JUDGMENT (CAV) Jaya Roy, J.- Heard the learned' counsel for the appellant and learned counsel for the C.B.I. Both the parties have filed their written arguments in this appeal. 2. The appellant has filed this appeal for setting aside the Judgment of conviction and sentence dated 08.05.2006 passed by the Additional Sessions Judge-VIII-cum-Special Judge, C.B.I. Dhanbad in R.C. No. 6/85(P) whereby the appellant has been convicted for the offence under Sections 161 Indian Penal Code and 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act. 1947. He is sentenced to undergo R.I. For one year and to pay a fine of Rs. 500/- on each account and in default to undergo Rigorous Imprisonment (R.I.) for one month. 3. The prosecution case in brief is that the accused Pradeep Kumar Dutta (appellant), the then Branch Manager of Bank of India. Rajdhanwar Branch Giridih had demanded Rs. 1000/- as illegal gratification from the complainant on 23.3.85 for releasing of Rs. 10,000/- towards balance amount of sanction loan amount of Rs.25,000/- under self employment scheme. Later on repeated request the complainant, Arjun Rai was asked by the accused appellant atleast to pay Rs.200/- within March, 1985 as illegal gratification for releasing the balance amount of the sanctioned money. The complainant filed a written report to the S.P.E., Patna on 26.03.85. After verification the allegation were found true and a trap was organised and the complainant alongwith witnesses and C.B.I. officials went to the residence of the appellant on the 2nd floor of the Bank and allegedly paid Rs.200/- to the appellant and thereafter gave signal to the C.B.I. officials who arrested the appellant and recovered Rs.200/ - from him. According to prosecution the appellant after receiving the currency notes had counted the same and then he had kept the amount, in the pocket. The hands of the appellant were allegedly washed in the solution of sodium Carborate. The solution washing one hand turned pink and a regular case bearing No. RC. No. 6/85-Patna dated 26.3.85 at 11.a.m. hours was instituted against accused appellant Pradeep Kumar Dutta under Section 161, IPC, After investigation. C.B.I. had submitted charge-sheet for the offence under Section 161, IPC and Section 5(2) read with 5(1)(d) of P.C. Act against the accused appellant. 4. The prosecution has examined altogether nine witnesses. No. 6/85-Patna dated 26.3.85 at 11.a.m. hours was instituted against accused appellant Pradeep Kumar Dutta under Section 161, IPC, After investigation. C.B.I. had submitted charge-sheet for the offence under Section 161, IPC and Section 5(2) read with 5(1)(d) of P.C. Act against the accused appellant. 4. The prosecution has examined altogether nine witnesses. PW 1 Gajendra Chandrasen Gurakshakar, PW 2 Krishanan Benkatacharan, PW 3 RS.S. Yadav, P.W. 4 Ramrup Singh, PW 5 D.S. Yadav, PW 6 Ashok Babu, PW 7 Md. Javen Ajit, PW 8 Luxman Prasad Gupta, PW 9 Kedar Nath Gupta. The prosecution has got exhibited some documents i.e. two Sanction orders-Ext. 1 & 1/1. Ext - 2 is memorandum and Ext-2 series are signatures on memorandum. Ext.3 is signature of accused. P.K. Dutta on memorandum. Ext-2/3 to 2/22 are signatures on the seizure memorandum. Ext-4 is F.I.R Beside this the prosecution has proved, material exhibits i.e. Ext-I sealed bottle. Ext.-II one sealed envelop containing treated piece of paper. Ext.-II/1 sealed envelop of remain of used phenolphthalein powder, Ext. II/2 one envelop. Ext.-III to III/6 are G.C. Notes, Ext.-I/1 and I/2 are sealed bottles material. Ext.-IV is also sealed bottle and II/a to II/d are signatures on envelop of phenolphthalein powder. Ext.2/E to 2/F are signatures on the envelop of the treated piece of paper and further Ext.-I/2a to I/2c are signatures on pocket wash bottle. Ext.I/1a to I/1d signature of right hand wash bottle and II/2a to II/2e signatures on envelop of G.C. Notes. 5. Mr. Jai Prakash, the learned senior counsel for the appellant has submitted that in this case complainant Arjun Rai has not been examined. The alleged written complaint made by Arjun Rai has not been brought on the record. The core question to be answered by the prosecution is as to whether there is sufficient evidence on record to prove that any illegal gratification was taken by the appellant and as to whether the complainant Arjun Rai paid any illegal gratification to the appellant. There is no evidence that the appellant had called Arjun Rai at his residence. Admittedly, the complainant Arjun Rai has not been examined by the prosecution. There is absolutely no iota of explanation by the prosecution as to why the complainant was not examined as a witness. There is no evidence that the appellant had called Arjun Rai at his residence. Admittedly, the complainant Arjun Rai has not been examined by the prosecution. There is absolutely no iota of explanation by the prosecution as to why the complainant was not examined as a witness. Thus, non-examination of the complainant itself speaks that there is no substantive evidence to prove the demand of illegal gratification because it is only the complainant who can say as to whether the alleged amount allegedly paid was illegal gratification or not. He has further contended that it has come in the evidence that a total amount of Rs. 25,000/- has been sanctioned as loan out of which Rs.15,000/- had earlier been paid to the complainant and there was absolutely no allegation whatsoever in relation to the said payment of Rs.15,000/- in the past. The complainant even orally did not make any complaint in this regard as stated by the PW 9 in his evidence at para 10. 6. Mr. Jai Prakash has further contended that it is has come in the evidence of PW 9 that when the left hand of the appellant was washed with the solution of sodium carbonate, colour of the solution did not change. It is not possible if the appellant counted the currency notes that means he used his both the hands in counting. Therefore, the solution in which the left hand of the appellant was washed, should also turn pink. Therefore, this creates some doubt on the prosecution story. 7. Mr. Jai Prakash has submitted that the trial Court has convicted the appellant practically on the evidence of PW 4 Ramrup Singh but the said witness is not at all trustworthy as he has tried to exaggerate in his evidence at every stage. In paragraph 10 of his evidence he stated that the appellant demanded the bribe money which is not a fact which apparent from his further statement at paragraph 16 in which he has stated that the accused appellant never demanded the illegal gratification. The demanding money is not an offence under the Act nor accepting money. Demanding and accepting illegal gratification only is the offence under this Act. It is also submitted that there are several decisions of the Hon'ble Courts that mere recovery of the money is not sufficient to establish guilt of the accused. The demanding money is not an offence under the Act nor accepting money. Demanding and accepting illegal gratification only is the offence under this Act. It is also submitted that there are several decisions of the Hon'ble Courts that mere recovery of the money is not sufficient to establish guilt of the accused. Therefore, the prosecution has failed to establish the charge against the accused and he is liable to be acquitted. 8. The said witness (PW 4) has also contradicted himself with regard to the place and position where he was standing. In paragraph-9 he states that he was behind the complainant. At the second place he stated that he was near the door. But in para-10 of his evidence he has stated that when the complainant made the signal, he went running, to the complainant which shows the distance atleast which required him running to reach the place of the alleged occurrence. 9. According to the submission made by the learned counsel for the appellant that PW 5 who is C.B.I. Inspector has contradicted himself in his evidence as in para 17 of his evidence he has stated that the secure list is prepared in the drawing room which is the place of occurrence and the witnesses signed on the said seizure list at that very moment in his presence. But in the same paragraph to the Court's question, he answered that the seizure list or seizure memorandum was prepared at the police station not in the drawing room of the accused appellant. In this situation no credibility can be given to the PW 5. 10. Mr. Jai Prakash has submitted that the PW 3 has very specifically stated that he and his team members brought the accused appellant to the police station as because a number of persons reached at the place of occurrence when: the accused appellant was arrested which clearly shows that the independent witnesses are available at the place of occurrence but none of the said persons so assembled there, is made witness in this case. 11. Mr. Jai Prakash has also pointed out that it has come in the evidence at the alleged time of payment, the C.B.I. officials and the witnesses did not try to conceal themselves from the view of the appellant. 11. Mr. Jai Prakash has also pointed out that it has come in the evidence at the alleged time of payment, the C.B.I. officials and the witnesses did not try to conceal themselves from the view of the appellant. Such a conduct is absolutely unnatural and unbelievable because a person will never accept illegal gratification in presence of many persons which usually done in secrecy. 12. It is also argued that there is total non-compliance of Section 313 of the Cr PC. In the present case, perusal of the questions put to the appellant under Section 313, Cr. P.C., clearly shows all the facts and circumstances which have come against the appellant was not put before him. The object of the examination under this Section is to give the accused an opportunity to explain the case made against him. Recording of the statement under Section 313 of the Cr. P.C. is not an empty formality and in various decisions it has been held that where the requirement of Section 313 of the Code is not complied, the conviction is liable to be set aside. In this regard he has cited a decision reported in 2010 (3) East Cr. C. 25 (SC) : (2009) 6 SCC 595 in a case of Ranvir Yadav v. The State of Bihar, in which the Hon'ble Apex Court has held the requirement under Section 313, Cr PC is not a mere formality, not indicating the incriminating materials to an accused, held in said circumstances conviction of the accused is liable to set aside. 13. Mr. Mokhtar Khan learned counsel for the appearing for the C.B.I. has submitted that PW 2 has proved the sanction order and there is no illegality in the sanction order. 14. Mr. Khan has submitted that PWs 3, 4, 5, 6 and 7 examined by the prosecution, have fully supported the prosecution case. The demand, acceptance and recovery of the tainted money have been substantiated by the deposition of the said witnesses. There is specific statement in the evidence of the aforesaid witnesses that demand of illegal gratification and acceptance and recovery of the tainted money in the post trap proceeding has been fully established by the witnesses. The demand, acceptance and recovery of the tainted money have been substantiated by the deposition of the said witnesses. There is specific statement in the evidence of the aforesaid witnesses that demand of illegal gratification and acceptance and recovery of the tainted money in the post trap proceeding has been fully established by the witnesses. There is no evidence on record which reveals the transaction of the tainted money was the third installment which was given by the complainant to the accused at his residential premises as because no description of any receipt was there, for the said transaction which has come on record. 15. Mr. Khan has further submitted that the PW 4 who is the independent witness is the trustworthy witness as because he has having no enmity with the accused appellant. This witness has fully corroborated the demand, acceptance and recovery of the tainted money. 16. Mr. Khan has submitted that this case was earlier pending at Patna (Bihar). Thereafter, the case was transferred to Ranchi and from Ranchi, the case was transferred to Dhanbad. He has also submitted that file of this case has not been received. He has submitted that he is not in a position to say as to why the complainant and other witness could not be examined. Since the file is not available he is also not in a position to say where is that original complaint petition but he has submitted that the evidence and materials on record fully support the case of the prosecution. 17. Mr. Khan has lastly submitted that though the complainant and the I.O. has not been examined by the prosecution but it will not prejudice the accused or demolish the prosecution case. As the prosecution has proved its case beyond all reasonable doubt against the appellant, this Criminal appeal is liable to dismiss as whole. 18. From perusal of the records, I find after examination of PW 1 it was found that he was not competent authority to give sanction for the prosecution of the accused appellant, accordingly valid sanction was taken from the proper authority and fresh cognizance was taken. In this regard PW 2 (Krishanan Benkatacharan) has been examined to prove the sanction order (Ext-l/1). In this regard PW 2 (Krishanan Benkatacharan) has been examined to prove the sanction order (Ext-l/1). He has stated that at the relevant period Surjo Moni Pathak was General Manager of the Bank of India who was competent authority to appoint accused appellant as such he was competent to give sanction for prosecution of the accused appellant. The sanction order itself shows that the sanctioning authority after going through all the concerned papers and being satisfied, gave the sanction for prosecution. Therefore, it cannot be said that there was no valid sanction for the prosecution. Thus, there is no illegality in the sanction order. 19. Admittedly, the complainant and the I.O of this case have not been examined, by the prosecution. Perusing the materials on records, I find evidence of three witnesses i.e. PW 4 Ram Rup Singh (shadow witness) and PWs 3 and 9 who are members of the trap proceeding and C.B.I. Officials, all of them were present at the time of trap. PW 3 the Sub Inspector of - C.B.I. who has stated in his evidence that he, PW 4 and PW 9 were present near the accused appellant at the time of alleged occurrence. He has further stated that the accused appellant has asked for his money from the complainant and on this, the complainant paid the accused appellant a sum of Rs.200/-. The accused appellant accepted the said amount and kept the same in the pocket of his shirt. Thereafter, on giving signal by the complainant, the entire team members went to the accused appellant and challenged him for taking bribe money. He has further stated that PW 9 namely Kedar Nath Gupta who is C.B.I. Inspector had taken out the bribe money from the pocket of the shirt of the accused appellant. I find PW 9 has also stated in his evidence that on giving signal by the complainant, he entered into the room of the accused appellant. He has further stated in his evidence that the demand and acceptance was seen by the shadow witness Ram Rup Singh PW 4 also. He has further stated that about the recovery of the amount from the pocket of the accused appellant. He stands firm in the cross-examination. Therefore, PW 3 and 9 both have proved the factum of demand, acceptance and recovery and supported the prosecution case. He has further stated that about the recovery of the amount from the pocket of the accused appellant. He stands firm in the cross-examination. Therefore, PW 3 and 9 both have proved the factum of demand, acceptance and recovery and supported the prosecution case. The another important witness PW 4 who is shadow witness (independent witness) has also stated very specifically in his statement that at the place of occurrence i.e. inside the drawing room of the accused appellant, the complainant and the appellant were present and the other witnesses including him (PW 4) were out side the door but he had heard the accused appellant demanding the bribe money of Rs.200/- and also seen that the complainant gave that amount to the accused appellant who after accepting the same kept the money in his pocket. Thereafter, the complainant gave the signal to the trap team on which all them reached there running. Counsel of the C.B.I. has explained that the word "running" is mentioned only to show that the trap team members came at the spot hurriedly. It never means that the PW 4 was at a quite long distance from the appellant at the relevant time. Therefore, the presence of PWs 3, 4 and PW 9 at close distance and they all have very specifically proved the demand of bribe money by-the accused appellant, acceptance of the same and even the recovery of the said amount from the pocket of the accused, appellant. No doubt PW 9 who is Inspector of C.B.I. has very clearly stated that the present accused appellant had earlier submitted a number of complaints to his higher official (i.e. to his Regional Manager) against B.D.O. - Raj Dhanshar whose duty was to send Loan application form under the scheme of the self employment but there is nothing to show that the said B.D.O. with conspiracy with the complainant or the trap team members falsely implicated the present accused appellant. 20. PW 6 who was Sub-Inspector of C.B.I. had done secret verification and on the basis of his verification the demand was found correct and instance case was instituted but he has admitted that no verification report is on the record. From the record of the case, I find that earlier case was registered at Patna thereafter, the same was transfered to Ranchi and again to Dhanbad. From the record of the case, I find that earlier case was registered at Patna thereafter, the same was transfered to Ranchi and again to Dhanbad. Therefore, it is quite possible for sending the record from one place to other place, the verification report may be misplaced from the record. PW 6 who is the verification officer who has clearly stated about the verification. Therefore, there is no reason to disbelieve the verification part. As contended by Mr. Jai Prakash, senior counsel non-examination of the complainant and I.O. has seriously prejudiced the defence of the accused appellant and as the several documents seized by the I.O. and the same has not been brought on record due to which the accused is not able to show that the pay-in-slip has also been found as regard to re-payment of the loan by the complainant. But from the record, I find the complainant and the trap team members went to the residence of the accused appellant at about 9 a.m. which was not the Bank working hours and the tainted money has been recovered in the drawing room from the pocket of the accused appellant. Therefore, it cannot be said the accused appellant has taken the money as re-payment of Bank Loan. Furthermore, the accused appellant has not stated in his statements recorded under Section 313, Cr. P.C. about this. He has only stated that he is innocent and he has been implicated due to enmity with the B.D.O. of Raj Dhansar. I do not find much substance on the aforesaid submissions regarding non-examination of the I.O. As earlier I have stated that PW 4 the independent witness and other two C.B.I. Officials has specifically stated and proved the demand, acceptance and recovery of the tainted money from the pocket of the accused appellant in presence of witnesses and they stand firm in cross-examination. I do not find any reason to disbelieve their evidence. 21. Perused the evidence of the D.W.1 and I find it is not at all helpful to the accused appellant. There is nothing to support the defence version. 22. The statements of the accused appellant recorded under Section 313, Cr. P.C. and questions put to the accused appellant clearly shows that the materials come against the accused appellant were put before the accused appellant and he was given full opportunity to explain his defence. There is nothing to support the defence version. 22. The statements of the accused appellant recorded under Section 313, Cr. P.C. and questions put to the accused appellant clearly shows that the materials come against the accused appellant were put before the accused appellant and he was given full opportunity to explain his defence. Therefore, there is no lacuna in compliance of Section 313, Cr PC in this case. 23. Admittedly there are minor contradictions in the evidence of prosecution witnesses which is very normal as the occurrence took place in 1985 and the evidence was taken between 1985 to 2000. The minor contradiction in the statements of the witnesses will not vitiate the trial or effect the prosecution case as the material witnesses very firmly proved the demand of illegal gratification and its acceptance by the accused appellant and also the recovery of the same from the pocket of his shirt. 24. Considering the materials on record and arguments advanced by the parties as discussed above, I do find that the prosecution has fully proved the charges framed against the accused appellant beyond all reasonable doubt. Therefore, the trial Court has rightly convicted the accused appellant for the charges levelled against him. Accordingly, I do not find any merit in this appeal, accordingly, the conviction and the sentence awarded to the appellant is hereby confirmed. As the appellant is on bail, his bail bond is cancelled and he is directed to surrender before the Court below forthwith to serve the sentence, failing which the Court below shall take all possible steps for his arrest. Appeal dismissed.