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2011 DIGILAW 12 (CHH)

Dataram Banjare v. State of Chhattisgarh

2011-01-14

M.M.SHRIVASTAVA

body2011
Judgment (1) This appeal is directed against the judgment of conviction and order of sentence dated 24th April, 2000 passed by learned Special Judge (Prevention of Cor ruption Act) and 1st Additional Sessions Judge, Raipur, in Special Case No. 59/1991, whereby and whereunder the learned trial Court, after holding the appellant guilty of commission of offence under Section 161 of the IPC and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as "the Act of 1947") has sentenced him to undergo R.I. for 1 year with fine of Rs. 1000/- and in default of payment of fine, S.I. for 3 months for each of the offences, directing both the sentences to run concurrently. (2) Case of the prosecution, in brief, is that the appellant while working as Panchayat Inspector in Block-Gourela, demanded illegal gratification of Rs. 150/- from complainant Jagatlal on 12-8-1986 and received said amount and thereby committed the offences punishable under ns 161 of the IPC and Section 5(1)(d) read with Section 5(2) of the Act of 1947. It is alleged that complainant Jagatlal, resident of village-Bharri had planted fish seeds in the pond situated in Gram Panchayat Gangpur and he had taken the said pond on lease from one Kumar Sahab. Later on, the land was brought under ceiling and the pond was handed-over to Gram Panchayat Gangpur. When complainant-Jagatlal met Sapanch, he assured that as he has planted fish seeds in the pond, the contract would be given to him only. But, he was cheated and the contract was given to one Kanhaiya Lal. Having come to know about the same, the complainant submitted an application in July, 1986 to the Collector, Bilaspur, Panchayat Officer, Bilaspur and to the appellant-Panchayat Inspector, Gourela. The appellant-D.R. Banjare, Panchayat Inspector was entrusted with the enquiry. According to the complainant, initially the appellant/accused, recovered Rs. 50/- from him but no enquiry was made and when the complainant again met the appellant, he said that he will conduct enquiry only when complainant gives Rs. 150/-, whereafter, the complainant submitted a report, Ex. P-2, in the office of DSP (Vigilance), who instructed Investigating Officer N. K. Heeradhar to arrange trap proceedings. Thereafter, Inspector N. K. Heeradhar called witnesses and the complaint was read over to them. Thereafter, the currency notes of Rs. 150/-, whereafter, the complainant submitted a report, Ex. P-2, in the office of DSP (Vigilance), who instructed Investigating Officer N. K. Heeradhar to arrange trap proceedings. Thereafter, Inspector N. K. Heeradhar called witnesses and the complaint was read over to them. Thereafter, the currency notes of Rs. 150/- were taken from the complainant and phenolphthalein powder was smeared on it and thereafter, given to the complainant. Numbers of notes were recorded and kept in his pocket with instructions not to touch them. Pre-trap demonstration proceedings were also drawn and the entire proceedings were recorded in pre-trap panchnama, Ex. P-3. Thereafter, the trap team along with the complainant proceeded to Gourela by train and after having reached there, it is alleged that the complainant went to the office of the appellant where he handed over the money and thereafter, the trap team arrived at the spot. At the instance of the appellant, the bribed money i.e. Rs. 150/- was recovered from under the table cloth of his office table. The same was seized vide Ex. P-4. Proceedings register of Gangpur along with other documents relating to demand of enquiry and statement relating to enquiry in the matter of the complaint concerning award of contract of pond were seized vide Ex. P-5. Panchnama of trap was prepared vide Ex. P-6. Map of the spot was prepared in Ex. P-10. Some other currency notes kept with the appellant was also seized vide Ex. P-11 and dehati nalishi was also recorded in Ex. P-12. FIR was lodged in Ex. P-13 alleging commission of offence under Section 161 of IPC and Section 5(l)(d) read with Section 5(2) of the Act against the appellant in the Special Police Establishment. Seized articles, which included hand wash alleged to be sealed in separate bottles at different stages of trap proceedings along with other articles including currency notes were sent for examination to Forensic Science Laboratory (FSL) vide Ex. P-14 and the expert opinion was sent by FSL to Superintendent of Special Police Establishment, Lokayukt, Bilaspur vide Ex. P-15. On the basis of material, sanction for prosecuting the appellant for alleged commission of offence under Sections 161, IPC and Section 5(l)(d) read with Section 5(2) of the Act of 1947 was granted by the State of M.P. vide its order dated 2-5-1990 (Ex. P-1). P-15. On the basis of material, sanction for prosecuting the appellant for alleged commission of offence under Sections 161, IPC and Section 5(l)(d) read with Section 5(2) of the Act of 1947 was granted by the State of M.P. vide its order dated 2-5-1990 (Ex. P-1). After completing usual investigation, which included the case diary statements of prosecution witnesses, charge-sheet was filed on 31-8-1990 before Sessions Judge, Bilaspur, whereafter the records were transferred to the Court of Special Judge (1st Additional Sessions Judge), Raipur for disposal according to law. (3) INITIALLY on 26-10-1991, the Special Judge framed charge for commission of offence under Sections 161, IPC and Section 5(2) of the Prevention of Corruption Act. Later on, vide order dated 7-5-1993, the charges were altered to offence under Sections 7, 13, 1(d), 13 (2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the Act of 1988"). After examination of some of the prosecution witnesses, vide order dated 15-7-1999, the trial Court again altered the charges and instead of charges under Section 7 and 13(1)(d) read with Section 13(2) of the Act of 1988, charges were altered to Section 161 of IPC and Section 5(l)(d) read with Section 5(2) of the Act of 1947. The appellant abjured the guilt. (4) IN order to prove its case, the prosecution examined Chatur Singh (P.W. 1), D. N. Bille (P.W. 2), R. R. Thakur (P.W. 3), Shankar Prasad Tiwari (P.W. 4), Gangaram Gond (P.W 5), H. N. Shukla (P.W. 6), P.D. Bhatt (P.W 7), Jagatlal (P.W. 8), the complainant, Satyaprakash Ojha (P.W. 9) and N. K. Heeradhar (P.W. 10) and produced as many as 15 documents exhibited as Ex. P-1 to Ex. P-15 to prove the charges against the appellant. In his examination under Section 313 of Cr. P.C., the appellant denied the circumstances and incriminating evidence appearing against him and stated that while he was working as Inspector in Janpad Panchayat Gourela, he received a complaint of Jagatlal for enquiry. He had taken statement of Sarpanch, Jagatlal and Kanhaiyalal, but the enquiry was being delayed as the relevant information register of Gram-Panchayat was not being made available in spite of repeated demand. He further stated that on 12-8-1986, when he was sitting in his office and discussing official matters with Sukhmat, Gangaram and Shanker Tiwari, the Lokayut people reached and caught hold of him. He further stated that on 12-8-1986, when he was sitting in his office and discussing official matters with Sukhmat, Gangaram and Shanker Tiwari, the Lokayut people reached and caught hold of him. When he was searched, money was not recovered from him. Thereafter, the complainant was searched and from his possession money was recovered, which was shown to have been recovered and seizure made as having been recovered from under the table. He did not demand any bribe from Jagatlal nor received any money. He was not required to give any report to Jagatlal. Report was to be submitted to the Sub Divisional Officer. He stated that he is innocent and has been falsely implicated. To impeach the credibility of the prosecution case, the appellant examined Bhosal Singh as D.W. 1 as the solitary defence witness and also produced as many as 6 documents from Ex. D-1 to D-6. (5) Learned trial Court by impugned judgment dated 24-4-2000 has held the appellant guilty of commission of offence under Section 161, IPC and Section 5(1)(d) read with Section 15(2) of the Act of 1947 and imposed sentences as mentioned in paragraph 1 of the judgment. (6) The learned senior counsel for the appellant raised manifold contentions and submitted that the impugned judgment and conviction and order of sentence is not sustainable in law. His first and foremost contention raised is that the offence is alleged to have been committed on the date when the Prevention of Corruption Act, 1947 was in force, whereas, charge-sheet was filed in the Court of Sessions Judge, which was in turn, transferred to the Special Court at Raipur, constituted under the new Act namely the Prevention of Corruption Act, 1988, which had no jurisdiction to try the offence alleged to be committed under the Act of 1947. Learned counsel for the appellant submitted that in respect of the offenses committed under the Act of 1947, by virtue of the provisions contained in Criminal Law Amendment Act, 1952 (hereinafter referred to as "the Act of 1952"), Special Courts were constituted. The earlier Act i.e. the Act of 1947 as well as the Act of 1952 both were repealed by the new Act and the jurisdiction of the Special Judge constituted under the Act of 1952 was saved only in respect of the pending cases. The earlier Act i.e. the Act of 1947 as well as the Act of 1952 both were repealed by the new Act and the jurisdiction of the Special Judge constituted under the Act of 1952 was saved only in respect of the pending cases. It is further submitted that the Special Judge constituted under the provision contained in Section 3 of the Act of 1988 are empowered to try the offences punishable under the Act of 1988 and had no jurisdiction to try offenses alleged to have been committed under the Act of 1947. It has been vehemently submitted that as the new Act i.e. the Act of 1988 came into force w.e.f. 19-9-1988 which repealed earlier Act of 1947, neither the Special Courts constituted under the Act of 1952 nor Special Court constituted under Section 3 of the Act of 1988 had jurisdiction to try the offence and therefore, the alleged offence could be tried only by a Court of competent Magistrate as provided under the Code of Criminal Procedure. Learned counsel for the appellant submitted that as this aspect goes to the root of the matter, the issue regarding jurisdiction of the Court to try the offence, even though, it has been not specifically raised during the course of trial, is being raised for the first time before this Court in the appeal, which is permissible under the law in view of the judgment of Supreme Court in the case of B. C. Goswami v. Delhi Administration, AIR 1973 SC 1457. In addition to the aforesaid submission relating to the jurisdiction and competence of the Special Judge to try the offence and convict the appellant under the impugned judgment of conviction and order of sentence, learned Sr. counsel has made elaborate submissions on the merits of the case as well. Learned counsel for the appellant contended that the prosecution has failed to prove beyond reasonable doubt, demand, acceptance or recovery of illegal gratification and in the absence of which, the conviction of the appellant is unsustainable in law. Elaborating his submissions on the aspect of demand, learned counsel for the appellant argued that the contents of the compliant (Ex. P-2) tested on the evidence of the complainant-Jagatlal (P.W. 8) and the attending circumstances, disclosed and proved by the prosecution witnesses, do not inspire confidence in view of the material and inherent contradictions with regard to the motive. Elaborating his submissions on the aspect of demand, learned counsel for the appellant argued that the contents of the compliant (Ex. P-2) tested on the evidence of the complainant-Jagatlal (P.W. 8) and the attending circumstances, disclosed and proved by the prosecution witnesses, do not inspire confidence in view of the material and inherent contradictions with regard to the motive. It is argued that the complainant is an accomplice and looking to the degree of complicity, as he says that in the past, he had given Rs. 50/-, in the absence of any corroboration, coupled with the serious contradictions with regard to motive behind such demand, the demand itself is rendered doubtful. (7) Learned counsel for the appellant then contended that the prosecution has utterly failed to prove acceptance as there is serious contradiction with regard to the manner in which and the place at which the bribed money is stated to have been given to the appellant by the complainant. Learned counsel for the appellant argued that the testimony of independent panch witnesses is not at all corroborated by the testimony of other witnesses including the complainant with regard to the place where bribed money was given to the appellant. He further submitted that there are two sets of prosecution evidence in respect of the entire episode of trap, running completely contrary to each other and one excluding the other. He argued that the entire case of the prosecution falls to the ground in view of repeated statement of the complainant Jagatlal (RW. 8) in his deposition that the money was given to the appellant, 20 days after the date on which complaint (Ex. P-2) was submitted, whereas according to the case of the prosecution, complaint (Ex. P-2) was submitted on 12-8-1986 and on that date itself, the trap was arranged and money is alleged to have been given and then recovered from the appellant in the block office at Gourela. Learned counsel for the appellant argued that if the money was not given on the date, trap is alleged to have been laid, and the money is said to be recovered, a grave doubt is created and entire case of the prosecution becomes highly doubtful. (8) IT is next urged that the prosecution has completely failed to prove recovery either from the appellant or from at his instance. (8) IT is next urged that the prosecution has completely failed to prove recovery either from the appellant or from at his instance. Learned counsel for the appellant argued that even according to the prosecution, the currency notes was recovered from under the table cloth of the table and not from the possession of the appellant. He submitted that the complainant says that the currency notes was recovered from the pocket of the appellant, whereas independent panch witnesses gave altogether different story of the place wherefrom it was recovered. Further submission of learned counsel for the appellant is that in the absence of any memorandum of recovery recorded by the investigating officer, case of the prosecution that the bribed money was recovered at the instance of the appellant itself becomes doubtful and could not be accepted. According to learned counsel for the appellant, the evidence led by the prosecution is highly contradictory on all material aspects, therefore, neither demand nor acceptance is proved therefore, the appellant could not be convicted only on the basis of positive nature of colour test of phenolphthalein solution, particularly when the seized articles including seized sealed bottles and bribed money were not produced during course of trial inspite of specific directions of the Court and the articles produced under the case number were found relating to some other case of trap and thus, in a case of false implication, as the complainant had an axe to grind with, particularly when the complainant himself stated that the money was paid 20 days after the date on which the complaint was made and trap was arranged and money alleged to be recovered by the prosecution. IT is lastly submitted that even if it is found that the appellant is guilty of commission of offence, considering the fact that at the time of alleged commission of offence the appellant was 30 years old and has undergone agony of trial and the matter is almost 24 years old, considering the amount which is alleged to have been given in bribe and in the totality of the circumstance, the sentence of imprisonment is liable to be reduced. In support of his submissions, learned counsel for the appellant relied upon in the cases of T. M. Joseph v. State of Kerala, 1993 Suppl. In support of his submissions, learned counsel for the appellant relied upon in the cases of T. M. Joseph v. State of Kerala, 1993 Suppl. (1) SCC 465 : (AIR 1992 SC 1922); Ramesh Gupta v. State of M. P., (1995) 5 SCC 320 : (AIR 1995 SC 2121); Aditya Nath Pandey v. State of U.P., (2000) 9 SCC 206 and State of Maharashtra v. Rashid Babubhai Mulani, 2006 AIR SCW 162 : (AIR 2006 SC 825). . On the other hand, learned counsel for the State supported the impugned judgment of conviction and order of sentence and raised a preliminary objection with regard to the first contention regarding jurisdiction by submitting that such an objection relating to jurisdiction was not raised all through during the trial and therefore, such an objection could not be taken at the stage of appeal during the course of argument. Learned counsel for the State submitted that the Special Judge constituted under Section 3 of the Act of 1988 had jurisdiction to try offense alleged to have been committed when the Act of 1947 was in force in cases where challan is filed after completion of investigation, after coming into force of the new Act i.e. the Act of 1988. He further submitted that the aforesaid technical argument is liable to be rejected as the appellant has failed to show any prejudice caused to him. It is then submitted that in so far as demand is concerned, the complainant Jagatlal (P.W. 8) has clearly proved that the appellant had demanded Rs. 150/- from him for giving him report in the matter of enquiry on his compliant regarding award of contract of fishing. Learned counsel for the appellant submitted that false implication, as his defence, is not proved from the evidence on record or from any other circumstances established from the evidence on record. He further submits that the evidence of complainant is natural and coherent and does not suffer from any material contradiction or omissions so as to disbelieve his statement regarding demand of bribe by the appellant. It is proved from the circumstances and documents seized during the course of investigation that the appellant was holding enquiry on the complaint made by the complainant. It is proved from the circumstances and documents seized during the course of investigation that the appellant was holding enquiry on the complaint made by the complainant. It is also submitted that the independent panch witnesses R.R. Thakur (P.W. 3) has clearly stated that the appellant received the money from the complainant which is supported by the testimony of N. K. Heeradhar (P.W. 10), the investigating officer. Therefore in his submission, even if the complainant and another witness have given a little different version, the exact place where the money was tendered, the same is not so serious contradiction as to completely dislodge the case of the prosecution. He further submits that the money was recovered at the spot on the signal given by the complainant and it was found on the office table of the appellant which is proved by the witnesses. His submission is that the colour test having turned positive clearly shows that bribed money had come in the hands of the appellant, leaving traces of phenolphthalein, on account of which, when his fingers were dipped in the solution of sodium carbonate, the same turned pink. Learned counsel for the State submits that this is a clinching evidence which clearly connects and proves beyond reasonable doubt that the appellant had accepted the bribe from the complainant and therefore, notwithstanding minor contradictioins and omissions, the evidence of demand and acceptance of recovery prove beyond all reasonable doubt, commission of offence by the appellant. Learned counsel for the State relied upon the decision in the cases of M.O. Shamsudhin v. State of Kerala, 1995 (3) SCC 351 : (1995 AIR SCW 2717); Central Bureau of Investigation v. Subodh Kumar Datta, (AIR 1997 SC 869) Aran Ku. Pandey v. State of M.P. decided on 16-6-2010 in Cr. A. No. 159/1997, Ghunnu Ram Gavade v. State of Madhya Pradesh, 2009 (73) AIC 366 (C.G.H.C.). (9) I have considered the rival submissions made by learned counsel for the parties and perused the records. (10) Before dealing with the first submission of learned counsel for the appellant relating to the competence and jurisdiction of the Special Judge to try the offence, the preliminary submission of learned counsel for the State that the issue could not be raised for the first time before this Court in appeal is required to be dealt with. (10) Before dealing with the first submission of learned counsel for the appellant relating to the competence and jurisdiction of the Special Judge to try the offence, the preliminary submission of learned counsel for the State that the issue could not be raised for the first time before this Court in appeal is required to be dealt with. True it is, that such an objection with regard to the jurisdiction and competence of the Special Judge, who tried the appellant for alleged commission of offence, was not specifically raised for consideration of the learned trial Court and from the judgment of learned trial Court also, it is not reflected that any such objection was raised, yet, since the objection relates to a pure question of law and goes to the root of the matter as it relates to the very jurisdiction of the Court which tried the offence, in my opinion, the objection does not merit acceptance. In the case of B.C. Goswami (AIR 1973 SC 1457) (supra), an argument was raised, though for the first time, in the Supreme Court that the statutory presumption under Section 51(d) of the Act was not available. The same was allowed to be raised and was, in fact, considered on merits and it was held as under : "8.......No doubt, this point was not raised in the Courts below and it also escaped the attention both of the Special Judge and the High Court. The decision in R. C. Mehta v. State of Punjab1 was apparently not brought to the notice of the Courts below. But being a question of pure law which goes to the root of the matter relating to the appellant's conviction under Section 5(l)(d) and Section 5(2) of the Prevention of Corruption Act, this Court would be fully justified in taking notice of this argument." ............. The reliance placed on the decision of this Court in the case of Arun Kumar Pandey (supra) is misconceived as in that case, this Court, applying the principles laid down in the case of M. W. Mohiuddin v. State of Maharashtra (1995) 3 SCC 567 found that though the issue was raised for the first time, serious prejudice was caused and the matter related to violation of constitutional guarantee. That decision is not an authority for the proposition that under no circumstances, an objection relating to jurisdiction and competence of the Court to try the offence could be raised unless it was raised at the first instance before the trial Court. The other decision rendered in the case of Ghunnu Ram Gawade (supra) is also not applicable and is distinguishable on facts as the issue relating to irregularity in investigation had croppedup for consideration and in the peculiar facts and circumstances of the said case, it was held that as the alleged irregularity could not be said to have caused any prejudice, trial would not be vitiated. The prejudice based argument has no application in the case as the appellant has raised a very basic issue which goes to the root of the matter and therefore, applying the principles laid down by the Supreme Court in the case of B. C. Goswami (AIR 1973 SC 1457) (supra), the objection cannot be sustained. (11) The edifice of the submissions relating to competence of the jurisdiction of the Special Court to try the offence in the present case rests on the twins submissions, firstly that the jurisdiction of the Special Judge constituted under the Act of 1952 is saved only in respect of pending proceedings as provided under Section 26 of the Act of 1988 and, secondly that the Special Courts constituted under Section 3 of the Act of 1988 would have jurisdition to try the offences committed under the Act of 1988. In the considered opinion of this Court, the issue is no longer res-integra and has been conclusively determined and set at rest by the Supreme Court in its judgment in the cae of Nar Bahadur Bhandari v. State of Sikkim (1998) 5 SCC 39 : (AIR 1998 SC 2203), therein the cases were registered by the CBI on 26-5-1954 and 7-8-1984 under Section 5(2) read with Section 5(1)(e) and Section 5(2) read with Section 5(1)(d) of the Act of 1947. On 14-9- 1994, CBI filed report before the Special Judge and Special Judge framed charges on 11-8-1995 that the accused had committed the offence punishable under Section 5(2) read with Section 5(1)(e) of the Act of 1947 corresponding to Section 13(2) read with Section 13(1)(e) of the Act of 1988. On 14-9- 1994, CBI filed report before the Special Judge and Special Judge framed charges on 11-8-1995 that the accused had committed the offence punishable under Section 5(2) read with Section 5(1)(e) of the Act of 1947 corresponding to Section 13(2) read with Section 13(1)(e) of the Act of 1988. On preliminary objection raised as to the competence of the Special Judge to try the offence, the same was upheld. In a criminal revision field by the State and the CBI before the trial Court, the same was allowed holding that the Special Judge appointed under Section 3 of the Act of 1988 had jurisdiction to entertain the charge-sheet filed under the provision of the Act of 1988 with regard to the offences committed under the Act of 1947. The matter was taken to the Supreme Court. The issue relating to competence of the Special Judge, appointed under Section 3 of the Act of 1988 to try the offence alleged to have been committed under the repealed Prevention of Corruption Act, 1947 was set at rest by the Supreme Court by holding as under: "10. The contentions urged on behalf of the petitioners are based on a wrong understanding of the provisions of the Act of 1988. No doubt, Section 3 of the said Act refers only to offences punishable under the Act and the Special Courts constituted under Section 3 will have jurisdiction to try the offences punishable under the Act but Section 3 cannot be read in isolation. It should be read along with other provisions of the Act to understand the scope thereof. Section 30(1) of the Act of 1988 repeals the Acts of 1947 and 1952. That does not mean that any offence which was committed under the Act of 1947 would cease to be triable after the repeal of the said Act. Normally Section 6 of the General Clauses Act would come into play and enable the continuation of the proceedings including investigation as if the repealing Act had not been passed. As per the provisions of Section 6 of the General Clauses Act the position will be as if the Act of 1947 continues to be in force for the purpose of trying the offence within the meaning of the said Act. As per the provisions of Section 6 of the General Clauses Act the position will be as if the Act of 1947 continues to be in force for the purpose of trying the offence within the meaning of the said Act. Section 6 of the General Clauses Act however makes it clear that the said position will not obtain if a different intention appears in the repealing Act. In the present case, the Act of 1988 is the repealing Act. Sub-section (2) of Section 30 reads as follows : "30.(2) Notwithstanding such repeal, but without prejudice to the application of Section 6 of the General Clauses Act, 1897 (10 of 1897), anything done or any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall, insofar as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provision of this Act." "The said sub-section while on the one hand ensures that the application of Section 6 of the General Clauses Act is not prejudiced, on the other it expresses a different intention as contemplated by the said Section 6. The last part of the above sub-section introduces a legal fiction whereby anything done or action taken under or in pursuance of the Act of 1947 shall be deemed to have been done or taken under or in pursuance of the corresponding provisions of the Act of 1988. That is, the fiction is to the effect that the Act of 1988 had come into force when such thing was done or action was taken." The Supreme Court also relied upon its earlier decision in the case of CBI v. Subodh Kumar Datta : (AIR 1997 SC 869) (supra). Therefore, in view of the aforesaid decision of the Supreme Court, it is difficult for this Court to uphold the contention of learned counsel for the appellant that the Special Court constituted under Section 3 of the Act of 1988 had no jurisdiction or competence to try the offence as alleged in the present case. (12) I shall now advert to other submissions on merits made by learned counsel for the appellant that the prosecution has failed to prove its case beyond reasonable doubt in so far as demand, acceptance and recovery of bribe are concerned. (12) I shall now advert to other submissions on merits made by learned counsel for the appellant that the prosecution has failed to prove its case beyond reasonable doubt in so far as demand, acceptance and recovery of bribe are concerned. Before examining the evidence in this regard, led by the prosecution as well as by the appellant and examining various circumstances, it would be profitable to take it to consideration the principles which have been laid down by the Supreme Court in the matter of appreciation of evidence of complainant in a bribery case and the need for corroboration. In the case of Panalal Damodar Rathi v. State of Maharashtra, AIR 1979 SC 1191 the Supreme Court observed as under : "8. There could be no doubt that the evidence of the complainant should be corroborated in material particulars. After introduction of Section 165-A of the Indian Penal Code making the person who offers bribe guilty of abetment of bribery, the complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon......" The status of person offering bribe and the caution required while assessing his evidence implicating a Govt. servant was examined by the Supreme Court in its subsequent decision in the case of M.O. Shamsudhin : (1995 AIR SCW 2717) (supra), wherein, it was held as under : "12. Now confining ourselves to the case of bribery it is generally accepted that the person offering a bribe to a public officer is in the nature of an accomplice in the offence of accepting illegal gratification but the nature of corroboration required in such a case should not be subjected to the same rigorous tests which are generally applied to a case of an approver. Though bribe-givers are generally treated to be in the nature of accomplices but among them there are various types and gradations. In cases under the Prevention of Corruption Act the complainant is the person who gives the bribe in a technical and legal sense because in every trap case wherever the complaint is filed there must be a person who has to give money to the accused which in fact is the bribe money which is demanded and without such a giving the trap cannot succeed. When there is such a demand by the public servant from a person who is unwilling, and if to do public good approaches the authorities and lodges a complaint, then in order that the trap succeeds he has to give the money. There could be another type of bribe-giver who is always willing to give money in order to get his work done and having got the work done he may 1 send a complaint. Here he is a particeps crimins in respect of the crime committed and 1 thus is an accomplice. Thus there are grades and grades of accomplices and therefore a distinction could as well be drawn between cases where a person offers a bribe to achieve his own purpose and where one is forced to offer bribe under a threat of loss or harm that is to say under coercion. A person who falls in this category and who becomes a party for laying a trap stands on a different footing because he is only a victim of threat or coercion to which he was subjected to. Where such witnesses fall under the category of 'accomplices' by reason of their being bribegivers, in the first instance, the Court has to consider the degree of complicity and then look for corroboration if necessary as a rale of prudence. The extent and nature of corroboration that may be needed in a case may vary having regard to the facts and circumstances." What therefore, emerges from the principles enunciated by the Supreme Court is that the complainant's evidence has to be scrutinized carefully and the Court has to consider the degree of complicity and then look for corroboration, if necessary, as a rule of prudence. The extent and nature of corroboration that may be needed in a case, may vary, having regard to the facts and circumstances. Evidence on record led by the prosecution, as also by the defence, therefore, is required to be scrutinized in order to find out as to whether the prosecution has been able to prove beyond reasonable doubt the demand, acceptance and recovery. Evidence on record led by the prosecution, as also by the defence, therefore, is required to be scrutinized in order to find out as to whether the prosecution has been able to prove beyond reasonable doubt the demand, acceptance and recovery. The appellant being a public servant and posted as Panchayat Inspector in Block Office at Gourela, and that the State Government granted sanction for prosecution vide Annexure P-1 has been proved by the prosecution by placing on record the order dated 20-5-1985, by which the appellant was transferred and posted in Block-Gourela, Distt. Bilaspur, which has been proved by P.D. Bhatt (P.W. 7), who was posted at the time as Divisional Dy. Director, Panchayat and Samaj Seva, Bilaspur Division, who had issued the transfer order. Sanction for prosecution granted by State Govt. vide order dated 2-5-1990 of Under Secretary, Department of Law and Legislative Affairs, Govt, of M.P. has been filed as Annexure P-1 and proved by D. N. Bille (P.W. 2) that such an order was issued from the Department of Law and Legislative Affairs, Govt of M.P. according sanction for prosecution of the appellant. Otherwise also, it has not been disputed by the appellant. (13) THE complainant Jagatlal (P.W. 8) who is said to have submitted the complaint on 12-8-1986 in the Vigilance Office at Bilaspur, states in his complaint that he planted fish seeds in the pond belonging to one Kumar Sahab. Later on, the pond was brought under the ceiling and handed over to Gangpur Panchayat. It is also stated in the complaint that Sarpanch, though assured the complainant that contract would be awarded to him as he has planted seeds, the Sarpanch cheated and awarded the contract to one Kanhaiyalal, whereafter complainant made application to the Collector, Bilaspur, Panchayat Inspector, Gourela, Panchayat Officer, Bilaspur in the month of July. It is further stated in the complaint that when he met the appellant in the month of July and requested for enquiry, Rs. 50/- was taken from him for holding enquiry and no enquiry was conducted. THEreafter, he again met the appellant, upon which, the appellant stated that he will conduct the enquiry only when he is paid Rs. 150/-. Thus, what compliant states is that the appellant had taken Rs. 50/-, but no enquiry was made and then money was demanded for holding enquiry. THEreafter, he again met the appellant, upon which, the appellant stated that he will conduct the enquiry only when he is paid Rs. 150/-. Thus, what compliant states is that the appellant had taken Rs. 50/-, but no enquiry was made and then money was demanded for holding enquiry. However, in his testimony, Jagatlal (P.W. 8) says that the appellant had conducted an enquiry and had taken Rs. 50/- as fees and thereafter, he was called to pay Rs. 150/- by saying that upon such money being paid, report would be prepared. Further, in paragraph 11 of his cross-examination, he says that after taking his application, the appellant had demanded Rs. 50/- as fees and was asked to come with Rs. 150/-, then he will write the report. In paragraph 16 of his cross-examination, complainant says that he had given Rs. 50/-, thereafter, the appellant held an enquiry. He has further stated in his deposition that his statement in complaint (Ex. P- 2) that the appellant did not hold any enquiry is not correct but he has deposed that the appellant held an enquiry is correct. In paragraph 17 of his cross-examination, he has stated that the appellant did not say that he will hold enquiry without Rs. 150/- paid to him. On specific question put to him, he answered by saying that the appellant stated that if he gives Rs. 150/-, the appellant would give a report against Kanhaiyalal. It would thus be seen that there is a material contradiction in his testimony an his compliant is not corroborated on the aspect as to for what purposes, the money was demanded. Though, in the complaint, it is stated that money was demanded for holding enquiry, in the Court statement, he states that after receiving Rs. 50/-, the enquiry was made, but Rs. 150/- was demanded for giving report adverse to Kanhaiyalal. In paragraph 13, he states that in his complaint (Ex. P-2), he has scored-out at different places as stated by the vigilance officer. In answer to a question, it has been stated in paragraph 15 that he had written the name of Collector and Panchayat Adhikari as directed by an officer in the vigilance office. In paragraph 13, he states that in his complaint (Ex. P-2), he has scored-out at different places as stated by the vigilance officer. In answer to a question, it has been stated in paragraph 15 that he had written the name of Collector and Panchayat Adhikari as directed by an officer in the vigilance office. In paragraph 16, he states that the fact regarding no enquiry being made by the appellant is not correct and stated that the statement which marked as from $ to $ in his compliant (Ex. P-2), is written under the direction of officer of vigilance office. In paragraph 18, he has again stated that the fact from $ to $ had been written in the compliant (Ex. P-2) under the instruction of vigilance office which is reproduce as under: (Vernacular matter omitted....Ed.) (14) IN the entire complaint, the aforesaid statement alone makes an allegation of demand of bribe of Rs. 150/- which the complainant states as having been written on the instructions of the vigilance officer. He again states that he did not tell the vigilance officer that he stated himself to be a poor man and expressed inability to pay Rs. 150/- at one time and that he will give it in installments. It thus throws a grave doubt on the geneuineness of the complaint. Rather it appears to be a case where complaint was got prepared on the instructions of the vigilance office, most important being the allegation of demand and the motive for such demand. Though the complaint states that the complainant was aggrieved as no enquiry was conducted on his report, complainant himself has deposed that on his complaint, the appellant had gone for enquiry and some enquiry was conducted. The time at which the complainant states to have approached the vigilance office, is said to be at about 10.00 to 11.00 p.m. in the night, whereas, same is reported as having been received at 9.00 a.m. in the morning. He has stated in paragraph 12 of his cross-examination that when he reached the office without written application and made oral report, it was not written by the vigilance office and he was asked to write the complaint and give, whereafter he stayed outside the vigilance office and wrote the report and then submitted by writing as "12-8-1986". He has stated in paragraph 12 of his cross-examination that when he reached the office without written application and made oral report, it was not written by the vigilance office and he was asked to write the complaint and give, whereafter he stayed outside the vigilance office and wrote the report and then submitted by writing as "12-8-1986". Though, he deposes that he had stayed overnight in the vigilance office and submitted the application next morning, they story appears to be quite doubtful as no other prosecution witness, much less departmental witnesses or staff of vigilance office stated that the complainant was allowed to stay in the office overnight. N. K. Heeradhar (P.W. 10) in paragraph 11 of his cross-examination has stated that after seizing the records from the office of the appellant, he came to know that the appellant had recorded the statements of Koushal, Jagatlal and Kanhaiyalal and prepared a report. Therefore, the very basis of the compliant that the appellant was not conducting enquiry but demanding the money for conducting enquiry stands falsified and from the testimony of complainant Jagatlal (P.W. 8) and N. K. Heeradhar (P.W. 10), it is proved that the appellant had conducted an enquiry and recorded statements of various persons, including that of the complainant. Story regarding demand of bribe does not find any corroboration; on the other hand, it appears to be doubtful from other circumstances, particularly the manner in which the complaint was written under instructions from the vigilance office. As the most crucial statement of the complainant regarding demand of Rs. 150/- itself is admitted by the complainant to have been written under instructuions from the vigilance office, the very demand becomes doubtful. (15) IN order to prove acceptance of bribe, the prosecution has mainly relied upon the evidence of R. R. Thakur (P.W. 3), panch witnesses and the complainant Jagatlal (P.W. 8) and N. K. Heeradhar (P.W. 10), the investigating office. Panch witness R. R. Thakur (P.W. 3) has deposed that after he reached Pendra road Block Office along with Trap Team and while he was standing near the residence office of SDM, complainant came out from the office along with the appellant in the verandah and he saw the complainant giving money to the appellant. The complainant gave signal and then the appellant went inside his office. The complainant gave signal and then the appellant went inside his office. IN his cross-examination, he has stated that he was standing at about a distance of 70 to 75 ft. from the Block Office and he did not hear any conversation between the complainant and the appellant. He has also stated that two other employees were sitting in the office of the appellant. However, the complainant himself does not support this version and he gives altogether different story regarding the manner in which and the place where the money was allegedly given by him to the appellant. Complainant Jagatlal (P.W. 8) has stated that he went inside the office and when he reached, the appellant enquired about the money and demanded whereafter he took out the money from his pocket of his shirt and gave to the appellant, who counted the same and then went inside his office, whereupon the vigilance officer came inside the office. Contradiction with regard to manner in which the currency notes was given and the place where it was given is very material and cannot be ignored by treating it as minor contradiction, not affecting the credibility of the prosecution witnesses. According to the complainant, the money was given inside the office, whereas, according to the independent panch witness, the money was paid in the verandah which was seen by him from a distance of 70 to 75 ft. while standing inside the office. H. N. Shukla (P.W. 6) who had gone along with the Trap Team does not say that money was paid by the complainant in the verandah. His version has been that while he and other members of the Trap Team kept standing outside the office, complainant went inside the office and then gave signal therefore he does not support the story of panch witnesses with regard to the place and the manner in which the money was given. INvestigating Officer N. K. Heeradhar (P.W. 10), who was entrusted with the case to arrange trap and is an interested witness, states that after the complainant went inside the office, he came out along with the appellant, there was some conversation between them and then he gave the currency notes to the appellant and went inside the office. INvestigating Officer N. K. Heeradhar (P.W. 10), who was entrusted with the case to arrange trap and is an interested witness, states that after the complainant went inside the office, he came out along with the appellant, there was some conversation between them and then he gave the currency notes to the appellant and went inside the office. Thus, there is contradiction in the testimony of prosecution witnesses on very material aspect with regard to the place where the money was given by the complainant to the appellant. Moreover, the version of R. R. Thakur (P.W. 3) and N. K. Heeradhar (P.W. 10) that the complainant came out from the office of the appellant along with the appellant in verandah and gave him money is contradictory to what has been stated by Jagatlal (P.W. 8), who has stated that after giving the money to the appellant in his office, he stayed in one corner of the office itself. Thus, according to him he did not go out or gave any signal. According to him; after he gave money to the appellant and stayed inside the office, the vigilance people entered the office. Shankar Prasad (P.W. 4) has stated that while he was sitting in the office of the appellant, the vigilance officer entered the office and caught hold of the appellant. He further states that the appellant did not go out of the office along with any person. IN his cross-examination, he stated that he never gave any statement as written in his diary statement Ex. P- 7 to the effect that a boy came, along with whom, the appellant went outside the office in verandah and after some time came back to his chair. Gangaram (P.W. 5) says that when he was sitting in the office of the appellant, a boy came to call the appellant, but the appellant did not go outside and thereafter the police came in and caught hold of him. He stated in his cross-examination that he did no give any statement in Ex. P. 8, case diary statement, that the appellant went out of his office along with a boy and thereafter came back to his chair. He stated in his cross-examination that he did no give any statement in Ex. P. 8, case diary statement, that the appellant went out of his office along with a boy and thereafter came back to his chair. Thus, the version of R. R. Thakur (P.W. 3) and N. K. Heeradhar (P.W. 10) becomes highly doubtful in view of the testimony of other prosecution witnesses namely Shankar Prasad Tiwari (P.W. 4), Gangaram Gond (P.W. 5), H. N. Shukla (P.W. 6) and complainant-Jagatlal (P.W. 8). (16) THE complainant himself in his examination-in-chief states that he gave money to the appellant in the office and the other prosecution witnesses H. N. Shukla (P.W. 6) does not say that he saw the appellant coming out in verandah along with the complainant and accepted money, the version of the panch witnesses R. R. Thakur (P.W. 3) that he saw the complainant giving money and the appellant accepting money in verandah itself becomes doubtful. In fact the complainant himself has made contradictory statement with regard to the date of payment of money. In paragraph 4 of his testimony, he states that he went inside the office of the appellant and on demand, gave him bribed money which was counted by the appellant. This version means that the money was paid on the date the trap was laid by the vigilance team whereafter money is said to have been recovered from under the table cloth of the table of the office of the appellant. In paragraph 12 of his deposition, he stated in his cross-examination that he had gone to vigilance office 20 days before the date on which he had gone to pay money to the appellant, where he met the officer who asked him to give the complaint in writing and thereafter, he wrote the complainant in his own handwriting sitting outside the vigilance office. He further states that he mentioned 12-8-1986 as the date in the complaint (Ex. P-2). In paragraph 14 of his deposition, he reiterates that he had given the complaint (Ex. P-2) 20 days before the date on which he paid Rs. 150/- to the appellant. He has also stated that the date on which, the application was submitted, he gave currency notes of Rs. 150/- on which phenol-phthalein powder was smeared and the money was kept in his pocket and on that very date, he had come to Gourela. P-2) 20 days before the date on which he paid Rs. 150/- to the appellant. He has also stated that the date on which, the application was submitted, he gave currency notes of Rs. 150/- on which phenol-phthalein powder was smeared and the money was kept in his pocket and on that very date, he had come to Gourela. According to this statement of the complainant Jagatlal (P.W. 8), Rs. 150/- was given to the appellant, 20 days before the date of the complainant (Ex. P-2). Thus, according to the complainant, there was gap of 20 days between the date on which the complaint was made and the date on which the money was paid. Thus, the prosecution story that on the date complaint was submitted, the proceedings of trap was arranged and the appellant received Rs. 150/- and the said amount was recovered from his table become highly doubtful and false implication cannot be ruled-out. Even according to the case of the prosecution, the bribed money is said to be recovered from the table. According to the panch witnesses R.R. Thakur (P.W. 3), the money was recovered from under the table cloth of the table in the office. He has deposed that the money was not recovered from the pocket of the appellant. In his cross-examination he has stated that two other employees were sitting in the office of the appellant at the time when he along with other members of the trap team had gone inside the office of the appellant. H. N. Shukla (P.W. 6) also states that money was recovered from under the table cloth of the table and he further states that when he went inside the office, two other persons were siting, out of which, one was Gram Sevak and the other a clerk. Though complainant in paragraph 5 of his testimony has deposed that when the appellant was caught and was asked about the money, he stated that money is kept under the table and the appellant took out the money and gave it to the vigilance officer, in his cross-examination, he says that in the office of the appellant, some other persons were sitting and further states that upon search made, the money was recovered from the pocket of the shirt from the appellant, which was taken out by the accused himself. (17) ACCORDING to N. K. Heeradhar (P.W. 10), Rs.21.60/- was recovered from the shirt's pocket of the appellant and the bribed currency notes were recovered at the instance of the appellant from under the table cloth from the left corner of the table. It would thus be seen that on the point of recovery, there is serious contradiction in the version of the prosecution witnesses. R. R. Thakur (P.W. 3), H. N. Shukla (P.W. 6), Jagatlal (P.W. 8) and N. K. Heeradhar (P.W. 10). What creates more doubt with regard to the credibility of the prosecution story is that though R. R. Thakur (P.W. 3), H. N. Shukla (P.W. 6) Jagatlal (P.W. 8) have stated that at the time when trap was laid, in the vigilance office, other persons were sitting and H. N. Shukla (P.W. 6) states that one of them was Gram Sevak and other was Clerk, Shankar (P.W. 4), L.D.C. and Gangaram (P.W. 5), Village Assistant, have not supported the case of the prosecution regarding recovery of money from under the table cloth of the office table or from pocket of the shirt of the appellant. The doubt becomes grave as no memorandum of recovery has been prepared by investigating officer N. K. Heeradhar (P.W. 10) who has deposed that money was recovered from under the table cloth at the instance of the appellant. (18) LEARNED counsel for the State, however, vehemently contended that as the phenolphthalein test turned positive and the prosecution witnesses have deposed that when the fingers of the appellant were dipped in the solution of sodium carbonate, it turned pink, it is proved that the appellant had handled currency notes and therefore, it shall be presumed that the same was accepted as illegal gratification. Though at first blush, the arguments appears to be attractive, if the same is appreciated in the light of the entire evidence which has come on record and as discussed above, with regard to the very genuinenity of the complaint and alleged demand, acceptance and recovery, the submissions deserves to be rejected. The presumption under Section20 of the Act of 1988 would arise only upon proof of acceptance and not otherwise. The presumption under Section20 of the Act of 1988 would arise only upon proof of acceptance and not otherwise. In the case of V. Venkata Subbarao v. State represented by Inspector of Police, A. P. (2006) 13 SCC 305 : (AIR 2007 SC 489), it has been held that in order to prove the charges under Section 7, 13(l)(d) of the Prevention of Corruption Act, it is obligatory on the part of the prosecution to prove that the accused made any demand of bribe and the statutory presumption under Section 20 of the Prevention of Corruption Act that the accused has accepted the money towards bribe cannot be accepted unless and until it is proved that there was some motive or reward for which the demand of bribe was made and the demand of bribe is proved. In the case of T. Subramanian v. State of T. N. (2006) 1 SCC 401 : (AIR 2006 SC 836), it has been held that mere proof of receipt of money by the accused in absence of proof of demand and acceptance of money as illegal gratification would not be sufficient to establish the guilt of the accused. In the case of Sita Ram v. State of Rajasthan (1975) 2 SCC 227 : (AIR 1975 SC 1432), the Supreme Court held that when story of demand of bribe by the accused appellant from the complainant was not proved and even story of demand of money by the complainant was not established beyond reasonable doubt, the rule of presumption that the money was accepted as bribe could not be resorted in order to convict the accused. In the case of Suraj Mal v. State (Delhi Administration) AIR 1979 SC 1408, it has been held that in case of bribery, mere recovery of money divorced from the circumstances under which it is paid, it would not be sufficient to convict the accused when the substantive evidence in the case, is not reliable. In Jagdish Chandra Makhija v. State of Madhya Pradesh 1990 M. P. L. J. 239, it has been held that in a trap case when initial part of the story of demand and offer is found to be untrustworthy, testimony of the complainant cannot be accepted. In Jagdish Chandra Makhija v. State of Madhya Pradesh 1990 M. P. L. J. 239, it has been held that in a trap case when initial part of the story of demand and offer is found to be untrustworthy, testimony of the complainant cannot be accepted. (19) IN the case of A. Subair v. State of Kerala (2009) 6 SCC 587 : (2009 Cri LJ 3450 (SC)), it has been held that : "The legal position is no more res integra that primary requisite of an offence under Section 13(1)(d) of the Act is proof of a demand or request of valuable thing or pecuniary advantage from the public servant. IN other words, in the absence of proof of demand or request from the public servant for a valuable thing of pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established." "Mere recovery of currency notes (Rs. 20/- and Rs. 5/-) denomination, in the facts of the present case, by itself cannot be held to be proper or sufficient proof of the demand and acceptance of bribe. when the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence." (20) VIEW taken in the case of Suraj Mal (supra), was reiterated in the case of C. M. Girish Babu v. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779, holding that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of reliable evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. As an upshot of above discussions, the judgment of conviction and order of sentence dated 24th April, 2000 passed by the learned Court below is not sustainable in the eye of law and is liable to be set aside and the same is hereby set aside. (21) THE appeal is accordingly allowed and the appellant is acquitted of the charges. As the appellant is on bail, he need not surrender. Bail bonds stand discharged. Appeal allowed.