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2011 DIGILAW 5 (CHH)

Ashok Kumar Chandrakar v. State of C. G.

2011-01-07

MANINDRA MOHAN SHRIVASTAVA

body2011
JUDGMENT Manindra Mohan Shrivastava, J. 1. This appeal is directed against the judgment of conviction and order of sentence dated 29th March, 2005 passed by learned 1st Additional Sessions Judge, Durg, in Special Case No. 03/2003, whereby and whereunder the learned trial Court, after holding the Appellant guilty of commission of offence under Sections 7 & 13(1)(d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the Act of 1988") has sentenced him to undergo R.l. for 1 year with fine of Rs. 1000/- and in default of payment of fine, R.I. for one month for each of the offences, directing both the sentences to run concurrently. 2. Case of the prosecution, in brief, is that Nathlu Ram Kunjam made a complaint before Superintendent of Police, Lokayukt, Jagdalpur stating that he is resident of village Rajpur and that his father Kaliram was the President of Jul Upbhokta Sanstha, Sihari Nala No. 59017, Block- Narharpur. In the complaint, it was stated that Rs. 24,800/- was sanctioned in the yearly budget of 2001-02 for certain works and the aforesaid amount was received from Water Resources Department, (Canker and deposited in the Bank. On 25.8.2001, Jal Upbhokta Sanstha (for short "the Society") passed a resolution for repair work of sluice of the tank as also canal of Sihari Nala. It was stated in the complaint that the aforesaid Society got the work done in the month of October, 2001. In the complaint, it was alleged that when the complainant met Ashok, the present Appellant, for getting the valuation work done in the month of October, 2001 on the basis of vouchers and muster-rolls, the Appellant demanded a sum of Rs. 2,000/- for doing the work of valuation, which was given to the Appellant along with the muster-rolls and related documents relating to the work of repair. It is alleged that thereafter, the Appellant came to his house at village- Rajpur on 14.3.2002 and examined muster-rolls from 21st April to 26th April of the year 2001, but did not examine muster rolls for the period 27.4.2001 to 28.4.2001 & 18.9.2001 to 16.10.2001 and returned the same to the complainant in the presence of the father of the complainant namely- Kaliram Kunjam and one Ramesh. who were present in the house of the complainant on that day. It was alleged that the Appellant demanded an amount of Rs. who were present in the house of the complainant on that day. It was alleged that the Appellant demanded an amount of Rs. 3,000/- for making valuation of the work done in respect of the muster-roll for the period 27.4.2001 to 28.4.2001 & 18.9.2001 to 16.10.2001. The complainant and his father stated that they would arrange for money within one week, upon which, the Appellant told them to arrange for the money stating that he would again came to their house on 21.3.2002 and in case he is not able to come, then the money and muster-rolls be handed-over to him in his house at Ranker. 3. The application, which was submitted before the Superintendent of Police, Lokayukt, was made over to D.S.P.-Gandhi Joge (P.W.I3) for investigation, who, in turn, summoned two witnesses R. N. Kamdi & Awadesh Kumar Minj. who read the application and singed the same. Further case of the prosecution is that thereupon, the complainant produced currency notes of an amount of Rs. 3,000/- in the denomination of 100. The numbers of currency notes were noted down in the preliminary panchanama (pre-trap panchnama) and phenolphthalein powder was smeared on it by constable Bhuwan Mandal. The currency notes were kept in the left side pocket of the trouser of the complainant and he was instructed that he should not touch the currency and should hand over the currency notes to the Appellant on his demand. The panch witnesses were instructed to witness the incident and hear the conversation which takes place between the complainant and the Appellant. For the purposes of demonstration, solution of Sodium Carbonate was prepared and the fingers of Constable-Bhuwan were dipped, upon which, the colour of the solution turned pink, which was kept in a bottle and was sealed by a slip bearing signatures of the witnesses. On the basis of the complaint made, offence punishable under Section 7 of the Act of 1988 was registered against the Appellant under dehati nalishi No. 0/02 recorded by DSP Gandhi Joge. Head Constable Ramlal Gagesh prepared two samples. Pouches of sodium carbonate solution were kept and sealed in an envelope and a sample of seal was also prepared. Trap Team was constituted which comprised of complainant- Nathalu Ram, punch witnesses- R. N. Kamdi & Awadesh Kumar Minj, constable Lochan Singh, Head Constable- Ramlal and DSP Gandhi Joge. Head Constable Ramlal Gagesh prepared two samples. Pouches of sodium carbonate solution were kept and sealed in an envelope and a sample of seal was also prepared. Trap Team was constituted which comprised of complainant- Nathalu Ram, punch witnesses- R. N. Kamdi & Awadesh Kumar Minj, constable Lochan Singh, Head Constable- Ramlal and DSP Gandhi Joge. Before the Trap Team proceeded, hands of all the members of the Trap Team were dipped in the solution of sodium carbonate and there was no change. Box containing solution of sodium carbonate was kept in the trap box and a panchnama of pre-trap was thus prepared in Ex.P-6 by I.O.- Gandhi Joge. 4. After completion of pre-trap proceedings and drawing panchnma to that effect, the Trap Team proceeded to village -Rajpur on 20.3.2002 and they reached their at 1:00 O'clock in the night and waited for the arrival of the Appellant on 21.3.2002, but the Appellant did not come. Upon enquiry, Trap Team was informed that the Appellant stayed in his house at Kanker. In order to maintain secrecy, the members of Trap Team stayed in the house of the complainant and on next day i.e. 22.3.2002, they proceeded to Kanker. Before proceeding to Kanker, Head Constable-Ramlal Gangesh prepared solution of sodium carbonate and the hands of the members of the Trap Team were washed, upon which, there was no change. At 10:00 am, the Trap Party reached Kanker near the house of the complainant. Members of the Trap Party stayed outside the house of the Appellant to witness the acceptance of bribe and also hear conversation between the complainant and the Appellant. Complainant -Nathalu Ram went in the official residence of the Appellant and after about half an hour, he came out at 11:00 am and gave signal by scratching his head, whereafter, the two witnesses, departmental witnesses and investigating officer entered the house of the Appellant and gave him their introduction. Upon being enquired, the Appellant claimed ignorance regarding any bribe of Rs. 3,000/- given to him. The complainant then informed that when he was offering the amount to the Appellant, the Appellant did not receive and asked him to keep the money on the table and then as per the direction of the Appellant, the same was kept under the table above the newspaper kept therein. 5. 3,000/- given to him. The complainant then informed that when he was offering the amount to the Appellant, the Appellant did not receive and asked him to keep the money on the table and then as per the direction of the Appellant, the same was kept under the table above the newspaper kept therein. 5. Further case of the prosecution is that Ramlal Gagesh (P.W.2) prepared sodium carbonate solution and fingers of all the members of the Trap Team except the complainant and the Appellant were dipped and there was no change in the colour. The same was sealed. Thereafter, another solution of sodium carbonate was prepared and then fingers of the Appellant were dipped, the solution turned pink, which was separately sealed by pasting slips containing signatures of the panch witnesses. Thereafter, one of the panch witnesses Awdhesh Minj picked up the currency notes from under the table which, was counted and numbers were also tallied. The currency notes were dipped in a separate solution of sodium carbonate, which turned pink. The said solution was separately sealed. Thereafter, the fingers of the panch witness Awadhesh were dipped in a separate solution of sodium carbonate, which turned pink. Solution was kept in a bottle and sealed. Thereafter, fingers of the complainant were also dipped in a separate solution of sodium carbonate, which turned pink and the solution was kept and sealed. Newspaper- Danik Bhaskar kept under the table was also dipped in a separate solution of sodium carbonate which turned pink and the solution was separately kept and sealed. Hand wash was collected, kept and sealed in a separate bottle. Currency notes of three thousand, newspaper-Dainik Bhaskar, vouchers and resolution of Panchayat were seized and separate seizure memo were prepared. The Appellant was arrested at the spot. Najul Maintenances Inspector - Rameshwar Prasad (P.W.8) prepared a map of the spot. Seized articles were sent under memo Ex.P-10 of the Superintendent of Police to the Forensic Science Laboratory, Raipur, which was received vide acknowledgment of receipt Ex.P-12. A report in Ex.P-15 was given by the FSL regarding presence of phenolphthalein powder in the solution giving a positive report. 6. The posting orders of the Appellant were also collected during investigation. The resolution relating to workings of Sihari Nala and various other related documents were also collected from various departmental authorities. A report in Ex.P-15 was given by the FSL regarding presence of phenolphthalein powder in the solution giving a positive report. 6. The posting orders of the Appellant were also collected during investigation. The resolution relating to workings of Sihari Nala and various other related documents were also collected from various departmental authorities. Sanction for prosecution was obtained in Ex.P-28 from the State Govt., Department of Law & Legislative Affairs. 7. After usual investigation and recording statements of the witnesses, charge sheet was filed. Charges for alleged commission of offence under Sections 7 & 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 Act were framed by the Special Judge. The Appellant abjured his guilt. In order to prove charges, the prosecution examined as many as 15 witnesses and produced in all 40 documents. 8. After examination of the prosecution witnesses, the Appellant was examined under Section 313 of Code of Criminal Procedure regarding incriminating evidence and circumstances appearing against him during trial. The Appellant denied all the circumstances and the evidence and pleaded false implication. In his defence, the Appellant examined as many as 3 defence witnesses and also produced documentary evidence in support of his defence. 9. The learned trial Court passed the impugned judgment of conviction and order of sentence relying upon the prosecution evidence, rejecting the defence and held the Appellant guilty for alleged commission of offence under Sections 7 & 13 (1) (d) read with Section 13(2) of the Act of 1988 and sentenced him as mentioned in paragraph 1 of the judgment. 10. Learned Counsel for the Appellant vehemently argued that the conviction of the Appellant is not sustainable in law as the prosecution has failed to prove beyond all reasonable doubt the motive for demand of illegal gratification or obtaining or receiving the same. Learned Counsel for the Appellant contended that from the evidence of the prosecution and reliable evidence of defence witnesses and documents which have been proved by the prosecution itself, it is proved that the Appellant had initiated action against the Society of which Kaliram, father of complainant - Nathlu Ram was the president. Learned Counsel for the Appellant contended that from the evidence of the prosecution and reliable evidence of defence witnesses and documents which have been proved by the prosecution itself, it is proved that the Appellant had initiated action against the Society of which Kaliram, father of complainant - Nathlu Ram was the president. A letter dated 10.3.2002 (Ex.P-32) was issued to the President i.e. Kaliram by the Appellant stating that the details of the work are not furnished and that on 14.3.2002, when the Appellant would come, the details of the work be disclosed, otherwise, disciplinary action would be initiated and recovery of Rs. 24,800/- would also be initiated as per rules. Learned Counsel for the Appellant submitted that the Appellant also recovered from Nathalu, the water tax, which were illegally recovered from him and he was scolded on 14.3.2002. Therefore, the complainant and his father had a definite motive to falsely implicate the Appellant and a false complaint was lodged. Learned Counsel for the Appellant argued that the motive for false implication is clearly proved and established from prosecution evidence itself. It is also submitted that the evidence with regard to the demand led by the prosecution is not at all reliable and Ramesh (P.W.4) who, even according to the complainant, was present in the house of the complainant on 14.3.2002 has not supported the case of the prosecution that the Appellant demanded Rs. 3,000/- for valuation. 11. Further contention of learned Counsel for the Appellant is that the prosecution has completely failed to prove acceptance of the illegal gratification by the Appellant. Learned Counsel argued that from the evidence of complainant-Nathlu Ram (P.W.I), it is clearly proved that the Appellant did not accept the amount offered to him by Nathlu and that Trap Party arrived in the house and amount was recovered from the same place and in the same position, in which, it was kept by the complainant. His further submission is that two independent punch witnesses namely Awadhesh Minj (P.W.6) & Ram Narayan Kamdi (P.W. 14) have neither seen the complainant giving the amount of bribe to the Appellant nor have heard any conversation to prove acceptance of bribe by the Appellant. His further submission is that two independent punch witnesses namely Awadhesh Minj (P.W.6) & Ram Narayan Kamdi (P.W. 14) have neither seen the complainant giving the amount of bribe to the Appellant nor have heard any conversation to prove acceptance of bribe by the Appellant. He further submitted that on very material aspects relating to manner in which the signals were to be given and were actually given by the complainant, the place and the manner in which the currency notes were kept and the person by whom they were picked-up and counted, there is serious contradiction in the version of the two punch witnesses, which renders the entire story of the prosecution highly doubtful. 12. Further submission of learned Counsel for the Appellant is that the prosecution has also failed to prove beyond reasonable doubt that the recovery was made from the Appellant and the prosecution story is mainly based on the colour test, whereas, even with regard to colour test, there are contradictory statements of the prosecution witnesses, particularly panch witnesses and departmental witnesses namely Ramlal Gangesh (P.W.2), Lochan Singh Rajpur (P.W.5) and Gandhi Joge (P.W. 13). Learned Counsel argued that when the motive for false implication is clearly established and the demand has not been proved by clinching and reliable evidence and where there is no proof of acceptance, recovery of the currency notes from, the table is not sufficient to prove the guilt of the Appellant and warrant his conviction. Learned Counsel argued that on mere evidence of colour test, the prosecution having failed to prove demand and acceptance, the Appellant could not be convicted. Learned Counsel for the Appellant further contended that the seal affixed on the bottles containing hand wash solution of sodium carbonate were not handed-over by the Investigating Officer to any independent authority and were retained by them for a very long time and the samples were also sent for examination after the same having been retained with the I.O. for a very long time. Therefore, the report of F.S.L. cannot be relied upon against the Appellant, the same being highly doubtful. 13. Therefore, the report of F.S.L. cannot be relied upon against the Appellant, the same being highly doubtful. 13. In support of his contention, learned Counsel for the Appellant has relied upon the decisions of Supreme Court in the cases of Panalal Damodar Rathi v. State of Maharashtra AIR 1979 SC 1191, Suraj Mal v. State (Delhi Administration) AIR 1979 SC 1408, Sita Ram v. State of Rajasthan (1975) 2 SCC 227, Raghbir Singh v. State of Punjab (1976) 1 SCC 145, Ayyasami v. State of Tamil Nadu AIR 1992 SC 644, Bal Krishan Sayal v. State of Punjab (1987) 2 SCC 647, State of A.P. v. T. Venkateswara Rao AIR 2004 SC 1728, Ganga Kumar Shrivastava v. State of Bihar (2005) 6 SCC 211, V. Venkata Subbarao v. State represented by Inspector of police, A.P. (2006) 13 SCC 305, C.M. Girish Babu v. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779, Jagdish Chandra Makhija v. State of Madhya Pradesh 1990 MPLJ 239, Ram Samugh Birju Ram Mourya v. State of M.P. 2002 (2) MPLJ 85, M.O. Shamsudhin v. State of Kerala (1995)3 SCC 351, T. Subramanian v. State of T.N. (2006) 1 SCC 401. 14. On the other hand, learned Counsel for the State supported the judgment of conviction and order of sentence and argued that from evidence of Nathalu Ram (P.W.I), Kaliram (P.W.3), which are reliable trustworthy, the prosecution has proved demand of illegal gratification by the Appellant and even Ramesh (P.W.4), in his examination, has stated that the Appellant demanded Rs. 3,000/- for doing the work of valuation. Learned State counsel further submitted that the evidence, which has come on record, proves demand by the Appellant as the Appellant does not deny his presence in the house of the complainant on 14.3.2002. Learned State counsel submits that acceptance of illegal gratification has also been proved by trustworthy and reliable evidence of Nathalu Ram (P.W.I), who has clearly deposed that when he reached the house of the Appellant, the Appellant asked him to keep the money on the table and thereafter, asked him to keep the money under the table above the newspaper and independent panch witnesses namely Awdhesh (P.W.6) and Ram Narayan Kamdi (P.W. 14) have also proved that the money was recovered from the tea-table and in the house of the Appellant. He further argued that the trap proceedings and hand-wash test has been proved by the prosecution from reliable and trustworthy evidence. He further argued that evidence on record clearly prove that when fingers of the Appellant were dipped in the solution of sodium carbonate, the same turned pink and the Appellant failed to explain the same, therefore, the prosecution hats succeeded in proving demand, acceptance and recovery of bribe beyond all reasonable doubt. In support of his contention learned Counsel for the State relied upon Subbu Singh v. State by Public Prosecutor (2009) 6 SCC 462 & Krishna Ram v. State of Rajasthan (2009) 11 SCC 708. 15. I have considered the rival submissions made by learned Counsel for the parties and perused the records. 16. In the case of Panalal Damodar Rathi AIR 1979 SC 1191 (supra), 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. 17. 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 MO. Shamsudhin (1995)3 SCC 351 (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. 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 send a complaint. Here he is aparticeps criminis in respect of the crime committed and 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 bribe-givers, in the first instance, 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. 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. 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. 18. Shankar Thakur (P.W.9) who was the Sub Divisional Officer in Kanker Division from March, 1996 to 1st May 2003, has been examined by the prosecution who has stated that an amount of Rs. 24,800/- was allotted for the purpose of repair of Sihari Nala and that work was to be done by the Society. He has also deposed that technical sanction was given by him on 8.11.2001 and even prior to the grant of technical sanction, oral orders were given by him to the Appellant for making sluice. He has also deposed that such oral direction was issued by him as the work was required to be completed before the rainy season. His further evidence is that the work of construction of sluice was completed in the month of April-May before preparing estimate vouchers on the said sluice work in respect of the period from 21.4.2001 to 23.4.2001 and 25.4.2001 to 26.4.2001 were valued by the Appellant. Those valuation report Ex.P-28 & P-29 have been exhibited by him and he has proved the signatures of the Appellant. He has also deposed that the sanctioned amount was received by the Society on 31.3.2001 and the Society itself made payment. He also admitted that the valuation of the work for the above stated period was done by the Appellant in his presence on 18.5.2001 and that the two vouchers i.e. Ex.P-28 & P-29 were pertaining to the construction of sluice work. He has also stated that the work for the period from 27th April, 2001 to 28th April, 2001 did not relate to construction of sluice and the said work was not shown to him, therefore, it was not valued. He has further deposed that Society did not submit any report in his office regarding completion of work and made payment for the work in respect of the period from 18.9.2001 to 16.10.2001 even without getting the valuation done by the Sub-Engineer. He has further deposed that Society did not submit any report in his office regarding completion of work and made payment for the work in respect of the period from 18.9.2001 to 16.10.2001 even without getting the valuation done by the Sub-Engineer. It has been stated by him that the Society did not give him any information for inspection of the aforesaid work done. 19. The aforesaid discussion of the evidence has become necessary in the background in which the Appellant is alleged to have demanded bribe, as stated in the complaint of Nathlu Ram (P.W.I). It is not in dispute that Nathlu Ram (P.W.I) who submitted the complaint and who is alleged to have gone to the house of the Appellant and is alleged to have given the bribe is not the president of Society. From the evidence of Kaliram (P.W.3), as stated in paragraphs 6, 7 and 14 of his deposition, it is clear that though Kaliram was the president of the Society, his son, the complainant - Nathlu Ram was performing various functions though he was neither the member of the Society nor any servant thereof. Kaliram in paragraph -6 of his deposition stated that he does not know whether his son is a member of the Society or not and he also does not now who used to prepare the muster-rolls. He also states that he does not know whether the muster-rolls used to be signed by him or other members. In paragraph -7, he has deposed that muster-roll and vouchers used to be prepared by Nathlu Ram and that work was entrusted to him. In paragraph-14, he has stated that he has no knowledge regarding passing of resolution in the matter of payment and this is known to his son, as he used to make payment. 20. Complaint regarding demand of bribe was made by Nathlu Ram. The said complaint dated 20th March, 2002 (Ex. P-1) stated that on 25.8.2001, resolution was passed by the Society of Sihari Nala for repair of sluice and canal. In the complaint, it has been stated that the sanctioned amount of Rs. 24,800/- was deposited in the Bank on 4.4.2001 and the work was got done by the Society in the month of September-October, 2001. P-1) stated that on 25.8.2001, resolution was passed by the Society of Sihari Nala for repair of sluice and canal. In the complaint, it has been stated that the sanctioned amount of Rs. 24,800/- was deposited in the Bank on 4.4.2001 and the work was got done by the Society in the month of September-October, 2001. He also stated in his complaint that when he approached the Appellant in the month of October, 2001 with a request for valuation of work on the basis of muster-rolls of the period 21st to 26th April, 2001, the valuation of the muster-roll from the period 27.4.2001 to 28.4.2001 and 18.9.2001 to 16.10.2001 was not done and was returned and for complete valuation, Rs. 3,000/- were demanded, upon which, he (Nathlu Ram) and his father (Kaliram) assured to arrange the money within a week and pay, upon which, the Appellant stated that he would come to his house on 21.3.2002, on which date money should be kept arranged, then he would do the valuation and if could not come for any reason, muster-rolls and money may be left at his residence at Kanker-in the evening. It is also stated in the complaint that on 14.3.2002, member of Society Ramesh Kunjam was also present. 21. Shankar Thakur (RW.9) has stated in paragraph -13 of his deposition that the Appellant had written a letter to Kalirarn as the president of the Society on 10.3.2002 (Ex.P-32), which was received in his office on 19.3.2002. The said letter dated 10.3.2002 (Ex.P-32) shows that the Appellant required the president-Kaliram to give the details of the work in respect of which, the sanctioned amount of Rs. 24,800/- was given to the Society. In that letter, it was written that as the details of expenses are not being disclosed, he is informed that on 14.3.2002, the Appellant would come, on which date, the president along with his members should give the details of the work done, by remaining present. A warning was issued by such letter that if the details of the work are not given then he would be constrained to initiate disciplinary action and proceedings of recovery of Rs. 24,800/- will also be initiated. Amiyo Chatterji (P.W. 10) has proved receipt of said letter in the office of Water Resources Department on 19.3.2002, which lias also been said to have received on that date by Shankar Thakur (P.W.9). 24,800/- will also be initiated. Amiyo Chatterji (P.W. 10) has proved receipt of said letter in the office of Water Resources Department on 19.3.2002, which lias also been said to have received on that date by Shankar Thakur (P.W.9). Amiyo (P.W. 10) has deposed that entry regarding receipt of said letter dated 10.3.2002 was made by him in the receipt and dispatch register at S. No. 178 T.S. marked as Ex.P-37, which was seized by the prosecution vide seizure memo Ex.P-38. 22. Copy of letter dated 10.3.2002 has been exhibited as document D/1 A, on the reverse of which, a panchnama has been prepared stating that Nathlu Ram, the complainant, refused to accept the said letter. Pancham Ram Markam (D.W.2) has stated that the copies of the said letter were given to him by the Appellant on 13.3.2002 for serving the same on Kaliram. He has also deposed that he reached village Rajpur on 14.3.2002 and stayed there. In the house of Kaliram, Kaliram himself, Nathlu Ram and Ramesh were present. It is relevant to mention that Ex.P-32 is copy of letter issued by the Appellant on 10.3.2002 which was received in the office of SDO and Ex.D-1 A, is the copy of letter dated 10.3.2002, which was sent by the Appellant through Panchamram Markam to Kaliram which was refused to be received. 23. Radhelal Patel (P.W. 11) has corroborated the testimony of Pancham Ram (D.W.2), who has deposed that he had gone to Kaliram on 14.3.2002 to give papers in two copies given to him on 13.3.2002 by the Appellant and when they approached Kaliram, he, after going through the letter refused to acknowledge and put his signatures, whereafter, the documents were returned to the Appellant, who was engaged in recovery of water tax in the camp at Rajpur. He has stated that he and Pancham Ram had singed the documents as witnesses. He has also proved the signatures on Ex.D-1A. Pancham Ram (D.W.2) has stated that the Appellant had come to village Rajpur on 14.3.2002 at about 1:00 pm. in connection with recovery of water tax and on that date, Nathlu Ram and Ramesh came along with muster-roll and required the Appellant to verify those muster-rolls, upon which the Appellant told them that he would not verify the muster-roll without inspection of the work. in connection with recovery of water tax and on that date, Nathlu Ram and Ramesh came along with muster-roll and required the Appellant to verify those muster-rolls, upon which the Appellant told them that he would not verify the muster-roll without inspection of the work. Ramesh Kumar (P.W.4), who was also said to be present on 14.3.2002 in the house of Kaliram, as deposed by Nathlu Ram (P.W.I) & Kaliram (P.W.3), has stated in paragraph-13 of his deposition that on 14.3.2002, the Appellant said that the work has not been shown to him and unless the work is shown to him, he would not verify the muster-roll and vouchers and he therefore, returned the muster-roll and vouchers to Kaliram. 24. The Executive Engineer, Water Resources, Division -Kanker namely Makhan Lal has been examined by the prosecution as P.W.7. He deposed that payments could not have been made without valuation/verification having been done by the ex-officio secretary, who at the relevant time was the Appellant. It is also deposed that entire payments were made without valuation having been done by the Appellant. He further deposed that the Appellant was not bound to verify such work which was done directly by the Society without executing any agreement. Gandhi Joge (P.W.13) in paragraph-13 of his deposition has admitted that even before the trap was laid, the Appellant had written to the Executive Engineer requesting him to get the valuation done by some other officer. 25. From the aforesaid discussions of the evidence which has come on record, it is proved that the work in respect of which the valuation was to be done was completed without even technical sanction or execution of the agreement, on the oral direction of Sub-Divisional Officer - Shankar Thakur (P.W.9). It has also been proved that the entire payments for the said work done was made by the Society itself and the muster-rolls and vouchers were not placed before Shankar Thakur (P.W.9) or before the Appellant, before making those payments. From the evidence of prosecution witness Shankar Thakur (P.W-9), it has been proved that in this background that the Appellant had issued a letter (Ex.P-32) to the president of the Society requiring them to submit details regarding the expenditure incurred in the work and the president was warned of disciplinary action and recovery if the details of expenditure are not submitted. 26. 26. In order to prove demand the prosecution has mainly relied upon the testimony of Nathlu Ram (P.W.I), Kaliram (P.W.3) and Ramesh Kumar (P.W.4). Nathlu Ram, as has come in the evidence of prosecution itself, is not an office bearer of the Society but his father Kaliram who is president of the Society has said that the entire affairs of the Society were being looked after by his son-Nathlu Ram, which itself, raises serious doubt with regard to the conduct of the president-Kaliram (P.W.3). I have discussed in paragraph hereinabove, the evidence of Kaliram (P.W.3), which clearly shows that he had handed-over the entire affairs of the Society, though unauthorizedly, in the hands of his son-Nathalu Ram. Nathlu Ram (P.W.I) is said to be preparing vouchers and even making payments from the funds of the Society. The evidence of Shankar (P.W.9) and Makhan Lal (P.W.7) clearly go to show that even before the agreement was executed and other technical formalities were completed, under oral directions, the works were directed to be executed, funds were transferred to the Society. It is also proved from the evidence of the prosecution itself that though in respect of work which was inspected, valuation of the work was done by the Appellant on 18.5.2001 in the presence of Shankar (P.W.9), in respect of the work relating to the period from 27.4.2001 to 28.4.2001 and 18.9.2001 to 16.10.2001, no inspection was done and even payment were made by the Society. The evidence which has come on record therefore shows that the President- Kaliram had no control over the affaires of the Society and his son-Nathlu Ram (P.W.I) was himself handling the affairs without any responsibility and even though the work was not inspected, payments were made without preparation of vouchers. In that background, issuance of letter on 10.3.2002 (Ex.P-32) by the Appellant assumes significance. As discussed above, the prosecution witnesses themselves have proved that the Appellant had written letter dated 10.3.2002 (Ex.P-32) to the president of the Society stating that he would come on 14.3.2002. Therefore, it is clear that the Appellant had already initiated action against the Society and on 14.3.2002, the Appellant directed the president of the Society to remain present along with the records and other members. Therefore, the presence of the Appellant on 14.3.2002 by itself does not raise any doubt with regard to conduct of the Appellant. Therefore, it is clear that the Appellant had already initiated action against the Society and on 14.3.2002, the Appellant directed the president of the Society to remain present along with the records and other members. Therefore, the presence of the Appellant on 14.3.2002 by itself does not raise any doubt with regard to conduct of the Appellant. Nathlu Ram (P. W.1) had clearly admitted in his evidence that he does not hold any office nor was any member. He also admitted that other works of the Society including the work of construction were being looked after by he himself without their being any written authorization given to him in that behalf either by the Society or by his father. He has also admitted that the Society did not pass any resolution to lodge any complaint against the Appellant. He has also admitted in his evidence that the Appellant used to recover irrigation tax every Thursday at Rajpur and on 14.3.2002 also he was there. He has also admitted that though he has no authority to recover irrigation tax, he had recovered and also admitted that he has sent a letter regarding recovery of Rs. 945/- and on 14.3.2002, the Appellant enquired from him regarding the amount kept by him and Rs. 400/- were then handed over to the Appellant of which receipt was issued to him. A suggestion was given to him in his cross-examination that on 14.3,2002, he was scolded by the Appellant as he was found unauthorizedely recovering irrigation tax. 27. In view of the aforesaid evidence which has come on record, it is proved that various works were got done and payments were made without inspections, by the Society and all these were being done by Nathlu Ram. It is also proved that the Appellant had issued a letter on 10.3.2002 directing to get the inspection done and vouchers valued else action would be taken and that Nathlu Ram was recovering irrigation tax and on 14.3.2002 when the Appellant had come, he came to know about this and excess amount was recovered from Nathlu Ram. The complaint has been lodged by Nathlu Ram on 22nd March, 2002 i.e. after the incident of 14.3.2002. In that compliant, Nathlu has stated that he had already paid Rs. 2000/- earlier. The complaint has been lodged by Nathlu Ram on 22nd March, 2002 i.e. after the incident of 14.3.2002. In that compliant, Nathlu has stated that he had already paid Rs. 2000/- earlier. The evidence, the totality of circumstances, conduct and credibility of Nathlu Ram (RW.1), his father Kaliram and the nature of complicity as also motive for false implication renders (sic) uremely unsafe to rely upon the testimony of Nathlu Ram (RW.1) and his lather Kaliram (RW.3), without corroboration on material aspects from other independent witnesses and established circumstances. Ramesh Kumar (RW.4) who is also one of the member of the Society and both Nathlu Ram (RW.1) and Kaliram (RW.3) have deposed that when the Appellant came to the house of Kaliram on 14.3.2002, Ramesh (RW.3) who is also member of the Society was present. Ramesh (RW.4) initially stated in paragraph-3 of his deposition that he does not know about the incident, upon which, he has been declared hostile. Thereafter, he has made contradictory statement in paragraph -5 of his deposition. Though he says that the Appellant told Kaliram that he will do the work of valuation, if he pays Rs. 3,000/- and returned muster-rolls and vouchers, in paragraph-13 of his cross-examination, he has admitted that the Appellant stated that if the inspection is allowed to be done then only valuation would be done and returned muster-rolls and vouchers. Therefore, the evidence of Ramesh is shaky and cannot be relied upon to prove the story of demand by the Appellant, particularly when Ramesh in his cross-examination clearly admits that the reason for refusal to do the valuation was on account of non-inspection of the work. 28. The established circumstances of the case are that Kaliram who is the president has completely abdicated his functions and handed it over to his son Nathlu Ram (RW.1), who is neither a member nor an office bearer of the Society. It has been clearly admitted by Kaliram (RW.3) himself that Nathlu Ram has been undertaking all the works of the Society and even making payments. There is no authorization given to him to work either on behalf of the Society or on behalf of his father. The evidence of Nathlu Ram (RW.1) and Kaliram (RW.3) as also evidence of Shankar Thakur (RW.9) and Makhan Lal (RW.7) show that payments were made without the work being inspected. There is no authorization given to him to work either on behalf of the Society or on behalf of his father. The evidence of Nathlu Ram (RW.1) and Kaliram (RW.3) as also evidence of Shankar Thakur (RW.9) and Makhan Lal (RW.7) show that payments were made without the work being inspected. Initiation of disciplinary action by the Appellant by issuing letter dated 10.3.2002 has been proved not only from the prosecution evidence but also from defence witnesses. Nathlu Ram has also admitted that excess amount of irrigation tax recovered by him, was, in turn, recovered from him by the Appellant on 14.3.2002. Shankar Thakur (RW.9) has stated that in respect of the work of which inspection was done, valuation was done on 18.5.2001 in his presence by the Appellant. Radhelal Patel (RW.l 1) has stated that when he had gone to village Rajpur on 14.3.2002 to serve document on the president of the Society, he has refused to receive the same and thereafter in the camp, agriculturists Ram & Lakshman had appeared stating that Nathlu Ram has recovered irrigation tax, upon which, Nathlu Ram was scolded by the Appellant upon which, Nathlu Ram stated that he will return the entire amount recovered by him. Pancham Ram Markam (D.W.2) has stated that on 14.3.2002, Nathlu Ram was scolded by the Appellant on the compliant of agriculturists that Nathulu Ram had recovered water tax and Nathlu, later on, on that day, returned the amount recovered by him and vouchers and muster-rolls were returned by the Appellant stating that valuation would be done only after inspection of work. 29. From the aforesaid discussions, in the absence of any corroboration, considering the degree of complicity and the conduct of the complainant - Nathlu Ram and his father-Kaliram, it is difficult to hold that the prosecution has proved demand beyond reasonable doubt particularly when the independent witnesses Ramesh (P.W.4) has not supported this story and when Nathlu Ram himself is found indulged in illegal activities like running the entire affairs of the Society without he himself being a member and recovered the water tax without any authority from the villagers. It is also relevant to note that though the Appellant is alleged to have raised demand on 14.3.2002, the complaint was made as late as on 20th March, 2002. It is also relevant to note that though the Appellant is alleged to have raised demand on 14.3.2002, the complaint was made as late as on 20th March, 2002. The aforesaid facts and circumstances coupled with the evidence which has come on record and discussed above, rendered entire story of the prosecution doubtful in so far as demand of bribe is concerned. 30. According to the case of the prosecution, along with the Trap Team, two panch witnesses had proceeded to the spot. They have been examined as P.W.6-Awadhesh Kumar Minj and Ramnarayan Kamdi (RW.l4). The aforesaid panch witnesses have not deposed that they heard any conversation between Nathlu Ram, the complainant, and the Appellant nor is there any evidence that they saw the Appellant accepting the amount of bribe from Nathluram. As to what transpired between the Nathlu Ram (P.W.1) and the Appellant, is sought to be proved by the prosecution by relying upon the testimony of Nathlu. As has been discussed above, Nathlu Ram has a definite motive to falsely implicate the Appellant, therefore, before the testimony in support of the case of acceptance of bribe is relied upon, the same is required to be scrutinized carefully. Nathlu Ram (RW.1) has deposed that the currency notes of Rs. 3,000/- treated with phenolphthalein powder were kept in the left pocket of his trouser with an instruction not to touch the same. He has stated that when he reached the house of the Appellant, he kept the amount of Rs. 3,000/-which was demanded by the Appellant, at the tea-table as directed and thereafter, the Appellant asked him to keep the same under the table and above the newspaper. He has deposed that he was instructed to give signal by scratching his head and when he came out from the house, he gave the signal by scratching his head. In his cross-examination, he has admitted that when he went to the house of the Appellant to give bribery, he requested for glass of water. He has also admitted that he did not give the amount in the hand of the Appellant, but, had kept on the table and then above the newspaper under the table and also states that when he returned back to house of the Appellant along with the Trap Party, the money was kept at the same place, as it is, where it was left. He has clearly admitted that during the period when he left the house after keeping the money under the table and then came back with the Trap Party, the Appellant had not touched the money and that the Appellant had denied having taken any bribe upon being asked by the Trap Party. He has deposed that upon being asked by the Appellant, he had kept the money as well as vouchers on the table. Thus, according to the testimony of Nathlu Ram itself, the money was not touched by the Appellant and even after Nathlu Ram came back along with the Trap Team, money was kept lying in the same condition as it was left. As there being no other evidence of any conversation between Nathlu Ram and the Appellant nor there being any version by the panch witnesses that they saw the Appellant accepting the money, I am unable to hold that the prosecution has proved by clinching and reliable evidence that the Appellant accepted the amount of bribe of Rs. 3000/-. In defence, in the cross-examination, clear suggestion of false implication has been given to Nathlu Ram as well as to Kaliram. The proved and established circumstances of the case indicate possibility of false implication of the Appellant by Nathlu Ram & Kaliram. 31. Awdhesh Kumar Minj (P.W.6) states that on being asked by Gandhi Joge (P.W. 13), he had picked-up the notes and counted. He has also deposed that when the Appellant was asked about the currency notes, he expressed ignorance and it was the complainant Nathlu Ram who stated as to where the money was kept. He further deposes that when his hands were washed in the solution of sodium carbonate, it had turned pink. He has admitted that he had taken out the money which was kept above the newspaper and under the tea-table. Lochan (P.W.5) who is said to have accompanied the Trap Party deposes that the currency notes were kept in the left pocket of his shirt. He has deposed that when Nathlu Ram gave signal after coming out from the house of the Appellant, when the Trap Team entered the house, upon being asked, the Appellant expressed ignorance and the amount was found kept above the newspaper under the tea-table and Gandhi Joge asked R.N. Kamdi to count the notes. He has deposed that when Nathlu Ram gave signal after coming out from the house of the Appellant, when the Trap Team entered the house, upon being asked, the Appellant expressed ignorance and the amount was found kept above the newspaper under the tea-table and Gandhi Joge asked R.N. Kamdi to count the notes. Thus, there is discrepancy between the version of the panch witnesses Awadhesh (P.W.6) and Head Constable - Lochan (P.W.5) with regard to the place where the currency notes were kept, with regard to the keeping of the currency notes by Nathlu and also with regard to the person whom Gandhi Joge asked to picked-up and count the notes. The other independent witnesses Ramesh Kumar (P.W.4) says that the notes were kept in the front pocket of the shirt of the complainant. According to the complainant Nathlu Ram (P.W.I), the notes were kept by him in the left pocket of his trouser. According to Ramnarayan Kamdi (P.W.I4), the complainant gave signal by cleaning his face with the help of handkerchief. He also states that it was the complainant-Nathlu Ram who stated as to where the money was kept. According to him, Awadhesh lifted currency notes and tallied the numbers. Thus, if the evidence of Lochan Singh Rajput (P.W.5), Awdhesh Kumar Minj (P.W.6) and Ramnarayan Kamdi (P.W.14) is looked into, there are several discrepancies in their testimony and one of the most important is as to who picked-up the amount of bribe and counted in the house of the Appellant. However, all the witnesses have clearly stated that upon being asked from the Appellant, he expressed ignorance and notes were recovered at the instance of the complainant from the place where they were kept by him. The fact that the notes were kept under the table and above newspaper shows that it was kept in a hided place. Even DSP Gandhi Joge (P.W.I3) has stated that when the Trap Team entered the house of the Appellant, the Appellant denied having received any bribery and expressed ignorance about the place where it was kept and it was at the instance of the complainant that the same was found kept over the newspaper under the tea-table. According to him, the notes were picked-up and counted by Awdhesh Kumar Minj (P.W.6). Thus, there is serious discrepancy as to who had picked-up notes and counted. According to him, the notes were picked-up and counted by Awdhesh Kumar Minj (P.W.6). Thus, there is serious discrepancy as to who had picked-up notes and counted. However, all the witnesses have stated that the notes were found kept under the tea-table above the newspaper and were recovered upon being pointed out by the complainant. In the light of the testimony of Nathlu Ram (P.W.I) itself that the Appellant did not touch the currency notes and when he returned to the house of the Appellant along with Trap Team, the currency notes were kept, as it is, at the same place where it was left by him, the entire story of the prosecution with regard to acceptance and recovery comes under serious cloud. 32. Though evidence has come on record to show that when the fingers of the Appellant were dipped in the solution of sodium carbonate, it turned pink, that by itself, in the absence of other clinching and reliable evidence on record with regard to prove of demand and acceptance would not lead to prove of guilt beyond reasonable doubt. This is because there is a glaring aspect of the matter creating doubt, which needs to be highlighted. Even according to complainant Nathlu Ram (P.W.I), the complainant had offered the amount of bribe and had kept that amount along with the vouchers on the table. The vouchers have been seized from the Appellant vide Ex.P.21 proved by Awadhesh (P.W.6). Along with vouchers, number of other articles have also been seized from the Appellant. However, none of the witnesses, whether it be departmental witnesses or independent witnesses, have stated anything regarding the vouchers. Gandhi Joge (P.W.I 3) in paragraph-3 of his testimony clearly deposed that the possibility of traces phenolphthalein powder coming to the hands of the Appellant on account of handling of voucher cannot be ruled out. From the evidence of Nathlu Ram (P.W.I) and the aforesaid testimony of Gandhi Joge (P.W.13), it is clear that according to the case of prosecution itself, the currency notes and vouchers were given to the Appellant together and were kept on the table. It has also been admitted that the muster-rolls were not washed in the solution of sodium carbonate. The possibility of the Appellant handling with muster-rolls and vouchers cannot be ruled out. It has also been admitted that the muster-rolls were not washed in the solution of sodium carbonate. The possibility of the Appellant handling with muster-rolls and vouchers cannot be ruled out. It is interesting to note that the currency notes alone were found kept above the newspaper under the tea-table. It means that the vouchers were kept over the table which the Appellant might have handled. Therefore, in these established circumstances and that vouchers were recovered from the Appellant and the evidence that vouchers was also handed over to the Appellant, by the complainant, who was dealing with the phenolphthalein powder quoted currency notes, the colour test by itself is not sufficient to prove the acceptance by the Appellant beyond all shadow of doubt. 33. In the case of V. Venkata Subbarao (2006) 13 SCC 305 (supra), it has been held that in order to prove the charges under Section 7, 13(1)(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. Subramanian14 (supra), 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 Ram3 (supra) 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 Suraj Mal AIR 1979 SC 1408 (supra), 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 sufficient to convict the accused when the substantive evidence in the case, is not reliable. In Suraj Mal AIR 1979 SC 1408 (supra), 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 sufficient to convict the accused when the substantive evidence in the case, is not reliable. In Jagdish Chandra Makhija 1990 MPLJ 239 (supra), 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. 34. In the case of A. Subair v. State of Kerala (2009) 6 SCC 587, 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. 35. View taken in the case of Suraj Mal AIR 1979 SC 1408 (supra), was reiterated in the case of C.M. Girish Babu (2009) 3 SCC 779 (supra), 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. 36. In the final analysis, the judgment of conviction and order of sentence dated 29th March, 2005 passed by the Court below is not sustainable in the eye of law and is liable to be set aside and is hereby set aside. 37. The appeal is accordingly allowed and the Appellant is acquitted of the charges. 36. In the final analysis, the judgment of conviction and order of sentence dated 29th March, 2005 passed by the Court below is not sustainable in the eye of law and is liable to be set aside and is hereby set aside. 37. 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.