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2012 DIGILAW 104 (CHH)

Veerchand Jain v. State of Chhattisgarh

2012-04-09

RADHE SHYAM SHARMA

body2012
JUDGMENT This appeal is directed against judgment dated 20-2-2004 passed by the 1st Additional Sessions Judge/Special Judge, Raipur in Special Case No.11/2002. By the impugned judgment, accused/appellant Veerchand Jain has been convicted under Section 7 and Section 13 (1)(d) read with Section 13(2)of the Prevention of Corruption Act, 1988 (henceforth the Act, 1988™) and sentenced in the following manner with a direction to run the sentences concurrently. Conviction Sentence Under Section 7 of the Rigorous Imprisonment for Act, 1988 two years and to pay fine of Rs. 2,000/-, in default, to un- dergo R. I. for 6 months. Under Section 13(1)(d) Rigorous Imprisonment for read with Section 13(2) five years and to pay fine of of the Act, 1988 Rs. 3,000/-, in default, to un- dergo R. I. for 6 months. 2. Case of the prosecution, in brief, is as under : The appellant was a Junior Engineer in Chhattisgarh State Electricity Board at Kharora. On 15-1-2002, complainant Ramavtar Dewangan (PW-4), resident of Village Kesala, Post Kharora, District Raipur made a written complaint (Ex. P-1) before Superintendent of Police, Lokayukta, Raipur in which he mentioned that electricity supply to his tubewell had been disconnected by the appellant without information and for reconnecting the same he was asking for bribe of Rs. 2,000/-. The complaint (Ex. P-1) was forwarded to Inspector N. C. Choubey (PW-6) for necessary action. On receiving the complaint (Ex. P-1), N. S. Choubey (PW-6) called for Panch Witnesses S. S. Pandey (PW-1) and M. S. Mandavi. Both the Panch Witnesses were given the complaint (Ex. P-1) for their perusal. They enquired about the complaint from complainant Ramavtar Dewangan (PW-4). Thereafter, two currency notes in the denomination of Rs. 500/- and ten currency notes in the denomination of Rs. 100/-, total Rs. 2,000/- were submitted by the complainant. A pre-trap demonstration was arranged, wherein a solution of sodium carbonate was prepared in a glass. On dip of a plain paper in the solution, colour of which did not change. Thereafter, another piece of paper containing phenolphthalein powder was dipped in the said solution, colour of the solution turned pink. A pre-trap panchnama (Ex. P-5) was prepared. Numbers of the currency notes submitted by the complainant were recorded in the pre-trap panchnama (Ex. P-5). On dip of a plain paper in the solution, colour of which did not change. Thereafter, another piece of paper containing phenolphthalein powder was dipped in the said solution, colour of the solution turned pink. A pre-trap panchnama (Ex. P-5) was prepared. Numbers of the currency notes submitted by the complainant were recorded in the pre-trap panchnama (Ex. P-5). After submission of the currency notes, phenolphthalein powder was smeared thereon and the notes were kept in upper left pocket of the shirt of the complainant. The complainant was instructed and guided as to how the trap would be arranged and as to the role which he was required to play in the trap procceding. The trap-team proceeded for Kharora. The appellant was not present at his home. At that time, the appellant was sitting in Balaji Rice Mill. The complainant contacted him on telephone. The appellant called him in Balaji Rice Mill. Thereafter, the trap team proceeded for Balaji Rice Mill. The appellant was sitting in the office of the Rice Mill along with Prakash Agrawal (DW-1). The complainant gave currency notes of Rs. 2,000/- to the appellant. Thereafter, the complainant transmitted signal to the trap-team. The trap-team rushed to the spot immediately and caught hands of the appellant. The trap-team seized the currency notes of Rs. 2,000/- from pocket of the shirt of the appellant. The numbers of the seized currency notes were compared with the numbers mentioned in the pre-trap panchnama (Ex. P-5), which were found to be similar. A solution of sodium carbonate was prepared and fingers of the appellant were dipped in the solution, colour of the solution turned pink. Thereafter, the solution was kept in a bottle and sealed. Another solution of sodium carbonate was prepared in which pocket of the shirt of the appellant was dipped, colour of the solution turned pink. The soultion was kept in another bottle and sealed. Another solution of sodium carbonate was prepared and the seized currency notes were dipped in the solution, colour of the solution turned pink. The solution was kept in another bottle and sealed. Thereafter, trap panchnama (Ex. P-7) was prepared and the currency notes were seized vide Ex. P-9. Spot-Map (Ex. P-12) was prepared. Regular First Information Report (Ex. P-25) was registered. The seized articles were sent to Forensic Science Laboratory, Raipur for examination. Report (Ex. P-29) was received therefrom vide Ex. P-29. The solution was kept in another bottle and sealed. Thereafter, trap panchnama (Ex. P-7) was prepared and the currency notes were seized vide Ex. P-9. Spot-Map (Ex. P-12) was prepared. Regular First Information Report (Ex. P-25) was registered. The seized articles were sent to Forensic Science Laboratory, Raipur for examination. Report (Ex. P-29) was received therefrom vide Ex. P-29. In the report (Ex. P-29), the phenolphthalein test was found positive. After completion of the investigation, sanction for prosecution against the appellant was obtained and charge-sheet was filed against him in the Court of 1st Additional Sessions Judge/Special Judge, Raipur. The learned Special Judge framed charges against the appellant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act, 1988. 3. After appreciation of the evidence available on record, the learned Special Judge convicted and sentenced the appellant as mentioned above. 4. To establish the charges against the appellant/accused, the prosecution examined S. S. Pandey (PW-1), Ramanand Soni (PW-2), Additional Superintending Engineer P. N. Singh (PW-3), complainant Ramavtar Dewangan (PW-4), Constable Amaldas Lakda (PW-5), Inspector N. S. Choubey (PW-6), Inspector Vishwas Chandrakar (PW-7), Deputy Superintendent of Police R. K. Sharma (PW-8) and Superintending Engineer P. S. Kumar (PW-9). In defence, the appellant examined Prakash Chandra Agrawal (DW-1). 5. Dr. N. K. Shukla, learned Senior Advocate with Shri Aditya Khare, learned counsel for the appellant argued that the prosecution has failed to prove demand of illegal gratification by reliable and cogent evidence. S. S. Pandey (PW-1) specifically deposed that he had not heard the appellant demanding money of his own from the complainant. Looking to the evidence of S. S. Pandey (PW-1), P. N. Singh (PW-3) and P. S. Kumar (PW-9), it appears that supply of electricity was disconnected because the appellant was using the motor pump for commercial purpose and selling the water. The complainant paid the amount of Rs. 2,000/- to the appellant towards charges for restoration of electricity connection and outstanding dues. Demand of illegal gratification, which is sine qua non for convicting the appellant under Section 7 and Section 13(1) (d) read with Section 13(2) of the Act, 1988, is not proved. A presumption cannot be drawn against the appellant. The complainant paid the amount of Rs. 2,000/- to the appellant towards charges for restoration of electricity connection and outstanding dues. Demand of illegal gratification, which is sine qua non for convicting the appellant under Section 7 and Section 13(1) (d) read with Section 13(2) of the Act, 1988, is not proved. A presumption cannot be drawn against the appellant. He further argued that it is necessary for the prosecution to satisfy and establish all the ingredients of Section 7 and Section 13(1)(d) read with Section 13(2) of the Act, 1988 before conviction of the appellant. He submits that the impugned judgment is not sustainable in the eyes of law. He further submitted that even after a presumption is drawn, the appellant has established his case that he did not accept the money as illegal gratification. He referred to the evidence of S. S. Pandey (PW-1), Ramanand Soni (PW-2), P. N. Singh (PW-3) and P. S. Kumar (PW-9) and argued that looking to their evidence, it appears that the complainant paid the amount of Rs. 2,000/- to the appellant towards charges for restoration of electricity connection and outstanding dues. Therefore, the impugned judgment is not sustainable and the appellant deserves to be acquitted. 6. On the contrary, Shri Sandeep Yadav, learned Deputy Government Advocate for the State/respondent, supporting the impugned judgment, refuted the above arguments and submitted that the prosecution has led clinching and reliable evidence. The bribe money was recovered from the appellant. When fingers of the appellant were dipped in the soultion of sodium carbonate, colour of the solution turned pink. therefore, there is a presumption against the appellant under Section 20 of the Act, 1988 and the judgment of conviction and sentence against him does not warrant any interference by this Court. 7. Having heard rival contentions of the parties, I have perused the record of Special Case No. 11/2002. 8. The learned Special Judge, after appreciation of the evidence available on record, held that the appellant had demanded illegal gratification of Rs. 2,000/- from the complainant and he accepted the illegal gratification from the complainant. 9. Ramavtar Dewangan (PW-4) deposed that the appellant was posted as a Junior Engineer in Chhattisgarh State Electricity Board at Kharora. He had installed tubewell in his agricultural field and taken electricity connection therefor. On 13-1-2002, the appellant had cut the power supply for the said tubewell. 2,000/- from the complainant and he accepted the illegal gratification from the complainant. 9. Ramavtar Dewangan (PW-4) deposed that the appellant was posted as a Junior Engineer in Chhattisgarh State Electricity Board at Kharora. He had installed tubewell in his agricultural field and taken electricity connection therefor. On 13-1-2002, the appellant had cut the power supply for the said tubewell. He had met the appellant in this regard. The appellant demanded a sum of Rs. 3000/- as bribe from him for restoration of electric connection. He told the appellant that he had already given him Rs. 4,000/- to Rs. 5,000/-, then how much amount he was required to be given to him further. He further deposed that he had submitted a written complaint (Ex. P-1) in the office of Lokayukta, Raipur and obtained a tape-recorder therefrom. Thereafter, he went to Kharora and met the appellant at a beetel shop and talked to him for restoration of electric connection for his tubewell. At that time, the appellant demanded a sum of Rs. 2,000/- from him as bribe. He had recorded the talks done between him and the appellant in the tape-recorder. 10. N. S. Choubey (PW-6) deposed that he had received a written complaint against the appellant for necessary action. He had given a tape-recorder to the complainant and had also prepared a panchnama in this regard vide Ex. P-24. The complainant had returned him the recorded tape which he had heard in presence of the witnesses and had also prepared a transcript thereof vide Ex. P-2. He further deposed that he enquired from the complainant about the complaint (Ex. P-1). He called for two Panch Witnesses S. S. Pandey (PW-1) and M. S. Mandavi and introduced them with the complainant. He gave them the complaint (Ex. P-1) for their perusal. The Panch Witnesses perused the complaint (Ex. P-1) and they enquired about the complaint from the complainant. A pre-trap demonstration was arranged, wherein a solution of sodium carbonate was prepared in a glass. A plain paper was dipped in the solution did not change. The complainant was asked to produce currency notes of Rs. 2,000/-. The complainant submitted two currency notes in the denomination of Rs. 500/- and ten currency notes in the denomination of Rs. 100/-, total Rs. 2,000/- on which phenolphthalein powder was smeared. A plain paper was dipped in the solution did not change. The complainant was asked to produce currency notes of Rs. 2,000/-. The complainant submitted two currency notes in the denomination of Rs. 500/- and ten currency notes in the denomination of Rs. 100/-, total Rs. 2,000/- on which phenolphthalein powder was smeared. The said notes were kept in the left upper pocket of the shirt of the complainant. The complainant was informed and guided as to how the trap would be arranged and the role which the complainant was required to play in the trap proceeding. S. S. Pandey (PW-1) and Amaldas Lakda (PW-5) deposed in similar fashion. 11. S. S. Pandey (PW-1), Ramavtar Dewangan (PW-4), Amaldas Lakda (PW-5), N. S. Choubey (PW-6) and R. K. Sharma (PW-8) deposed that they proceeded for Kharora. Complainant Ramavtar Dewangan (PW-4) and Constable Amaldas Lakda (PW-5) had gone to trace out the appellant. After sometime, they came back and told that the appellant was present in the Rice Mill. Complainant Ramavtar Dewangan (PW-4) deposed that the appellant had called him along with money in the Rice Mill. They further deposed that they proceeded for the Rice Mill where the appellant was present. Only the complainant and Amaldas Lakda (PW-5) went inside the Rice Mill and other members of the trap team stood up outside the mill. 12. Ramavtar Dewangan (PW-4) deposed that the appellant was taking tea along with Prakash Agrawal (DW-1), proprietor of the Rice Mill. He was also served with tea and he took the tea. Thereafter, he had given the currency notes of Rs. 2,000/- to the appellant, which the appellant had kept in pocket of his shirt. He thereafter told the appellant that power supply to his tubewell may now be restored. The appellant told him that the power supply would have been restored. He further deposed that he came out and transmitted signal to the trap team. 13. Ramavtar Dewangan (PW-4), Amaldas Lakda (PW-5), N. S. Choubey (PW-6) and R. K. Sharma (PW 8) deposed that after receiving the signal from Ramavtar Dewangan (PW-4), they rushed to the spot immediately and caught hands of the appellant. On being asked from the appellant, he admitted receiving money from Ramavtar Dewangan (PW-4). 14. 13. Ramavtar Dewangan (PW-4), Amaldas Lakda (PW-5), N. S. Choubey (PW-6) and R. K. Sharma (PW 8) deposed that after receiving the signal from Ramavtar Dewangan (PW-4), they rushed to the spot immediately and caught hands of the appellant. On being asked from the appellant, he admitted receiving money from Ramavtar Dewangan (PW-4). 14. N. S. Choubey (PW-6) and R. K. Sharma (PW-8) deposed that a solution of sodium carbonate was prepared in which fingers of the appellant were dipped, colour of the solution turned pink. The solution was kept in a separate and clean bottle and sealed. Panch Witness M. S. Mandavi recovered the currency notes of Rs. 2,000/- from the pocket of the shirt of the appellant. The numbers of the seized currency notes were compared with the numbers mentioned in the pre-trap panchnama (Ex.P-5) which were found to be similar. Another solution of sodium carbonate was prepared and the seized currency notes were dipped therein, colour of the solution turned pink. The solution was kept in another bottle and sealed. Another solution of sodium carbonate was prepared in which pocket of the shirt of the appellant was dipped, colour of the solution turned pink. The solution was kept in another bottle and sealed. 15. After perusal of the evidence of S.S. Pandey (PW-1), Ramavtar Dewangan (PW-4), Amaldas Lakda (PW-5), N. S. Choubey (PW-6) and R. K. Sharma (PW-8), it is proved that the sum of Rs. 2,000/- was recovered from the appellant and on comparing the numbers of the seized currency notes with the numbers mentioned in the pre-trap panchnama (Ex.P-5), they were found to be similar. 16. Now, I shall examine whether mere recovery of currency notes is sufficient to convict the appellant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act, 1988? 17. To constitute an offence under Section 7 of the Act, 1988, it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused. Similarly, in terms of Section 13(1)(d) of the Act, 1988, the demand and acceptance of the money for doing a favour in discharge of his official duties is sine qua non for conviction of the accused. 18. Similarly, in terms of Section 13(1)(d) of the Act, 1988, the demand and acceptance of the money for doing a favour in discharge of his official duties is sine qua non for conviction of the accused. 18. In Banarsi Dass v. State of Haryana, (2010) 4 SCC 450 : AIR 2010 SC 1589 : 2010 Cri LJ 2419, the Hon’ble Supreme Court observed thus : 24. In M. K. Harshan v. State of Kerala, (1996) 11 SCC 720 : ( AIR 1995 SC 2178 : 1995 Cri LJ 3978), this Court in somewhat similar circumstances, where the tainted money was kept in the drawer of the accused who denied the same and said that it was put in the drawer without his knowledge, held as under : (SCC pp. 723-24 at p. 2181 of AIR, para 8) 8. .....It is in this context the Courts have cautioned that as a rule of prudence, some corroboration is necessary. In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly, there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification. Unfortunately, on this aspect in the present case we have no other evidence except that of PW 1. Since PW 1’s evidence suffers from infirmities, we sought to find some corroboration but in vain. There is no other witness or any other circumstance which supports the evidence of PW 1 that this tainted money as a bribe was put in the drawer, as directed by the accused. Unless we are satisfied on this aspect, it is difficult to hold that the accused tacitly accepted the illegal gratification or obtained the same within the meaning of Section 5(1)(d) of the Act, particularly when the version of the accused appears to be probable. 25. Unless we are satisfied on this aspect, it is difficult to hold that the accused tacitly accepted the illegal gratification or obtained the same within the meaning of Section 5(1)(d) of the Act, particularly when the version of the accused appears to be probable. 25. Reliance on behalf of the appellant was placed upon the judgment of this Court in C.M. Girish Babu v. CBI, (2009) 3 SCC 779 : ( AIR 2009 SC 2022 ), where in the facts of the case the Court took the view that mere recovery of money from the accused by itself is not enough in absence of substantive evidence for demand and acceptance. The Court held that there was no voluntary acceptance of the money knowing it to be a bribe and giving advantage to the accused of the evidence on record, the Court in paras 18 and 20 of the judgment held as under : (SCC PP. 784 & 785-86) : (Paras 16 and 18 of AIR, Cri LJ) : 18. In Suraj Mal v. State (Delhi Admn.), (1979) 4 SCC 725 : ( AIR 1979 SC 1408 : 1979 Cri LJ 1087), this Court took the view that (at SCC p.727, para 2) 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 any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. * * * * 20. A three-Judge Bench in M. Narsinga Rao v. State of A.P., (2001) 1 SCC 691 : ( AIR 2001 SC 318 : 2001 Cri LJ 515), while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification, observed : (SCC p. 700, para 24) : (Para 24 of AIR, Cri. LJ) : 24. ..........we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length. LJ) : 24. ..........we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length. (Vide Madhukar Bhaskarrao Joshi v. State of Maharashtra, (2000) 8 SCC 571 : ( AIR 2001 SC 147 : 2001 Cri LJ 175). The following statement made by us in the said decision would be the answer to the aforesaid contention raised by the learned counsel, Madhukar case, SCC p. 577, para 12 : (Para 12 of AIR, Cri LJ) : 12. The premise to be established on the facts or drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted as motive or reward™ for doing or forbearing to do any official act. So the word gratification need not be stretched to mean reward because reward is the outcome of the presumption which the Court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like gratification or any valuable thing™. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word gratification must be treated in the context to mean any payment for giving satisfaction to the public servant who received it. In fact, the above principle is no way a derivative but is a reiteration of the principle enunciated by this Court in Suraj Mal case where the Court had held that mere recovery by itself cannot prove the charge of prosecution against the accused in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money. Reference can also be made to the judgment of this Court in Sita Ram v. State of Rajasthan, (1975) 2 SCC 227 : ( AIR 1975 SC 1432 : 1975 Cri LJ 1224), where similar view was taken. 19. Reference can also be made to the judgment of this Court in Sita Ram v. State of Rajasthan, (1975) 2 SCC 227 : ( AIR 1975 SC 1432 : 1975 Cri LJ 1224), where similar view was taken. 19. In T. Subramanian v. State of T.N., (2006) 1 SCC 401 : ( AIR 2006 SC 836 : 2006 Cri LJ 804), the Hon’ble Supreme Court observed that in a case under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947, mere proof of receipt of money by the accused in absence of proof of demand and acceptance of money as illegal gratification is not sufficient to establish guilt of the accused. If the accused offers reasonable and probable explanation based on evidence that the money was accepted by him, other than as an illegal gratification, the accused would be entitled to acquittal. 20. In Suraj Mal v. State, (Delhi Administration), (1979) 4 SCC 725 : ( AIR 1979 SC 1408 : 1979 Cri LJ 1087), the Hon’ble Supreme Court held that mere recovery by itself cannot prove the charge of the prosecution against the appellant in the absence of any evidence to prove payment of bribe or to show that the appellant voluntarily accepted the money. 21. In C. M. Girish Babu v. CBI, Cochin, High Court of Kerala, (2009) 3 SCC 779 : ( AIR 2009 SC 2022 ), the Hon’ble Supreme Court observed thus : 18. In Suraj Mal v. State (Delhi Admn.), (1979) 4 SCC 725 : ( AIR 1979 SC 1408 : 1979 Cri LJ 1087), this Court took the view that (at SCC p. 727, Para 2) 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 any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. 22. It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt. 22. It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt. 4 .............It is well established that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That is, of course, the test prescribed in deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him under Section 4(1) of the Prevention of Corruption Act. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden is shifted to the prosecution which still has to discharge its original onus that never shifts i.e. that of establishing on the whole case the guilt of the accused beyond a reasonable doubt. (Emphasis supplied) (See V. D. Jhingan v. State of U.P., AIR 1966 SC 1762 at AIR p. 1764 : (1966 Cri LJ 1357) Para 4). 22. In State of Kerala and another v. C. P. Rao, (2011) 6 SCC 450 : (AIR 2012 SC (Cri) 911 : 2012 Cri LJ 2607), the Hon’ble Supreme Court observed thus : 7. In the background of these facts, especially the non-examination of CW1, was found very crucial by the High Court. 22. In State of Kerala and another v. C. P. Rao, (2011) 6 SCC 450 : (AIR 2012 SC (Cri) 911 : 2012 Cri LJ 2607), the Hon’ble Supreme Court observed thus : 7. In the background of these facts, especially the non-examination of CW1, was found very crucial by the High Court. The High Court has referred to the decision of this Court in Panalal Damodar Rathi v. State of Maharashtra, (1979) 4 SCC 526 : ( AIR 1979 SC 1191 : 1979 Cri LJ 936), wherein a three-Judge Bench of this Court held that when there was no corroboration of testimony of the complainant regarding the demand of bribe by the accused, it has to be accepted that the version of the complainant is not corroborated and, therefore, the evidence of the complainant cannot be relied on. In the aforesaid circumstances, the three-Judge Bench in Panalal Damodar Rathi case held that there is grave suspicion about the appellant’s complicity and the case has not been proved beyond reasonable doubt. (See SCC Para 11). 10. In C. M. Girish Babu v. CBI, (2009) 3 SCC 779 : ( AIR 2009 SC 2022 ), this Court while dealing with the case under the Prevention of Corruption Act, 1988, by referring to its previous decision in Suraj Mal v. State, (Delhi Admn.), (1979) 4 SCC 725 : ( AIR 1979 SC 1408 : 1979 Cri LJ 1087), held 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 any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. (See SCC Para 18) 11. In a subsequent decision of this Court also under the Prevention of Corruption Act, in A. Subair v. State of Kerala, (2009) 6 SCC 587 : (2009 AIR SCW 3994 : 2009 Cri LJ 3450), this Court made certain pertinent observations about the necessity of the presence of the complainant in a bribery case. (See SCC Para 18) 11. In a subsequent decision of this Court also under the Prevention of Corruption Act, in A. Subair v. State of Kerala, (2009) 6 SCC 587 : (2009 AIR SCW 3994 : 2009 Cri LJ 3450), this Court made certain pertinent observations about the necessity of the presence of the complainant in a bribery case. The relevant observations have been made in paras 18-19 which are quoted below (SCC p. 592) : (Paras 12 and 13 of AIR SCW, Cri LJ) : 18. ......... The High Court held that since the Special Judge made attempts to secure the presence of the complainant and those attempts failed because he was not available in India, there was justification for non-examination of the complainant. 19. We find it difficult to countenance the approach of the High Court. In the absence of semblance of explanation by the investigating officer for the non-examination of the complainant, it was not open to the Courts below to find out their own reason for not tendering the complainant in evidence. It has, therefore, to be held that the best evidence to prove the demand was not made available before the Court. 12. Those observations quoted above are clearly applicable in this case. In the context of those observations, this Court in SCC para 28 of A. Subair case made it clear that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is proved to the contrary by proper proof of demand and acceptance of illegal gratification, which is the vital ingredient to secure the conviction in a bribery case. In view of the aforesaid settled principles of law, we find it difficult to take a view different from the one taken by the High Court. 23. In the instant case, in his defence, the appellant examined Prakash Agrawal (DW-1) and took defence that the complainant was misusing the tubewell installed in his agricultural field for selling the water and, therefore, power supply to the tubewell was cut and the complainant was told that on his paying a sum of Rs. 2,000/- towards dues, the electric connection will be restored. In this regard only, the complainant had given the sum of Rs. 2,000/- to him saying that he was going out of station, therefore, receipt of the sum of Rs. 2,000/- towards dues, the electric connection will be restored. In this regard only, the complainant had given the sum of Rs. 2,000/- to him saying that he was going out of station, therefore, receipt of the sum of Rs. 2,000/- will be received by him later on, but the power supply to the tubewell may be restored. 24. S. S. Pandey (PW-1) deposed in cross-examination in paragraph 5 that the appellant told to the trap team that power supply for the complainant was disconnected, therefore, the amount of Rs. 2,000/- was given by the complainant to him towards payment for restoration of the power supply and outstanding dues. The appellant further told that the office was closed, therefore, he was not in a position to give receipt of the payment of Rs. 2,000/-. He further deposed that the complainant had not told that the appellant was demanding bribe of Rs.2,000/-, rather he had told that the appellant was demanding the sum of Rs. 2,000/- for restoration of the power supply. He further deposed that tape recorder was played, but voice thereof was not clearly audible. 25. Ramanand Soni (PW-2) deposed that on appellant’s ordering for disconnecting power supply of the complainant, he had disconnected the power supply. He further deposed that the complainant was misusing the water taken out from the motor pump. He further deposed that the appellant had told him that on payment of Rs. 2,000/- by Mahesh Dewangan, father of the complainant, power supply would be restored. He further deposed that the appellant specifically told him that when the complainant will pay the amount of Rs. 2,000/- towards the electricity bill then only power supply will be restored. 26. P. N. Singh (PW-3) deposed that the consumer had paid an amount of Rs. 2,012/- in the office, thereafter, the power supply was restored. He further deposed that it is true that in rural area, electricity bills are recovered after office hours and receipts thereof are issued on the next day. 27. P.S. Kumar (PW-9) deposed that from 27-4-2002 to 6-6-2003, he was posted as Superintending Engineer in Chhattisgarh State Electricity Board at Raipur. He further deposed that information regarding Exs. P-15, P-16 and P-17 was given to Lokayukta from his office. He further deposed that report of Ex.P-18 was written by S. S. Mourya. 27. P.S. Kumar (PW-9) deposed that from 27-4-2002 to 6-6-2003, he was posted as Superintending Engineer in Chhattisgarh State Electricity Board at Raipur. He further deposed that information regarding Exs. P-15, P-16 and P-17 was given to Lokayukta from his office. He further deposed that report of Ex.P-18 was written by S. S. Mourya. He further deposed that it is true that after disconnecting power supply for the complainant, a sum of Rs. 2,012/- was deposited by the complainant which is described in Ex.P-15. It is true that in the last two years, the complainant was charged Rs. 4,000/- for misusing the agricultural motor pump for commercial purpose. 28. Prakash Agrawal (DW-1) deposed that on 15-1-2002, he and the appellant were sitting in his office. He further deposed that when they were taking tea, complainant Ramavtar Dewangan (PW-4) came there. He was also served with tea. The complainant asked the appellant to keep the sum of Rs. 2,000/- and restore the power supply and he also told the appellant that as he had to go out of station, he will collect the receipt of the payment later on. The appellant told the complainant to deposit the amount in the office and take the receipt thereof. On making request by the complainant, the appellant took the money from the complainant and on making repeated requests by the complainant, the appellant telephoned for restoration of power supply for the complainant. 29. Ramavtar Dewangan (PW-4) deposed in cross-examination in paragraph 16 that he knew Prakash Agrawal (DW-1), proprietor of Prakash Rice Mill from his childhood. There was no enmity between him and Prakash Agrawal (DW-1). At the time when talk was done between him and the appellant, Prakash Agrawal (DW-1) was present there. 30. From perusal of evidence of Amaldas Lakda (PW-5) and S.S. Pandey (PW-1), it appears that they did not hear the talks done between the complainant and the appellant nor they saw the complainant giving money to the appellant. In a trap case, at least some panch witnesses should over hear the conversation or see something to which they can depose. The corroboration is essential in a case like for what actually transpired at the time of alleged occurrence and acceptance of bribe. In the instant case, the above facts are lacking very much. 31. According to complainant Ramavtar Dewangan (PW-4), he had given the sum of Rs. The corroboration is essential in a case like for what actually transpired at the time of alleged occurrence and acceptance of bribe. In the instant case, the above facts are lacking very much. 31. According to complainant Ramavtar Dewangan (PW-4), he had given the sum of Rs. 2,000/- to the appellant in presence of Prakash Agrawal (DW-1). I am of the view that it is not possible for a public servant to make demand of illegal gratification and accept the same in presence of any other person. 32. It is a settled canon of criminal jurisprudence that the conviction of an accused cannot be founded on the basis of an inference. The offence should be proved against the accused beyond reasonable doubt either by direct evidence or even by circumstantial evidence. If each link of the chain of events is estabished pointing towards the guilt of the accused, the prosecution has to lead cogent evidence in that regard so far as it satisfies the essentials of a complete chain duly supported by appropriate evidence. 33. So far as presumption under Section 20 of the Act, 1988 is concerned, it is well settled that the presumption to be drawn under Section 20 is not inviolable one. The accused charged with the offence can rebut it either through the cross-examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption, the same would stick and then it can be held by the Court that the prosecution has proved that the accused accepted the amount towards gratification. It is equally well settled that the burden of proof upon the accused person against whom the presumption is made under Section 20 of the Act, 1988 is not akin to the burden placed on the prosecution to prove the case beyond a reasonable doubt. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden is shifted to the prosecution which still has to discharge its original onus that never shifts, i.e. that of establishing on the whole case the guilt of the accused beyond a reasonable doubt. 34. In the instant case, it is evident that on the request of the complainant, the appellant had accepted the amount of Rs. 2,000/- for restoration of power supply. The appellant had told the complainant to deposit the amount in the office and take the receipt thereof. On making request by the complainant, the appellant took the money from the complainant and on making repeated requests by the complainant, the appellant telephoned for restoration of power supply for the complainant. 35. It appears that the appellant had accepted the money and kept the same in his pocket, therefore, when the figners of the appellant were dipped in the solution of sodium carbonate, colour of the solution turned pink. S. S. Pandey (PW-1) specifically deposed that they did not hear clearly the conversion taken place between the complainant and the appellant, therefore, mere recovery of money from the appellant by itself cannot prove charges of the prosecution against the appellant in absence of any evidence to prove payment of bribe or to show that the appellant voluntarily accepted the money or illegal gratification. 36. For the foregoing reasons, the appeal is allowed and the conviction and sentence awarded to the appellant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 are set aside. The appellant is acquitted of the charges framed against him. Presently, he is on bail. His bail bonds are cancelled and sureties stand discharged. Appeal allowed.