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2008 DIGILAW 301 (JK)

P. N. Dogra v. CBI Jammu

2008-07-21

SUNIL HALI

body2008
1. The appellant has been convicted by the learned Special Judge, Anti Corruption, Jammu vide order dated 30.04.2004 under section 161 RPC and section 5(2) of the Prevention of Corruption Act 2006. He was ordered to undergo simple imprisonment of one year under section 5(2) of the Prevention of Corruption Act 2006 and one year for the offence punishable under section 161 RPC. It was ordered that both the sentences shall run concurrently. It is under these circumstances, the appellant has preferred this appeal for setting aside the order of learned Special Judge Anti Corruption, Jammu dated 30.04.2004. 2. The facts of the case are that a written complaint was filed by one Rajesh Kumar Jagotra son of Sh. Om Parkash Jagotra resident of 5/220, Indira Vihar, Jammu before the CBI, Jammu wherein it was alleged that the petitioner-accused was demanding Rs.500/- as a bribe for making the telephone connection functional of the complainant. It is averred in the complaint that the complainant had applied for a telephone connection and was informed by the SDO, New Plot that his wait list has matured and telephone connection will be installed within three/four days. The complaint further reveals that two linemen of the telephone department installed telephone at his house. The telephone had not become functional and on the asking of the complainant when telephone would be made functional, he was informed by the linemen that he should contact Mr. Prem Dogra for this purpose. The complainant contacted Mr. Dogra who demanded Rs.500/- as bribe for making the telephone functional. The complainant had refused to pay the amount to the accused and asked him to make the telephone functional. The accused categorically stated that the telephone will not be made functional unless Rs.500/- is paid. This complaint was filed on 08.03.2000. On the basis of the complaint, CBI registered a case against the accused and started process of investigation. The Investigating Agency recorded the statement of ten witnesses and submitted its report. In the investigation, it was revealed that the complainants father had applied for a new telephone connection vide No.0/3/96 dated 31.07.1997 and was given a wait list No.13796. The telephone department had directed the concerned to make telephone No.530548 functional on 02.03.2000. The Investigating Agency recorded the statement of ten witnesses and submitted its report. In the investigation, it was revealed that the complainants father had applied for a new telephone connection vide No.0/3/96 dated 31.07.1997 and was given a wait list No.13796. The telephone department had directed the concerned to make telephone No.530548 functional on 02.03.2000. But the accused P.L.Dogra who was responsible for the installation of telephone set and line at the residence of complainant intentionally created some defect in the route due to which phone did not function. It is a positive case of the investigation that the telephone was made functional on 02.03.2000 but some defect was created enroute by the accused person as a result of which telephone did not become functional. 3. The accused was put to trial and accordingly charged for offences under section 5(2) of the Prevention of Corruption Act and under Section 161 RPC. The charges framed against the accused in nutshell are that accused had not made the telephone functional for a motive of receiving Rs.500/- as bribe. During the course of the trial, the prosecution has examined ten witnesses. The witnesses examined by the prosecution can easily be grouped into four categories. i.e. complainant, independent witnesses, Investigating Officers and official witnesses. 4. The complainant, Rajesh Kumar Jagotra, in his statement stated that he went to the office of the CBI on 07.03.2000 along with a written complaint that the accused, namely, Sh. P.N.Dogra was demanding Rs.500/- as a bribe for making his telephone functional. The said complaint was written in Hindi. He was asked to come on 08.03.2000 to the C.B.I. office. He was introduced by the CBI to two independent witnesses, namely, Mohd Latif and B.D.Badola. They questioned him about the contents of the complaint and he certified its authenticity. The pre-trap demonstration was done by the officials of the CBI. A piece of paper was dusted with phenolphthalein powder in presence of the independent witnesses. One of the witnesses, namely, Mohd Latif was asked to touch the said paper whereafter his hand wash was taken which turned the colour of the solution into pink. The said solution was sealed in a bottle after the demonstration. Thereafter, bribe money was handed over to Dy.S.P., C.B.I. Five currency notes of Rs.100/- denomination were handed over to the Dy.S.P. All the members of the trap team were directed to wash their hands. The said solution was sealed in a bottle after the demonstration. Thereafter, bribe money was handed over to Dy.S.P., C.B.I. Five currency notes of Rs.100/- denomination were handed over to the Dy.S.P. All the members of the trap team were directed to wash their hands. One of the members of the trap team dusted the currency notes with phenolphthalein powder. After noting down their numbers, the memo was prepared according to pre-trap proceedings. The tainted money was put in the pocket of the complainant and he was asked not to touch the said notes before handing over to the accused. Mohd Latif witness was directed to hear the conversation between the accused and the complainant. The independent shadow witness Mohd Latif had to support the story of the complainant regarding the demand of money made by the accused at the place of occurrence. The complainant along with independent shadow witness, namely, Mohd Latiff entered into the room of the accused where the accused demanded money before making the telephone functional. On this, the complainant informed the accused that he had brought Rs.500/- with him and whereafter he paid Rs.500/- to the accused. The money was accepted by the accused with his right hand and put it into his left hand and after counting it put the same into the pocket of his pant. The independent witness, namely, Mohd Latif came out of the room at that juncture and informed the raiding party about the same. The raiding party entered the office of the accused and two officials of the raiding party caught hold of the hands of the accused and took him to adjacent room where recovery was effected from the pocket of the accused. The complainant stated that he did not know the name of the person but other members of the trap team had identified the person who made the recovery of the bribe money from the pocket of the accused. Mr. B.D.Badola other independent witness was asked to tally the numbers of the currency notes with the slip on which he had noted them down and they tallied with his notings. The pocket wash of the accused was also taken and the colour of that solution also changed into pink. The said solution was sealed in a bottle. Mr. B.D.Badola other independent witness was asked to tally the numbers of the currency notes with the slip on which he had noted them down and they tallied with his notings. The pocket wash of the accused was also taken and the colour of that solution also changed into pink. The said solution was sealed in a bottle. In cross-examination, the complainant states that the complaint was not written by him but by his friend who was well conversant with the Hindi. He further states that tainted money was not recovered by Mr. Badola, the independent witness, but by the officials of the C.B.I. The money was recovered from the right pocket and not from the left pocket as mentioned in the FIR. Seizure and hand wash was not conducted in the room where accused was sitting. The complainant has admitted that he was admitted in the psychiatric hospital. The complaint against him was also filed by a retired Sessions Judge Sh. Harban Lal. He also admits that a shadow witness, namely, Mohd Latif had accompanied him inside room where demand of money and acceptance was witnessed by the said witness. He showed his ignorance whether hand wash of two CBI officials who had caught hold the accuseds right and left hands were washed. He also states that the money was recovered from the pocket of the accused by two CBI officials and not by Mr. Badola. It is also come in his statement that the accused has demanded money from the complainant on 05.05.2000 mentioned of which he has not made in the complaint. 5. Sh. Mohd Latif shadow witness has stated in his statement that on 08.03.2000 he went to the office of CBI. He was shown a copy of the complaint filed by the complainant on the basis of which C.B.I. registered a case and investigation was in progress. Dy.S.P. informed that the accused was demanding money to make his phone functional and for doing so Rs.500/- was demanded as a bribe from the complainant. He was instructed to accompany the complainant to the office of the accused and he should be witness to the demand of money made by the accused. The accused entered into conversation with the complainant which was not heard by the witness. He was out side the room. He was instructed to accompany the complainant to the office of the accused and he should be witness to the demand of money made by the accused. The accused entered into conversation with the complainant which was not heard by the witness. He was out side the room. He did not see the complainant handing over the bribe and neither did he hear the conversation between the complainant and the accused regarding the demand of money. It was a complainant who gave cue to the raiding party that the accused had accepted the money. He did not know the name of the person who effected the recovery of the money from the pocket of the accused. He admits that the hand wash of the accused was taken and colour of the solution changed into pink. He admits that there was a scuffle between the accused and the CBI officials whose hands were caught hold by the raiding party. He states that the bribe money was not recovered either by him or by Mr. Badola from the pocket of the accused and same was done by some officer of the C.B.I. He admits that the officials of the CBI harassed and slapped the accused during raid. 6. Mr. B.D.Badola in his statement stated that on 08.03.2000 he went to the office of the C.B.I. He was introduced to one Mohd Latif. A copy of the written complaint filed by the complainant was shown to him in which it was stated that the accused had demanded amount of Rs.500/- from him for making his telephone functional. He questioned the complainant about the authenticity of the complaint who admitted the contents thereof, where after he too signed the said complaint marked as EXPW-DPB-12 in token of its authenticity. The pre-trial demonstration was conducted in his presence. According to the witness, the pre-trial demonstration which was conducted in his presence relates to the number of notes alleged to be tainted money which was to be handed over to the accused. The said numbers were entered into the memo prepared by the Investigation Officer. The notes were dusted with powder and thereafter same were put into the pocket of the complainant which was to be handed over to the accused. He states that Mohd Latif shadow witness was directed that he has to witness the acceptance and recovery of the money. The said numbers were entered into the memo prepared by the Investigation Officer. The notes were dusted with powder and thereafter same were put into the pocket of the complainant which was to be handed over to the accused. He states that Mohd Latif shadow witness was directed that he has to witness the acceptance and recovery of the money. Said Mohd Latif was instructed to give signal that the money was accepted by the accused, so that the raiding party could come and recover the same from him. He states that both Mohd Latif and the complainant entered the room of the accused and after sometime Mohd Latif gave signal indicating that money has been accepted by the accused. He also admitted that both the hands of the accused were caught hold by the CBI officials and he was taken to next room for effecting the recovery of tainted money. The hands of the accused were put in the sodium chloride solution which turned into pink. It is also admitted by him that tainted money was recovered by him from the pocket of the accused. He admits his signature on the seizure memo prepared by the officials of the C.B.I. during post trap proceedings. In his cross-examination, the witness stated that he did not know whether any search was conducted by the raiding party before the trap. He also admits that there were 8 to 10 people in the office of the accused at the time of raid and the hands of the accused were held by two officials of the C.B.I. He admits that accused has not demanded any money nor accepted the same in his presence. He also shown his ignorance as to from which pocket money was recovered from the accused. He also states that the hand wash of the person who took the hand wash of the accused were not taken. He did not see the slip on which numbers of notes were noted. 7. Sh. B.K. Reevo, SDPO Phones stated in his statement that he was present on the date when raid was conducted. He admits that the Advice Note dated 1.2.2002 was issued in favour of the father of the complainant. According to him the telephone had become functional on 02.03.2002 and the word functional means that it had been installed on that date. B.K. Reevo, SDPO Phones stated in his statement that he was present on the date when raid was conducted. He admits that the Advice Note dated 1.2.2002 was issued in favour of the father of the complainant. According to him the telephone had become functional on 02.03.2002 and the word functional means that it had been installed on that date. He categorically states that what he means by the functional was that the telephone was in operation and it was made functional and it will not be a correct narration of facts to say the contrary as alleged by the complainant. 8. Sh. B.L.Kak, SDO Phones in his statement stated that he was working as JTU indoor in Janipur Exchange. He states that the telephone was made functional from 02.03.2000. He also admits that the telephone had become functional from 2.3.2000 and in case the complainant states that the said telephone was not functional on the said date, it will not be a correct account of events. 9. Sh. Sat Gupan states that he was posted as Advisor to the department of the Telecommunications. He had sanctioned the prosecution of the accused. He admits that the prosecution sanction was ordered only after scrutinizing the whole file. 10. Sh. S.K.Chhabra a retired, Sr. Scientific Officer has stated in his statement that he in his capacity as Sr. Scientific Officer/Asstt. Chemical Examiner, CSFL, New Delhi and received four bottles of containing pink coloured liquid with sediments. The said bottles were sealed with the seal of C.B.I. and the seal was intact. On chemical analysis these exhibits gave positive test for phenolphthalein and sodium carbonate. The report submitted by him appended to the file is true and correct and is marked as EXPW-KS. He identified the whole bottles shown to him in the court and are the same which were sealed and initialed by him. 11. Sh. Mandeep Singh Choudhary stated in his statement that on 08.03.2000 formal complaint in writing was made by the complainant and process of investigation was initiated by him after the registration of FIR. He had summoned two witnesses, namely, Mohd Latif and Mr. B.D.Badola. They were shown the contents of the complaint and were asked to question the complainant. The pre-trial demonstration was conducted in his presence. Mr. Badola was asked to put the tainted money in the pocket of the complainant. He had summoned two witnesses, namely, Mohd Latif and Mr. B.D.Badola. They were shown the contents of the complaint and were asked to question the complainant. The pre-trial demonstration was conducted in his presence. Mr. Badola was asked to put the tainted money in the pocket of the complainant. Thereafter the notes were smeared with phenolphthalein powder and this powder was put on a piece of paper which was dipped in the solution, colour of which turn into pink. He also states that the complainant was asked not to touch the notes till the same are handed over to the accused. The number of the notes was marked and memo was prepared accordingly and clear instructions were issued to all the people involved in the raid that no body except the complainant and Mohd Latif shall enter the room of the accused. He further states that Mohd Latif was instructed to hear the conversation between the accused and the complainant regarding the demand and acceptance of money and was required to inform the raiding party about the acceptance of the money by giving signal. After the receipt of signal, the raiding party entered the office of the accused. He states that the complainant Mohd Latif entered the room of the accused. It is admitted by him in his statement that on the signal being given by Mohd Latif he entered the office of the accused. One B.K Trisel was present on the room of the accused. Immediately after entering the room two Sub Inspectors namely Rajbir Singh and Baldev Singh caught hold of the accused by his wrists. After that Mohd Latif divulged that the accused had put the bribe money into the left pocket of his pant. Both the hands of the accused were washed in the solution which turned into pink. Statement further narrates that Mr. Badola conducted the search and recovered the money from the pocket of the accused. The statement further reveals that inquiry was made by the witness from Mohd Latif as to what transpired between the accused and the complainant before the money was recovered. The witness Mohd Latif states that accused asked the complainant as to whether he has brought Rs.500/- which he has asked for, to which the complainant states that he had brought the money. As a consequence, the complainant handed over the money to the accused. The witness Mohd Latif states that accused asked the complainant as to whether he has brought Rs.500/- which he has asked for, to which the complainant states that he had brought the money. As a consequence, the complainant handed over the money to the accused. He accepted the money in both of his hands and thereafter kept the same in the left pocket of his pant. This is stated to have been conveyed to the Investigating Officer. The memo was prepared on which the signature of the accused and B.K.Trisal SDO were affixed. In his cross-examination, he contradicts the statement of Mohd Latif who had stated that he had not gone inside the room of the accused. The witness clearly states that Mohd Latif was wrong in saying that he had not entered the room of the accused. The witness admits that the pre trial and post trial proceedings were conducted in presence of Mohd Latif. He also contradicts the statement of independent witnesses Mr. Badola by saying that the tainted money was recovered by him and not by some other person as stated by the witness. He also contradicts other witnesses who stated that all the post trap proceedings were held in the office of the accused and not in other room, as stated by other witnesses. In his statement, he also contradicts the version given by the complainant that there was jostling between the Investigating Officer and the accused. 12. Sh. Rajbir Singh has stated in his statement that he was posted as Inspector in the office of the CBI. On a complaint filed by Rajesh Kumar Jagotra, the investigation was started. He states that the complainant rang the accused on 07.03.2000 in his presence in which accused asked the complainant to see him in his office on 8.3.2000. He further states that he had participated the pre trap and post trap operations. In his cross examination he states that the complainant made a telephone call to him from the local booth of Indira Vihar Janipura. He does not know the number from which the call was made but he was sitting in close proximity to the complainant and could hear some conversation that accused and the complainant were conversing with each other. The speaker was not on. He states that he had no knowledge about antecedents of the complainant. He does not know the number from which the call was made but he was sitting in close proximity to the complainant and could hear some conversation that accused and the complainant were conversing with each other. The speaker was not on. He states that he had no knowledge about antecedents of the complainant. He has stated that the conversation was going on with the complainant and the accused. 13. Sh. J.P.Singh in his statement has stated that he was posted as Dy.S.P. in the office of C.B.I from March 2000 to June, 2001. The investigation of the case was entrusted to him. During investigation he recorded the statements of witnesses and dispatched the bottles to CFSL for analysis. In cross-examination the witness stated that he did not enquire about the antecedents of the complainant neither he has done any enquiry about the mental health of the complainant. He also did not know as to whether the telephone of the complainant was functional on the date of trap. He has denied that the telephone was functional on 02.03.2000. He further stated that as per his investigation it was complainant who gave cue to the trap team that the accused has accepted the illegal money and not Mohd Latif shadow witness. 14. The statement of accused under section 342 Cr.P.C. was also recorded. The accused has denied the payment of bribe alleged to have been received by him and he is innocent and a false and frivolous accusation has been lodged against him. About the demonstration made on the spot he has stated that the same is incorrect narration of facts. After hearing both the parties, the trial court convicted the accused under section 161 RPC and 5(2) of the Prevention of Corruption Act. 15. The findings of the trial court convicting the accused are on the following reasons:- (a) That the recovery of money from the pocket of the accused is sufficient to prove that the accused had accepted the money from the complainant. There is no necessity of independent corroboration once the money is recovered from the accused. (b) The factum that the accused has accepted the money from the complainant is established by the fact that the hands of the accused turned pink after he accepted the money and the washing of his pant from which the money was recovered by the trap party. (b) The factum that the accused has accepted the money from the complainant is established by the fact that the hands of the accused turned pink after he accepted the money and the washing of his pant from which the money was recovered by the trap party. The positive evidence of the complainant that the money was accepted by the accused is corroborated by the circumstances, that is, demonstration held after the recovery of the bribe money from his pocket. (c) That the notes which were recovered from the pocket of the accused were smeared with phenolphthalein powder and the same were handed over to the complainant by the trap officer and proved by the independent witnesses who have stated that the number of the recovered notes tallied with the notes which the complainant was asked to pass on to the accused on demand. The recovery of tainted money was effected from the pocket of the accused by Mr. B.D. Badola the independent witness meaning thereby that the money was accepted by the accused immediately before the same was recovered from him. (d) That neither there was any animosity between the accused and the trap party or the complainant nor any justification had come from the accused under section 342 Cr.P.C. regarding the same. 16. That in essence the trial court has held that once the money has been recovered from the pocket of the accused and there is no contradiction of the prosecution witnesses regarding such recovery. There is no need to further corroborate that the money was actually demanded and paid to the accused. Since the bribe money was recovered immediately after the complainant had paid to him, it is sufficient proof that money was demanded as a gratification by the accused and the recovered from him by the trap party in presence of the independent witness. 17. From the aforesaid reasons, the trial court has found the accused guilty of the offence under section 5(2) of the Prevention of Corruption Act and 161 RPC. 18. I have heard learned counsel for the parties and perused the record. 19. 17. From the aforesaid reasons, the trial court has found the accused guilty of the offence under section 5(2) of the Prevention of Corruption Act and 161 RPC. 18. I have heard learned counsel for the parties and perused the record. 19. There are four factors for proving the trap.; (1) demand of money, which can be categorized into two aspects i.e. his initial demand; and demand at the time of trap.; (2) the acceptance of the money in pursuance of the aforesaid demand.; (3) recovery of money and (4) consideration for demanding such money. 20. In order to prove the trap, it is important to discuss the evidence led by the prosecution under the following head, i.e. demand of money, which has to be categorized into two aspects, i.e. initial demand and demand made at the time of the trap, acceptance and recovery of the tainted money. (1) Initial demand: With respect to this demand, the statement of the complainant is important. It has come in the evidence of the complainant that the accused had made a demand on 05.03.2002 from the complainant for making his telephone functional. The statement of the complainant is sought to be corroborated with respect to the demand of money by Rajbir Singh Inspector CBI who has stated that the complainant made a telephone call to the accused from a local booth whereby it is stated that he had demanded Rs.500/- as bribe for making the telephone functional. This is the only corroboration sought to be made by the prosecution regarding the pre-trap demand. What has transpired between the accused and the complainant on the telephone, the said witness is not able to corroborate the same. He stated that since the complainant was talking with the accused, it was only related to the demand made by the accused. He has admitted that the speaker of the phone was not on as such he is not privy to the dialogue exchanged by the accused with the complainant. The statement of the complainant is not corroborated by any witness that the demand was made prior to trap. However, this is not crucial for determination of the innocence of the accused. Even though the prosecution has made an attempt to seek corroboration. The statement of the complainant is not corroborated by any witness that the demand was made prior to trap. However, this is not crucial for determination of the innocence of the accused. Even though the prosecution has made an attempt to seek corroboration. (2) Post trap demand and acceptance: With respect to this demand, the prosecution has alleged that the complainant was to be accompanied by shadow witness Mohd Latif and in whose presence demand and the acceptance of the money was to be made. The investigating officer has stated that before the trap was led, clear instructions were issued to the raiding party that the complainant will be accompanied by the shadow witness Mohd Latiff who would be the witness to the demand and acceptance of the money. It was only after money was accepted, signal was to be given by the said witness to the raiding party about the same. The complainant in his statement stated that the accused has demanded money and the same was paid to him which he accepted with his right hand and thereafter kept the same in his pocket of the pant and said money was recovered from the pocket of the pant of the accused. Panchnama was prepared accordingly. The independent witness Mohd Latif contradicted this version and he states that he did not enter the office of the accused and was not the witness to the acceptance and demand made by the accused. He also states that it was the complainant who gave cue to the raiding party that the money was accepted by the accused. There is no dispute with respect to this proposition that only two persons were to be the witnesses to the demand and acceptance made by the accused. None of the members of the raiding party was present at the time when money was demanded and accepted by the accused. The investigating officer and other independent witness namely Mr. B.D.Badola have admitted that shadow witness Mohd Latif gave cue to the raiding party and money was consequently recovered from the pocket of the accused. It is the case of the prosecution that the money was handed over by the complainant which was demanded and accepted by the accused. The investigating officer and other independent witness namely Mr. B.D.Badola have admitted that shadow witness Mohd Latif gave cue to the raiding party and money was consequently recovered from the pocket of the accused. It is the case of the prosecution that the money was handed over by the complainant which was demanded and accepted by the accused. The prosecution relied upon the version of the independent witness regarding the demand and acceptance who has clearly stated that he is not a witness either to the acceptance or demand made by the accused. The said witness has not been declared as hostile by the prosecution. The prosecution has exclusively relied on his evidence as an independent witness for demand and acceptance. With respect to the demand and acceptance, it would be thus unsafe to place a reliance on the statement of the complainant. It has also come in the evidence that there were other persons in the office of the accused at the time of the trap. The investigating officer has admitted the presence of the officers of the telephone department in the office when trap took place. Even though they were examined as witness but only to the recovery of the money from the pocket of the accused. The Investigating officer has admitted the presence of one Mr. Trisal in the office, why he has not been examined as witness to the acceptance and demand, has not been explained by the prosecution. (3) Recovery of money: It has come in the evidence of the prosecution that money was recovered from the pocket of the complainant. The prosecution has also proved this aspect that currency notes which were recovered from the person of the accused were the same whose numbers were marked at the time of pre-trap stage. After the recovery of the said amount, the hand wash of the accused was done with solution the colour of which turn into pink Panchanama was prepared confirming the recovery of the said amount. So it is not in dispute that the amount was recovered from the pocket of the accused. There are, however, contradictions in the version of the prosecution witness in respect of the person who has conducted the search. Mohd Latif and complainant have stated that the CBI caught hold of both the hands of the accused and they conducted search of the accused. There are, however, contradictions in the version of the prosecution witness in respect of the person who has conducted the search. Mohd Latif and complainant have stated that the CBI caught hold of both the hands of the accused and they conducted search of the accused. However, version of the investigating officer and other independent witness Mr. B.D.Badola states that search was conducted by the said witness. It is also come in the record that the money was recovered from pocket of the pant of the accused. This contradiction is only relevant with respect as to who made the recovery from the pocket of the accused. It was not denied by the prosecution that the cue was given to the raiding party by Mohd Latif who denied the same. Two officers of the CBI caught hold the wrist of the accused. The statements of the complainant and Mohd Latif states that the recovery was made by the officials of the CBI and not by Mr. B.D. Badola casts some cloud over the version of the prosecution that the search was made by Mr. B.D. Badola. The fact of the matter is that this amount was recovered from the accused by the prosecution witness but who recovered the money from the person of the accused has two versions. (4) Consideration for demanding money: It has come in the prosecution story that the accused had demanded the money from the complainant for making his telephone functional. After scanning through the evidence of the official witnesses it is revealed that the telephone had become functional on 02.03.2002. This has been confirmed by the prosecution witnesses. It has also been admitted by the complainant that the telephone and wire were installed at the house of the complainant by the department. The prosecution has not been able to show as to what more was required to be done by the accused to make his telephone functional. As a matter of fact it was incumbent upon the prosecution to prove that when telephone has become functional and the same was installed in the house of the complainant what was the mischief committed by the accused in making it non-functional. This assumes importance because the version of the official witnesses has been contradicted by the investigating officer. As a matter of fact it was incumbent upon the prosecution to prove that when telephone has become functional and the same was installed in the house of the complainant what was the mischief committed by the accused in making it non-functional. This assumes importance because the version of the official witnesses has been contradicted by the investigating officer. What mischief was committed by the accused in making the phone non-functional nothing has come on the record nor has anything being proved by the prosecution in this regard. 21. Statement of the accused under section 342 Cr.P.C. was recorded by the trial court in which he has denied the whole prosecution story. It is also not in dispute that he has not come out with any probable defence as to how the money was recovered. 22. After having gone through, following legal questions arise:- A) Whether it is sufficient to convict the accused once the tainted money has been recovered from his pocket. B) Whether any corroboration is needed from any independent witness except the statement of the complainant once the tainted amount has been recovered from the accused. C) Whether presumption under section 4 of the Prevention of Corruption Act can be raised against the accused moreso once the money has been recovered from the accused. There is no explanation given by the accused as to how the money has come in his pocket. 23. In order to understand the controversy, it is important to understand the import of Section 4 of the Prevention of Corruption Act, Svt. 2006. For facility of reference section 4 of Prevention of Corruption Act, Svt. 2006 is reproduced as under:- 4. Presumption where public servant accepts gratification other than legal remuneration. 1. 23. In order to understand the controversy, it is important to understand the import of Section 4 of the Prevention of Corruption Act, Svt. 2006. For facility of reference section 4 of Prevention of Corruption Act, Svt. 2006 is reproduced as under:- 4. Presumption where public servant accepts gratification other than legal remuneration. 1. Where in any trial of an offence punishable under section 161 or section 165 of the Ranbir Penal Code, 1989 ( or an offence referred to in clause (a) or clause (b) of sub-section (1) of section 5 of this Act punishable under sub-section (2) thereof) it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted to obtain, that gratification or that valuable thing, as the case may be , as a motive or reward such as is mentioned in the said section 161, or, as the case may be, without consideration or for a consideration which he knows to be inadequate. 2. Where in any trial of an offence punishable under section 165-A of the Ranbir Penal Code, 1989 (XII) (or under clause (ii) of sub-section (3) of section 5 of this Act) it is proved that any gratification other than legal remuneration or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 161 of the Ranbir Penal Code, or, as the case may be, without consideration or for a consideration which he knows to be inadequate. 3. Notwithstanding anything contained in sub-sections (1) and (2), the Court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn. 24. The Section 4(1) of the Act raises presumption where public servant accepts gratification other than legal remuneration. 24. The Section 4(1) of the Act raises presumption where public servant accepts gratification other than legal remuneration. When the expression, shall be presumed, is employed in section 4 (1) of the Act, it has the import of compulsion in it. It envisages that the presumption has to be raised once the ingredients of Section 4 are complied with. The prosecution under these circumstances is required to prove by reliable and consistent version of the witnesses that there has been a demand and acceptance of money by the accused. This is mandatory condition which is required to be proved by the prosecution before the presumption under section 4(1) can be raised. Once the prosecution has complied with this requirement of section, the burden shifts on the accused to rebut this presumption. It is a settled principle of law that this presumption is rebutable. If this condition is satisfied and the money is recovered from the possession of the accused, it can be presumed that the accused has received the illegal gratification. The presumption is an inference of certain facts drawn from other facts. It is also not in dispute that said fact can be proved either by direct evidence or by indirect evidence. The only pre requisite condition is that the evidence must be reliable and consistent. 25. Applying this test in the present case, there is no doubt that the money has been recovered from the pocket of the accused but the witnesses examined by the prosecution have given inconsistent versions which contradict their own stand. All the prosecution witnesses have stated that the money was demanded and accepted by the accused from the complainant in presence of the independent witness, namely, Mohd Latif. It is on his cue the raiding party entered the room of the accused and effected recovery. The witness who according to the prosecution story is supposed to have witnessed this act of the accused, has denied the same. The said Mohd Latif has very categorically stated that no demand or acceptance of money was made by the accused from the complainant in his presence. His statement further reveals that it was on the instance of the complainant and on his signal, the raiding party entered the office of the accused and recovered the money from his pocket. The said Mohd Latif has very categorically stated that no demand or acceptance of money was made by the accused from the complainant in his presence. His statement further reveals that it was on the instance of the complainant and on his signal, the raiding party entered the office of the accused and recovered the money from his pocket. The investigating agency has completely relied upon on the statement of Mohd Latif as an independent witness that he is the witness to the demand and acceptance of the money made by the accused. He has not been declared as hostile witness by the prosecution. His version is that he is neither witness to the demand nor acceptance and has also not given any cue to the investigating officer regarding acceptance of money by the accused. Would it be safe under these circumstances to rely upon the evidence of the complainant alone ignoring the version of the said independent witness. One could understand if the prosecution story was that there was no independent witness except the statement of the complainant regarding demand and acceptance of the money and consequently the money was recovered from the pocket of the accused, the conviction can be sustained provided the evidence is reliable and consistent. Once the prosecution itself relies on the statement of the independent witness regarding the demand and acceptance made by the accused and when witness denies having witnessed any such act, the burden is certainly shifted on the prosecution to prove the acceptance and demand from any other independent witness. It has also come in the prosecution story that independent witnesses were available and they could have been examined in this regard. The witnesses were the officials of the department of the accused who have been examined as witness on the panchanama and are the most reliable and independent witnesses, who could depose in this respect. It certainly casts shadow of doubt on the prosecution version that the demand and acceptance was made by the accused. 26. The witnesses were the officials of the department of the accused who have been examined as witness on the panchanama and are the most reliable and independent witnesses, who could depose in this respect. It certainly casts shadow of doubt on the prosecution version that the demand and acceptance was made by the accused. 26. In this regard reliance has been placed by the prosecution on AIR 2004 SC 961 wherein it has been held in para No.15 as under :- When the sub-section deals with legal presumption, it is to be understood as in terrorem i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing for forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under section 4 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act. 27. The Apex Court has clearly stated that only condition for drawing such a legal presumption under section 4 of the Act supra is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. In the present case, in respect of demand and acceptance, the only witness is the complainant, as the independent witness relied upon by the prosecution has dis-agreed with this version and has categorically stated that he is not the witness to such demand and acceptance of money by the accused. Under these circumstances, it will not be safe to rely upon the uncorroborated version of the complainant. The trial judge has not taken note of this fact in the judgment impugned. Under these circumstances, it will not be safe to rely upon the uncorroborated version of the complainant. The trial judge has not taken note of this fact in the judgment impugned. The learned trial court has clearly based his findings on the fact that the statement of the complainant with regard to the demand and acceptance has been proved by the independent witness and consequently recovery made on the basis of that, is sufficient to raise the presumption under section 4 of the Act supra. He has not discussed the import of evidence of Mohd Latif, the shadow witness, who has denied his presence at the time when demand and acceptance of the money was made by the accused. This in my opinion should have been considered by the learned trial court. The learned trial court has observed that in a case of bribe, the person who pays the bribe and those who acted as intermediaries are the only persons who can ordinarily be expected to give evidence about the bribe and it is not possible to get absolutely independent evidence about the payment of bribe. The court ahs further held that the evidence of a bribe-giver has to be scrutinized very carefully and it is for the court to consider and appreciate the evidence in a proper manner. But in the present case, the trial court has overlooked the fact that there was an independent witness who was required to witness the demand and handing over of the money. As a matter of fact, the learned trial court has not at all taken note of the evidence of Mohd Latif and has relied on his statement only to the extent of recovery which was effected on the person of the accused, which in my opinion was not correct course. Recovery of money: 28. The other aspects relate to the recovery of money and it has come in the evidence that the amount has been recovered from the possession of the accused. The evidence regarding recovery is also not consistent and reliable. The complainant and the shadow witness Mohd Latif have stated that the accuseds hands were held by two CBI officials and one of them made the recovery from the pocket of the accused whereas the investigating officer and the independent witness Mr. B.D. Badola have stated that the recovery was made by said independent witness. The complainant and the shadow witness Mohd Latif have stated that the accuseds hands were held by two CBI officials and one of them made the recovery from the pocket of the accused whereas the investigating officer and the independent witness Mr. B.D. Badola have stated that the recovery was made by said independent witness. There are two versions with regard to the recovery of the money from the pocket of the accused. The version of the independent witnesses states that they do not know from which pocket the money was recovered whereas the investigating officer states that the money was recovered from the left pocket of the accused. The recovery of money is one of the most important aspects in the case and the prosecution version has to be consistent in this respect. There cannot be any variation from which pocket the money was recovered. The other aspects are with regard to the place where recovery was made. All the independent witnesses except investigating officer and the officials of the police have stated that the recovery of money was made in different room and not in the office of the accused. They stated that when the raiding party entered the office of the accused, his two hands were held by CBI officials and was taken to other room where recovery was effected. 29. The version of the police officials is that the recovery was made in the office of the accused and only papers were prepared in other room. This version is also not consistent with the version of independent witnesses. The presumption can be drawn that since that there are other independent witnesses who were present in the pre-trial trap, it was only because of their presence, the recovery was made in a different room. Otherwise there cannot be any variation between the independent witness and the police witnesses in this regard. It has also come in the prosecution evidence that the accused was caught hold by two CBI officials and there was some jostling between the accused and police officials and the accused was taken to other room for effecting search on his pocket. It is possible that during this course, the hands of the accused might have smeared with phenolphthalein powder on being touched by the two officials of police department. It is possible that during this course, the hands of the accused might have smeared with phenolphthalein powder on being touched by the two officials of police department. No independent witness has said that during pre trial trap, the hands of the investigating team were also washed at that stage. 30. After examining the aforementioned question, the question whether conviction can be based solely on the statement of the complainant and the Investigating Officer, is an issue which is no longer res-integra provided section 4(1) of the Act (supra) is complied with. If there is contradictory version of the accused and the prosecution with respect to the demand and acceptance and recovery, it is unsafe to convict the accused on such evidence. Once the doubt has been raised regarding the demand and acceptance, it is important that the independent corroboration is required from the independent witness on this account. In the present case, as already discussed above, the version of the prosecution witnesses contradicts each other on material facts both in respect of demand and acceptance and its recovery. 31. In AIR 1979 SC 1191, it has been held that the evidence of the complainant in no better position than accomplice after introduction of section 165-A RPC. This statement requires corroboration of material facts from the independent witness. If there is no corroboration of testimony of the complainant regarding the demand for money by the accused, the evidence of the complainant on that aspect cannot be accepted. On this crucial aspect it has to be found that the version of the complainant is not corroborated, therefore, the evidence of the complainant on this aspect cannot be relied upon. 32. The Apex court in AIR 1973 SC 498 Ram Parkash Arora, Appellant Vs. the State of Punjab, respondent held that the evidence of interested and partisan witnesses who are concerned in the success of the trap must be tested in the same way as that of any other interested witness. In a proper case the court may look for independent corroboration before convicting the accused persons. In the present case, the trial court has disbelieved the version of the independent witness namely Mohd Latif in respect of the acceptance of demand. The investigating officer stated in his version that Mohd Latif was a witness to the said acceptance and demand by the accused which is contradicted by the independent witness. In the present case, the trial court has disbelieved the version of the independent witness namely Mohd Latif in respect of the acceptance of demand. The investigating officer stated in his version that Mohd Latif was a witness to the said acceptance and demand by the accused which is contradicted by the independent witness. The present case is on a better footing then what was the case discussed supra. The trial court has accorded conviction without seeking corroboration of the statement of the complainant. 33. Again the Apex Court in AIR 1974 S.C 218 has held as under:- Having regard to all these circumstances, we think it is a fit case where the courts below should have required independent and trustworthy corroboration of the evidence of Niranjan Lal and Satish Chandra who had laid the trap. In Ram Prakash Arora V. State of Punjab, AIR 1973 SC 498 at p. 501 this Court, speaking about the evidence of trap witnesses, observed: (They) were interested and partisan witnesses. They were concerned in the success of the trap and their evidence must be tested in the same way as that of any interested witness and in a proper case the court may look for independent corroboration before convicting the accused person. As there is no such corroboration, the appellant should be given the benefit of doubt. So the appeal is allowed. The conviction and sentence of the appellant are set aside. Bail bonds are discharged. 34. Similarly in Som Parkaksh Vs. State of Punjab, AIR 1992 SC 665 it is held as under :- The High Court found that the witnesses who were associated in the conduct of the raid for recovery of tainted money from the appellant could not be termed as independent who could be associated with such raids. The High Court further expressed doubt about veracity of the witness who claimed that money was actually handed over in his presence. The High Court, however, drew an adverse inference against the appellant from the circumstance that the bill which was delayed for unreasonable period had suddenly been passed by the appellant. On an overall assessment the High Court entertained some suspicion about the credibility of the prosecution witnesses but at the same time did not find the suspicion to be strong enough to raise doubt about the gilt of the appellant. On an overall assessment the High Court entertained some suspicion about the credibility of the prosecution witnesses but at the same time did not find the suspicion to be strong enough to raise doubt about the gilt of the appellant. We agree with the learned counsel for the appellant that in the face of the finding that the witnesses who formed part of the raiding party were not independent and the evidence regarding handing over money to the appellant being unbelievable, the conviction of the appellant cannot be sustained. The guilt of the appellant has not been proved beyond reasonable doubt and as such the benefit must go to him. 35. A co-ordinate bench of this court in 2006 Cri.L.J.1029 Manohar Lal vs. State held that there was no evidence of handing over to bribe money to the accused except complainant and shadow witness who was a member of trap party. No independent evidence has been produced from which the corroboration could be found of evidence given by the members of the trap party including the complainant. In the present case, even the statement of the shadow witness has not been believed by the trial court. 36. In 1981 SCC (Criminal) 586 Gulam Mahmood A. Malik Vs. State of Gujarat held that the complainant himself is in the nature of an accomplice and his story is prima facie suspect for which corroboration in material particulars is necessary. This judgment also hints towards the fact that the statement of the complainant has to be corroborated by independent witness. In the present case acceptance of demand has not been proved by the shadow witness Mohd Latif. This is sufficient to create doubt in the prosecution story that the demand was accepted by the accused. 37. In V.Venkata Subbarao Vs. State represented by Inspector of Police, A.P. reported in 2007 AIR SCW 9, it has been held that presumption that the money was accepted as motive or reward cannot be raised when demand by the accused has not been proved. 38. Other aspects of the matter is whether the accused can be connected with any bribe giving transaction. As already stated above, the allegation against the accused is that he demanded Rs.500/- as bribe for making the telephone functional of the complainant. Two prosecution witnesses namely Sh. V.K.Revu and Sh. 38. Other aspects of the matter is whether the accused can be connected with any bribe giving transaction. As already stated above, the allegation against the accused is that he demanded Rs.500/- as bribe for making the telephone functional of the complainant. Two prosecution witnesses namely Sh. V.K.Revu and Sh. B.L.Kak have categorically stated that the telephone was made functional on 02.03.2000 and they further stated that the complainant is not correct in saying that the telephone was not made functional on 02.03.2000. The prosecution version is that the accused had committed some mischief enroute without indicating the nature of mischief committed by the accused. As a matter of fact his allegation has not been proved by the prosecution as to what mischief was committed by the accused in making the telephone non-functional. It would be unsafe to rely upon the allegation not being corroborated that accused was demanding money to make the telephone functional when witness of the department have confirmed and based upon the record that it was made functional prior to the demand of bribe. There was no occasion for the appellant to demand bribe under these circumstances. 39. In K.Subba Reddy Vs. State of Andhra Pradesh reported in 2007 AIR SCW 6205, it has been held by the Supreme Court that if the accused has no role to play, he cannot be convicted for the offence of accepting illegal gratification as a reward or motive for doing that work. 40. From the above discussion, there is no sufficient material to hold the appellant guilty. Accordingly, his conviction and sentence is set aside as a consequence of which the judgment of the learned trial court shall stand quashed. His bail bonds shall stand discharged. Disposed of along with connected CMP(s) if any.