BIBEK CHAUDHURI, J. : –

1. The appellant was convicted under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 in Special Case No.10A/2011 by the learned Special Judge, CBI Court, Alipore vide judgment and order of conviction and sentence dated 21st December, 2015. The appellant was directed to suffer simple imprisonment for one year and to pay fine of Rs.10,000/-, in default to suffer further simple imprisonment for three months for the offence punishable under Section 7 of the said Act. He was also sentenced to suffer simple imprisonment for 1 and ½ years and to pay fine of Rs.20,000/-, in default to suffer simple imprisonment for six months for the offence punishable under Section 13(2) read with Section 13(1)(d) of the said Act.

2. Being aggrieved by the said judgment and order of conviction and sentence, the appellant has preferred the instant appeal.

3. One Sunirmal Biswas lodged a written complaint before the Superintendent of Police, CBI Anti Corruption Branch at Kolkata on 10th March, 2011 stating, inter alia, that his son Sourav Biswas got an information that came recruitment would be made by Netaji Subhas Chandra Bose International Airport Authority to the post of peon. The defacto complainant went to the office of the Airport Authority to inquire about the authenticity of the said information. In the office of Airport Authority, he came across Bablu Karmakar the appellant herein. The said Bablu Karmakar assured him job of his son, but demanded bribe of Rs.1 lakh for a confirmed job to the post of peon. He also instructed the defacto complainant to pay a sum of Rs.5,000/- in advance by the next day of his visit in front of International Terminal of the above named airport. The appellant also directed him to make payment of the rest of the amount within five days. The defacto complainant was not agreeable to pay any bribe to a government employee for an official job. So, he made a complaint with the concerned authority of CBI.

4. On the basis of the said complaint, CBI registered case No.RC0102011A0008 under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 against the FIR accused named Bablu Karmakar and took up the case for investigation.

5. On completion of investigation police submitted charge-sheet against the appellant under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The case was tried by the learned Judge, Special Court, CBI at Alipore, South 24 Parganas.

6. During trial, prosecution examined as many as 11 witnesses. Some documents, currency notes that were offered to the accused and other materials were marked as exhibits and material exhibits in course of evidence laid by the prosecution during trial of the case. The learned trial judge on careful perusal of the evidence on record as well as upon due consideration of the arguments advanced by the learned Advocates for the prosecution and sentenced the accused accordingly.

7. It appears from the materials on record that the defacto complainant was examined during trial as PW1. One Biswajit Nandy a ticket examiner under Eastern Railways, one Prasenjit Banerjee a senior ticket examiner of Eastern Railways, Smt. Tista Halder, Inspector of Police posted at CBI, Kolkata were examined as PW2, PW3 and PW7 respectively are pre-trap as well as post-trap witnesses. PW4 Mr. J.K Goel was posted as General Manager (Human Resource), Airport Authority of India at New Delhi accorded sanction for prosecution against the appellant. PW5 Sourav Biswas is the son of the defacto complainant for whose job the appellant allegedly demanded bribe. PW8 Chandan Kr. Basak was posted as Manager (Operation), Airport Authority of India, NSCBI Airport during the period from 6th March, 2011 and 2nd April, 2011. PW9 Sri. Bajayanta Mukhopadhyay is the Junior Scientific Officer (Chemistry) at Central Forensic Science Laboratory, Kolkata in the year 2011. He examined the seized currency notes and some liquid mixed with some chemical and on chemical analysis submitted a report to the Investigating Officer. PW10 Subhrendu Gangopadhyay was attached to CBI Anti Corruption Branch as SI of Police. He conducted investigation of the above noted case and submitted charge-sheet against the appellant.

8. It appears from the evidence of the defacto complainant Sunirmal Biswas (PW1) that during 2011 he used to earn his livelihood selling tea leaves and painting sign boards. Sourav Biswas (PW5) is the son of PW1. It is stated by PW1 in his evidence that in the month of March, 2011 his son told him that the Airport Authority of India in the Kolkata office would appoint some peons. PW1 informed the matter to one Rana Indu (PW6) who previously used to run the techniques of sign board painting from PW1, that the Airport Authority of India would appoint some peons and requested him to inquire about the matter. The said Rana Indu introduced the defacto complainant with accused Bablu Karmakar who was posted in the Airport Authority of India on 7th March, 2011. Bablu Karmakar clearly told him that the defacto complainant would have to give a sum of Rs.1 lakh in exchange of a permanent job for his son. He also told him that the defacto complainant would have to pay a sum of Rs.5000/- as advance on 11th March, 2011 at the Terminal of the International Airport. It is further stated by PW1 in his deposition that he was not willing to pay such money as bribe to the said Bablu Karmkar. So, on 10th March, 2011, he submitted a written complaint (Exhibit-1) to the Superintendent of Police, CBI. On 11th March, 2011 at about 9 am the defacto complainant was asked to come to CBI Office accordingly he reached CBI Office with a sum of Rs.5000/- having five numbers of currency notes of Rs.1000/- denomination each. A lady officer, named Tista Halder asked the defacto complainant to give her the said currency notes. Then Smt. Tista Halder mixed some powder on the said currency notes. Thereafter, they washed her hand in presence of the defacto complainant and other officers of CBI in a bowl the water turned into pink as soon as she washed her hands. The said pink coloured water was stored in a bottle. The bottle was duly sealed and labeled with an identification mark-A. The labeled was fixed on the said bottle. The defacto complainant duly put his signature on the bottle (Exhibit-2). Smt. Tista Halder had kept the said currency notes of Rs.1000/- denomination each in the left pocket of the shirt of the defacto complainant and warned him not to touch the said currency notes. She also told the defacto complainant that he would pay the said money to accused Bablu Karmakar only when he would demand for the money. Pre-trap memo was prepared in the office of the CBI in presence of the defacto complainant and other Officers of CBI. At about 10.15 am the defacto complainant being accompanied by CBI Officers and two independent witnesses who are employees of Eastern Railways proceeded for the International Airport at Kolkata by vehicles. At about 11.15 am the accused came near the terminal of International Airport at Kolkata and asked him whether he had brought money. The defacto complainant replied in affirmative. One Mr. Biswajit Nandi and Snehansu Biswas, employees of Eastern Railways and a CBI Officer were following the entire proceeding standing by his side. When the accused demanded money, he took out the said currency notes from the left side pocket of his shirt and handed over the same to the accused. The accused counted the said currency notes by his hands and had kept the said currency notes in the pocket of his pant. Immediately Biswajit Nandi gave an indication that the accused received the said sum of Rs.5000/- following such indication other CBI Officers rushed to the spot and apprehended the accused and took him to the chamber of the Manager of the Airport Authority at Dumdum. Then the accused was taken to the training room situated on the first floor of Airport terminal. He was directed to wash his right hand in the water in a bowl. The said water turned into pink colour. One of the CBI Officer collected the said pink coloured water in another bottle sealed the same and marked with letter-B. The defacto complainant put his signature on the said bottle. During evidence the signature of the defacto complainant on the said bottle was marked as Exhibit-4. His signature on the label in respect of the said seized bottle was marked as Exhibit-4/1. Then the accused was asked to wash his left hand in water contained in a bowl the said water also turned into pink colour. The pink coloured water was similarly contained in a bottle sealed and labeled in presence of PW1 and other witnesses. Then PW1 put his signature on the bottle. The currency notes which were recovered from the accused persons were kept in a packet and the packet was also sealed and labeled. The money bag/purse of the accused was also washed in water and the said water contained in bowl was turned into pink. The CBI Officer also seized the said money bag of the accused persons. The signature of the defacto complainant was marked as Exhibit-8 on the label of the money bag. The currency notes and the money bag were marked as Mat Exhibit-(i) and (ii). A seizure list was also prepared at the spot in respect of seized articles in presence of the defacto complainant and his signature on the seizure list was marked as Exhibit-9 series. The entire fact of raid, apprehension of the accused, search and seizure were reduced to writing by an Officer of CBI at the spot. During cross examination PW1 stated that he personally did not make any inquiry in the office of the Airport Authority as to whether there was any vacancy in the post of peon in the office of the Airport Authority of Kolkata during the period between 7th March, 2011 to 10th March, 2011.

9. PW2 Biswajit Nandi and PW3 Prosenjit Biswas are the trap witnesses. They corroborated the evidence of the defacto complainant to the effect that on 11th March, 2011 as per the direction of their higher authority they came to the CBI office at Nizam palace at about 9 am. They were taken to a room at the CBI office and introduced with some CBI Officers. They also disclosed the reason as to why they would conduct raid at international terminal of NSCBI Airport. The witnesses fully corroborated the evidence of PW1 to the effect that on demand by the lady CBI Officer the defacto complainant handed over five currency notes of Rs.1000/- denomination each and some powdery material was mixed with the currency notes by the said officer. The currency notes were kept in the pocket of the defacto complainant then the officer washed her hand by the water contained in a bowl and the said water immediately turned into pink. Both the witnesses put their signature on the seal and label of the bottle containing pink water. Then they accompanied the defacto complainant and other CBI Officers to International Airport Terminal at Dumdum, they were standing in close proximity of the defacto complainant. The accused came to the spot and asked the complainant as to whether he have brought the money or not. When the complainant replied in affirmative the accused demanded the money. The complainant handed over the said money to the accused. He counted the currency notes by his two hands and put it in a money purse and put the money purse in the pocket of his pant. Immediately he gave an indication by itching his head which attracted other CBI Officers and they apprehended the appellant, recovered currency notes and he was taken to the office of the Manager of Airport Authority. Then he was taken to a room, his hands were washed in water contained in a bowl. The water turned into pink. The money bag was also washed by water. The said water was also turned to pink. A CBI Officer seized the water in bottles sealed and labeled the same and then the accused was arrested.

10. PW4 Mr. J.K Goel accorded sanction for prosecution against the appellant who was posted at NSCBI Airport, Dumdum as senior attendant housekeeping. It is also deposed by PW4 that he issued the sanction order on perusal of pre-trap memorandum, post-trap memorandum, written complaint and other related documents forwarded to him by the CBI and on being satisfied, the sanction for prosecution against the accused was issued.

11. PW6 Rana Indu corroborated the evidence of the defacto complainant that in the year 2011 the defacto complainant came to him and inquired if any appointment would be going to meet at NSCBI Airport by the Airport Authority of India. The witnesses advised the defacto complainant to meet the accused who might help him for the job of his son. It is further stated by him that he personally handed over a sum of Rs.45,000/- to Bablu Karmakar for a job in Airport Authority of India but the accused could not secure any job for him and also did not pay the said sum of Rs.45,000/- to PW6. Inspector Tista Halder under whose leadership pre-trap activities were conducted in presence of the witnesses and pre-trap memorandum was prepared deposed during trial as PW7. It is found from her evidence that she sprinkled phenolphthalein powder on the currency notes of Rs.1000/- denomination which were brought by the defacto complainant. Then she demonstrated the witnesses that as soon as she washed her hands after sprinkling and mixing phenolphthalein powder on the currency notes, the water turned to pink. She also instructed witness Biswajit Nandy to make a sign by scratching his head with both hands as soon as the accused would receive the money on demand.

12. PW8 Chandan Kr. Basak is a retired Manager (Operation), Airport Authority of India, NSCBI Airport, Kolkata. On 11th March, 2011 he was posted at the same place under same designation. On 11th March, 2011 the Officers attached to CBI seized original attendance register of accused Bablu Karmakar during the period between 1st January, 2011 to 11th March, 2011, duty register for the period from 6th March, 2011 to 2nd April, 2011. Service Book of the said Bablu Karmakar, the aforesaid documents were handed over by Mr. J.K Goel, Joint General Manager (H.R), CBI by a forwarding letter (Exhibit-12) signature of the witness at page 25 of the attendance register dated 11th March, 2011 was marked as Exhibit-13. Exhibit-14 is the duty roster of the accused for the period between 6th March, 2011 to 2nd April, 2011. All these documents prove that the accused was on his official duty on 11th March, 2011.

13. PW9, a Junior Scientific Officer of CFSL Kolkata examined the sealed bottles containing water mixed with phenolphthalein powder. During the period between 20th April, 2011 to 9th May, 2011 he prepared a forensic examination and submitted his report (Exhibit-15). PW10 is Subhrendu Gangapadhyay is a SI of Police attached to CBI. On 11th March, 2011 he along with other officers and independent witnesses and the defacto complainant laid trap to work out the allegation made by the defacto complainant in respect of demanding illegal gratification by the accused. He corroborated the evidence of PW1, PW2 and PW3. The accused was apprehended by him, seizure of a sum of Rs.5000/- and other post-trap invites were conducted by PW10 in presence of other witnesses.

14. PW11 Vivek Kr. Sharma was posted as Junior Executive (H.R) in the office of the Airport Authority of India at New Delhi. He has proved and identified the original service book of accused Bablu Karmakar, personal file of the said accused, attendance register of the accused at the relevant point of time during trial of the case.

15. PW12 S.K Murmu is the Investigating Officer of this case.

16. Learned Advocate for the appellant submits that even if it is proved by the prosecution that some amount of money was recovered from the possession of the appellant, such recovery of money is not sufficient enough to prove the prosecution case of taking bribe by the appellant. The prosecution must establish demand of gratification and such demand of gratification must be established by convincing evidence. The presumption under Section 20 of the Prevention of Corruption Act would be applicable under what circumstances and background has been laid by the Hon’ble Supreme Court in M. Narsinga Rao vs. State of A.P : 2001 SCC (Cri) 258 the statutory presumption under Section 20 of the said Act cannot overwrite the cardinal principle that the prosecution has to prove its case beyond all reasonable doubt. There is no need of proving the defence case and it is the duty of the prosecution to prove its case beyond all reasonable doubt. If the appellant can establish doubt or suspicion on the prosecution case relating to demand of bribe and taking of bribe that would be sufficient.

17. Relying on the principles laid down in Suraj Mal vs. State (Delhi Administration) : AIR 1979 SC 1408 , it is submitted by the learned Advocate for the appellant that mere recovery of money from the accused is not sufficient. Where the witnesses make two inconsistent statements in their evidence either at one stage or at the other, the testimony of such witnesses becomes unreliable and unworthy.

18. Coming to the instant case it is submitted by the learned Advocate for the appellant that the independent trap witnesses are shown in the charge-sheet as the most vital witnesses on behalf of the prosecution. However, from the witnesses of the said two independent witnesses being PW2 and PW3, it appears that they are the stock witnesses of CBI. They attended number of raids conducted by the CBI previous to the raid conducted on 11th March, 2011 to nab the accused. Therefore, it is not safe for the prosecution to believe and rely on the evidence of the said two independent witnesses. In support of his argument the learned Advocate for the appellant also refers to a decision of this Court in Shri. Arya Chowdhury vs. the State through CBI reported in (2006) 2 CLJ (Cal) 310 . It is submitted by the learned Advocate for the appellant that there were serious contradictions and improbabilities in the evidence of the witnesses on behalf of the prosecution. It is found from the evidence on record that the accused was previously known by the defacto complainant. One Rana Indu introduced them. The defacto complainant met the appellant even prior to 11th March, 2011 for more than ones. Thus, when a person who is previously acquainted with the defacto complainant demand money from him, and the amount being small, it is unexpected that the defacto complainant who advances money to the appellant paid illegal gratification to him.

19. Referring to a Three Judges Bench decision of the Apex Court in B. Jayaraj vs. State of Andhra Pradesh : (2014) 13 SCC 55 . It is submitted by the learned Advocate for the appellant that in order to prove a charge under Section 7 of the Prevention of Corruption Act, it is the bounden duty of the prosecution to prove demand of illegal gratification. In the instant case there is no evidence whatsoever that the appellant demanded the said sum of Rs.5000/- towards illegal gratification for ensuring a job of the son of the defacto complainant. Mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowingly it to be a bribe. On the same principle the learned Advocate for the appellant has placed reliance on the following judgment of the Hon’ble Supreme Court:-

(i) Krishan Chander vs. State of Delhi : AIR 2016 SC 298 .

(ii) Mukhtiar Singh Vs. State of Punjab : (2017) 8 SCC 136 .

(iii) P. Satyanarayana Murthy vs. District Inspector of Police, State of Andhra Pradesh & Anr. : (2015) 10 SCC 152 .

(iv) Selvaraj vs. State of Karnataka : (2015) 10 SCC 230 .

20. To conclude it is submitted by the learned Advocate for the appellant that the trial court relied on heavily upon the evidence of PW2 and PW3 who were associated in conduct of raid for recovery of tainted money from the appellant as independent witnesses but the said two witnesses cannot be termed as independent because they are the stock witnesses of the prosecution. They were engaged in number of raids as trap witnesses by the CBI. Therefore, on the basis of the evidence of PW2 and PW3 the accused ought not to have been convicted by the trial court. In support of his contention the learned Advocate for the appellant relies on a decision of the Hon’ble Supreme Court in Som Parkash vs. State of Punjab reported in AIR 1992 SC 665 .

21. The learned P.P-in-Charge on the other hand, submits that the defacto complainant clearly stated in his evidence that the accused demanded illegal gratification of Rs.1 lakh from the defacto complainant. The defacto complainant was not agreeable to pay the said sum and immediately he lodged a written complaint in the local P.S. From the evidence of the defacto complainant it is ascertained that the accused instructed him to come to the terminal of NSCBI airport with the said sum of Rs.5000/-. The defacto complainant went there being accompanied by a team of CBI Officer and independent witnesses. All of them corroborated the evidence of the defacto complainant. The tainted money was recovered from the accused. Therefore, there is no ground to disbelieve the prosecution case.

22. Coupled with the above evidence it is proved beyond any shadow of doubt that a sum of Rs.5000/- in five currency notes of Rs.1000/- denomination each was recovered from the accused. As the currency notes contained phenolphthalein powder, the fingers of the accused were dipped into a bowl of water and it turned pink. Moreover, the money bag/purse of the appellant was also dipped into water and the water also turned pink. No explanation has been given by the appellant why he received the money and kept the same into his pocket. No suggestion was also given to the witnesses that no money was received by the appellant. Under such circumstances, the evidence adduced by the witnesses on behalf of the prosecution cannot be held to be suspected. In support of his contention the learned P.P-in-Charge refers to a decision of this Court in Sarup Chand vs. State of Punjab reported in AIR 1987 SC 1441 .

23. Reference has been made to another decision of the Supreme Court in the case of Ramesh Kumar Gupta vs. State of Madhya Pradesh reported in AIR 1995 SC 2121 . On the question of corruption to the evidence of the defects planning regarding demand and acceptance. The Hon’ble Supreme Court was pleased to held that the corruption need not be direct it can be by way of circumstantial evidence also taking into account of the surrounding circumstances, the learned Counsel for the respondent invites this Court to affirm the judgment of conviction and sentence passed by the trial court. On the same principle, the learned Counsel for the respondent relies on another decision of the Hon’ble Supreme Court in A. Wati Ao vs. State of Manipur reported in 1996 CrLJ 403.

24. Having heard the learned Counsels for the appellant and respondent and on careful perusal appreciation of entire evidence on record both oral and documentary it is established beyond any shadow of doubt that on 11th March, 2011 at about 11.15 am the defacto complainant met the appellant on NSCBI Airport Terminal. From the evidence of the defacto complainant it is further found that the accused asked him as to whether he brought the money when the defacto complainant replied in affirmative. The accused demanded the said money and defacto complainant paid him a sum of Rs.5000/-. The said fact was corroborated by PW2 and PW3. The question as to whether the receipt of such amount is a gratification as a motive or reward for doing what he does not intent or do not in a position to do, in the instant case to secure a permanent job for the son of the defacto complainant, is corroborated by the complaint lodged by the defacto complainant and corroborated by him in course of his evidence. The evidence of PW1 was also corroborated by PW6 Rana Indu. PW6 introduced the defacto complainant with accused Bablu Karmakar. It appears from his evidence that he arranged for job at Airport Authority of India taking illegal gratification. PW6 also stated that the appellant also took a sum of Rs.45,000/- from PW6 but did not return the said money even on the date of his evidence. There is absolutely no cross examination at this point. The appellant used to work as an attendant in Housekeeping Department at Kolkata Airport. He used to work as a sweeper. Thus, from the evidence of PW1 which was duly corroborated by PW6 it is convincingly established that the accused demanded illegal gratification for securing a job under Airport Authority of India from the defacto complainant.

25. It is needless to say that once the accused accepted the gratification from the complainant, it shall be presumed that the accused has accepted the gratification as illegal remuneration. When the accused has failed in his attend to rebut the illegal presumption, it shall be presumed unless the contrary is proved, that there was a demand for taking illegal gratification. Merely because there are minor contradictions, it cannot be said that the prosecution has not proved the guilt of the accused beyond all reasonable doubt. The learned Counsel for the appellant has raised doubt about independent character of PW2 and PW3 on the ground that they attended raid in other cases instituted by the CBI and they are the stock witnesses of the CBI. Both the said witnesses are employees of Eastern Railways. Assistance of the said two witnesses was called for by CBI by a letter issued to the competent authority of the Eastern Railways. The competent authority instructed the witnesses to attend CBI office on 11th March, 2011 accordingly they attended and witnesses pre-trap, trap and post-trap incident. In all relevant documents they put their signatures. Therefore, presence of PW2 and PW3 at a place of occurrence where the appellant demanded money from the defacto complainant and received the said money cannot be doubted. Their evidence also cannot be thrown away on the ground that they were trap witnesses in some other CBI cases.

26. It is pertinent to mention at this stage that on factual score, this Court is not in a position to accept the ratio laid down by the Supreme Court in B. Jayaraj (supra), Krishan Chander (supra), Mukhtiar Singh (supra) and Selvaraj (supra) because in all the decisions the defacto complainant could not adduce any evidence either because of his death or because he was not available. In the instant case however, the defacto complainant has been able to prove his case beyond any shadow of doubt.

27. The decision of this Court in Shri Arya Chowdhury (supra) is also not applicable under the facts and circumstances of the present case.

28. For the reasons stated above, this Court is of the view that by adducing satisfactory, reliable and cogent evidence the prosecution was able to prove that the appellant demanded and accepted illegal gratification for securing a job of peon in NSCBI Airport for the son of the defacto complainant. The prosecution has also been able to prove beyond any shadow of doubt that the accused obtained for herself a pecuniary advantage of Rs.5000/- by corrupt and illegal means and also by abusing his position as a public servant and therefore he was rightly convicted for the offence punishable under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.

29. Considering the nature of offence and it is the fact to the society, I am not inclined to alter the sentence passed by the trial court.

30. According, I do not find any merit in the instant appeal.

31. The appeal is dismissed on contest.

32. The appellant is directed to surrender before the trial court within two weeks from the date of this judgment to suffer sentence.

33. Let a copy of this judgment be sent to the court below for information and necessary action.

34. The appellant is at liberty to prefer an appeal against the judgment affirming the order of conviction and sentence passed by the trial court before the Apex Court of India.

35. The appellant be also informed that he is entitled to free legal aid for filing the appeal before the Hon’ble Supreme Court.

36. Let a true copy of this judgment duly certified by the ACO of this Court be handed over to the appellant free of cost.