Judgment

DWIVEDI, J.:- It is an appeal against the judgment of the Delhi High Court affirming the judgment of the Special Judge. By his judgment the Special Judge has convicted the appellant under Section 5 (2) of the Prevention of Corruption Act and Section 161 I.P.C. and sentenced him to 1 1/2 years rigorous imprisonment under each count. The two sentences are to run concurrently.

2. Broad facts of the case are these, The appellant is a police constable. At the relevant time he was working in the Tees Hazari Police Post. Niranjan Lal, complainant, then was working as a stamp vendor in the nearby court-compound. Some complaints were made against him for overcharging his customers on the sale of stamps. These complaints were made in the Tees Hazari Police Post. In that connection the appellant had recorded some evidence. Niranjan Lal complained to Sri Harnaik Singh, Deputy Superintendent of Police, Anticorruption Branch, that the appellant was demanding from him a bribe of Rs. 100/-. Sri Harnaik Singh decided to lay a trap to catch the appellant red-handed. So Anand Behari and Satish Chandra Kwatra were sent for by him to serve as witnesses. They were employed as clerks in the Deputy Commissioner s Office. Niranjan Lal gave a currency note of Rupees 100/- proposed to be handed over to the appellant as bribe. The Deputy Superintendent of Police noted its number in the presence of the witnesses and gave certain directions to them. The appellant went to Niranjan Lal at 4-30 p.m. and inquired from him whether he has arranged for the money. When Niranjan Lal replied in the affirmative, he said that he would take the money from him while returning from duty. He came again at 5.30 p.m. and asked Niranjan Lal to accompany him to the Bus stop at the Kashmere Gate. There the currency note of Rs. 100/- was given to him by Niranjan Lal. Satischandra gave a signal to the police. On smelling a police raid the appellant threw away the note from the right pocket of his pant. Satish Chandra picked up the note from the ground and handed it over to the Deputy Superintendent of Police. The note was seized under recovery memo.

3. The appellant has denied that he received any note from Niranjan Lal. He added that "while he was going from the police post to the Bus Stop, Niranjan Lal met near the tank in front of the Central Hall. On the way he tried to pass the bribe money, but did not succeed. When we reached the Bus stop, Niranjan Lal threw the currency note on the ground."

4. The prosecution examined Niranjan Lal, Anand Behari Lal, Satish Chand Kwatra and Sri Harnaik Singh, Deputy Superintendent of Police to prove the acceptance of bribe by the appellant from Niranjan Lal. The Special Judge has relied on their evidence and has held that the appellant did accept the currency note of Rupees 100/- from Niranjan Lal. On appeal, the High Court has also relied on the evidence of the said witnesses and has agreed with the findings of the Special judge.

5. Normally this Court does not interfere with the concurrent finding of facts recorded by the courts below. But counsel for the appellant has drawn our attention to certain important aspects of the case which have either escaped the attention of the courts below or have not received due emphasis. Admittedly, the note was not recovered from the person of the appellant. According to the prosecution the appellant had thrown away the note on the ground after taking it out from the right pocket of his own pant on his noticing the arrival of the Deputy Superintendent of Police Second, the courts below have overlooked an important statement in the evidence of Sri Harnaik Singh, Deputy Superintendent of Police. In his cross-examination he said; "When I searched the person of the accused and found that he did not carry the currency note in question on his person, the punch witness produced the note before me which I took into possession. In his examination-in-chief he had said: "Satish Chandra gave me the signal a