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Himachal Pradesh High Court · body

2013 DIGILAW 788 (HP)

Dalip Singh Thapa v. State of Himachal Pradesh

2013-09-03

DHARAM CHAND CHAUDHARY

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Judgment : Dharam Chand Chaudhary, J.: Learned Special Judge, Solan has convicted the appellant, a public servant, for commission of an offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as “the Act” in short) and sentenced him to undergo rigorous imprisonment for one year and also to pay Rs.10,000/- as fine under Section 7 of the Act and to undergo rigorous imprisonment for one year and also to pay Rs.10,000/- as fine under Section 13(1)(d) read with Section 13(2) of the Act vide judgment dated 27.9.2011 in Corruption Case No.4-S/7 of 2010. It is this judgment which is under challenge in the present appeal on several grounds, however, mainly that the Court below has not appreciated the evidence available on record in its right perspective and, as such, the impugned judgment allegedly being illegal and factually unsustainable, has been sought to be quashed and set aside. 2. The accused was initially appointed as Fireman in the Department of Fire Services, Himachal Pradesh in the year 1975 vide appointment letter Ex.PW-4/A. Subsequently, he was promoted to the rank of Sub Fire Officer and posted as Officer In-charge, Fire Station, Baddi, District Solan vide office order dated 19th July, 2007, Ex.PW-4/B. Amongst other duties and functions attached to the post held by him, he used to recommend the issuance of ‘NOC’ in favour of those industrial units, having fire extinguisher equipments in their premises, as required under the norms. Shri Sunil Sharma, complainant (PW-1) is Proprietor of M/s National Fire Tech. Industries, Baddi. He allegedly installed 44 number of fire extinguisher equipments in the premises of M/s Ratnasagar Herbal (P) Ltd., Baddi. The Management of the firm made an application Ex.P-23/Ex.P-18 dated 26.5.2009 to the accused- Sub Fire Officer for issuance of ‘NOC’ in respect of installation of various types of fire extinguisher equipments in sufficient quantity by them in their factory. Annexed thereto were the documents, i.e. copy of bill Ex.P-19/ Ex.P-24, letters dated 28.4.2009 and 12.5.2009, Ex.P-20 & Ex.P-21/Ex.P-25 & 26 of Petroleum and Explosives Safety Organisation, Seminary Hills, Nagpur, list of raw materials Ex.P-22/Ex.P-27. 3. Annexed thereto were the documents, i.e. copy of bill Ex.P-19/ Ex.P-24, letters dated 28.4.2009 and 12.5.2009, Ex.P-20 & Ex.P-21/Ex.P-25 & 26 of Petroleum and Explosives Safety Organisation, Seminary Hills, Nagpur, list of raw materials Ex.P-22/Ex.P-27. 3. The allegations against the appellant-accused (hereinafter referred to as ‘the accused’ for short) are that on account of dillydally attitude, the issuance of NOC could not be expedited despite the complainant-PW-1, who as agreed upon with M/s Ratnasagar Herbals (P) Ltd., was under an obligation to get the NOC issued in favour of the said firm qua installation of sufficient number of fire extinguisher equipments in its premises, visited the accused on 2/3 occasions. Also that on 5.8.2009 when the complainant accompanied by his Manager, Shri Maithili Saran Prasher (PW-2) went to the office of accused, he demanded a sum of Rs.10,000/- for the issuance of NOC. The complainant, however, was not in favour of making payment of any amount as bribe for the issuance of NOC by the accused, being a part of his official duty, therefore, they decided to report the matter to the police. 4. On 6.8.2009, on their way to Solan to report the matter to the police there, complainant came to know in Barotiwala Bazaar that a team of State Vigilance and Anti Corruption Bureau Unit, Solan was present in PWD Rest House, Majhotu. The complainant accompanied by his Manager, Maithili Saran Prasher (PW-2) therefore went to PWD Rest House, Majhotu and made the statement under Section 154 Cr.P.C., Ex.PW-1/A before PW-3, Shri Ramesh Chand, Deputy Superintendent of Police, State Vigilance and Ante Corruption Bureau, Solan. 5. Ex.PW-1/A was forwarded to Police Station, State Vigilance and Ante Corruption Bureau, Solan through HHC Madan Lal, PW-10 for registration of FIR. Consequently, FIR Ex.PW-11/A was registered in Police Station, SV & ACB, Solan. PW-13 thereafter had given the pre-trap demonstration to the complainant and shadow witness, PW-2 as to how the colour of water turns into pink by mixing sodium carbonate and phenolphthalein powder. The water so turned pink was put into a nip Ex.P-1 and taken into possession vide memo Ex.PW-1/B. The samples of both chemical powder used for demonstration Ex.P-28 and P-29 were sealed in two separate parcels. The memorandum Ex.PW-1/B qua demonstration was reduced into writing in presence of the witnesses. The water so turned pink was put into a nip Ex.P-1 and taken into possession vide memo Ex.PW-1/B. The samples of both chemical powder used for demonstration Ex.P-28 and P-29 were sealed in two separate parcels. The memorandum Ex.PW-1/B qua demonstration was reduced into writing in presence of the witnesses. Thereafter, the currency notes Ex.P-4 to P-13, ten in number, in the denomination of Rs.1,000/- each, i.e. total rupees ten thousand were treated with phenolphthalein powder and handed over to the complainant to keep the same in his pocket and pass on to the accused on demand by him with further direction that after handing over the treated currency notes not to shake hand with the accused. The numbers of currency notes were also noted. The memo Ex.PW-1/C was also prepared. The complainant was also asked to give signal by raising his hands over his head to the shadow witness, PW-2 immediately on receipt of currency notes by the accused. PW-2, the shadow witness was also told to give the signal in the same manner to the police. 6. As per further case of the prosecution, at about 11.30 p.m. first complainant and PW-2 left the rest house for the office of the accused and the police party headed by PW-13 followed them. The complainant allegedly passed on the treated currency notes to the accused in his office and on acceptance thereof gave the agreed signal to the shadow witness. The shadow witness, in turn, gave the signal to police party, present on the road adjoining to the Fire Office, Baddi, which immediately came up and entered into the office of accused. First of all the hands of accused were caught hold of and washed with clean water. On adding sodium carbonate and phenolphthalein powder, the water turned pink, which was sealed in a nip and taken into possession vide memo Ex.PW-1/A. The treated currency notes were recovered from the accused and the same, when compared with memo Ex.PW-1/C, tallied with numbers thereof mentioned therein. A memo Ex.PW-1/E was prepared regarding recovery of the currency notes from the accused. The back pants pocket of the accused was also washed and its wash water also turned pink by adding sodium carbonate and phenolphthalein powder therein and a memo Ex.PW-1/F was prepared in this behalf also. A memo Ex.PW-1/E was prepared regarding recovery of the currency notes from the accused. The back pants pocket of the accused was also washed and its wash water also turned pink by adding sodium carbonate and phenolphthalein powder therein and a memo Ex.PW-1/F was prepared in this behalf also. Thereafter, personal search of the accused was conducted vide memo Ex.PW-1/G and a cell phone was recovered from him. The file, Ex.P-17, containing papers Ex.P-18 to P-27 pertaining to the issuance of NOC in favour of M/s. Ratnasagar Herbals (P) Ltd., lying on the table of the accused was taken in possession vide memo Ex.PW-1/H. Spot map Ex.PW-13/C was prepared and the accused was arrested vide arrest memo Ex.PW-13/D. Subsequently, the search of his official residence adjoining to the office premises was also conducted vide memo Ex.PW-1/J. The appointment letter and posting orders of the accused Ex.PW-4/A and Ex.PW-4/B were also taken in possession. The case property was taken to Forensic Science Laboratory vide R.C. Ex.PW-5/C by PW-5 Shri Padam Dev. The report Ex.PW-6/B was received. Daily diaries Ex.PW-7/A, Ex.PW-8/A and Ex.PW-12/A to Ex.PW-12/F were also relied upon. The prosecution sanction Ex.PW-9/A was also obtained from the competent authority. 7. On completion of the investigation, a report under Section 173 Cr.P.C. was filed in the trial Court. 8. Subsequently charge under Sections 7 and 13(1(d) read with Section 13(2) of the Act was framed against the accused. The accused pleaded not guilty, therefore, in order to sustain the charge against him, the prosecution has examined as many as 14 witnesses in all. 9. On the other hand, the accused has examined Shri B.S. Mahan, Station Fire Officer, Headquarters, H.P. Fire Services, Himachal Pradesh, Shimla in his defence. 10. The material prosecution witnesses are the complainant, Shri Sunil Sharma, PW-1, his Manager, the shadow witness Shri Maithili Saran Prashar, PW-2 and also PW-13, the Investigation Officer of this case. The remaining witnesses are, however, formal and the evidence, as has come on record by way of their respective statements, can be termed as link evidence. 11. Shri Anoop Chitkara, Advocate assisted by Ms. Divya Sood, Advocate has canvassed that the gravamen of the commission of offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Act is demand of bribe by a public servant and acceptance thereof. According to Mr. 11. Shri Anoop Chitkara, Advocate assisted by Ms. Divya Sood, Advocate has canvassed that the gravamen of the commission of offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Act is demand of bribe by a public servant and acceptance thereof. According to Mr. Chitkara, there is no iota of evidence in respect of demand of a sum of Rs.10,000/- as bribe by the accused and acceptance thereof. He has also pointed out embellishments, padding and improvements in the prosecution case and urged that the evidence is full of contradictions, which goes to the root of the prosecution case. 12. On the other hand, Shri Pushpinder Singh Jaswal, learned Deputy Advocate General while drawing the attention of the Court to the statements of complainant, PW-1 and shadow witness PW-2 as well as the documentary evidence, has forcefully contended that the demand of bribe and acceptance thereof by the accused stands satisfactorily established and, as such, the Court below has rightly convicted and sentenced the accused. 13. Adverting to the prosecution case, its genesis right from the very beginning is doubtful for the reason that admittedly there was no agreement between the complainant and M/s Ratnasagar Herbals (P) Ltd. to get the NOC issued in favour of the latter in respect of installation of fire extinguisher equipments in its premises. The complainant, as a matter of fact, is supplier of such equipments and, at the most, installation of such equipments is also his obligation. Whether such equipments are installed in required numbers and of required standard and quality, it was for the firm i.e. M/s Ratnasagar Herbals (P) Ltd. to satisfy the accused on his visit for inspection of such equipments consequent upon the application Ex.P- 18/P-23, made for the purpose. In case any such arrangement was there in between the complainant and the Management of the firm, the same can only be for the reason that either the equipments were not in sufficient numbers or not of required quality and irrespective of which, these were installed in the factory premises of the firm on the assurance of the complainant to obtain NOC from the Fire Services Department. 14. Admittedly, the predecessor-in-office of accused was Shri Ram Pal Sharma, father of the complainant. As per the evidence, as has come on record by way of the testimony of DW-1, Shri B.S Mahan, NOCs from Sr. 14. Admittedly, the predecessor-in-office of accused was Shri Ram Pal Sharma, father of the complainant. As per the evidence, as has come on record by way of the testimony of DW-1, Shri B.S Mahan, NOCs from Sr. No.1 to 255 in the list Ex.DW-1/A were recommended to be issued in respect of various factory premises qua installation of the fire extinguisher equipments purchased and installed by M/s National Fire Tech Industries, of which his son (complainant) was the proprietor. Said Shri Ram Pal Sharma was proceeded against departmentally and even remained under suspension also. It seems that after the retirement of said Shri Ram Pal Sharma and the posting of accused as Sub Fire Officer at Baddi, he discouraged the complainant in the matter of making recommendations qua issuance of NOCs in such cases which were not found as per norms. He seems to be making such recommendations only in genuine cases where National Fire Tech Industries, of which he is proprietor, installed fire extinguisher equipments, as the details in Ex.DW-1/A reveal that the cases at Sr. No. 256 onwards pertain to different concerns including that of the complainant, recommended for issuance of NOC by the accused. The possibility of the complainant seeking similar accommodation from the accused as his father was extending to him to promote his business and it is for this reason this case has been planted and engineered against the accused, cannot be ruled out. 15. Significantly, as per the statement under Section 154 Cr.P.C., Ex.PW-1/A which contains the very first version of the occurrence, the team of State Vigilance and Ante Corruption Bureau was already present in PWD Rest House, Majhotu. No doubt, as per daily diary No.5-A, Ex.PW-12/A, PW-13 accompanied by other police officials on 6.8.2009 was on patrol duty to detect the commission of offence secretly in Baddi-Barotiwala-Nalagarh area. The police party left the police station around 7 a.m. in the morning. No doubt, as per daily diary No.5-A, Ex.PW-12/A, PW-13 accompanied by other police officials on 6.8.2009 was on patrol duty to detect the commission of offence secretly in Baddi-Barotiwala-Nalagarh area. The police party left the police station around 7 a.m. in the morning. However, the manner in which the complainant and PW-2 happened to come in contact with the police team in Rest House, Majhotu, as claimed by the prosecution, is highly doubtful for the reason that PW-10, HHC Madan Lal while in the witness box did not support the prosecution case as to the complainant’s meeting him in Barotiwala Bazaar and it is he, who told the complainant that the police party headed by PW-13, Ramesh Chand, Deputy Superintendent of Police was present in PWD Rest House , Majhotu. Even the Deputy Superintendent of Police while in the witness box as PW-13 also did not support the prosecution case, as according to him right from Solan upto PWD Rest House, Majhotu, HHC Madan Lal through out remained with them. Meaning thereby that HHC Madan Lal did not visit Barotiwala Bazaar on that day. The version of the complainant that said Shri Madan Lal is his friend and that when he met him in Barotiwala Bazaar, he was on his way to Solan for registration of the case and he came to know from him about the police team available in Rest House, Majhotu, is absolutely false and cannot be believed to be true nor can be relied upon against the accused. Therefore, it cannot be believed that the police team had come there by chance unaware of the alleged demand of bribe by the accused and unaware of laying the trap. Rather, the police seems to have the prior intimation and came there to lay the trap in connivance with the complainant. 16. Interestingly enough, as per Ex.PW-1/A, the police team was present in PWD Rest House, Majhotu. The complainant, PW-1 while in the witness box, however, stated that PW-10 HHC Madan Lal informed him that the Deputy Superintendent of Police was present in Rest House, Baddi. As per version of the shadow witness, PW-2, said Shri Madan Lal informed that the Deputy Superintendent of Police (PW-13) was camping at Rest House, Barotiwala. Therefore, it is not proved beyond reasonable doubt as to in which of the Rest Houses the Deputy Superintendent of Police was camping with his team. As per version of the shadow witness, PW-2, said Shri Madan Lal informed that the Deputy Superintendent of Police (PW-13) was camping at Rest House, Barotiwala. Therefore, it is not proved beyond reasonable doubt as to in which of the Rest Houses the Deputy Superintendent of Police was camping with his team. No other evidence is available on record as to how many crimes were detected by this team on that day in addition to the present case. In which rest house the police team was camping, could have been proved to remove all doubts by producing the Chowkidar of the rest house or any other employee. However, it has not been done. Therefore, the story that the police party by chance was available in that area seems to be engineered and fabricated one for the reasons best know to the police and the complainant party. 17. The evidence reveals that application Ex.P-18/ P-23 for issuance of NOC was submitted by M/s Ratnasagar Herbals (P) Ltd. on 26.5.2009. The file thereof Ex.P-17 was given to the accused by PW-1 only on 6.8.2009 as has come in the statement of PW-2. The Investigating Officer, PW-13 has also stated that the file Ex.P-17 which pertains to the issuance of NOC was received by the accused on 6.8.2009. It is, therefore, difficult to believe that the complainant visited the office of accused on 2/3 occasions, however, he did not process this matter. Otherwise also, this application was submitted by the firm M/s. Ratnasagar Herbals (P) Ltd. and there being no agreement between the firm and complainant as has come in the statement of PW-3 Basu Dev, there was no occasion for the complainant to have pursued this matter with the accused. Though PW-3 while in the witness box has stated that he was told by Parmod Singh, General Manager of the firm that the matter with respect to issuance of the NOC was to be processed by the complainant, however, being hearsay, is not admissible in evidence nor on the basis thereof it can be believed that the NOC was to be got issued by the complainant. Above all, when said Shri Parmod Singh was still General Manager of the firm, it is not known as to why he has not been associated in the investigation and examined as a witness. Above all, when said Shri Parmod Singh was still General Manager of the firm, it is not known as to why he has not been associated in the investigation and examined as a witness. Otherwise also, in case the file was handed over by the complainant to the accused on 6.8.2009 and received by the accused only on 6.8.2009, as has come in the statement of PW-2 and Investigating Officer, PW-13, there was no question of occurring any delay in processing the case of M/s Ratnasagar Herbals (P) Ltd. It is also significant to point out that the role of the accused was only recommendatory in nature and so far as NOC is concerned, the same as per the evidence as has come on record by way of the testimony of DW-1, B.S. Mahan, was to be issued by the Chief Fire Officer, Himachal Pradesh. The accused could have recommended the issuance of NOC only after conducting the inspection of the factory premises. Though an effort has been made by the prosecution to establish that on 6.8.2009, the accused accompanied by the complainant and the shadow witness had first conducted the inspection of the factory premises and it was thereafter that he received bribe on returning to his office. This part of the prosecution case, however, is also not proved on record beyond all reasonable doubt. 18. True it is that the complainant PW-1 and the shadow witness PW-2 have come forward with the version that after the demonstration of treating the currency notes given to them by the Investigating Officer, they went to Fire Station, Baddi and took the accused to the concern M/s Ratnasagar Herbals (P) Ltd. for inspection. After getting the inspection of the factory conducted, they returned to fire office. As per the prosecution case, they first went to the factory premises of the concern M/s. Ratnasagar Herbals (P) Ltd. for conducting inspection and thereafter to the fire office. The complainant in his cross-examination has, however, stated that from Rest House they first went to fire office and thereafter to the factory premises. However, as per the version of the Investigating Officer, PW-13 after preparation of memorandum Ex.PW-1/C with respect to treating the currency notes with chemical and noting down the numbers thereof in presence of the witnesses, the complainant, PW-1 and shadow witness PW-2 had gone to fire office, Baddi and the police followed them. However, as per the version of the Investigating Officer, PW-13 after preparation of memorandum Ex.PW-1/C with respect to treating the currency notes with chemical and noting down the numbers thereof in presence of the witnesses, the complainant, PW-1 and shadow witness PW-2 had gone to fire office, Baddi and the police followed them. The police party did not stop at any place on its way to fire office, Baddi from rest house and reached there within 10-15 minutes, i.e. before 2.00 p.m. The complainant and shadow witness came over to fire station thereafter alongwith the accused in their presence. As per his further version, the complainant and shadow witness were in the rest house till 1.30/1.45 p.m. The police party reached at fire office before 2.00 p.m. and noticed the complainant, shadow witness and the accused coming to fire office. In the interregnum, i.e. within 15-30 minutes the inspection of the factory could have not been conducted by the accused accompanied by the complainant and shadow witness. Above all, had any such inspection been conducted, this fact would have been proved by associating some officer/official from the Company. Therefore, this part of the prosecution case being not proved beyond all reasonable doubt should have not been used against the accused to record the findings of conviction against him. 19. The Investigating Officer for the reasons best known to him, has associated the interested witnesses to prove the demand of bribe by the accused and its acceptance as well as the recovery allegedly from the accused. The complainant being proprietor of the concern which has supplied the fire fighting equipments to the Company M/s Ratnasagar Herbal (P) Ltd. and it was qua satisfactory installation of such equipments as per norms that NOC was required by the concern, therefore, he is an interested witness and obviously interested in the success of the case against the accused. The shadow witness PW-2, Maithili Saran Prasher is the Manager of the complainant. As per PW-1, they both are working together for the last 8-10 years. PW-2 also states that he has been working with the complainant since 2005. The shadow witness PW-2, Maithili Saran Prasher is the Manager of the complainant. As per PW-1, they both are working together for the last 8-10 years. PW-2 also states that he has been working with the complainant since 2005. In view of such evidence available on record, the denial to the suggestion that Maithili Saran Prashar (PW-2) has been cited as witness on account of having business relations with the complainant by the Investigating Officer, PW-13 shows that the investigation was not conducted in a fair manner. Therefore, it can reasonably be believed that they both were interested in the success of the trap. The reason therefor pure and simple seems to be that the accused was not accommodating the complainant in the matter of promotion of his business in the same manner as his father, the predecessor-in-office of the accused was doing. The accused seems to be not making the recommendations qua satisfactory installation of the fire extinguisher instruments by the complainant merely on asking and without being satisfied qua the sufficiency, quality and the specification thereof as per the norms. This seems to be the only reason of implicating the accused falsely in this case. Because when as per the prosecution case itself, the entire payment in respect of installation of the equipments was already made to the complainant, there was no occasion for him to have pursued the papers moved for the purpose by the Management of the concern. The present, therefore, is a case where the evidence, as has come on record by way of testimonies of interested witnesses, i.e. the complainant and the shadow witness, could have not been believed to be true to record the findings of conviction against the accused and also to draw presumption against him under Section 20 of the Act. 20. On the other hand, the admission on the part of prosecution witnesses in their cross-examination that near and around the rest house, the commercial and residential buildings are situated. The independent witnesses could have easily been associated in the investigation of the case had any effort in this behalf been made. The Investigating Officer while in the witness box has come forward with the version that he did not associate the independent persons as witnesses, however, why not, he failed to explain. The independent witnesses could have easily been associated in the investigation of the case had any effort in this behalf been made. The Investigating Officer while in the witness box has come forward with the version that he did not associate the independent persons as witnesses, however, why not, he failed to explain. In a trap case i.e. Ram Prakash Arora Versus State of Punjab, (1972) 3 SCC 652 , the Apex Court while deprecating the practice of associating interested witnesses, has held as under: “9. The evidence of Joginder Singh and Dalbir Singh has been naturally relied upon by the counsel for the State and it has been suggested that they had no motive to falsely implicate the appellant. According to the appellant Joginder Singh had come to him on February 15, 1968, at about 12 noon and got annoyed and had heated argument with him saving that so many days had passed and the connection had not been given. The statement of Joginder Singh is not at all impressive and his cross-examination shows that he could not be implicitly relied upon. Dalbir Singh is related to him being his cousin. It must be remembered that both Joginder Singh and Dalbir Singh P. Ws. were interested and partisan witnesses. They were concerned in the success of the trap and their evidence must be tested in the same way as that of any other interested witness and in a proper case the Court may look for independent corroboration before convicting the accused person. (See State of Bihar v. Basawan Singh). The memo ext. PE which was prepared regarding the taking into possession of the currency notes was witnessed by D. S. P. Mit Singh, Inspector Rajender Lal, Joginder Singh and Dalbir Singh and Arjan Singh. In Basawan Singh's case (supra) corroboration was found in the evidence of the two search witnesses who were independent and had nothing to do with the raiding party. There is no search witnesses who is independent in the present case and there is no other evidence from which any corroboration could be found of the evidence given by the members of the raiding party including Joginder Singh and Dalbir Singh. This aspect was not present at all to the mind of the High Court or the learned Special Judge.” 21. This aspect was not present at all to the mind of the High Court or the learned Special Judge.” 21. Similar is the ratio of the judgment of Apex Court in Shantilal son of Rameshwar Versus State of Rajasthan, (1976) 1 SCC 577 , the relevant portion of which reads as follows:- “6. .... It is no doubt true that Dhanna Lal, Ram Nath and Pushp Kumar deposed to this incident which is supposed to have taken place in the first floor varandah outside the room of the copying clerks, but the evidence of Dhanna Lal and Ram Nath is that of interested witnesses because they were the persons responsible for laying the trap and so far as Pushp Kumar is concerned, we do not think it safe to act on his sole testimony. ….” 22. In Ganga Kumar Srivastava Versus State of Bihar, (2005) 6 SCC 211 the need of proof of allegations leveled against a Government servant by way of associating independent and respectable witnesses has been emphasised. The relevant portion of this judgment also reads as follows:- “20. We must not forget that in a trap case the duty of the officer to prove the allegations made against a Government officer for taking bribe is serious, and therefore, the officers functioning in the Vigilance Department must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the court and the Court is not left in any doubt whether or not any money was paid to the public servant by way of bribe. It is also the duty of the officers in the Vigilance Department to safeguard for the protection of public servants against whom a trap case may have been laid.” 23. In view of the legal as well as factual position discussed hereinabove, the non-association of independent and respectable persons as witnesses is fatal to the prosecution case and on account of that the entire proceedings against the accused are vitiated. 24. The complainant and the shadow witness, no doubt, are interested witnesses, as discussed hereinabove, however, the scrutiny of their statements reveals that they have contradicted each other qua this aspect of the matter. No doubt, as per their version, the demand of bribe was made by the accused on 5.8.2009 when they visited his office. 24. The complainant and the shadow witness, no doubt, are interested witnesses, as discussed hereinabove, however, the scrutiny of their statements reveals that they have contradicted each other qua this aspect of the matter. No doubt, as per their version, the demand of bribe was made by the accused on 5.8.2009 when they visited his office. However, while as per the version of complainant, the amount of bribe was ultimately settled at Rs.10,000/-, at the same time, as per that of PW-2, the accused demanded Rs.15,000/-, however, ultimately settled at Rs.10,000/-. In the statement of PW-2 under Section 161 Cr.P.C., nothing to this effect finds mention and, as such, it is an improvement of factual aspect and goes to the roots of the prosecution case. 25. If coming to Ex.PW-1/A, the statement of the complainant under Section 154 Cr.P.C., the accused allegedly claimed that unless and until a sum of Rs.10,000/- is not paid as bribe, he will not recommend the issuance of NOC. According to the complainant and shadow witness, the demand of bribe was made on 5.8.2009 and on the next day, i.e. 6.8.2009 they had no conversation with the accused in respect of the demand of money. The Investigating Officer, PW-13 Ramesh Chand, Deputy Superintendent of Police, no doubt, had stated that PW-2, the shadow witness had revealed about the demand of bribe by the accused, however, PW-2 while in the witness box did not support the statement so made by the Investigating Officer. Similarly, the version of the Investigating Officer that PW-1 had disclosed that the money was demanded by the accused on 6.8.2009 is not proved from record as the said witness has not supported the same and rather as per his version, the demand of money was made by the accused only on 5.8.2009. PW-2 has stated that the complainant gave him only a signal and he did not witness the money on demand being passed on by PW-1 to the accused. He has further stated that what transpired inside the office between the complainant and the accused, he is not aware of that and rather he admits that neither he witnessed the money given by the complainant to the accused inside the office nor the accused having taken it from PW-1. He has further stated that what transpired inside the office between the complainant and the accused, he is not aware of that and rather he admits that neither he witnessed the money given by the complainant to the accused inside the office nor the accused having taken it from PW-1. Meaning thereby that the factum of bribe money passed on to the accused on demand by the complainant is not at all proved beyond all reasonable doubt. So far as the version of complainant that previously also, on one occasion the accused had demanded bribe in a similar case of issuance of NOC, is not proved on record as he failed to furnish better particulars in this behalf while in the witness box. Above all, in case the money was demanded by the accused on previous date, i.e. 5.8.2009 and it was a condition precedent that unless and until the money is not given to him, he will not pursue the papers, the natural conduct of the accused would have been to first insist for payment of the bribe money from the complainant and thereafter to accompany him to the factory for inspection. As per version of PW-1 when he produced the papers for NOC to the accused, he asked for money towards the same and he delivered the treated currency notes to him and made a signal by raising his hands to his head to the shadow witness. As already stated hereinabove, the shadow witness, however, expressed his ignorance as to what transpired between the accused and the complainant inside the office as he was outside. He has also admitted that money was not given and taken inside the room. It is significant to note that the Investigating Officer should have pointed out the spot in the site plan where the shadow witness was standing. The map Ex.PW-13/C reveals that no such spot is indicated therein. Therefore, this all renders the prosecution story qua demand of bribe by the accused highly improbable. 26. In Sat Paul Versus Delhi Administration, (1976) 1 SCC 727 , the Apex Court has held that there should be corroboration to the testimony of witnesses to prove the prosecution case. The relevant portion of this judgment reads as follows:- “23. It is true that there is no absolute rule that the evidence of an interested witness cannot be accepted without corroboration. The relevant portion of this judgment reads as follows:- “23. It is true that there is no absolute rule that the evidence of an interested witness cannot be accepted without corroboration. But where the witnesses have poor moral fibre and have to their discredit a heavy load of bad antecedents, such as those of PWs 1, 2, 7 and 8, having a possible motive to harm the accused who was an obstacle in the way of their immoral activities, it would be hazardous to accept their testimony, in the absence of corroboration on crucial points from independent sources. If any authority is needed reference may be made to R. P. Arora v. State of Punjab (supra), wherein this Court ruled that in a proper case, the Court should look for independent corroboration before convicting the accused person on the evidence of trap witnesses.” 27. In Bal Krishan Sayal Versus State of Punjab, (1987) 2 SCC 647 while discussing the need of corroboration of evidence in such cases, the Apex Court has held as under:- “3. Two outsider witnesses had been examined in the case being Khazan Singh and Ram Chander in support of the case. Khazan Singh, as noticed by the High Court, did not speak as to what transpired in the conversation between the bribe giver and the appellant. The other witness too was not very clear as to what talk preceded the passing of the two currency notes. The High Court took the view that even if the prosecution had not indicated what exactly the conversation was, once the passing of the two currency notes was accepted it was for the appellant to explain the circumstances under which the same had been received. Another contention which had been raised before the High Court was that the total penal rent due from Gurcharan Ram was Rs. 102/- and to obtain waiver of this it was unlikely that Gurcharan would have agreed to pay a sum of Rs. 100/- as bribe. We, wanted to find out exactly how much of penal rent was due and, therefore, sent for the record. From the record it is apparent that the demand was of Rs. 102/- which Gurcharan Ram wanted to be waived. There is no material to show whether there was likelihood of any additional demand to be raised against him. We, wanted to find out exactly how much of penal rent was due and, therefore, sent for the record. From the record it is apparent that the demand was of Rs. 102/- which Gurcharan Ram wanted to be waived. There is no material to show whether there was likelihood of any additional demand to be raised against him. Taking the unsatisfactory character of the prosecution evidence in regard to the conversation preceding the passing of the currency notes and the feature that for waiver of Rs. 102/-, the bribe of Rs. 100/- was offered, we are inclined to take the view that the prosecution has failed to establish its case beyond reasonable doubt and the appellant is entitled to this benefit of this situation. The appeal is allowed and the convictions and the sentences are set aside.” 28. The Apex Court in Meena (Smt.) W/o Balwant Hemke Versus State of Maharashtra, (2000) 5 SCC 21 has held as under:- “11. The fact that the judgments of the Courts below were rendered concurrently cannot dissuade us from interfering in a case like this where such findings and conviction have been recorded on mere conjectures and erratic evaluation of the evidence on record. Consistency for the mere sake of it is no virtue. It is an obligation of judicial conscience to correct errors, where the same are manifest. The judgments of the Courts below suffers from serious infirmities and manifest errors on account of unwarranted inferences liberally drawn by the Courts below against the appellant, overlooking the fundamental principle of presumption of innocence of an accused till the charge levelled and her guilt is established beyond all reasonable doubt. The Courts below have failed to consider the adverse impact on the prosecution case from the evidence of PW-2 and the withholding of the lady constable and Jagdish Bokade, two material witnesses. The appellant cannot be, on the basis of available evidence, held to have tacitly accepted the illegal gratification as alleged. The materials on record in this case are not sufficient to bring home the guilt of the appellant. Consequently, the appeal is allowed. The conviction and sentence of the appellant is set aside and the fine, if any, paid shall be refunded to the appellant.” 29. The materials on record in this case are not sufficient to bring home the guilt of the appellant. Consequently, the appeal is allowed. The conviction and sentence of the appellant is set aside and the fine, if any, paid shall be refunded to the appellant.” 29. If coming to the acceptance of bribe, PW-1 the complainant has stated that he produced the papers for NOC to the accused and on this he asked for the money already agreed upon. He, therefore, delivered the treated currency notes to him. The self serving statement of the complainant is not at all sufficient to fasten any criminal liability on the accused for the reason that the shadow witness has come forward with the version that he did not witness the giving of bribe by the complainant and acceptance thereof by the accused. Therefore, for want of sufficient and clinching evidence, it cannot be said that the money was accepted by the accused. 30. No doubt, as per prosecution case, the currency notes worth Rs.10,000/- were recovered from the back side pants pocket of the accused, the Investigation Officer, however, has stated that the currency notes were handed over by the accused on asking from him. Above all, when the demand of bribe and its acceptance by the accused is not proved beyond all reasonable doubt, the mere recovery is not sufficient to fasten any criminal liability on the accused. It is held so by the Apex Court in T. Subramanian Versus State of Tamil Nadu, (2006) 1 SCC 401 . The relevant portion of this judgment reads as under:- “12. Mere receipt of Rs.200/- by the appellant from PW-1 on 10.7.1987 (admitted by the appellant) will not be sufficient to fasten guilt under Section 5(1)(a) or Section 5(1)(d) of the Act, in the absence of any evidence of demand and acceptance of the amount as illegal gratification. …..” 31. Similar is the ratio of the judgment of Apex Court in Suraj Mal Versus State (Delhi Administration), (1979) 4 SCC 725 . 32. The Apex Court in C.M. Girish Babu Versus CBI, Cochin, High Court of Kerala, (2009) 3 SCC 779 has held that the recovery of the tainted money itself is not sufficient to convict the accused when reliable evidence qua demand and its acceptance is not available. 33. 32. The Apex Court in C.M. Girish Babu Versus CBI, Cochin, High Court of Kerala, (2009) 3 SCC 779 has held that the recovery of the tainted money itself is not sufficient to convict the accused when reliable evidence qua demand and its acceptance is not available. 33. The Apex Court has again held in Banarsi Dass Versus State of Haryana, (2010) 4 SCC 450 that mere recovery of tainted money divorce from the circumstances under which it is paid, is not sufficient to convict the accused despite the presumption. 34. In Rakesh Kapoor Versus State of Himachal Pradesh, 2013 (1) R.C.R. (Criminal) 211 the Apex Court has held as under:- “11. In the case on hand, though prosecution heavily relied on the evidence of PW-1, the complainant that the demand was made to him over mobile phone, admittedly the call details have not been summoned. No doubt, the statement of PW-1, according to the prosecution is corroborated by Ashwani Bhatia (PW-3) who stated that he overheard PW-1 saying that he had brought the money, when the latter went to the office of the appellant in the evening of 05.05.2003. Interestingly, the I.O. who was examined as PW-18 has mentioned that PW-1 received the demand from the accused over landline and, hence, he could not secure those call details. Whatever may be the reason, the fact remains that except the oral testimony of PWs 1 and 3, there is no other proof in respect of the demand of bribe money and the I.O. could not collect the call details as stated by PW-1 from the department concerned. Accordingly, learned senior counsel for the appellant is right in contending that there is no material/ evidence for the demand of bribe. In the light of the categorical enunciation in Banarsi Dass (supra), in the absence of the demand and acceptance, the accused is entitled to the benefit of doubt. In addition to the same, in the case on hand, even the official witness, Shri Madan Singh-who helped in the search of the accused- Municipal Commissioner, was examined as PW-14 but did not support the prosecution case and turned hostile.” 35. In addition to the same, in the case on hand, even the official witness, Shri Madan Singh-who helped in the search of the accused- Municipal Commissioner, was examined as PW-14 but did not support the prosecution case and turned hostile.” 35. On the other hand, the explanation set forth by the accused in reply to question No.24 in his statement recorded under Section 313 Cr.P.C. reads as follows:- “I am innocent since father of PW Sunil Sharma namely Ram Pal had been fire officer at Baddi since 2001 till my posting and thereby my predecessor used to give favours to his son so that his business is enhanced by giving indiscriminate NOC to different Industrial Units with whom his son gave supply and affixed Fire Fighter Equipment and when I joined and did not approve unauthorized NOC on behalf of Sunil Sharma thereafter he suffered a loss in his business thereby I was falsely implicated by Sunil Sharma in connivance with police official.” 36. The explanation so forthcoming seems to be plausible and nearer to the factual position for the reason that the business of the complainant as per testimonies of PW-4 and DW-1 was being promoted by his father during his posting as Sub Fire Officer at Baddi. The accused may not be obliging the complainant in the same manner and, as such, the possibility of he having been implicated falsely cannot be ruled out. The Apex Court in Punjabrao Versus State of Maharashtra, (2002) 10 SCC 371 has held that the accused is not required to establish his defence beyond all reasonable doubt but can establish the same by preponderance of possibility. Therefore, the explanation aforesaid offered by the accused seems to be plausible and nearer to the factual position. 37. PW-4 states that Ram Pal Sharma (father of complainant) was predecessor of the accused during the period 2002 to 2007. PW-1, the complainant also admits that his father had been posted as Fire Officer at Baddi and retired from that office in May, 2007. He also admits that except the NOC sought to be recommended by the accused in other cases of installation of equipments by him, NOCs were issued by his father. PW-1, the complainant also admits that his father had been posted as Fire Officer at Baddi and retired from that office in May, 2007. He also admits that except the NOC sought to be recommended by the accused in other cases of installation of equipments by him, NOCs were issued by his father. He, however, denied the suggestion that his father being Fire Officer had been promoting his business of installation of fire fighting equipments and that he has sought the same favour from the accused and on his having denied the same, he developed malice against the accused on account of hampering of his business and that implicated the accused falsely in connivance with his Manager and the police. However, such version seems to be not correct. The version of PW-2 and that of the Investigating Officer that the father of complainant had not promoted his business and on taking over as Sub Fire Officer, Baddi by the accused, the business of complainant was adversely affected and as such he has falsely implicated the accused in this case also seems to be not correct. 38. On the other hand, as per the version of DW-1 Shri B.S. Mahan , Chief Fire Officer, the NOCs from Sr. No.1 to 255 in the statement Ex.DW-1/A were issued by Shri Ram Pal Sharma, the then Fire Officer, whereas, from Sr. No.256 onwards by the accused. As per his version aforesaid Shri Ram Pal Sharma also remained suspended. There are instructions of the Department that the near relations of Fire Officer cannot run supply of fire fighting equipments within the jurisdiction of such officer. DW-1 has further stated that the accused has been conferred with Rashtrapati Award for his services in the year 2009. 39. The complainant has himself stated that he did not enter into any agreement with M/s Ratnasagar Herbals (P) Ltd. to get the NOC issued nor can produce such agreement or authorization in his favour from the said concern. PW-2, the shadow witness has also stated that no agreement in this behalf was entered into and the understanding to get the NOC issued in favour of the concern was oral. PW-13 has also stated that no agreement between the concern and complainant has been produced during the course of investigation. 40. PW-2, the shadow witness has also stated that no agreement in this behalf was entered into and the understanding to get the NOC issued in favour of the concern was oral. PW-13 has also stated that no agreement between the concern and complainant has been produced during the course of investigation. 40. In view of the re-appraisal of the given facts and circumstances as well as the evidence available on record and also in the light of legal position discussed hereinabove, no case under Sections 7 and 13(1)(d) read with Section 13(2) of the Act is made out against the accused and, as such, he is entitled to the benefit of doubt and consequently acquittal. 41. I, thus, accept the present appeal and set aside the impugned judgment. Consequently, the accused is acquitted of the charge under Sections 7 and Section 13(1)(d) read with Section 13(2) of the Act. The amount of fine, if any, deposited by the accused, be refunded to him against proper receipt. Personal bonds furnished by the accused stand cancelled and surety bonds discharged. Pending application(s), if any, also shall stand disposed of.