Research › Search › Judgment

Madhya Pradesh High Court · body

2010 DIGILAW 456 (MP)

Omkar Lal Sharma v. State of M. P.

2010-04-21

A.K.SHRIVASTAVA, LNDRANI DATTA

body2010
Judgment A.K. Shrivastava, J. ( 1. ) Feeling aggrieved by the judgment of conviction and order of sentence dated 21/11/2003 passed by learned Special Judge, Shivpuri in special case No. 1/2002 convicting the appellant under Sections 7,13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the Act) and there by sentencing him to suffer one years rigorous imprisonment and fine of Rs. 1.0001- in default to suffer further rigorous imprisonment of two months, the appellant has knocked the doors of this Court by preferring this appeal under Section 374(2) of the Code of Criminal Procedure, 1973. ( 2. ) In brief the case of prosecution is that against the complainant-Ashok Kumar Gupta, a resident of village Dinara, his brothers submitted a complaint which was being inquired by the appellant who was serving on the post of Head Constable in Police Station Dinara. In that matter, it is said that appellant made demand of illegal gratification of Rs.2,000/- from the complainant failing which a threat was given to him that a case would be registered against him. Since the complainant was not keen enough to give any amount of bribe, eventually, he submitted a complaint in the Special Police Establishment at Gwalior on 19/3/2001 and requested to arrange for a trap. The Superintendent of Police of Special Police Establishment deputed Inspector Arvind Khare to inquire about the complaint of the complainant, as a result of which, the said inspector handed over a micro tape-recorder along with a cassette to the complainant by giving direction to record the conversation of bribe. Simultaneously to depute two gazetted officers, a letter to Collector Gwalior was also written. On the basis of the said letter, two Panch witnesses, namely, R.C. Bansal, Assistant Engineer, and M.S. Sengar gazetted officer were sent by the Collector to the office of Special Police Establishment. In the presence of these Panch witnesses a Panchnama of handing over the tape-recorder was prepared and the tape recorded version was also heard by playing the cassette. Thereafter, a transcript of the tape recorded version was prepared which was affirming the averments made in the complaint of the complainant. The panch witnesses put certain queries to the complainant in order to testify the authenticity and hallmark of the complaint. Thereafter, a transcript of the tape recorded version was prepared which was affirming the averments made in the complaint of the complainant. The panch witnesses put certain queries to the complainant in order to testify the authenticity and hallmark of the complaint. The complainant aging submitted another complaint on 21/3/2001 on the basis of which a case was registered against the appellant. Thereafter, on being submitted three currency notes having denomination of Rs. 500/-each and five currency notes having denomination of Rs. 100/- each, in total Rs. 2,000/- they were coated by phen-olphthalein powder and these treated currency notes were kept in the right pocket of the trousers of the complainant by giving direction that how the bribe money is to be given and in what manner the signal that the transaction of the bribe is over is to be given. A pre-demonstration of the change of colour of the solution of sodium carbonate on coming into contact with phen- olphthalein powder was also conducted in the office of Special Police Establishment. A pre-trap Panchnama was also prepared. ( 3. ) Thereafter, the trap proceeded for conducting the trap and arrived at the house of Govinddas Yadav in which appellant was residing as a tenant. The complainant alone was sent to hand over the bribe amount, but the appellant was not found in his house. After waiting for near about 30-45 minutes when appellant came to his home, the complainant was again sent to give the bribe. After some time complainant came out from the house of appellant and gave signal to the members of the trap party who immediately rushed inside the house and Head Constable Bhagwati and Constable Ummed Singh caught hold of the hands of the appellant from the wrist. Thereafter, a solution of sodium carbonate was prepared in which the fingers of the hands of the appellant were dipped and on dipping the fingers in the said solution the colour of the solution changed to pink. Thereafter, the fingers of the hands of the Panch witness M.S. Sengar (not examined) were dipped in a separate solution of sodium carbonate, but on dipping the fingers of his hands the colour of the solution did not change. Thereafter, the fingers of the hands of the Panch witness M.S. Sengar (not examined) were dipped in a separate solution of sodium carbonate, but on dipping the fingers of his hands the colour of the solution did not change. The Panch witness M.S. Sengar on being informed by the appellant took out the treated currency notes which were kept in his right pocket and the numbers of the currency notes were tallied with the pre-trap Panchnama and they were found to be the same. These treated currency notes were seized and sealed. Thereafter, again the fingers of the hands of the Panch witness M.S. Sengar were subjected to phenolphthalein powder test which was found to be positive. Similarly, the phenolphthalein powder test was also conducted on the hands of the complainant and as well as on the pocket of his shirt and the chemical test was found to bepositive. The tinted solution of sodium carbonate was collected in separate bottles which were also sealed and these bottles were sent for chemical examination. ( 4. ) In furtherance to its investigation, the investigating agency seized the relevant record in respect to the case of complainant and a post-trap Panchnama etc. were prepared. ( 5. ) After the investigation was over and sanction to launch prosecution against the appellant was obtained, a charge-sheet was submitted in the Special Court. The learned Special judge on the basis of allegations made in the charge-sheet against the appellant framed charges punishable under Sections 7, 13(l)(d) read with Section 13(2) of the Act which the appellant denied and requested for the trial. ( 6. ) In order to bring home the charges the prosecution examined as many as eleven witnesses and placed Ex. P/1 to Ex. P/32, the documents on record. ( 7. ) The specific defence which the appellant took right from very beginning is that he gave an amount of Rs. 5,000/- towards loan to the complainant and part payment of Rs. 3,000/- towards the debt was already paid to him by the complainant and on the date of the trap (i.e. 21/3/2001) Rs. 2,000 was given to him under the pretext that it is towards the full and final payment of the remaining balance of the debt. 5,000/- towards loan to the complainant and part payment of Rs. 3,000/- towards the debt was already paid to him by the complainant and on the date of the trap (i.e. 21/3/2001) Rs. 2,000 was given to him under the pretext that it is towards the full and final payment of the remaining balance of the debt. The further defence of appellant is that the complainant lodged the report against his brothers and he was pressurizing appellant to seize the guns of his brothers for which he was not ready and in order to take revenge, he has been falsely implicated. In support of his defence he also examined Maniram (DW-1) Ramjisharan (DW-2), Govind Singh (DW-3), Vinod Dubey (DW-4) and Ramcsh Kumar Sharma (DW-5). ( 8. ) The learned Special Judge on the basis of evidence placed on record came to hold that charges are proved against the appellant, as a result of which, convicted him for those charges and passed the sentence which we have mentioned hereinabove. ( 9. ) In this manner, this appeal has been preferred by the appellant assailing the judgment of conviction and order of sentence passed by learned Special Court. ( 10. ) The contention of Shri Anurag Shriv-astava and Shri Atul Gupta, learned counsel for the appellant, is that appellant has been falsely roped in the present case for the simple reason that while holding the post of Head Constable when he was inquiring about the complaint of the complainant, he did not seize the guns from his brothers who were accused. Further, it has been argued by learned counsel that it is borne out from the evidence that the investigating agency did not seize that record about which the complainant was having grievance and for which he submitted complaint (Ex.P/21) on 19/3/2001, but the record of some other complaint made by one Laxminarayan who is the brother of the complainant was seized and this complaint of Laxminarayan was entrusted to Head Constable 821 Bab- ulal and in this context the memo of Superintendent of Police, Shivpuri dated 1-3-2001/ 15-3-2001 (Ex. P/20) has been placed on record and if that is the position, the basic foundation of the prosecution that in order to finish the complaint of his brothers against the complainant, a demand of bribe of Rs. 2,000/- was made, is totally lacking from the evidence which has been adduced. P/20) has been placed on record and if that is the position, the basic foundation of the prosecution that in order to finish the complaint of his brothers against the complainant, a demand of bribe of Rs. 2,000/- was made, is totally lacking from the evidence which has been adduced. It has also been put forth by learned counsel that in Ex. P/20, which is memo of the office of Superintendent of Police, Shivpuri addressed to Station officer incharge, Police Station Dinara, nowhere it is stated that against whom Laxminarayan (the brother of the complainant) lodged the complaint. ( 11. ) By inviting our attention to the accused statement recorded under Section 313 of Cr. P.C. it has been contended by learned counsel that the probable defence which appellant took has been proved from the statement of the prosecution witnesses itself and learned Special Court without paying any heed to it has held that the same is after thought and concocted. By placing reliance on the decision of Supreme Court Punjabrao v. State of Maharashtra, AIR 2002 SC 486 it has been argued by learned counsel that in the corruption cases explanation given by the accused that how he has received the money is to be proved only on the basis of preponderance of probability and it should not be compared with that the standard of proof of the case of the prosecution where the prosecution is obliged to prove the case strictly beyond reasonable doubt. It has also been put forth by him that the evidence of defence witnesses carries same credential value as that of prosecution witnesses and their credential value should be treated at per with the prosecution witnesses and in this context he has placed reliance on two decisions of Supreme Court Munshi Prasad and others v. State of Bihar, AIR 2001 SC 3031 and State of Haryana v. Ram Singh, AIR 2002 SC 620 . On these premised submissions it has been argued by learned counsel for the appellant that by allowing this appeal the impugned judgment of conviction and order of sentence passed learned Special Court be set aside and the appellant be acquitted from all the charges. ( 12. On these premised submissions it has been argued by learned counsel for the appellant that by allowing this appeal the impugned judgment of conviction and order of sentence passed learned Special Court be set aside and the appellant be acquitted from all the charges. ( 12. ) Combating the aforesaid submissions of learned counsel for the appellant, it has been argued by Shri Suryavanshi, learned Public Prosecutor for the Special Police Establishment that in the present case motive and the demand of bribe as well as its acceptance has been proved and since undisputedly recovery of the bribe amount has been made from the appellant, the charges are proved and the explanation which appellant has offered is nothing but afterthought and, therefore, it carries no weight and, hence the learned Special Court did not commit any error in convicting the appellant. In support of his contention learned counsel for respondent has placed reliance on certain decisions of Supreme Court, they are M. Narsinga Rao v. State ofA.P.1; B. Noha v. State of Kerala and another2; Bahrain v. State of Maharashtra3; State of A.P. v. R. Jeevaratnam4; Girja Prasad (dead), by Lrs. v. State of M.P.5; State of M.P. v. Shambhu Dayal Nagar6 and Kanshi Ram v. State Punjab.7 The learned counsel has also placed reliance on Single Bench decision of this Court in Ramkrishna Pandey v. State of M.P.8 ( 13. ) By placing reliance on Ex. P/32 which is a complaint/ application dated 22/2/2001 written by brother of complainant Laxminarayan addressed to the Collector, it has been contended that a complaint against present complainant Ashok Kumar Gupta was made by Laxminarayan and on this complaint a letter Ex. P/20 was written by the Superintendent of Police, Shivpuri addressing it to Station Officer Incharge, Dinara to hold an enquiry of the complaint of Laxminarayan and if these two documents are read conjointly along with the seizor memos Ex.P/31 and Ex. P/14 seizing Ex. P/32 and Ex. P/20, it would reveal that the brother of complainant Laxminarayan lodged a complaint (Ex.P/32) against the complainant Ashok Kumar Gupta and to enquire the said complaint it was entrusted to the appellant who was holding the post of Head Constable and by seizor memos Ex. P/14 seizing Ex. P/32 and Ex. P/20, it would reveal that the brother of complainant Laxminarayan lodged a complaint (Ex.P/32) against the complainant Ashok Kumar Gupta and to enquire the said complaint it was entrusted to the appellant who was holding the post of Head Constable and by seizor memos Ex. P/31 and Ex/ P/14 the relevant document of complaint of Laxminarayan was seized from the possession of the appellant and, hence, there was a motive on the part of the appellant to make demand of bribe. On these premised submissions, it has been argued by learned Public Prosecutor that learned Trial Court has assigned cogent reasons for convicting the appellant and since they are based on correct appreciation of evidence, the same should not be set aside and this appeal be dismissed. ( 14. ) In reply, it has been contended by learned counsel for the appellant that the vide seizor memo Ex.P/31 dated 21/3/2001 (the date of the trap) the complaint which was seized by the investigating agency is nothing but the complaint of Ramkali W/o Banarsidas who is the mother of complainant Ashok Kumar Gupta and this complaint was given to appellant for investigation and, therefore, it has been contended that the investigating agency did not seize the relevant record of the alleged complaint of the complainant about which it is said that appellant made demand of bribe. ( 15. ) Having heard learned counsel for the parties we are of the considered view that this appeal deserves to be allowed. ( 16. ) In order to hold that the case of prosecution is proved we would like to scan the testimony of certain important witnesses and the documents, these witnesses are complainant Ashok Kumar Gupta (PW-9), Constable Kammod Singh (PW-5) who went atong with the complainant on 19/3/2001 to the house of the appellant, but he remained outside the house and was thus, unable to overhear what actually transpired between appellant and complainant when complainant went to the house of the appellant to tape-record the conversation of bribe. The Panch, witness R.C. Bansal has been examined as PW-7, but, the other Panch witness M.S. Sengar who conducted the phenol- phthalein powder test on the hands of the appellant and complainant has not been examined by the prosecution. The Panch, witness R.C. Bansal has been examined as PW-7, but, the other Panch witness M.S. Sengar who conducted the phenol- phthalein powder test on the hands of the appellant and complainant has not been examined by the prosecution. The other important witnesses are the shadow witnesses of the trap, they are Head Constable Bhagwati Prased Sharma (PW-2) and Ummed Singh (PW-4), Inspector Ashok Kumar Bharadwaj (PW-3), Inspector Rajendra Singh Bhadoriya (PW-10) and Inspector Arvind Khare (PW-11) are the members of the trap party. The important documents are the complaints of the complainant lodged in the office of Special Police Establishment Ex. P/21 and Ex.P/18 dated 19/3/ 2001 and 21/3/2001 respectively. The transcript Ex./19, Panchnama of handing over the tape-recorder dated 19/3/2001 (Ex. P/23) and the Panchnama of returning the tape-recorder (Ex. P/24). Apart from these documents, three more documents are quite relevant they are seizor memo (Ex. P/14) dated 21/3/2001 in respect of complaint/application submitted in the office of Superintendent of Police, Shivpuri dated 1/3/2001/ 15/3/2001 of Laxminarayan against complainant Ashok Kumar Gupta, a type written complaint/ application (Ex. P/32) written by Laxminarayan dated 22/2/ 2001 addressed to Collector, Shivpuri and seizor memo (Ex. P/31) dated 21/3/2001 seized from Constable Kaluram. ( 17. ) In the present case the learned Special Court has found that in pursuance to the complaint dated 19/3/2001 which is about the making of demand of bribe by the appellant from the complainant, a micro tape-recorder was given to the complainant by giving direction to record the conversation which would take place between him and appellant in respect of making demand of bribe. The complainant Ashok Kumar Gupta (PW-9) was accompanied by Constable Kammod Singh. According to the complainant, after preparing the Panchnama (Ex.P/23) of handing over the tape recorder to him, he went to the house of the appellant where after knocking the doors he entered inside the house while Constable Kammod Singh by concealing his identity was standing outside the house. According to the complainant, before entering inside the house of the appellant he switched on the tape-recorder. Further, he has stated that during conversation appellant made demand of bribe Rs. 2,000/- and thereafter, he came out from the house of the appellant and switched off the tape-recorder. According to the complainant, before entering inside the house of the appellant he switched on the tape-recorder. Further, he has stated that during conversation appellant made demand of bribe Rs. 2,000/- and thereafter, he came out from the house of the appellant and switched off the tape-recorder. This happened on 19/3/2001 and on this date this witness and Kammod Singh throughout remained present in village Dinara and thereafter on 21/3/2001 after arranging the bribe amount he came along with the money in the Office of Special Police Establishment and handed over the tape-recorder vide Panchnama (Ex. P/24) dated 21/3/2001. However, contrary to the testimony of the complainant, Constable Kammod Singh (PW-5) has stated that on 19/3/2001 he went alongwith the complainant to the house of the appellant where after switching on the tape-recorder the complainant was sent inside the house while he was standing outside the house. After coming out from the house of the appellant, the complainant handed over the tape-recorder to him and this witness (PW-5) stayed in village Dinara on that day viz. 19/3/2001 and on the next day (which would mean 20/3/ 2001) in the morning he came to the office and deposited the tape-recorder. Thus, there is material inconsistency between the statement of the complainant and Constable Kammod Singh (PW-5). According to the complainant, the tape-recorder remained with him for entire two days and on 21/3/ 2001 he deposited the same in the office of Special Police Establishment while according to the Constable Kammod Singh, after recording the conversation of bribe when complainant came out from the house of the appellant, he handed over the tape-recorder to him and throughout the tape-recorder remained with him which he deposited in the office of Special Police Establishment on the next day viz. 20/3/2001. On going through the Panchanama (Ex. P/24), we find that on 21/3/2001 at 9:45 a.m. complainant deposited the tape-recorder. One peculiar fact we have noticed in the testimony of the complainant as well as that of Constable Kammod Singh and also after going through the Panchnama of returning of the tape-recorder (Ex. P/24) that although the tape-recorder was returned back in the office of Special Police Establishment, but there is no iota of evidence that the cassette in which the alleged conversation of bribe was recorded was ever handed over in the office. P/24) that although the tape-recorder was returned back in the office of Special Police Establishment, but there is no iota of evidence that the cassette in which the alleged conversation of bribe was recorded was ever handed over in the office. In the evidence as well as in the said Panchnama the factum of returning the tape-recorder which was given to tape- record the conversation of bribe was only returned back and it has not been mentioned that whether the said tape-recorder was containing the cassette or not and, therefore, where the alleged cassette containing the conversation of bribe remained there is no evidence on record. ( 18. ) It would be pertinent to mention here that although constable Kammod Singh was sent as a shadow witness to overhear what has been transpired between the appellant and the complainant, but there is no evidence of the Constable that what conversation took place between them nor he was able to say so cause he remained outside the house of the appellant, ( 19. ) The learned Special Court on the basis of the evidence of the complainant, the evidence of Panch witness R.C. Bansal (PW- 7), Constable Kammod Singh (PW-5) and the Panchnama in respect of returning the tape-recorder (Ex,P/24) as well as the transcript (Ex,P/19), came to hold that the transcript (Ex.P/19) is the transcript of the tape- recorded conversation of appellant and complainant in which demand of bribe of Rs.2,000/- has been found to be proved and according to learned Special Court, it is proved that on 19/3/2001 appellant made demand of bribe of Rs.2,000/- from the complainant which was also tape-recorded. According to us, the said finding cannot be sustained for the several reasons. According to us, the said finding cannot be sustained for the several reasons. Firstly, there is no evidence on record that the tape-recorded cassette was also handed over while returning back tape-recorder in the office of Special Police Establishment on 21/3/ 2001; secondly, there is no reliable evidence of handing over the tape-recorder on a particular date as there is contradictory statement of complainant and Constable Kammod Singh on material point which we have noticed hereinabove; thirdly there is no evidence of Constable Kammod Singh that the tape-recorder or the alleged cassettle in which the conversation of bribe was recorded was ever sealed and throughout for two days the tape-recorder was never sealed; fourthly, there is no evidence in respect to seizing and sealing of the alleged cassette in which the alleged conversation of bribe of appellant and complainant was recorded; fifthly, who handed over the tape- recorded cassette in the office of Special Police Establishment there is no evidence; sixthly, there is no evidence of Panch witness R.C Bansal (PW-7) who is totally an independent witness that the cassette containing the tape-recorded version of the demand of bribe by the appellant was ever played in his presence and, therefore, according to us, for these reasons inter alia one more reason which we will mention in next para 20, it is difficult to hold that the alleged demand of bribe made by appellant was tape-recorded by the complainant on 19/ 3/2001. We have already X-rayed the testimony of Kammod Singh (PW-5) while holding that since he remained outside the house of the appellant when the complainant was sent in his house to record the conversation, he was unable to overhear what actually transpired between both of them. In these state of affairs, according to us, there is no credential value of the transcript (Ex.P/19) which according to the prosecution is the transcript of the alleged demand of bribe made by appellant from the complainant. ( 20. ) One important fact which cannot be marginalized and blinked away is that for the sake of argument if we hold that the alleged conversation of bribe was tape-recorded. even then in absence of and scientific proof placed on record that the tape- recorded cassette was containing the voice of appellant and complainant, it is very difficult to hold that the cassette contained the voice of appellant and the complainant only. even then in absence of and scientific proof placed on record that the tape- recorded cassette was containing the voice of appellant and complainant, it is very difficult to hold that the cassette contained the voice of appellant and the complainant only. The alleged tape-recorded version recorded in the cassette was not even played therefore the learned Special Court and, therefore, this is another most important circumstance, inter alia which we have discussed hereinabove in para 19, to justify our finding that the transcript (Ex.P/19) is having no credential value, because it is not proved that the cassette in which the alleged demand of bribe made by appellant was tape- recorded, is in the voice of the conversation which took place between the appellant and the complainant. ( 21. ) In the present case the factum of receiving an amount of Rs. 2,000/-from complainant Ashok Kumar Gupta by appellant has not been denied by him on the contrary, indeed it is the case of the appellant that he did receive the said money of Rs.2,000/- from the complainant, but this amount was the balance of the payment of debt which complainant took from him. We shall now examine the evidence placed on record in order to come to the conclusion whether the defence and the explanation which has been given by the appellant of receiving the money not as a bribe can be accepted or not. But, before we scan the evidence we are reminded by the warning given by the Legislature in respect of presumptive value of the acceptance of gratification as envisaged under Section 20 of the Act. According to this Section, in any trial of an offence punishable under Section 7 or Section 11, or clause (a), or (b) of sub-section (1) to Section 13 it is proved that accused has accepted or obtained any gratification other than legal remuneration it shall be presumed unless the contrary is proved that he has accepted or obtained the said gratification as a motive or reward as mentioned in Section 7 of the Act. Although there is statutory presumption under this provision against the accused, but, according to us, still the initial burden to prove the factum, of the demand of bribe and its acceptance by the accused lies on the prosecution and after discharging this initial burden then only the onus of proof would shift on the shoulders of the accused to give probable defence and explanation that he accepted the money not as a bribe. In this context, we may profitably place reliance on two decisions of Supreme Court, they are Oni Parkash v. State of Haryana9 and A. Subair v. State of Kerala.10 The Supreme Curt in T. Subramanian v. State of T.N.11 and another decision V. Venkata Subbarao v. State represented by Inspector of Police, A. P.12 has held that even if there is recovery of the money from the accused, unless and until the demand of bribe and its acceptance as bribe is proved by the Prosecution, the statutory presumption of accepting the illegal gratification as envisaged under Section 20 of the Act would not arise. ( 22. ) On going through the testimony of shadow witness Head Constable Bhagwati Prasad Sharma (PW2), we find that complainant was sent inside the house of the appellant on the date of trap to hand over the bribe money and this witness as well as Constable Ummed Singh were sent as surveillance witnesses, but admittedly this witness did not go alongwith the complainant inside the hose of the appellant. The evidence of this witness is silent where he was standing when complainant went inside the house of the appellant and, hence, according to us, this witness who is well acquainted with the procedure of trap, as he is serving on the post of Head Constable in the office of Special Police Establishment, failed to discharge his duty as surveillance witness. Similar type of the statement is of Constable Ummed Singh (PW-4). On going through the evidence of these two witnesses we find that they entered inside the house of the appellant only when they received signal from the complainant after coming out from the house of the appellant. The defence of the accused that he received the money towards the balance of the debt which he gave to the complainant was put to these two witnesses although these witnesses have denied this suggestion. The defence of the accused that he received the money towards the balance of the debt which he gave to the complainant was put to these two witnesses although these witnesses have denied this suggestion. This defence was also put to inspector Ashok Kumar Bhadoriya(PW-3) and other two inspectors, namely, Rajendra Singh (PW-10) and Arvind Khare (PW-11) who were the members of the trap party, but the suggestion put to them was denied. However, according to us, the turning point of the case and which is in favour of the accused/appellant and which also proves his probable defence that the money was received by him towards the payment of loan which he gave to the complainant, has been proved by the independent witness R.C. Bansal (PW-7) who has categorically admitted in para 2 of his cross-examination that when he entered inside the house of the appellant immediately after receiving the signal given by the complainant that the transaction of bribe is over, the immediate reaction of appellant was that it is my own money as he was saying that I have been falsely implicated by giving my own money and now- a-days there is no sense and meaning of doing good to others. We would like to quote those wordings which appellant spontaneously spoke and which was his first version when he was caught hold by the Head Constable and Constable:-Indeed in the 313 Cr.P.C. Statement also the same defence has been set up by the appellant which he forth right from very beginning from the date of the trial. According to us, the first version of accused immediately when he was caught by the trap party in respect of accepting the bribe money carries very high weightage and credential value because immediately after accepting the money if he is caught, at the spur of moment he cannot cook a false defence without any basis that he has accepted the money which was of his own and further that he has been falsely implicated. ( 23. ) Indeed, the witnesses in defence who have been examined by the appellant are in respect of taking loan of Rs. 5,000/- by the complainant and that Rs. 3,000/- was paid earlier while Rs. 2,000/- was paid on the date of trap. Much has been argued by the learned Public Prosecutor for the respondent that why appellant will give loan of Rs. 5,000/- by the complainant and that Rs. 3,000/- was paid earlier while Rs. 2,000/- was paid on the date of trap. Much has been argued by the learned Public Prosecutor for the respondent that why appellant will give loan of Rs. 5,000/- to an unknown person like complainant. Indeed, this argument might have been accepted if the appellant would not have examined Maniram (DW-1) who is the real brother-in-law (wifes brother) of the complainant. According to this witness, he is having intimacy with appellant. The complainant is his brother-in-law On 25/2/2001 this witness went to village Dinara (it would be pertinent to mention here that complainant is resident of village Dinara while the appellant was serving in police station Dinara) and when he alighted from the bus, he found that on a beetle shop his brother- in-law complainant-Ashok Kumar Gupta was sitting who called this witness and told that he is in difficulty as he has to pay a loan amount of Rs. 5,000/- to the person who is sitting nearby him. On on this witness Maniram told complainant that he would get the money arranged for him. Thereafter, this witness Maniram alongwith complainant and that person went to the house of appellant Omkar Lal Sharma and requested him to help complainant by giving a sum of Rs. 5,000/-to him, but appellant told that he is not acquainted to the complainant and further told that since you (witness Maniram) have come as a surety, he will give Rs. 5,000/ and accordingly he gave Rs. 5,000/- to complainant towards loan who gave that amount to that person who was making demand of Rs. 5,000/- from the complainant. The other witnesses have also been examined by appellant in order to prove that a part payment of Rs. 3,000/- towards loan was paid by the complainant to the appellant. ( 24. ) According to us, if there would have been no loan transaction existing between the appellant and the complainant, his first version when he was caught by the trap party could not have been that he made demand of his own money and he has been falsely implicated. The defence of appellant would have been certainly afterthought in absence of his immediate reaction when he was caught. We do not find any substance in the submission of learned Public Prosecutor that there is no credential value of these defence witnesses. The defence of appellant would have been certainly afterthought in absence of his immediate reaction when he was caught. We do not find any substance in the submission of learned Public Prosecutor that there is no credential value of these defence witnesses. According to us, the testimony of defence witness cannot be treated differently than that of prosecution witness and their evidentiary value has to be treated at par with the evidentiary value of the prosecution witnesses. In this context we may profitably place reliance on the two decisions of Supreme Court Munshi Prasad and others (supra) and State of Haryana (supra). ( 25. ) It is well settled in law that the defence of the accused should be based on preponderance of probability and if the defence is found to be probable, due weightage should be given to it and the standard of its proof should not be compared with that of the prosecution where the prosecution is obliged to prove its case beyond reasonable doubt. In this context we may profitably place reliance on the decisions of Supreme Court Punjabrao (Supra), V Venkato Subbarao (sputa) and also M.S. Naruyana Menon alias Mani v. State of Kerala and another13. In the decision of M.S. Narayana Menon alias Mani (supra) it has been categorically held by the Apex Court that the onus of proof on accused is not that much heavy as that of prosecution and such onus should be compared with that of a defendant in civil proceeding. Hence, according to us, the defence which has been set up by the accused is based on preponderance of probability and learned Special Court committed error in not accepting the same. ( 26. ) The probable defence of giving loan to the complainant and the amount which was received by the appellant was towards the payment of his debt, has been confronted and put to the prosecution witnesses right from very beginning which we have discussed herein above in detail. ( 26. ) The probable defence of giving loan to the complainant and the amount which was received by the appellant was towards the payment of his debt, has been confronted and put to the prosecution witnesses right from very beginning which we have discussed herein above in detail. We would like to add further that on one side the probable defence set up by the appellant has been denied by the members of the investigating agency who were also the members of the trap party, but their cumulative evidence if weighed in comparison to the independent Panch witness R.C. Bansal (PW-7), we find that the credential value of the evidence of the independent Panch witness carries more weight in comparison to that of the departmental witnesses, because departmental witnesses in order to prove the success of the trap and the demand of bribe, would normally deny the suggestion of the accused put in defence. According to us, the independent and respected persons are being included in the trap party with uttermost object and purpose that since they are totally independent and respectable, therefore, the raid which shall be made would inspire confidence in the mind of the Court and the Court should not be left in dilemma or any kind of doubt as to whether any money was paid to the public servant by way of bribe or not. The Supreme Court in Raghbir Singh v. State of Punjab14 in Para 8 has drawn sufficient light in this regard and, therefore, according to us, the evidence of independent Panch witness R.C. Bansal carries more weightage and his evidence also corroborates the probable defence which the appellant has taken. ( 27. ) The demand of bribe made by the appellant has also not been proved from the statement of the shadow witnesses Head Constable Bhagwati Prasad Sharma and Constable Kammod Singh, because none of these witnesses had gone along with the complainant to overhear and to see that how and in what manner the transaction of bribe has taken place and they have failed to discharge their duty as a surveillance witness. The purpose of sending the surveillance witness along with the complainant is to overhear that how and in what manner the transaction of bribe is taken place and what actual words were spoken by the complainant at the time of giving the alleged bribe money and by the accused when he accepted the same. But, this type of evidence is totally lacking in the present case. The Supreme Court in Smt. Meena Balwant Hemke v. State of Maharashtra1 (Para 9) has held that the law has always favoured the presence and importance of shadow witness in the trap party not only to facilitate such witness to see, but also to overhear that what happens and how it happens. ( 28. ) According to us, even the shadow witnesses should be independent witnesses so that there should be a clear evidence and the Court should not remain in doubt that what actually transpired between the complainant and the accused when the alleged bribe money was handed over and further that how and in what manner it was handed over, because one of the reason is that the complainant is already prejudiced with the accused and the status of complainant is not better- than that of an accomplice and his evidence should be normally corroborated by the evidence of independent witnesses. True, under Section 133 of the Evidence Act the conviction of an accused on the testimony of an accomplice cannot be held to be bad in law, but according to Section 114 illustration (b) of the said Act, the Court will presume that an accomplice is unworthy of credit unless his evidence is corroborated on material particulars and, therefore, by keeping both the provisions in juxtaposition and reading together right from very beginning the law has developed that it would always be safer to have an independent corroboration of the statement of an accomplice. In this context there is a decision of Supreme Court Ram Prakash Arora v. The State of Punjab16 (Para 8), and a three Judge bench decision of Supreme Court Panalal Damodar Rathi v. State of Maharashtra17 (Para 9). There is one more decision on this point Darshan Lal v. The Delhi Administration.18 ( 29. In this context there is a decision of Supreme Court Ram Prakash Arora v. The State of Punjab16 (Para 8), and a three Judge bench decision of Supreme Court Panalal Damodar Rathi v. State of Maharashtra17 (Para 9). There is one more decision on this point Darshan Lal v. The Delhi Administration.18 ( 29. ) The demand of bribe made by appellant has not been proved from the testimony of the complainant Ashok Kumar Gupta (PW-9) and if his evidence is taken into consideration in proper perspective, it is gathered that nowhere in his statement he has stated that appellant made demand of bribe when he went to his home to handover the treated currency notes. According to this witness, when complainant met appellant in the police station, he directed him to come at his home and after some time appellant came to his home and asked "Nikal lo" (to give) and thereafter this witness took out the treated currency notes from his pocket and handed it over to the appellant which he dept on the upper pocket of his shirt. Nowhere the complainant is saying that appellant asked to give bribe nor we can infer it in absence of any evidence of complainant saying to the appellant that he has brought the amount of bribe or any amount which appellant demanded. We did not find any force in the contention of learned Public Prosecutor that if the appellant had received the money of bribe under the pretext of payment of loan, he could have received that money in the police station itself. We can infer that in the police station if the complainant would have given the money to the appellant, certainly his officers as well as other co-employees would see that he is taking some money from a third person and certain doubts might have crept in their mind about his integrity and at that juncture appellant would not be in a position to explain that he is obtaining the money of loan which he gave to the complainant and, therefore, if he had asked the complainant to come at the home for that purpose, there was nothing unnatural. Inside the home also, as we have discussed hereinabove, nowhere the complainant has said that he has brought the bribe money or the amount which has been demanded by the appellant. Inside the home also, as we have discussed hereinabove, nowhere the complainant has said that he has brought the bribe money or the amount which has been demanded by the appellant. Indeed, he said nothing and only appellant asked him to give the amount and. therefore, from the evidence of complainant also it is difficult to hold that any demand of bribe was made by the appellant from him. Since it is the defence of appellant that he accepted the money with an understanding that he is receiving the amount which he gave to the complainant towards loan and, therefore, certainly if the fingers of his were subjected to phenolphthalein powder test, its result would come in positive. ( 30. ) The question now would arise and as has been argued by learned Public Prosecutor that if appellant has obtained the money from the complainant towards the payment of loan, why complainant is deposing against him and, therefore, the only inference which can be drawn is that appellant was making demand of bribe in order to give the report in favour of complainant made by his brother Laxminarayan for which he was deputed to hold an enquiry by the Superintendent of Police. According to us, the said argument cannot be accepted because the another defence of appellant is that the complainant was insisting him to seize the guns from his brothers in respect of the case which was registered against them on the report of the complainant under Sections 323, 336 and 506 Of IPC, which was being investigated by this appellant only. But, he was not agreeing with the proposal of the complainant to seize the guns. But, he was not agreeing with the proposal of the complainant to seize the guns. This probable defence is also corroborated from the testimony of complainant (PW-9) himself and in this context his examination-in-chief may be seen in which this witness has specifically stated that his brothers Ramgopal, Laxminarayan, Harishankar and Sonu caused fire by gun on him and they are keeping enmity with him on the point of some land dispute and for this he lodged a report in police station Dinara on 20/2/2001 and, therefore, we can infer that because appellant was not accepting the proposal of the complainant to seize the guns from his brothers, therefore, it made annoyance to him and in order to teach a lesson, since he was required to repay the amount of loan to the appellant, he lodged a false complaint in the office of the Special Police Establishment. ( 31. ) The decisions placed reliance by learned Public Prosecutor for respondent are mostly that if the money has been recovered from the accused, the burden would be on the accused in terms of Section 20 of the Act to give proper explanation that how the bribe money has been recovered from him. In the present case the appellant himself is admitting that he accepted the money from the complainant and he has given explanation that why he has obtained the money. We have already held hereinabove that appellant accepted the money from the complainant under the pretext that he is receiving the money which he gave him on loan and the probable defence has also been proved by him by examining the complainants own brother-in-law Maniram (DW-1). ( 32. ) But, we would like to distinguish the cases which learned counsel for respondent has placed reliance. In M. Narsinga Rao (supra) on going through the factual aspect of the case stated in para 4 and 5, this Court finds that nothing was stated by the accused as soon as he was caught and in his statement under Section 313 of Cr.P.C the story of stuffing currency notes forcibly in the pocket was raised and in the that situation the Supreme Court held that legal presumption under Section 20 of the Act would be drawn. The decision of B. Noha (supra) is not applicable in the present case because there should be a voluntary demand and cautious acceptance of money by the accused. According to us, these words are having great significance because in the present case the voluntary demand of bribe was not made and the acceptance was under the pretext of receiving the loan amount. The decision of Baliram (supra) is also not applicable, it appears that in that case no defence was taken by the accused except of false implication and there was no occasion for him to make the demand of bribe, but the facts of the present case are altogether different. The decision of R. Jeevaratnam (supra) is also not applicable in the present factual scenario because in that case the accused went to take the bribe in the hotel where the complainant was present and the defence which was taken was that complainant might have kept the treated currency notes in the briefcase when he went to toilet, but in the present case the defence is altogether different and the specific defence we have already held hereinabove that appellant received the money with an understanding that he is receiving it towards the repayment of his loan. The decision of Girja Prasad (supra) is also not applicable in the present case because in that case in support of the defence the accused did not examine any witness, but in the present case the appellant examined the complainants own brother-in-law, who cannot be said to be in any manner in the clutches of the appellant, in order to provide that there was a loan transaction between the complainant and the appellant. The decision of Shambhu Dayal Nagar (supra) is also not applicable because the defence which was taken was altogether different and no such defence was taken that accused accepted the money under some pretext, but so far as the present case in hand is concerned, the situation is altogether different. The decision of Kanshi Ram (supra), no reasonable explanation was given by the accused that how the tinted currency notes came in his pocket. The decision of Kanshi Ram (supra), no reasonable explanation was given by the accused that how the tinted currency notes came in his pocket. The decision of Single Bench Ramkrishna Pandey (supra) is also not applicable because in that case the defence was taken by the accused that he has been falsely roped by his contemporary co- employees who did not want to get him promoted, which was not found to be probable. In these state of affairs we are of the view that all the cases which are placed reliance by learned counsel for the Public Prosecutor are distinguishable on facts also. ( 33. ) For the reasons stated hereinabove we are of the view that the charges under Sections. 7, 13(l)(d) read with Section 13(2) of the Act are not proved against the appellant and he is acquitted from those charges by setting aside the impugned judgment passed by learned Special Court convicting the appellant. The amount of fine, if deposited, be refunded to him. The appeal is accordingly allowed. Appeal allowed.