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Patna High Court · body

2012 DIGILAW 1457 (PAT)

Dhanwant Sharan v. State of Bihar

2012-10-12

ASHWANI KUMAR SINGH

body2012
Judgment The appellant, Dhanwant Sharan, suffered conviction under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 ("the 1988 Act", for short) by the learned Special Judge, Vigilance, South Bihar, Patna in Special Case No. 42 of 1992. 2. The learned Special Judge sentenced him to undergo rigorous imprisonment for a period of two years under Section 7 and rigorous imprisonment for a period of three years and to pay a fine of Rs. 20,000/- under Section 13(1)(d) read with 13(2) of the 1988 Act. In default of payment of fine, he has been sentenced to undergo rigorous imprisonment for a period of one year. The sentences have been ordered to run concurrently. 3. The case of the prosecution is that on 24.6.1992 one Prabhunath Prasad made a written complaint to the Inspector General-cum-Special Secretary, Vigilance Department, Patna in which he had alleged that Sri R.N. Singh, Special Judicial Magistrate and Sri Dhanwant Sharan, a Sub-Inspector of Police posted in the Bihar State Road Transport Corporation, Patna ("BSRTC", for short) were engaged in economic exploitation of private bus owners. They indulged in detaining private buses on flimsy grounds and releasing the same only after extorting money from the bus owners. 4. It has further been alleged that about 20 days ago said R.N. Singh and Dhanwant Sharan had detained a bus bearing Registration No. BRD-8461 belonging to his master Rajeshwar Singh near Gandhi Setu and the bus was released only after assurance was given to purchase readymade clothes for the son of the Special Judicial Magistrate, R.N. Singh. As promised on the same day in the evening, the bus owner, namely, Rajeshwar Singh took the son of R.N. Singh to Maurya Lok Complex, Patna on his Maruti Car and purchased readymade clothes worth Rs.1,600/- for him. Again on 23.6.1992, the same bus was detained by aforesaid R.N. Singh and the appellant near Mahatama Gandhi Setu at about 9 a.m. They seized the papers of the bus. 5. The complainant Prabhunath Prasad further states in his written report that on 23.6.1992 at about 5 p.m., he met Sri R.N. Singh, Special Judicial Magistrate at his residence in Kankarbagh Colony and requested him to release the papers of the vehicle. Sri Singh told him to meet the appellant in that regard. Accordingly, the complainant met the appellant at his residence in Kankarbagh (Hanuman Nagar). Sri Singh told him to meet the appellant in that regard. Accordingly, the complainant met the appellant at his residence in Kankarbagh (Hanuman Nagar). The appellant demanded a bribe of Rs. 500/- for releasing the papers, of the vehicle. He told that they have purchased clothes worth Rs. 1,600/- for the son of the Special Magistrate and they must pay at least Rs. 500/- to him and only thereafter, he would release the papers. He also told that out of Rs. 500/- he will have to pay some amount to the Magistrate concerned. 6. Lastly, it has been stated in the written complaint that since the complainant and his master Rajeshwar Singh do not want to pay• the bribe money to the appellant and R.N. Singh an appropriate action be taken after holding an enquiry into the matter. 7. The Inspector General of the Vigilance Investigation Bureau endorsed the aforesaid complaint to the officer-in-charge, Vigilance Police Station at Patna. The Officer-in-charge of Vigilance Police Station directed one Harishankar Singh (P.W. 1), Inspector of Vigilance Police Station, to verify the allegations made in the complaint petition and submit a report. P.W. 1 Harishankar Singh, who was entrusted with the verification of the allegations made in the written complaint submitted his report to the Inspector General-cum-Special Secretary, Cabinet (Vigilance) Investigation Bureau, Bihar, Patna on 24.6.1992, in which, he has stated that he proceeded with the complainant at 1 p.m. on 24.6.1992 from the Vigilance Headquarter to the office of the BSRTC situated at Birchand Patel Path, Patna. He reached there at 2.30 p.m. At that time, several persons were present near the appellant Dhanwant Sharan and as such no negotiation could be made. At about 4 p.m. he again went with the complainant to meet the appellant in his office. The complainant requested the appellant to do his work on which the appellant told him to pay Rs.100/- to the Peshkar, namely, Shashi Bhushan Singh so that he may go the residence of the Special Magistrate and do necessary formalities on paper. The appellant also directed him to talk to the Special Magistrate Sri R.N. Singh. At about 5 p.m., he went together with the complainant to the residence of Sri R.N. Singh. However, the complainant talked to him alone and told P.W. 1 Harishankar Singh that he has directed him to meet the appellant. The appellant also directed him to talk to the Special Magistrate Sri R.N. Singh. At about 5 p.m., he went together with the complainant to the residence of Sri R.N. Singh. However, the complainant talked to him alone and told P.W. 1 Harishankar Singh that he has directed him to meet the appellant. Thereafter, at about 5.30 p.m., P.W. 1 Harishankar Singh together with the complainant went to the house of the appellant in Kankarbagh colony. He demanded money from the complainant. The complainant told him that he is not the owner of the bus. He asked from him as to what was the amount to be paid so that he may take the money from the bus owner and pay him. Upon this the appellant told him to come with Rs. 500/- on 25.6.1992 and his work would be done. He also told that he will level Sections 107 and 127 of the M.V. Act so that a minimum fine may be imposed. Thereafter, both the complainant and the verifier came back. 8. On the basis of the verification report submitted by P.W. 1 Harishankar Singh on 24.6.1992 a formal FIR being Vigilance P.S. Case No. 28 of 1992, was registered on 25.6.1992 at about 1.30 p.m. under Sections 7, 8 and 13 of the 1988 Act against the appellant and Sri R.N. Singh, Special Judicial Magistrate and investigation was taken up. 9. In course of investigation, a pre-trap memorandum was prepared at 1.30 p.m. on 25.6.1992. Phenolphthalein powder was applied on ten currency notes of Rs. 50 denomination and the notes were handed over to the complainant with the caution that the same should be given to the appellant on demand only. The Sub-Inspector, Harishankar Singh (P.W. 1) was directed to accompany the complainant and keep a watch over the entire development. He was further directed that no sooner the accused would demand money and the complainant would pay the bribe, he would give a signal to the members of the raiding team. The members of the raiding team were directed to be present in civil dress near the place of occurrence and to come in action immediately after receipt of signal from the Sub-Inspector of Police Harishankar Singh (P.W. 1). 10. On the same day, the appellant was apprehended by the police party while taking Rs. 500/- as bribe. The members of the raiding team were directed to be present in civil dress near the place of occurrence and to come in action immediately after receipt of signal from the Sub-Inspector of Police Harishankar Singh (P.W. 1). 10. On the same day, the appellant was apprehended by the police party while taking Rs. 500/- as bribe. From the upper right side pocket of his shirt, ten notes of Rs. 50/- denomination which were handed over to the complainant by P.W. 10 Sri P.K. Sinha, Dy. S.P. Vigilance, Patna were recovered. Apart from the tainted money Rs. 770/- in cash, out of which six notes of Rs. 100/- denomination, three notes of Rs. 50/- denomination and one note of Rs. 20/- denomination were also recovered from his possession. Several other documents were also seized from his possession. A post trap memorandum was prepared between 4 p.m. to 5 p.m. on 25.6.1992. The search and seizure was made in presence of two independent witnesses, namely, Kishori Raman Prasad, Special Officer and R.B. Thakur, Protocol Officer, BSRTC, Patna. 11. After conducting the search and seizure the right hand fingers of the appellant were dipped into the solution of sodium carbonate which turned pink. The left hand fingers were also dipped into the solutions of sodium carbonate which also turned pink. The upper right side pocket of shirt also turned pink when the solution of sodium carbonate was applied over it. The solutions were sealed in separate glass phials. The seizure list witnesses also put their signature on the inner side of the right side upper pocket of the shirt wore by the appellant. The appellant was, thereafter, forwarded to the Special Judge who remanded him to judicial custody. The Vigilance Police investigated the case, recorded the statement of witnesses, obtained sanction for prosecution of the appellant under Section 19 of the 1988 Act and submitted charge-sheet in the case. 12. The trial court took cognizance of the offence. The charges were framed under Sections 7, 13(1)(d) read with 13(2) of the 1988 Act. The appellant did not plead guilty to the charges and thus, the trial commenced. 13. In course of trial, in all, the prosecution examined 18 witnesses in support of the charges. Apart from the 18 prosecution witnesses, one court witness was also examined in course of trial. The appellant did not plead guilty to the charges and thus, the trial commenced. 13. In course of trial, in all, the prosecution examined 18 witnesses in support of the charges. Apart from the 18 prosecution witnesses, one court witness was also examined in course of trial. Out of the 18 witnesses examined on behalf of the prosecution, P.W. 1 Harishankar Singh is a Sub-Inspector of Police (Vigilance) who had verified the allegation of the complainant and submitted his report on the basis of which the FIR was instituted. P.W. 2 Suresh Singh, an A.S.I. of Police (Vigilance). P.W. 3 Dudheshwar Pandey, a watcher of Police (Vigilance), P.W. 4 Prabhudayal, an A.S.I. of Police (Vigilance), P.W. 7 Lakhendra Prasad, a Sub-Inspector of Police (Vigilance), P.W. 11 Baidyanath Prasad, a Sub-Inspector of Police (Vigilance) and P.W. 13 Upendra Prasad Singh an A.S.I. of Police (Vigilance) have been tendered by the prosecution for cross-examination without being examined in examination-in-chief. They were all members of the raiding party. 14. P.W. 5 Ajay Kumar Singh, a Special Magistrate, participated in the raiding team as an observer. P.W. 6 Siyaram Singh was a member of the raiding party. At the time of trap of the appellant, he had caught his right hand on receipt of signal. P.W. 8 Madanlal, Inspector of Police (Vigilance) Police Station, P.W. 9 Chandrabhushan Singh a watcher in Vigilance Department, P.W. 10 Prakash Kumar Singh, Deputy Superintendent of Police (Vigilance), P.W. 12 Ramesh Chandra Giri, Inspector of Police (Vigilance) and PW. 14 Anil Kumar Singh, Deputy Superintendent of Police (Vigilance) were all members of the raiding party. As noted above, P.W. 15 Rambishisth Thakur, Protocol Officer, BSRTC, is a seizure list witness. P.W. 16 Rajeshwar Singh is the bus owner whose bus was initially seized as alleged in the FIR and subsequently the documents relating to the bus were seized by the appellant and co-accused R.N. Singh. PW.17 Subrat Gupta is the Senior Scientific Officer of the Forensic Science Laboratory under whose signature report regarding result of examination of articles seized was issued. P.W. 18 Jorawar Prasad Singh, a Sub-Inspector of Police (Vigilance), is a formal witness who has proved the sanction order. 15. Court witness no. PW.17 Subrat Gupta is the Senior Scientific Officer of the Forensic Science Laboratory under whose signature report regarding result of examination of articles seized was issued. P.W. 18 Jorawar Prasad Singh, a Sub-Inspector of Police (Vigilance), is a formal witness who has proved the sanction order. 15. Court witness no. 1 Indra Nand Mishra is the Deputy Superintendent of Police (Vigilance), who had investigated the case and after obtaining the sanction order submitted charge-sheet in the Court of the learned Special Judge, Vigilance, South Bihar, Patna. 16. As noted above, P.W. 1 Harishankar Singh, at the relevant time, was posted as an Inspector of Police in the Vigilance Police Station. He was entrusted to verify the allegation made against the appellant by the complainant. While deposing in court, he states that the complaint was received in the Vigilance Department on 24.6.1992. The I.G. (Vigilance) endorsed the said complaint to the officer-in-charge, Vigilance Police Station. The Officer-in-charge, Vigilance Police Station, namely, Harihar Chaubey directed him to verify the allegation. He has proved the endorsement made by the I.G., Vigilance and the endorsement made by the officer-in-charge Harihar Chaubey over the complaint which have been marked as Exts.-1 and 1/1 respectively. He states that the officer-in-charge introduced him to the complainant Prabhunath Prasad on 24.6.1992. On the same day, he went to the BSRTC Office alongwith the complainant Prabhunath Prasad. He has corroborated his statements made in the verification report while deposing in court which has also been proved by him and marked as Ext.-2 in course of trial. He has proved the endorsement and signature of the then D.I.G. Sri S.K. Bhaduri on the verification report which has been marked as Ext.-1/3. He has proved the formal FIR in the writing of Sri Harihar Chaubey which have been marked as Ext.-3. He states that the raiding party was headed by P.W. 10 P.K. Sinha, the Deputy Superintendent of Police (Vigilance) and P.W. 5 Ajay Kumar Sinha, the Special Magistrate. He has proved the pre-trap memorandum which has been marked as Ext.-4. The complainant put his endorsement on the memorandum after receiving the currency notes back which has also been proved by P.W.1 and marked as Ext.-1/4. He has proved the pre-trap memorandum which has been marked as Ext.-4. The complainant put his endorsement on the memorandum after receiving the currency notes back which has also been proved by P.W.1 and marked as Ext.-1/4. P.W. 1 states that the raiding team proceeded at about 3.15 p.m. from the Office chamber of P.W. 10 P.K. Sinha and reached the office of BSRTC at Birchand Patel Road, Patna, at about 3.30 p.m. The members of the raiding team took their position. P.W. 1 states that he together with the complainant went to the Chamber of the Special Magistrate R.N. Singh but he was not found present in his office chamber. In the meantime, the appellant saw the complainant and told him as to why he had come there. The complainant told him that the seized papers of the bus were urgently needed and as such he was compelled to come to the office. Upon this the appellant asked him if he had brought the money and the complainant told him that he had. Thereafter, the appellant came out of his office chamber. P.W. 1 also followed them. The appellant was in Khakhi uniform. He demanded money from the complainant and thereafter the complainant paid him the marked currency notes. The appellant after counting the money kept it in the upper right pocket of his shirt. P.W. 1 states that he gave signal and on his signal the members of the raiding team reached there. 17. As directed, the watchers P.W. 6 Siyaram Singh and P.W. 9 Chandrabhushan Singh, caught both of his hands. The Deputy Superintendent of Police and the Magistrate, thereafter, ordered to call two independent witnesses. Accordingly, Kishori Raman Singh (not examined) and R.P. Thakur (P.W. 15) were called. P.W. 10 P.K. Sinha searched the person of the appellant. The marked notes were recovered from his pocket and the search list was prepared in presence of the witnesses. P.W. 1 proved the search list which has been marked as Ext-5. According to him, a copy of search list was also handed over to the appellant on which he made his endorsement which has also been proved by him and marked as Ext. 1/5. He states that after the search and seizure his fingers of both hands and the upper right side pocket were also dipped into separate salutation (sic-solution ?) of sodium carbonate which turned pink. 1/5. He states that after the search and seizure his fingers of both hands and the upper right side pocket were also dipped into separate salutation (sic-solution ?) of sodium carbonate which turned pink. The solutions were sampled and sealed in three separate glass phials in presence of witnesses. He states that P.W. 10 P.K. Sinha also seized documents relating to the bus in question and the seizure list so prepared has also been proved by him and marked as Ext.-6. The signature of the appellant on the said seizure list has also been proved by P.W. 1 and marked as Ext.-1/6. 18. P.W.1 (Harishankar Singh) has been cross-examined extensively by the defence. He admits that though the allegations made against co-accused R.N. Singh were of considerable importance but he made no verification in that regard. He also admits that he did not go to the readymade shop in Maurya Lok Complex, Patna in order' to verify the allegation of purchase of clothes for the son of the co-accused R.N. Singh. He further admits that the complainant was an agent of the bus owner and he had never verified about the allegations from the actual owner of the bus. Though he states that he went to the house of the appellant in Kankarbagh Colony with the complainant but he could not say the road number, Mohalla or the actual location of the house of the appellant in Kankarbagh Colony. In cross-examination, he also admits that the accused had demanded money after coming out of his office Chambers. He denied the defence suggestion of false implication. 19. P.W. 5 Ajay Kumar Singh, a Special Magistrate who went with the raiding party as an observer States in his deposition that the complainant and P.W. 1 (Harishankar Singh) first went inside the office of the appellant after a few while P.W. 1 Harishankar Singh came out of the office Chamber and gave signal. Thereafter, the raiding team went inside the office Chamber and two members of the raiding team, caught hold the hands of the appellant and two independent witnesses were called thereafter. P.W. 6 Siyaram Singh and P.W. 9 Chandrabhushan Singh are the watchers in the alleged raid. They state that they caught hold P.W. 1 Harishankar Singh immediately after the appellant had kept the marked notes in his pocket. P.W. 6 Siyaram Singh and P.W. 9 Chandrabhushan Singh are the watchers in the alleged raid. They state that they caught hold P.W. 1 Harishankar Singh immediately after the appellant had kept the marked notes in his pocket. They state that first of all, it was the complainant and P.W. 1 Harishankar Singh who went inside the chambers of the appellant. Thereafter, they came out of the office Chamber together with the appellant. They were talking among themselves near the door. Thereafter, the complainant Prabhunath Prasad gave money to the appellant and the appellant after counting the same kept it in his upper shirt pocket. 20. P.W. 8 Madanlal, P.W. 10 P.K. Sinha, P.W. 12 Ramesh Chandra Giri and P.W. 14 Anil Kumar Singh are the other members of the raiding party. Here it would be relevant to note that P.W. 8 states in his chief that he had not seen the signal of P.W. 1. The Deputy Superintendent of Police, P.K. Sinha (P.W. 10) and the Magistrate, Ajay Kumar Singh (P.W. 5) went near the appellant after the watchers had caught his hands and brought him out of his Chambers. P.W. 10 (P.K. Sinha) states in his deposition that he and P.W. 5 (Ajay Kumar Singh) went near the appellant after the watchers had already caught him. They called two independent witnesses and thereafter search and seizure was made. P.W. 14 (Anil Kumar Singh) states' that after the watchers had caught hold of the appellant he reached there and thereafter the Inspector Ramesh Chandra Giri (P.W. 12) and the Deputy Superintendent of Police Incharge of the raiding team (P.W.10) reached there. The members of the raiding team are witnesses to the pre-trap memorandum search and seizure in the case. 21. P.W. 15 Ram Bishesh Thakur, the Protocol Officer in BSRTC, is an important witness. He states that on the relevant date at 3.45 p.m. he was working in his office. In the meantime, one officer of Vigilance Police came and told that an occurrence had taken place in his office. He invited him to come and sea as to what had happened. He came out of his Chamber and went to the engineering wing situated at a distance of about 100-150 yards from there. He saw that large number of people had assembled there and two persons had caught hold of the hands of the appellant. He invited him to come and sea as to what had happened. He came out of his Chamber and went to the engineering wing situated at a distance of about 100-150 yards from there. He saw that large number of people had assembled there and two persons had caught hold of the hands of the appellant. The Deputy Superintendent of Police (P.W.10) and the Magistrate (P.W. 5) gave him the pre-trap memorandum to read and took his signature over it. In his presence, the upper pocket of the shirt of the appellant was searched and Rs.1,270/- in all, including the tainted money, was recovered from him. Thereafter, the other formalities were done. In cross-examination, he clearly admits that he had neither seen anyone giving money to the appellant nor enquired from anyone in that regard. He did not even verify himself as to whether the appellant had received any bribe money. He also admits that the name of the searching officer or the recovery officer is not mentioned in the seizure list. He admits that he had seen the appellant while he was caught and kept in the open field whereas his Chamber is in the main building of BSRTC. 22. P.W. 16 Aajeshwar Singh states that the certificate of registration of the bus bearing registration no. BRD-8464 is in the name of his wife. It was first seized in the first week of June, 1992 by the Magistrate R.N. Singh and the appellant. He was told by his staff to meet Mr. R.N. Singh. He went to his residence and as per his direction he took his son to Maurya Lok Complex, Patna on his Maruti Car and purchased clothes worth As. 1,600/for him. Thereafter, the papers of the vehicle were released. He further states in his chief that the bus was again detained by said R.N. Singh and the appellant on 23.6.1992 and the papers were seized. His staff reported him in that regard. He intimated the local M.L.A. Udit Rai about the incident. Udit Rai was also the Secretary of Saran District Transport Union. According to him, Udit Rai directed his Secretary, Prabhunath Prasad to verify the matter. When Prabhunath Prasad met the Magistrate he told him to meet the appellant. He states that Prabhunath Prasad told him that the appellant was demanding As. Udit Rai was also the Secretary of Saran District Transport Union. According to him, Udit Rai directed his Secretary, Prabhunath Prasad to verify the matter. When Prabhunath Prasad met the Magistrate he told him to meet the appellant. He states that Prabhunath Prasad told him that the appellant was demanding As. 500/- as illegal gratification in lieu of the release of the papers of the bus. He states that since he did not want to pay the bribe money Prabhunath Prasad lodged a complaint with the Vigilance. Subsequently, he came to know that the appellant was apprehended while taking bribe. He admits that on none of the occasions when the papers of the bus were seized he was present. His conductor had informed him. However, when a question was put enquiring the name of the conductor he could not disclose the same. He also admits that the bribe money was not given in his presence. 23. P.W. 17 Subrat Gupta, a Senior Scientific Officer of Forensic Science Laboratory states that on 26.9.1992 he had received four sealed bottles containing pink colour liquid said to be the washings of right hand fingers, left hand fingers, upper right pocket of wearing shirt and mixture of phenolphthalein and sodium carbonate solutions. He has proved the Forensic Science Laboratory report which has been marked as Ext.-7. In cross-examination, he admits that he does not know as to what has been inscribed on the seal of the glass phials. It has not been mentioned in the report. He also admits that there is no mention of date and time as to when the sealed glass phials received in his office. 24. P.W. 18 is a formal witness who has proved the sanction order, which has been marked as Ext.-8. 25. The Investigating Officer of the case has been examined as a court witness. He states that he took over the investigation of the case on 25.6.1992. He took the statement of the complainant and recorded statement of other witnesses under Section 161 of the Code of Criminal Procedure. He sent the sealed samples of liquid to Forensic Science Laboratory and also proposal for sanction of prosecution to the authority concerned. He states that on receipt of sanction order, he submitted charge-sheet against the appellant. In cross-examination, he admits that he did not prepare any sketch map of the place of occurrence. He sent the sealed samples of liquid to Forensic Science Laboratory and also proposal for sanction of prosecution to the authority concerned. He states that on receipt of sanction order, he submitted charge-sheet against the appellant. In cross-examination, he admits that he did not prepare any sketch map of the place of occurrence. He also admits that P.W. 1 Harishankar Singh had not told him in his statement that he was directed to see the incident of bribe giving and taking. However, he had stated that the Incharge of the raiding team had recovered Rs.500/- on search from the upper shirt pocket of the appellant. 26. Mr. Gajendra Pratap Singh, learned counsel for the appellant, submits that the decoy, Prabhunath Prasad who is said to have negotiated for the payment of bribe has not been examined. He has deliberately evaded to appear in court as he filed an entirely false case against the appellant. According to him, the statements allegedly made by the complainant Prabhunath Prasad at various stages cannot be treated as legal evidence and they deserve to be ignored. He further submits that the entire written report bearing signature of Prabhunath Prasad has not been legally proved and only his signature has been proved by the Inspector Ramesh Chandra Giri (P.W. 12). However, Ramesh Chandra Giri in cross-examination admits that the signature of complainant was not made in his presence. Learned counsel further submits that the decoy Prabhunath Prasad was the most material witness of the case and his non-examination renders the prosecution case completely unacceptable. The prosecution has not assigned any reason for his non-examination. As such, it is submitted that an adverse inference ought to be drawn against the prosecution, namely, that if he had been examined, he would not have supported the prosecution case. 27. Learned counsel further submits that the witnesses are not consistent in material particular while being examined in court. They have spoken differently regarding the place of occurrence and the manner of occurrence. He further contends that Prabhunath Prasad, the complainant was not a staff of P.W. 16 Rajeshwar Singh, the so-called bus owner. He is said to be the Private Secretary of the local M.L.A. As per P.W. 16 he was involved in the matter as per the direction given by the M.L.A. Udit Rai. However, Udit Rai has also not been cited as a witness in this case. 28. He is said to be the Private Secretary of the local M.L.A. As per P.W. 16 he was involved in the matter as per the direction given by the M.L.A. Udit Rai. However, Udit Rai has also not been cited as a witness in this case. 28. Learned counsel advancing his arguments further submits that no credence can be given to the prosecution case as no independent witness has come forward to support the prosecution case. The independent witnesses to the search and seizure were admittedly called after the appellant had received the money and was caught by the members of the raiding party. Out of the two independent witnesses to the search and seizure one has not been examined in course of trial. The other witness who has been examined clearly admits that he had neither seen the bribe money being given to the appellant nor seen the money being accepted by him. Learned counsel submits that the name of the officer who searched and seized the tainted money is not mentioned in the seizure list. 29. On the other hand, Mr. Ramakant Sharma, learned counsel appearing on behalf of the Vigilance submits that the prosecution has been able to prove its case beyond all reasonable doubt by bringing cogent, oral and documentary evidence against the appellant. According to him, there is a presumption under Section 20 of the 1988 Act against the appellant for the charge under Section 7 of the 1988 Act. 30. Having heard the parties at length and perused the evidence on record, it has to be seen as to whether the findings recorded by the trial court for convicting the appellant under Sections 7 and 13(a)(d) read with 13(2) of the 1988 Act and sentencing him for the same are correct or not. 31. Section 7 of the Act is as follows:- "7. 31. Section 7 of the Act is as follows:- "7. Public servant taking gratification other than legal remuneration in respect of an official act.-Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine." 32. Sections 13(1)(d) reads as under:- "13. Criminal misconduct by a public servant.-(1) A public servant is said to commit the offence of criminal misconduct, (d) if he, (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest." 33. The essential ingredients of Section 7 are: (i) that the person accepting the gratification should be a public servant; (ii) that he should accept the gratification for himself and the gratification should be as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official function, favour or disfavour to any person. 34. Insofar as Section 13(1)(d) of the Act is concerned, its essential ingredients are:- (i) that he should have been a public servant; (ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant, and (iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person." 35. In Surajmal Vs. In Surajmal Vs. State (Delhi Administration) since reported in (1979)4 SCC 725 in paragraph-2 the Hon'ble Supreme Court took view 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. 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. The legal position is thus, no 'more res integra that primary requisite of an offence under Section 13(1)(d) of the 1988 Act is proof of a payment or request of a 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 or pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established. 36. In the present case admittedly, the complainant Prabhunath Prasad on whose written report the prosecution case has been launched, has not been examined in course of trial. There is no reasonable explanation much less explanation for his non-examination in course of trial. The investigating officer of the case, who has been examined as a court witness, has not stated anything with respect to non-examination of the complainant. 37. Under such circumstances the only other witness on the point of proof of demand by the appellant is P.W. 1 Harishankar Singh as no other witness examined on behalf of the prosecution has stated that he had heard the demand of money being made or the conversation between the complainant and the appellant taking place. It is apparent from the record that apart from P.W. 1 and the complainant no other witness was present near the appellant when the money was demanded and paid to him. 38. Under such circumstances, the evidence of P.W. 1 becomes important. It has to be seen as to whether he is thoroughly reliable. In cross-examination, he has failed to disclose the location of the house of the appellant, where, he had gone in order to verify the initial complaint. He admits that the appellant had demanded money after coming out of his office Chamber. It has to be seen as to whether he is thoroughly reliable. In cross-examination, he has failed to disclose the location of the house of the appellant, where, he had gone in order to verify the initial complaint. He admits that the appellant had demanded money after coming out of his office Chamber. However, P.W. 5 Ajay Kumar Singh, the Special Magistrate, who had gone with the raiding team as an observer, in his deposition, gives a completely different story. He states that the complainant and P.W. 1 Harishankar Singh first went inside the office Chamber of the appellant and after a few while P.W. 1 Harishankar Singh came out and gave signal. Thereafter, the raiding team entered inside the office and two of its members caught hold the hands of the appellant. Thus, P.W. 5, the only non-police man who went with the raiding team clearly contradicts P.W. 1 Harishankar Singh. According to him, the bribe money was given by the complainant to the appellant inside the office Chamber. In this regard, I further find that P.W. 8 Madanlal, an Inspector of Police (Vigilance), in his deposition states that the watchers had caught hold of the hands of the appellant after getting signal and brought him out of his Chamber. Thus, according to P.W. 8 also the money was given to the appellant inside the Chamber. Under the circumstances, it would be unsafe to rely upon the testimony of P.W. 1 Harishankar Singh, according to whom the tainted money was paid to the appellant outside his office Chamber. If the money had been handed over inside the office Chamber of the appellant and P.W. 1 Harishankar Singh gave signal after coming out of the Chamber no other member of the raiding party could have seen as to what happened inside the Chamber. As noted above, the complainant has not turned up. Thus, the story of demand of illegal gratification and payment of bribe money as given by P.W. 1, itself is shrouded in mystery. P.W.1 cannot be held to be a thoroughly reliable witness as he himself has been contradicted in material particular by the other prosecution witnesses. 39. Now, I would take up the another issue involved in the present case. As per prosecution case, itself no independent witness apart from P.W. 5 Ajay Kumar Singh, a Special Magistrate, went together with the raiding party. 39. Now, I would take up the another issue involved in the present case. As per prosecution case, itself no independent witness apart from P.W. 5 Ajay Kumar Singh, a Special Magistrate, went together with the raiding party. It has consistently been stated by the witnesses that only after the appellant was apprehended by the watchers P.W. 10 P.K. Sinha and P.W. 5 Ajay Kumar Singh called two independent witnesses. One of the independent witness, namely, Kishori Raman Singh has admittedly not been examined by the prosecution in course of trial. The another independent witness to the search and seizure, namely, Ram Bishesh Thakur (P.W. 15) has clearly stated that an officer of Vigilance came to his Chamber and told him about some incident which had already taken place. At his request, he came out of his Chamber and travelled about 150 yards towards the engineering wing of the BSRTC. When he saw the appellant, his hands were caught by the watchers and he was put in an open field, whereas the Chamber of the appellant was in the main building of the BSRTC. Of course, he has supported the prosecution case so far as recovery of tainted money is concerned but, he is not a witness to any other part of the occurrence. If the appellant was apprehended inside the Chamber the search should have been made there itself. If he was apprehended outside of his office Chambers the search should have been conducted at that place. There is no explanation by any witness as to how the appellant could reach in the open field from inside or outside his Chamber. The investigating officer has not uttered a word in his deposition in this regard. 40. The investigating officer admits in cross-examination that he had not prepared the sketch map of the site in course of investigation. Thus, it remains unexplained as to who took the appellant towards the open field from inside or outside his Chamber or as to how he could reach there. 41. If the quality of evidence is such, no reliance can be placed on such search and seizure of the tainted money. I further find force in the arguments made on behalf of the appellant that non-examination of the complainant Prabhunath Prasad has prejudiced the case of defence. He was the most important witness in this case. 41. If the quality of evidence is such, no reliance can be placed on such search and seizure of the tainted money. I further find force in the arguments made on behalf of the appellant that non-examination of the complainant Prabhunath Prasad has prejudiced the case of defence. He was the most important witness in this case. The defence has rightly pointed out that the written report of the complainant has not been legally proved. 42. The defence has taken a plea that it is a case of false implication. On behalf of the appellant, in course of argument, reliance has been placed on the decision of the Hon'ble Supreme Court in case of State of Kerala and Another vs. C.P. Rao since reported in (2011)6 SCC 450 [: 2011 (2) JLJR (SC)299]. In the said case the respondent was convicted under Sections 7 and 13(2) read with 13(1)(d) of the 1988 Act by the Special Judge, Tiruanantpuram. The Kerala High Court had set aside the judgment of the trial court in appeal the State preferred an appeal before the Hon'ble Supreme Court against the judgment of acquittal recorded by the Hon'ble High Court. The Hon'ble Supreme Court after taking into consideration the decision of the Apex Court given in Panna Lal Damodar vs. State of Maharashtra since reported in (1979)4 SCC 526 dismissed the appeal. Paragraphs 5, 7 and 8 of the judgment of the Hon'ble Supreme Court in State of Kerala and Another vs. C.P. Rao (supra) is relevant for the present case which reads as under:- "5. The prosecution case is that the demand of illegal gratification of Rs. 5,000/- was made by the respondent from CW-1 on 19.10.1994 for the purpose of giving pass marks to all the students who appeared in the practical examination of Pharmaceutical-II in D. Pharma final examination in the year 1994. It is an admitted case that the respondent alone cannot give such marks. In view of the examination system prevailing such marks have to be approved by others. The respondent alone, therefore, is admittedly not in a position to' allot higher marks. 7. In the background of these facts, especially the non-examination of CW-1, was found very crucial by the High Court. In view of the examination system prevailing such marks have to be approved by others. The respondent alone, therefore, is admittedly not in a position to' allot higher marks. 7. In the background of these facts, especially the non-examination of CW-1, was found very crucial by the High Court. The High Court has referred to the decision of this Court in Pannalal Damodar Rathi vs. State of Maharashtra 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 Pannalal Damodar Rathi case held that there is grave suspicion about the appellant's complicity and the case has not been proved beyond reasonable doubt. 8. This Court finds that the appreciation of the ratio in Pannalal Damodar Rathi case by the High Court was correctly made in the facts and circumstances of the case." 43. In the present case too, the complainant from whom the demand of bribe is said to have been made by the appellant, has not been examined. The version of the complainant is not corroborated and, therefore, the evidence of the complainant cannot be relied upon. 44. In the present case admittedly the original complaint was against the appellant and one R.N. Singh, the Special Magistrate. It appears that P.W. 1 was entrusted to verify the allegations made in the complaint by the complainant Prabunath Prasad. However, the prosecution made no effort, thereafter, to nab the Special Magistrate. Though, there is allegation that P.W. 16 Rajeshwar Singh, the bus owner purchased clothes amounting to As. 1,600/- for the son of R.N. Singh at his direction but still the prosecution failed to take any step against him. He has not been sent up for trial. Admittedly, the appellant alone could not have released the seized papers. The order for such release was to be passed by the Special Magistrate, R.N. Singh. 45. I further find that the complainant, in his written complaint, disclosed his identity as a staff/associate of P.W. 16 Rajeshwar Singh. P.W.1. He has not been sent up for trial. Admittedly, the appellant alone could not have released the seized papers. The order for such release was to be passed by the Special Magistrate, R.N. Singh. 45. I further find that the complainant, in his written complaint, disclosed his identity as a staff/associate of P.W. 16 Rajeshwar Singh. P.W.1. Harishankar Singh, in cross-examination admits that the complainant was an agent of the bus owner and he had never verified about the allegations from the actual owner of the bus. However, the bus owner, P.W. 16 Rajeshwar Singh, while deposing in court states that the complainant was neither his staff nor his agent rather, he was the Private Secretary of the local M.L.A. Udit Rai and, it was Udit Rai who had asked him to enquire into the matter. The local M.L.A. Udit Rai has not been examined in the case. The bus owner had never met the appellant. He states that on both the occasions when the bus was detained and papers were seized he was not with the bus. His conductor told him about the seizure. He failed to disclose the identity of the conductor. The conductor has not been examined as a witness in the case. Thus, it appears that the complainant has deliberately introduced himself as a staff/agent/associate of the bus owner whereas, he was the Private Secretary of a local M.L.A. What prompted him to give a fake identity remains unexplained in the absence of his non-examination. 46. I further find that by the time P.W. 15 Ram Bishesh Thakur was called by an officer of vigilance, several persons had already assembled at the place where the appellant was kept detained by the watchers. However, the prosecution has failed to examine any other independent person as a witness in the present case. 47. Thus, I find that there is no cogent evidence on the point of proof of a demand or request of a valuable thing or pecuniary advantage from the appellant. In absence of proof of demand for a valuable thing or pecuniary advantage the offence under Section 1 3(1)(d) of the 1988 Act cannot be held to be established. 48. 47. Thus, I find that there is no cogent evidence on the point of proof of a demand or request of a valuable thing or pecuniary advantage from the appellant. In absence of proof of demand for a valuable thing or pecuniary advantage the offence under Section 1 3(1)(d) of the 1988 Act cannot be held to be established. 48. So far as the question of presumption under Section 20 of the 1988 Act is concerned, it is well settled that the burden of the complainant (sic-accused ?) against whom the presumption is made under Section 20 of the 1988 Act is not akin to that of burden placed on the prosecution to prove the case beyond reasonable doubt. It is sufficient if the accused succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove the case beyond a reasonable doubt or in default to incur a verdict of guilty. The preponderance of probability can be inferred from the facts and circumstances of each case. 49. I thus, find that the evidence on record in this case is not sufficient to bring home the guilt. The appellant is entitled to the benefit of doubt. Consequently, the appeal is allowed. The conviction and sentence of the appellant are set aside. The appellant, who is already on bail, is discharged from the liabilities of the bail bonds furnished by him in the court below.