result of Sodium Carbonate test vis-à-vis the right

hand and left hand fingers and left T-shirt pocket of the accused go to show that

the accused voluntarily accepted the bribe. Thus, there is evidence of demand of

illegal gratification and the voluntarily acceptance thereof.

Under the act, a rebuttable presumption is created against a

public servant if he or she accepts gratification other than legal remuneration.

The evidence of P.Ws proves the acceptance of Rs.300/- by the accused and also

recovery of the said money from the possession of the accused and being so the

burden lies upon the accused to displace the statutory presumption raised U/S

20 of the P.C. Act, 1988 by bringing in record, either by direct or by

circumstantial evidence to establish with reasonable probability that the money

was accepted by him, other than as a motive or a reward as referred in Sec 7 of

the P.C. Act, 1988. Hon’ble Supreme Court in Madhukar Bhaskarrao Joshi –Vs-

State of Maharashtra reported in AIR 2001 SC 58=> (2000) 8 SCC 571 has

referred Sec 20(1) of P.C. Act that once the prosecution establishes the

gratification in any form cash or kind had been paid or accepted by a public

servant, the court is under a legal compulsion to presume that the said

gratification was paid or accepted as a motive or reward to do or forbear from

doing any official act.

The Hon’ble Supreme Court in Crl appeal No.870 of 2012

(Mukut Bihari & ANR –Vs- State of Rajasthan ) held that the court is required to

consider the explanation offered by the accused, if any, only on the touchstone

preponderance of probabilities and not on the touchstone of proof beyond

reasonable doubt.

The Hon’ble Supreme Court in (2004) 10 SCC 94 held that

burdens stands discharged by the accused by showing preponderance of

probabilities in favour of his plea either by himself adducing evidence or by

reference to circumstances, transpiring from the prosecution evidence itself.

25

Proof beyond reasonable doubt not required and court can consider such plea

even the accused has not taken it, if the same is available to be considered from

the materials on record.

Defence Counsel in support of his argument referred to the

Judgement of Hon’ble Supreme Court reported in (2015) 11 SCC 642 (RPS

Yadav –Vs- CBI but the same is not applicable in this case as because in that

case there were two accused, the complainant turned hostile and the evidence of

the complainant and shadow witness were contradictory as regards the identity

of the accused in handing over the money and recovery of the same from the

accused and subsequent hand wash.

From what has been discussed above, it is held that prosecution

has been able to prove the charges U/S 7 and 13(1) (d) r/w sec 13(2) of the P.C.

Act beyond all reasonable doubt. Hence, the accused is convicted for offence U/S

7 and Sec 13(2) of the P.C. Act.

Corruption corrodes moral fabric of the society and corruption by

public servant not only leads to corrosion of the moral fabric of the society but it

is harmful to the national economy and national interest, as the person

occupying the high post in generally misusing their power due to corruption can

cause considerable damage to the national economy, national interest and image

of the country. Being so, such offence do not come under the purview of

Probation of Offender’s Act, 1958 or Sec 360 of the Cr.P.C.

Heard the accused on the question of sentence. His reply is

recorded in separate sheet and kept with the record.

The nutshell of the reply of the accused is that he is going to

retire on 31.07.2017, both he and his wife are diabetic patient and are on insulin,

he has a daughter to be married and two sons in private job and if he is

convicted and sentenced he will not get any monetary benefit from the office

and his entire family will be in trouble.

Sec 7 and Sec 13(2) of the P.C. Act, 1988 provides for minimum

punishment of six months and one year respectively which may extend to five

years and seven years respectively.

26

Considering the nature of offence, age of the accused, his service

and retired life, it is felt just and proper to sentence the accused to undergo

rigorous imprisonment for 1(one) year along with fine of Rs. 2,000/-(Two

thousand only) in default another imprisonment for 1(one) month for each of his

offence u/s 7 and 13(2) of the Prevention of Corruption Act, 1988. Both the

period of sentence shall run concurrently and the period of sentence already

undergone in detention be set off against the sentence of imprisonment as per

Sec 428 Cr.P.C..

Given under my hand and seal of this court on this day of 26th

December, 2016.