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2012 DIGILAW 130 (MP)

Madanmohan Jatwa v. State of M. P.

2012-01-31

A.K.SHRIVASTAVA, S.R.WAGHMARE

body2012
JUDGMENT Shrivastava, J. -- 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 1.9.1997 passed by Special Judge, Ujjain in Special Case No.4/1994, convicting the appellant under section 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (in short the Act) and thereby sentencing him to suffer three years RI and fine of Rs.500/- for each offence with a further stipulation that in case amount of fine is not deposited, the appellant shall undergo further imprisonment of two months RI, the appellant has knocked the doors of this Court by preferring this appeal under section 374 of the Code of Criminal Procedure, 1973. 2. In brief the case of prosecution is that one Shyamubai in order to start the business of vegetables submitted an application for obtaining loan of Rs.2,000/- in the Sahakari Sewa Samiti, Chanderi, Ujjain (hereinafter referred to as the “Samiti”). The loan was sanctioned in her favour and her husband Shantilal (hereinafter referred to as the complainant) contacted the appellant who, at the relevant point of time was serving on the post of Secretary in the said Samiti. According to the prosecution the appellant told that the complainant has to deposit Rs.200/ towards instalment and further told that a sum of Rs.100/- be also given to him towards bribe. The appellant was also directed by the officers to call for the quotations as a result of which he (appellant) called the quotation from one Om Prakash, but, despite it the requisite loan amount which was already sanctioned to the complainant’s wife was not paid. Since a demand of bribe was made by the appellant, the complainant submitted a complaint in the Lokayukt Office at Ujjain where Deputy S.P. Mr. Malhotra (could not be examined on account of his death before the trial) arranged a trap. The said officer summoned two Gazetted Officers namely Pitambar Das Saraf (Tahsildar, Nazul) and Bherulal were sent to the office of the Lokayukt where they were introduced with the complainant, thereafter the Head Constable Aminuddin searched the body of the complainant and thereafter on submitting two currency notes having denomination of Rs.100/- each and two currency notes of Rs.50/- (total Rs.300/-) their numbers were noted down in the pre trap Panchnama and thereafter one employee of the Lokayukt Office Kanhaiyalal Kaithwas applied phenolphthalein powder on these currency notes. 3. 3. The treated currency notes were kept in the pocket of the complainant with a direction that he should not shake his hands with the appellant and should not come in contact with the currency notes. Further the complainant was tutored that after obtaining the legal fee of Rs.200/- and bribe of Rs.100/-, he shall rub his hand on his mustache which would be a signal to the members of the trap party that transaction of bribe has taken place. Thereafter Constable Aminuddin prepared the solution of Sodium Carbonate in the office and it was divided in two parts. In the first part the fingers of the hands of Panch witness were dipped and on dipping his fingers in the said solution the colour of the solution did not change. The un-tinted hand wash was thrown and in the second part of the solution of the Sodium Carbonate the fingers of the hands of Mr. Kaithwas were dipped and on dipping his fingers in the said solution, its colour changed to pink. The tinted hand-wash was collected in a bottle and the same was sealed. Thereafter two packets of phenolphthalein powder and Sodium carbonate were prepared and they were sealed. 4. It is the further case of prosecution that the trap party proceeded towards Central Cooperative Bank where the appellant was serving and the complainant was sent to handover the bribe money to him. After coming out from the Bank, it is said that complainant gave the specified signal to the members of the trap party as a result of which Head Constable Aminuddin and one more Constable caught hold the hands of the appellant from the wrist. The other members of the trap party immediately thereafter came inside the Bank and Deputy S.P. Malhotra introduced himself and also the other members of the trap party. In order to test whether the appellant has obtained the bribe money or not, solution of Sodium Carbonate was prepared in three Pans. First of all the fingers of the hands of the Gazetted Officer were dipped but the colour did not change. The un-tinted hand wash of the Gazetted Officer was collected in a bottle and it was also sealed. First of all the fingers of the hands of the Gazetted Officer were dipped but the colour did not change. The un-tinted hand wash of the Gazetted Officer was collected in a bottle and it was also sealed. In the second Pan, the fingers of the hands of the appellant were dipped and on dipping his fingers the colour of the chemical solution changed to pink and his tinted hand wash was collected in a bottle and it was also sealed.The fingers of the hands of the complainant were also dipped in the third chemical solution of Sodium Carbonate and on dipping his fingers the colour of the solution turned to pink and this was also collected in a bottle and it was also sealed. The bribe money which was recovered from the shirt pocket of the appellant, their numbers were tallied with the pretrap Panchnama and the numbers were found to be the same. Again the fingers of the hands of the Panch witness were dipped in the fresh prepared chemical solution of Sodium Carbonate and on dipping his fingers in the said solution, it turned to pink colour and the tinted hand wash of Gazetted Officer (Panch witness) was collected in a bottle and it was sealed. 5. After doing the rest part of the investigation, a charge-sheet was submitted before learned Special Judge who framed charges under section 7, 13(1)(d) read with section 13(2) of the Act which appellant denied and requested for the trial. 6. In order to bring home the charges the prosecution examined as many as 8 witnesses and also proved the documents Ex.P-1 to P-26. 7. The defence of the appellant is that the President of the Samiti was keeping enmity against the complainant because he was removed from the post of President of the said Samiti and hence in order to allay his revenge this foul game was cooked and has also been played against him. The further defence of the appellant is that he is innocent and neither he has made any demand of bribe nor he accepted the same. However, in support of his defence, he did not choose to examine any witnesses. 8. The further defence of the appellant is that he is innocent and neither he has made any demand of bribe nor he accepted the same. However, in support of his defence, he did not choose to examine any witnesses. 8. The learned Special Judge on the basis of the evidence placed on record came to hold that charges framed against the appellant are proved and eventually convicted him and passed the sentence which we have already mentioned hereinabove. 9. In this manner this appeal has been filed by the appellant assailing his judgment of conviction and order of sentence. 10. The contention of Shri Sachin Bhatnagar, learned counsel for the appellant is that prosecution is not only obliged to prove the motive part, but is further obliged to prove that demand of bribe was made by the appellant and the same was accepted by him. Having not proved these essential ingredients, the offences for which the appellant was tried have not been proved and, therefore, by allowing this appeal the appellant be acquitted from all the charges. It has also been put forth by him that looking to the shaky testimony of the complainant (PW1) it should not be relied upon specially when his testimony is not corroborated by any independent witnesses. 11. The contention of learned counsel for the appellant is that status of the complainant in the trap case is of an accomplice and if that would be the position, corroboration of his testimony is essential. In support of his contention learned counsel has placed heavy reliance on the decision of Supreme Court Pannalal Damodar Rathi v. State of Maharashtra [ AIR 1979 SC 1191 ], and of this Court Navkant Sharma v. State of M.P. [ 2008(2) JLJ 386 ]. 12. On the other hand Shri Soni, learned Public Prosecutor argued in support of the impugned judgment and submitted that in the present case motive part, demand of bribe and its acceptance, all the three ingredients have been proved by the prosecution witnesses and therefore, the learned Special Judge did not err in convicting the appellant. 12. On the other hand Shri Soni, learned Public Prosecutor argued in support of the impugned judgment and submitted that in the present case motive part, demand of bribe and its acceptance, all the three ingredients have been proved by the prosecution witnesses and therefore, the learned Special Judge did not err in convicting the appellant. By placing heavy reliance on the two decisions of the Supreme Court Madhukar Bhaskarrao Joshi v. State of Maharashtra [2001 Cri.LJ 175], and M. Narsinga Rao v. State of Andhra Pradesh [2001 Cri.LJ 515], and by taking aid of section 20 of the Act it has been contended by learned Public Prosecutor that once the bribe money has been recovered from the possession of the appellant, section 20 of the Act is triggered and set in motion and it is for the accused-appellant to explain how he has obtained the money which has been seized from him and in absence of any satisfactory explanation it would be deemed that he had made demand of bribe and, therefore, his conviction cannot be set aside. 13. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed. 14. In order to constitute the ingredients of sections 7 and 13(1)(d) of the Act, it is incumbent upon the prosecution to prove that there was an occasion or we may say motive on the part of the accused to make demand of bribe and indeed he has made the demand of bribe and has also accepted the same. If these three ingredients are proved then only it can be said that accused has committed the aforesaid offences. However, if these ingredients are not proved, there cannot be any conviction. By keeping these three essential ingredients in our mind we shall now examine the evidence which has been adduced by the prosecution. In the present case the star witnesses are complainant Shantilal (PW1), independent Panch witness Pitamber Das Saraf (PW4) and Head Constable Aminuddin (PW6). It would be condign to mention here that since the complainant is totally an illiterate person and is unable to read and write and he put his thumb impression only, therefore, written complaint (Ex.P-7) was got written by one Ramchandra Yadav (not examined) who, at the relevant point of time was serving on the post of President of the said Samiti. Similarly, other officers of the trap party were not examined though Deputy S.P. Malhotra (who was one of the Investigating Officer) could not be examined since before the trial could commence he breathed his last.The other witnesses are Shyamubai (PW2) who is the wife of complainant and for whom the loan was sanctioned, has also been examined important witness is Mahesh Chandra Acharya (PW7) who is the Manager in the Bank and has explained the entire set up and procedure of the work of the Bank to sanction the loan and how it disburse it. R.K. Jain (PW8) is another important witness and he has been examined by the prosecution to prove the sanction order and the same is Ex.P-26. 15. Complainant Shantilal (PW1) has stated that when he asked the appellant to provide cheque to him, he told that first of all complainant should pay Rs.200/-. According to this witness he told that being a poor man and living in poverty as well as one of his child is disabled and, therefore, he is unable to give Rs.200/-. Thereafter, this witness approached one Ram Chandra (not examined) who, at the relevant point of time was serving on the post of President of the Samiti. Thereafter, said Ram Chandra accompanied him to the office of the Superintendent of Police at his official residence. Further this witness says that the Superintendent of Police enquired from him whether he had gone to give bribe or not and at that juncture this complainant gave Rs.200/- to the Deputy S.P. Further this witness has stated that complaint (Ex.P-7) was written by Ram Chandra, but, the prosecution for the reason best known to it has not examined Ram Chandra who at the relevant point of time was serving as President of the Samiti. Later on, in para 2 this witness is saying that appellant made demand of Rs.200/- to deposit it in the Bank but by changing the version he says that this money was demanded towards the bribe. 16. Further this witness says that phenolphthalein powder was applied on the currency notes which he submitted and when his fingers were dipped in the chemical solution its colour changed to pink. Thereafter, the members of the trap party accompanied him in the official vehicle and they went to the Bank where the appellant was serving on the post of Secretary. Further this witness says that phenolphthalein powder was applied on the currency notes which he submitted and when his fingers were dipped in the chemical solution its colour changed to pink. Thereafter, the members of the trap party accompanied him in the official vehicle and they went to the Bank where the appellant was serving on the post of Secretary. In para 6, this witness has stated that in the Bank he requested the appellant to provide cheque to him, on this, appellant told that let us go to have a sip of a cup of tea. Thereafter, both of them went to a tea shop nearby a temple. 17. After drinking the tea from the tea shop, both of them came back to the Bank where the appellant handed over requisite cheque to him and at that juncture he gave the bribe money to him. In the same para this witness is saying that although the Superintendent of Police tutored him to give signal but before he could give any signal, the Constables arrived and caught hold the hands of the appellant. Thereafter, the Tahsildar (Panch witness) took out the bribe money from the pocket of the trousers of the appellant. According to this witness first of all fingers of the hands of the Panch witness were dipped in the solution but the colour of the solution did not change to pink. Thereafter, the fingers of the hands of the appellant were dipped in the chemical solution and the result was positive. Similarly, when his fingers were dipped in the solution the colour of the solution changed to pink. Thereafter, this witness further says that the tinted and un-tinted hand wash of the persons whose fingers were dipped in the chemical solution were collected in the bottles and they were sealed. 18. In para 10 of his (complainant’s) testimony, on being asked by the Court whether the appellant made demand of bribe of Rs.200/- or Rs.100/in reply firstly he answered that Rs.200/- was demanded to deposit it in his account. But by changing his version again he has said that a sum of Rs.200/- was demand by the appellant towards the bribe and he gave this amount to him. At this juncture, this witness was declared hostile by the prosecution and was cross-examined by the Public Prosecutor. But by changing his version again he has said that a sum of Rs.200/- was demand by the appellant towards the bribe and he gave this amount to him. At this juncture, this witness was declared hostile by the prosecution and was cross-examined by the Public Prosecutor. In cross-examination made by Public Prosecutor this witness says that complaint (Ex.P-7) was submitted by him. Again he is saying that Rs.200/- was given to the appellant to get it deposited in his account and Rs.100/- was given to him towards bribe. Thereafter he says that he handed over two currency notes of Rs.100/- each and two notes of Rs.50/- each to Deputy S.P. Mr. Malhotra. Thereafter, this witness is saying that the appellant was directed to take out his shirt and pocket of his shirt was subjected to Phenolphthalein powder test and the result was found to be positive. In further cross-examination paras 12 and 13 put by Public Prosecutor this witness is saying that in the office of the Lokayukt, he was told that he should not come in contact with the treated currency notes and should not shake his hands with the appellant. He was also tutored that after handing over the currency notes to the appellant, he should rub his hands on his mustache and further a receipt of Rs.200/- should also be obtained. According to this witness, after handing over the money, he asked the appellant to give the receipt of Rs.200/- which was also given to him and after the trap was over the said receipt was also seized. 19. In corss-examination para 21, made by the defence counsel complainant has stated that the complaint (Ex.P-7) has been written by whom and what has been written in it, he cannot say. According to the complainant he simply put his thumb impression on his complaint (Ex.P-7). This witness has further stated that when complaint (Ex.P-7) was given to Deputy S.P. at that juncture Ram Chandra (President of the Samiti) was not present. This witness has put his inability that on his complaint, Ram Chandra was removed from the post of President. 20. On marshalling the testimony of this witness it is carved out that a demand of Rs.200/- was made by the appellant. However, his statement in examination-in-chief is not that the said demand of Rs.300/- was towards the bribe money. This witness has put his inability that on his complaint, Ram Chandra was removed from the post of President. 20. On marshalling the testimony of this witness it is carved out that a demand of Rs.200/- was made by the appellant. However, his statement in examination-in-chief is not that the said demand of Rs.300/- was towards the bribe money. Further he says that he gave Rs.200/- to the Deputy S.P. Again by changing his version, later on he says that he gave Rs.300/- (see para 5 of his testimony). The complaint has not been written by him and who had written the complaint he cannot say. Thus, according to us the statement of this witness is not firm and on material points he is changing his version again and again. In very specific words this witness has stated that before giving the signal to the members of the trap party, the Constables arrived there and caught hold the hands of the appellant and they were subjected to Phenolphthalein powder test. True, after examining at length this witness was declared hostile but not at the earlier point of time when he was deposing against the prosecution. According to us, the testimony of a hostile witness can be relied by the prosecution as well as by the defence and,therefore, merely because at some places in the cross-examination made by the Public Prosecutor he gave certain evidence in support of the prosecution, it cannot be said that without any independent corroboration he should be relied upon, because at the same time he also gave evidence against the prosecution in the examination-in-chief and also in the cross-examination made by the defence counsel. The status of complainant in trap case is that of an accomplice and therefore if his testimony is shaky, the conviction cannot be based upon his sole testimony and in that case corroboration of his testimony is needed. In this context the decision of Supreme Court in Pannalal Damodar Rathi (supra), has been rightly placed reliance by learned counsel for the appellant. 21. In this context the decision of Supreme Court in Pannalal Damodar Rathi (supra), has been rightly placed reliance by learned counsel for the appellant. 21. One important piece of evidence which cannot be marginalized and blinked away is that according to the complainant when he told appellant in the Bank that he has brought the money with him, appellant told that let us have a cup of tea and thereafter both of them came out from the Bank and went to a tea shop nearby the Bank. The members of the trap party were vigilant and they already took their convenient positions nearby the Bank. If the appellant was really intending to take any bribe, very conveniently he could have taken the bribe money at that place, but, he did not take the bribe money at that place, but, it was taken in the Bank when they went back to the Bank. 22. According to the complainant, the receipt of Rs.200/- which was towards legal fee was seized but for the reason best known to the prosecution, the same has not been filed nor proved from the testimony of anywitness although seizure memo of the receipt Ex.P-12 has been filed. According to us, this could be a very relevant piece of evidence in order to take out grain from the chaff and it could have been ascertained that whether the bribe money was handed over to the appellant or not because if after obtaining the bribe money if the appellant issued the receipt of Rs.200/-, certainly on that document also some particles of Phenolphthalein powder would have fallen but as per prosecution’s own case this receipt was not subjected to Phenolphthalein powder test. Hence, the prosecution has suppressed one of the material piece of evidence going to the root of the matter. 23. Apart from what we have held hereinabove, nowhere from the testimony of complainant it is gathered that the complaint was read over and explained to him and after hearing its contents he accepted the same. The scribe of complaint Ram Chandra has also not been examined. It appears that he was not examined because he was removed from the post of President of the Samiti. The scribe of complaint Ram Chandra has also not been examined. It appears that he was not examined because he was removed from the post of President of the Samiti. However, according to us in order to prove the initial burden of asking for the bribe written in the complaint, Ex.P-7, it was incumbent upon the prosecution to examine the scribe of complaint Ex.P-7. The matter would have been totally different if the scribe (Ram Chandra) would have been examined and if he would have given the statement against the prosecution, he could have been declared hostile. Thus, the initial burden to prove the factum of making demand of bribe by the appellant is not proved. At this juncture, it would be relevant to go through the testimony of Panch witness Pitambar Das Saraf (PW4) who is totally an independent person and he too is not saying that he read over the complaint to the complainant and after hearing its contents, the complainant accepted its contents. According to us, merely putting exhibit mark on the complaint would not mean that the same has been proved by cogent evidence and thus whether any demand of bribe was made by the appellant, is not proved from the testimony of complainant Shantilal (PW1) and by Panch witness Pitambar Das Saraf (PW4). The unfortunate part of the case is that Deputy S.P. Mr. Malhotra who was also a member of the trap party was not examined on account of his death. Another member of the trap party namely Bherulal who was another Panch witness has also not been examined and similarly Mahadev Rane and Rameshwar Verma who were Constables have also not been examined. According to us, if another Panch witness Bherulal would have been examined this fact might have come whether the complaint (Ex.P-7) was read over to the complainant or not. Even if we scrutinize the complaint (Ex.P-7) we do not find anything in it that it was read over and explained to the complainant and after hearing the contents thereof it was accepted by him, because there is no endorsement in this regard on the complaint. Normally it is seen that there is an endorsement to that effect of the independent Panch witness but this evidence is totally lacking in the present case. 24. Normally it is seen that there is an endorsement to that effect of the independent Panch witness but this evidence is totally lacking in the present case. 24. If we closely scrutinize the testimony of the complainant we find that before giving signal that the bribe money has been given to the appellant, the members of the trap party entered in the Bank and caught hold the hands of the appellant. No question was put to the complainant in this regard by the Public Prosecutor after declaring him hostile. Hence, for the aforesaid reasons we are unable to rely on this witness on the point of making demand of bribe by the appellant. 25. The other important witness is Panch witness Pitambar Das Saraf (PW4). From the testimony of this witness, at the cost of repetition, we may say that he too has not stated anything that the complaint was read over by him or even by another independent Panch witness Bherulal (not examined) to the complainant. In cross-examination this independent witness is admitting that he did not put any question to the complainant that who is the scribe of the complaint (Ex.P-7). He is admitting in para 6 that on all the currency notes the Phenolphthalein powder was not applied and when again he was confronted he has stated that the statement given by him that on two currency notes of Rs.100/- each and two currency notes of Rs.50/- each Phenolphthalein powder was applied is correct. Again he was cross-examined on this point and again he submitted that the statement which he has given about that Rs.300/- was handed over by the complainant is correct but the statement that Rs.200/- was given by the complainant is incorrect. Even if we ignore this inconsistency part of his statement, from his testimony only applying Phenolphthalein powder on the currency notes inside the Lokayukt office and the Phenolphthalein powder test after the trap was over has been proved and nothing more. However, the complainant Shantilal (PW1) himself is saying that before the signal, the Constables rushed inside the Bank and they caught hold the hands of the appellant. Thus, it is difficult to hold that Phonolphthalein powder test was correctly conducted by adopting the due procedure. It is further relevant to mention here that Phenolphthalein powder test was conducted on the hands of the fingers of the complainant, appellant and Panch witness. Thus, it is difficult to hold that Phonolphthalein powder test was correctly conducted by adopting the due procedure. It is further relevant to mention here that Phenolphthalein powder test was conducted on the hands of the fingers of the complainant, appellant and Panch witness. But the said test was not conducted on the fingers of the hands of Head Constable Aminuddim (PW6) Constable who has not been examined. Thus, it cannot be said that the Phenolphthalein powder test was rightly performed and conducted. At this juncture, the testimony of Head Constable Aminuddin (PW6) be also seen where in examination-in-chief he is saying that two packets of Phenolphthalein powder were prepared and they were sealed in the office. Nowhere in his testimony (neither in the examination-in-chief nor in the cross-examination) it has come that the Phenolphthalein powder was not carried by the police personnel but according to us, this type of statement was very much necessary because if two packets of Phenolphthalein powder were prepared then why it was not so stated by the said Head Constable that those packets were left in the office only. Thus, according to the standard of the evidence which has been adduced one can think that those packets of Phenolphthalein powder were also carried by the police personnel at the time of trap and that is why the fingers of the hands of this witness Constable who has not been examined were not tested by Phenolphthalein powder test. The matter should also be visualized from this angle also that because the packets of Phenolphthalein powder were prepared in the Lokayukt Office, and in the absence of positive evidence that they were not carried with the members of the trap party and were left in the office only, while going to trap the appellant and before catching hold the hands of the appellant this powder was applied by the Head Constable and Constable on their palm and, therefore, if by having powder on this palm if they will catch hold the hands of the appellant, certainly the particles of the Phenolphthalein powder would fall on the hands of appellant and if thereafter if the chemical test is performed, the result would be positive. 26. 26. For one more reason the Phenolphthalein powder test is not proved because the independent Panch witness Pitambar Das Saraf (PW4) has stated that when he dipped fingers of his hands in the chemical solution its colour did not change (see para 2 of his examination-in-chief). Nowhere thereafter he has stated that he took out the treated currency notes from the shirt pocket of the appellant and, therefore, who took out the bribe money from the possession of the appellant, it is still a mystery. 27. If we visualize the matter from this angle that this independent Panch witness took out the bribe money from the pocket of the appellant, certainly on dipping fingers of his hands in the solution of Sodium Carbonate its colour should have been changed but according to this witness, in examination-in-chief when the fingers of his hands were dipped in the solution of Sodium Carbonate its colour did not change. It would be relevant to mention here that nowhere the prosecution has declared this Panch witness to be hostile and was cross-examined by the Public Prosecutor and thus the prosecution is bound by the testimony of this witness and hence the question is who took out the treated currency notes from the possession of the appellant this has not been proved and this has also not been proved that another Panch witness Bherulal (not examined) took out the treated currency notes from the possession of the appellant and, therefore, the factum of acceptance of alleged bribe, has also not been proved. At the cost of repetition we may again reiterate here that the official receipt of Rs.200/- which was issued by the appellant after obtaining the bribe money, although it is said to have been seized but has not been proved nor the said receipt was subjected to Phenolphthalein powder test and, therefore, according to us, the factum of giving bribe and its acceptance which are the most essential ingredients to constitute the offence punishable under section 7(1), 13(1)(d)/13(2) of the Act are not proved in the present case. 28. 28. It would be apposite to state here that Head Constable Aminuddin (PW6) who is a responsible member of the trap party, in his examination-in-chief is not at all saying that the complainant gave any signal to the members of the trap party, on the other hand, the independent Panch witness Bherulal gave signal by rubbing his hands on his head which is not at all stated by any of the prosecution witnesses. This independent witness Bherulal has also not been examined by the prosecution. 29. One another very important evidence is totally missing from the testimony of this witness who is a Head Constable in the office of Lokayukt and is an experienced employee that before going for the trap, all the members of the trap party washed their hands in the Lokayukt office and thereafter they proceeded to trap the appellant. According to us, this is very much essential for the simple reason that in absence of this type of evidence one can think and it can be inferred that before going to trap the appellant, the Phenolphthalein powder was already applied by this witness Constable who has not been examined. 30. True, Kanhaiyalal Kethawas who is a typist in the office of Lokayukt has been examined as PW5 and he has only proved the signatures of the Investigating Officer Mr. Malhotra on account of his death. 31. Apart from what we have held hereinabove on the basis of the testimony of the complainant Shantilal (PW1), independent Panch witness Pitambar Das Saraf (PW4) and also from the statement of Kanhaiyalal Kaithwas (PW5) who was an employee of the Lokayukt, nowhere it is gathered that complainant was tutored that on making demand of bribe, then only bribe money (treated currency notes) should be handed over to the appellant. On the other hand only this much has come in the testimony of these witnesses that complainant was tutored that he should give the treated currency notes to the appellant. According to us, since the complainant is a rustic illiterate villager and if he was so tutored by the police personnel that he should hand over the treated currency notes to the appellant, certainly under fear in order to obey the order of the police personnel, anyhow he will hand over the treated currency notes to the accused. According to us, since the complainant is a rustic illiterate villager and if he was so tutored by the police personnel that he should hand over the treated currency notes to the appellant, certainly under fear in order to obey the order of the police personnel, anyhow he will hand over the treated currency notes to the accused. The matter would have been all together different if he would have been tutored that only on making demand of bribe he should transfer the bribe money to the appellant. But in the present case this important piece of evidence is totally lacking. Even if the testimony of Head Constable Aminuddim (PW6) para 2 is stretched to a great extent, only this much is gathered that complainant was tutored that when the appellant would make the demand of money then only the complainant should hand over the treated currency notes to him and nothing more. Nowhere this Head Constable is saying that Deputy S.P. Mr. Malhotra told the complainant that on making demand of bribe by the appellant then only he should pass over the treated currency notes to him. Certainly, as per prosecution’s own case, a sum of Rs.200/- was to be given by the complainant to deposit the same in his account and, therefore, in absence of positive evidence that the complainant should hand over the bribe money only on making demand of bribe by the appellant, according to us, for this additional reason also neither the demand of bribe nor its acceptance is proved. 32. So far as the motive part is concerned, the prosecution has taken pains to examine Mahesh Chandra Acharya (PW7) who at the relevant point of time was serving on the post of Manager in the Bank. On going through his entire testimony we do not find any iota of evidence that any role of appellant is in the transaction. Nowhere he has stated that appellant who at the relevant point of time was holding the post of Secretary was having any role to issue the cheque to the complainant, therefore, the appellant who was holding the post of Secretary, how he was having any motive to make demand of bribe there is nothing in the statement of any of the witnesses and, therefore, the motive part is also not proved. The decisions of Supreme Court Madhukar Bhaskarrao Joshi (supra), and M.Narsinga Rao (supra), placed reliance by learned Public Prosecutor are distinguishable on the facts and also because in those cases the motive, demand of bribe as well as its acceptance were proved. 33. We do not find any merit in the contention of the learned Public Prosecutor that because bribe money has been seized from the possession of the appellant therefore, according to section 20 of the Act, it shall be presumed that he made demand of bribe and also accepted the same. According to us, the applicability of section 20 of the Act would arise only when initial burden of proof is discharged by the prosecution. 34. In T. Subramanian v. State of Tamil Nadu [ (2006)1 SCC 401 ], and Om Prakash v. State of Haryana [ (2006)2 SCC 250 ], it has been held by the Supreme Court that the initial burden of proof of demand of bribe and its acceptance should have been proved by the prosecution and then only the statutory presumption would shift upon the accused. In a later decision A. Subair v. State of Kerala [ (2009)6 SCC 587 ], the same preposition has been laid down and the apex Court by placing reliance on its earlier decisions came to held that under sections 7 and 20 of the Act, presumption cannot be drawn in a case where the alleged gratification is too trivial. In the said case, the demand of bribe was Rs.25/- only. 35. From the aforesaid evidence which we have marshalled and looking to the provisions of sections 7, 13(1)(d) and 20 of the Act, the motive part, demand of bribe and its acceptance have not been proved by the prosecution. 36. At this juncture, we would like to advert ourselves to the last submission made by learned counsel for the appellant that in the present case the sanction to prosecute the appellant has also not been proved. On bare perusal of the testimony of Manager R.K. Jain (PW8) it is gathered that the appointing authority of the appellant is the “Cadre Committee of the Samiti” and according to him in the resolution a decision to prosecute the appellant was taken. However, neither the sanction order (Ex.P-26) so states nor any such resolution has been filed and proved by the prosecution. However, neither the sanction order (Ex.P-26) so states nor any such resolution has been filed and proved by the prosecution. The appellant is not the employee of Central or State Government, therefore, to accord sanction to prosecute him under the Act his case would come under section 19(1)(c) of the Act and, therefore, in absence of any material and the resolution of the “Cadre Committee Samiti” to prosecute the appellant it cannot be said that there was a valid sanction order to prosecute the appellant. The Supreme Court in V. Venkata Surrarao v. State represented by Inspector of Police, Andhra Pradesh [ AIR 2007 SC 489 ], in para 23 has held as under : “23. It is also accepted that before the sanctioning authority, the vital documents showing involvement of the MRO had not been produced. The sanctioning authority, therefore, did not have any occasion to apply their mind to the entire materials on record and in that view of the matter, the sanction is, therefore, vitiated in law. Conduct of the officers of the respondent who had taken recourse to suppressio veri deserves serious condemnation.” For this additional reason also since the sanction is not accorded by the appointing authority, the conviction of appellant cannot be sustained. 37. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment of conviction and order of sentence convicting the appellant under sections 7, 13(1)(d)/13(2) of the Act is hereby set aside and he is acquitted from the charges. The amount of fine of deposited, be refunded to him.