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2019 DIGILAW 2016 (RAJ)

Narinder Mohan Sharma v. State of Rajasthan

2019-07-22

MANOJ KUMAR GARG

body2019
JUDGMENT : Manoj Kumar Garg, J. 1. These two criminal appeals arise out of a common judgment, therefore, are heard together and disposed of by this unison judgment. 2. By way of impugned judgment dated 25.02.2016, the learned Sessions Judge (Prevention of Corruption Act), Sriganganagar (for short, hereinafter referred to as 'learned trial Court') convicted the appellants for offence under Section 13(1)(d)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Section 120-B of Indian Penal Code (IPC) in Sessions Case No. 24/2010 and sentenced them as under:- Offence Punishment Offence Punishment Section 13(1)(d)(e) of P.C. Act Two years R.I. and fine of Rs. 50,000/- in default of payment of fine to further undergo six months R.I. Section 13(2) of P.C. Act Two years R.I. and fine of Rs. 50,000/- in default of payment of fine to further undergo six months R.I. Section 120-B IPC Two years R.I. and fine of Rs. 50,000/- in default of payment of fine to further undergo six months R.I. All the sentences were ordered to run concurrently. 3. Succinctly stated, the facts apposite are that a FIR was lodged at ACB, Hanumangarh by PW/9 Herna Ram stating therein that he received a secret 30 information to the effect that Accounts Officer Shri B.N. Verma and Assistant Accounts Officer Narinder Mohan Sharma who were posted at Border Road Task Force (BRTF), Graph, Hanumangarh have obtained commission money of Rs. 3 lacs for clearance of bill of Rs. 3 crores and they will be leaving by Kalka Express train. After receiving this information, he informed the higher authorities telephonically but did not get any search warrant. The complainant called two independent witnesses namely, Bachhu Singh, Assistant Secretary and Jagdish Rai, LDC working in Krishi Upaj Mandi Samiti, Hanumangarh who consented to participate in the proceeding. The complainant alongwith his team reached Hanumangarh Junction Railway station where one vehicle belonging to BRTF graph No. 04B 14301 reached Hanumangarh Junction Railway station and two persons alighted. The police team followed the persons and stopped them. Upon inquiry, both the persons told their names as Baikunth Nath and Narinder Mohan. On personal search of accused Baikunth Nath, a sum of Rs. 1,51,770/- was recovered and on personal search of Narinder Mohan, a sum of Rs. 1,02,630/- was recovered. Accused Baikunth Nath explained that about 3-4 months back he received arrears of salary Rs. 80,000/-, Rs. Upon inquiry, both the persons told their names as Baikunth Nath and Narinder Mohan. On personal search of accused Baikunth Nath, a sum of Rs. 1,51,770/- was recovered and on personal search of Narinder Mohan, a sum of Rs. 1,02,630/- was recovered. Accused Baikunth Nath explained that about 3-4 months back he received arrears of salary Rs. 80,000/-, Rs. 3600/- is of DA arrear and remaining amount is commission money received from the contractors. Upon seeking explanation from accused Narinder Mohan, he told that about two months back, he received a sum of Rs. 55,000/- as arrears of salary, out of which the remaining amount of Rs. 30,000/- is being carried by him and rest of amount of Rs. 72,000/- he has received as commission. The police registered the FIR and investigation commenced. Upon completion of investigation, Anti Corruption Bureau, submitted charge-sheet against both the accused appellants before the court of Sessions Judge, Prevention of Corruption Act, Sriganganagnar where charges of the case were framed. The accused appellants denied the charges. Upon denial to all the charges, the learned trial Court put them on trial. 4. The prosecution in support of charges, examined 13 witnesses. Besides ocular evidence, various documents were produced by the prosecution, which were exhibited. In defence, accused-appellants examined DW/1 Narinder Mohan and DW/2 Baikunth Nath and few documents were exhibited. 5. After conclusion of the evidence, learned trial Court heard Final arguments and convicted the appellants for offences with sentences mentioned above. 6. Mr. Rakesh Verma, learned counsel for the appellants strenuously urged that the learned trial Court has failed to appreciate and scrutinize the evidence available on record in correct perspective. Learned counsel contended that FIR in this case was lodged on 29.04.2009 i.e. after 27 days of the occurrence. He argued that no person deposed that they gave commission amount to the appellants. IN the BRTF, tenders were called by the concerned office of the Commandant from various contractors for different jobs and after completion of work the contractors submitted their bills to the concerned Commandant. The appellants worked under the office of Commandant, BRTF, however, the Commandant has not at all been interrogated by the prosecution to prove the fact of payment of commission. No departmental enquiry was initiated against the appellants for any irregularity. It is further argued that no contractor claimed that the appellants demanded money from them. The appellants worked under the office of Commandant, BRTF, however, the Commandant has not at all been interrogated by the prosecution to prove the fact of payment of commission. No departmental enquiry was initiated against the appellants for any irregularity. It is further argued that no contractor claimed that the appellants demanded money from them. Thus in absence of proof about demand of bribe and acceptance, his conviction for offence under Prevention of Corruption Act is not sustainable. Learned counsel further argued that as per prosecution, both the appellants obtained money for passing the bills of contractors but those bills have not been produced by the prosecution to prove that those bills were cleared under the signature of the appellants or not. Mere recovery of currency notes, not being tainted money is not sufficient to hold appellants guilty of offence under Prevention of Corruption Act. It is vehemently argued that the so called independent witnesses PW/1 Jagdish Rai and PW/3 Bachu Singh who were present at the time of personal search of appellants, have not deposed and corroborated the story put forth by the prosecution and they have been declared hostile. Therefore, learned trial Court has committed grave and serious error in convicting the appellants on the strength of testimony of hostile prosecution witnesses. PW/5 O.P. Verma in his statement has categorically mentioned that No. contractor is in direct contact with the Account Officer and in absence of any contractor offering money by way of bribe to the present appellants, the presumption under Section 20 of the Act is not at all applicable in the present case. Therefore, the conviction of the appellants for offence of Prevention of Corruption Act and criminal conspiracy cannot be sustained. In support of contentions, learned counsel for the appellants relied on decision of Hon'ble Apex Court in the case of Amarjeet Kaur vs. State of Punjab : 2013 (4) RCR (Criminal) 551, P. Satynarayana Murthy vs. Dist. Inspector of Police : 2015 (4) RCR (Criminal) 350, Khaleel Ahmed vs. State of Karnataka : 2016 (1) RCR (Criminal) 366, C. Sukumaran vs. State of kerala : 2015 (2) RCR (Criminal) 159, Mr. Purushotham vs. State of Karnataka : 2014 (4) RCR (Criminal) 444, A. Subair vs. State of Kerala : 2009 (3) RCR (Criminal) 370, P.K. Verma vs. Central Bureau of Investigation : 2018 (3) RCR (Criminal) 716. 7. Purushotham vs. State of Karnataka : 2014 (4) RCR (Criminal) 444, A. Subair vs. State of Kerala : 2009 (3) RCR (Criminal) 370, P.K. Verma vs. Central Bureau of Investigation : 2018 (3) RCR (Criminal) 716. 7. Per contra, learned Additional Advocate General submits that learned trial Court after considering the evidence meticulously convicted and sentenced the appellants, therefore, no interference with the impugned judgment is called for. Learned Public Prosecutor contended that huge money was recovered from the possession of appellants and no satisfactory explanation was given with regard to the money recovered from them. In fact, the appellants have stated that some of the money was commission received by them from the contractors. Learned Addl. Advocate General submits that in corruption cases, before registration of FIR, Preliminary Inquiry is permissible, and therefore, ground sought to be urged by the learned counsel for the petitioner regarding delay cannot have any ramification on investigation, much less vitiate the proceedings. Learned Additional Advocate General has urged that the learned trial Court, in the backdrop of facts and circumstances of the case and available incriminating material against the appellants, has rightly drawn presumption under Section 20 of the PC Act, therefore, no interference is called for with the impugned judgment. 8. I have given my thoughtful consideration to the arguments advanced by learned counsel for the appellants, learned Public Prosecutor, and meticulously examined the impugned judgment alongwith material available on record. 9. In order to ascertain legality and propriety of the findings and conclusion of the learned trial Court, it is necessary to re-appreciate the evidence adduced by the prosecution. The prosecution case is that the appellants accepted money as bribe from the contractors for clearance of their bills. PW/1 Jagdish Rai who is the independent witness and present at the time when personal search of appellants was made has denied the facts mentioned in memo Ex. P/1 that the accused stated about money belonging to arrears and Commission which he received from the contractors. He stated that at the time of search, no contractor was present at the railway station. Likewise another independent witness PW/3 Bachhu Singh also denied the fact that accused mentioned that some money belongs to commission which they received from the contractors. He also admits that no contractor or person was present at the Railway station at the time of search. Likewise another independent witness PW/3 Bachhu Singh also denied the fact that accused mentioned that some money belongs to commission which they received from the contractors. He also admits that no contractor or person was present at the Railway station at the time of search. Both these independent witnesses have been declared hostile. It may be mentioned here that both these independent witnesses are Government servants, yet they did not support the story of prosecution. 10. PW/2 Charanjeet Sharda in his statement has stated that Bainkunth Nath was in the office of BRTF and previously no irregularity was found in his work. He further, mentioned that Narinder Mohan never worked in his subordination, therefore, he does not know about him. PW/4 Hansraj is the Constable who accompanied the police party at the time of search but he does not say anything against the petitioners. PW/5 O.P. Verma mentioned in his statement that DA arrear amount in the sum of Rs. 3,356/- and Rs. 2,928/- were disbursed in cash to Baikunth Nath and Narinder Mohan respectively in cross-examination, he admitted that payment of work is done under the signature of the Commandant and bill is also passed by the Commandant. There is no direct contact between the contractor and auditor or the Accountant. PW/7 Bishan Singh was also present when the search was made. In his cross-examination, he admits that he did not see any person giving money to the appellants as commission and that when they caught the appellants, after seizing the money, they were set free. PW/8 Anand Prakash who was posted as C.I. in the ACB Chowki Hanumangarh stated that he was present when the recovery was made, however, in his cross-examination he admits that the currency notes were not tainted or marked with any identification and no seal was affixed on the currency notes at the time of recovery. After completing the proceeding, the appellants were set free. PW/9 Hema Ram who lodged the FIR and complainant in his statement admits that he never obtained any search warrant from the Magistrate. The police team completed the search and recovery proceedings and after completion of proceedings, they let the appellants go PW/10 Bachan Singh who was the Dy. SP, ACB at the relevant time was present at the time of search and recovery. The police team completed the search and recovery proceedings and after completion of proceedings, they let the appellants go PW/10 Bachan Singh who was the Dy. SP, ACB at the relevant time was present at the time of search and recovery. He admits that during investigation he did not find anyone from whom the appellants demanded money or anyone gave money to the appellants as commission. He states that on the basis of the confession of the appellants that the recovered amount is of commission, found the charges proved against the appellants. PW/11 Surendra Singh filed chargesheet against the accused appellant. In his cross-examination, he mentioned that a sudden checking was conducted and on the basis of statement of accused appellants in the memo Ex. P/1, found the allegation of taking commission money to be proved. However, he never interrogated any of the contractor and nobody claimed that they gave commission money to the accused. He also admits that he did not make any inquiry about what was the duty of Commandant or the Accounts Officer. He further admits that two independent witnesses were called and the money recovered from the accused appellants was not sealed and no mark of identification was put on the currency notes. This is the total evidence of prosecution witnesses. 11. The defence witness DW/1 Narinder Mohan has stated that the police persons suddenly caught the appellants and they were forced to put their signatures on blank papers and they were set free after seeking explanation. It is also stated that all the works are done under the supervision of Commandant. They did not receive any commission from the contractor as they have not direct link with the contractors. In his defence, he has stated that on 03.11.2018 he had received the arrears of pay-fixation in the sum of Rs. 54,281/- and D.A. arrears in the sum of Rs. 2,928/- on 23.03.2009. Similar defence was taken by the appellant DW/2 Baikunth Nath. He has stated that he received Rs. 3,356/- as D.A. arrears and Rs. 63,981/- in the form of Pay commission arrears. He has further stated that he had taken a loan of Rs. 80,000/- from one Jainarayan and an affidavit in this regard has also been filed by him as Ex. D/10. Both these witnesses mention that they never stated before the police that they received money from the contractor. 12. 63,981/- in the form of Pay commission arrears. He has further stated that he had taken a loan of Rs. 80,000/- from one Jainarayan and an affidavit in this regard has also been filed by him as Ex. D/10. Both these witnesses mention that they never stated before the police that they received money from the contractor. 12. It is an admitted position as emerging from the record that the proceedings undertaken by the investigating agency for verification of the alleged demand and acceptance of bribe by the appellant were not brought on record. All the persons present at the time of search and seizure were police persons and The investigating officer has stated that he did not record statement of any contractor nor any contractor claimed to have tendered commission money to the appellants and same being accepted by them. The only materia) witness examined by the prosecution to prove this fact was the complainant PW/9 Hema Ram himself. He did not disclose the date on which the accused appellants allegedly demanded or received bribe. The appellants have given an explanation with regard to the currency notes seized from them. The prosecution did not lead any evidence whatsoever to prove that the accused appellants demanded bribe from the contractors. Since the charge against the accused is for the offences under Section 13(1)(d)(e) of the Prevention of Corruption Act, the presumption under Section 20 of the Act would not come to the aid of the prosecution merely because currency notes were recovered from the possession of the appellants. 13. The Hon'ble Supreme Court in the case of Khaleel Ahmed vs. State of Karnataka reported in 2016 (1) RCR (Criminal) 366 has clearly propounded that the demand of illegal gratification is a sin qua non for bringing home the charges under Sections 7 and 13(1)(d) of the Prevention of Corruption Act. In absence of proof of demand of illegal gratification, a public servant cannot be held guilty of these charges. 14. In absence of proof of demand of illegal gratification, a public servant cannot be held guilty of these charges. 14. Hon'ble Supreme Court in case of P. Satyanarayana Murthy vs. District Inspector of Police & Anr., 2015 Cr.L.R. (SC) 1047 : 2016 (1) RLW 595 (SC)], while examining Section 7 and 13(1)(d)(i), (ii) of the PC Act, laid emphasis on proof of demand of illegal gratification for constituting these offences and further observed that mere acceptance of any amount of bribe without proof of demand is insufficient to bring home charge under these two Sections of the Prevention of corruption Act. The Hon'ble Apex Court held as under:- "The proof of demand of illegal gratification, thus, is the gravamen of the offence Under Sections 7 and 13(1)(d)(i) & (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence Under Sections 7 or 13 of the Act would not entail his conviction thereunder." 15. A Three Judges Bench of the Supreme Court in B. Jayaraj vs. State of Andhra Pradesh, (2014) 13 SCC 55 has laid down the following enunciation of law: "In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext. P-11) before LW9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW1 and the contents of Ext. P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. P-11) before LW9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW1 and the contents of Ext. P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established. 9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent." 16. So far as the offence under Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act is concerned, the necessary ingredient for constituting aforesaid offence is that public servant has used corrupt or illegal means or otherwise abused his position as public servant and obtained a valuable thing or pecuniary advantage for himself or any other person. So far as the offence under Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act is concerned, the necessary ingredient for constituting aforesaid offence is that public servant has used corrupt or illegal means or otherwise abused his position as public servant and obtained a valuable thing or pecuniary advantage for himself or any other person. In the present case, the prosecution has failed to produce any evidence to show that the appellant made demand of gratification and accepted the same. From the evidence of Investigating officer, it is evident that no contractor claimed to have tendered any money to the appellants or demanded by the appellants. 17. In the case of V. Sejappa vs. State reported in Air 2016 SC 2045 while affirming the order of acquittal, held as under:- "23. In the present case, trial court recorded an order of acquittal on the evidence and circumstances: (i) delay in lodging the complaint; (ii) even though the Appellant is alleged to have made the demand on 09.12.1997 at Chitradurga, absence of the Appellant in Chitradurga from 07.12.1997 to 10.12.1997 and absence of proof of demand; (iii) doubts raised regarding the submission of the documents Ex. P6 to P15 by PW-1 for processing the pension papers and settling the retiral benefits and (iv) inconsistency in the evidence of prosecution witnesses in establishing the acceptance of the amount by the Appellant. 24. Absence of proof of demand on 09.12.1997, coupled with PW-2's evidence that the amount was paid by PW-1 to the Appellant towards purchase of diesel raises serious doubts about the amount being paid by PW-1 as illegal gratification. High Court neither considered the defence plea of alibi nor it held that the decision of the trial court was erroneous or perverse. In our view, evaluation of the evidence made by the trial court while recording an order of acquittal does not suffer from any infirmity or illegality or manifest error and the grounds on which the order of acquittal is based cannot be said to be unreasonable. While so, High Court was not justified in interfering with the order of acquittal and the impugned judgment cannot be sustained." 18. While so, High Court was not justified in interfering with the order of acquittal and the impugned judgment cannot be sustained." 18. Hon'ble Apex Court in the case of M.R. Purushotham vs. State of Karnataka reported in (2015) 3 SCC 247 has held as under:- "In such type of cases the prosecution has to prove that there was a demand and there was acceptance of illegal gratification by the accused. As already seen the complainant PW1 Ramesh did not support the prosecution case insofar as demand by the accused is concerned. No other evidence was adduced by the prosecution to prove the demand made by the accused with the complainant. In this context the recent decision of a three Judge bench of this Court in B. Jayaraj vs. State of Andhra Pradesh reported in : 2014 (4) Scale 81 is relevant and it is held as follows: 8. In the present case, the complainant did not support the prosecution case in so far as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Exbt. P-11) before LW-9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW-1 and the contents of Exhibit P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence Under Section 7. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence Under Section 7. The above also will be conclusive in so far as the offence Under Section 13(1)(d)(i)(ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established. The above decision is squarely applicable to the facts of the present case. When PW1 Ramesh himself had disowned what he has stated in his initial complaint in Exh. P1 before PW4 Inspector Santosh Kumar and there is no other evidence to prove that the accused had made any demand, the evidence of PW3 Kumaraswamy and the contents of Exh. P1 complaint cannot be relied upon to conclude that the said material furnishes proof of demand allegedly made by the accused. The High Court was not correct in holding the demand alleged to be made by the accused as proved. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence u/Sec. 13(1)(d) of the Act and the conviction and sentence imposed on the Appellant are liable to be set aside." 19. It is to be examined whether the evidence of witnesses sufficiently proves the demand and acceptance of gratification? Suffice is to say that the so called independent witnesses PW/1 Jagdish Rai and PW/3 Bachu Singh who were present at the time of personal search of appellants, have not deposed and corroborated the story put forth by the prosecution and they have been declared hostile. It may be mentioned here that both these independent witnesses are Government servants, yet they did not support the story of prosecution. Thus, the evidence of two independent witnesses does not advance the prosecution case. The investigating officer also does not state anything about the demand. This casts serious doubt about the prosecution case. 20. It may be mentioned here that both these independent witnesses are Government servants, yet they did not support the story of prosecution. Thus, the evidence of two independent witnesses does not advance the prosecution case. The investigating officer also does not state anything about the demand. This casts serious doubt about the prosecution case. 20. Hon'ble Apex Court in the case, of 'A. Subair vs. State of Kerala' reported in 2009 (3) RCR (Criminal) 370 while considering the presumption drawn u/Sec. 20 of the Prevention of Corruption Act has observed as under:- "Mere recovery of currency notes (Rs. 20/- and Rs. 5/-) denomination, in the facts of the present case, by itself cannot be held to be proper or sufficient proof of the demand and acceptance of bribe. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence. It is true that the judgments of the courts below are rendered concurrently but having considered the matter thoughtfully, we find that the High Court as well as the Special Judge committed manifest errors on account of unwarranted inferences. The evidence on record in this case is not sufficient to bring home the guilt of the appellant. The appellant is entitled to the benefit of doubt." 21. As regards presumption under Section 20 of the PC Act, Supreme Court in case of V. Venkatta Subbarao vs. State represented by Inspector of Police : 2007 Cr.L.J. 754, while dislodging the presumption in absence of any proof about demand by the accused, held: "Submission of the learned counsel for the State that presumption has rightly been raised against the appellant, cannot be accepted as, inter alia, the demand itself had not been proved. In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved. It reads as under: "20. Presumption where public servant accepts gratification other than legal remuneration. In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved. It reads as under: "20. Presumption where public servant accepts gratification other than legal remuneration. - (1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) or sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate." 22. In the present case also, the prosecution has failed to prove beyond reasonable doubt that there was a demand and there was acceptance of illegal gratification by the accused appellants. The Investigating officer Bachan Singh was called in the Court and he confessed that he never interrogated any contractor to verify any demand made by the appellants. All the persons of search and seizure are police officers and the independent witnesses have been declared hostile. So far as the confessional part of appellants in the memo of concerned, the same is not admissible in evidence. 23. So far as the charge for offence under Section 13(1)(e) of the Prevention of Corruption Act is concerned, it is relevant to refer to Section 13(1)(e) of the Act which reads as under:- "13. Criminal misconduct by a public servant - (1) A public servant is said to commit the offence of criminal misconduct,- (a)................ (b)............... (c)................ (d)............... (e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income." 24. (b)............... (c)................ (d)............... (e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income." 24. The expression "known sources of income" in Section 13(1)(e) of the Act has two elements, first the income must be received from a lawful source and secondly the receipt of such income must have been intimated in accordance with the provisions of law, rules or orders for the time being applicable to the public servant. 25. Hon'ble Apex Court in the case of Vasant Rao Guhe vs. State of Madhya Pradesh reported in AIR 2017 SC 3713 , while considering the charge of criminal misconduct under Section 13(1)(e) of the Act has held as under:- "20. As ordained by the above statutory text, a public servant charged of criminal misconduct thereunder has to be proved by the prosecution to be in possession of pecuniary resources or property disproportionate to his known sources of income, at any time during the period of his office. Such possession of pecuniary resources or property disproportionate to his known sources of income may be of his or anyone on his behalf as the case may be. Further, he would be held to be guilty of such offence of criminal misconduct, if he cannot satisfactorily account such disproportionate pecuniary resources or property. The explanation to Section 13(1)(e) elucidates the words "known sources of income" to mean income received from any lawful source and that such receipt has been intimated in accordance with the provisions of law, rules, orders for the time being applicable to a public servant. 21. The explanation to Section 13(1)(e) elucidates the words "known sources of income" to mean income received from any lawful source and that such receipt has been intimated in accordance with the provisions of law, rules, orders for the time being applicable to a public servant. 21. From the design and purport of Clause (e) of Sub clause (1) to Section 13, it is apparent that the primary burden to bring home the charge of criminal misconduct thereunder would be indubitably on the prosecution to establish beyond reasonable doubt that the public servant either himself or through anyone else had at any time during the period of his office been in possession of pecuniary resources or property disproportionate to his known sources of income and it is only on the discharge of such burden by the prosecution, if he fails to satisfactorily account for the same, he would be in law held guilty of such offence. In other words, in case the prosecution fails to prove that the public servant either by himself or through anyone else had at any time during the period of his office been in possession of pecuniary resources or property disproportionate to his known sources of income, he would not be required in law to offer any explanation to satisfactorily account therefor. A public servant facing such charge, cannot be comprehended to furnish any explanation in absence of the proof of the allegation of being in possession by himself or through someone else, pecuniary resources or property disproportionate to his known sources of income. As has been held by this Court amongst others in State of Maharashtra vs. Dnyaneshwar Laxman Rao Wankhede, (2009) 15 SCC 200 , even in a case when the burden is on the accused, the prosecution must first prove the foundational facts. Incidentally, this decision was rendered in a case involving a charge Under Sections 7, 13 and 20 of the Act. 22. In view of the materials on record and the state of law as above, we are thus of the considered opinion that the prosecution has failed to prove beyond all reasonable doubt the charge of criminal misconduct Under Section 13(1)(e) of the Act and punishable Under Section 13(2) thereof against the Appellant. He is thus entitled to the benefit of doubt. He is thus entitled to the benefit of doubt. The prosecution to succeed in a criminal trial has to pitch its case beyond all reasonable doubt and lodge it in the realm of "must be true" category and not rest contended by leaving it in the domain of "may be true". We are thus left unpersuaded by the charge laid by the prosecution and the adjudications undertaken by the Courts below. The conviction and sentence, thus is set aside. The appeal is allowed." 26. In defence the appellant Narinder Mohan, has stated that on 03.11.2018 he had received the arrears of pay-fixation in the sum of Rs. 54,281/- and D.A. arrears in the sum of Rs. 2,928/- on 23.03.2009. Similar defence was taken by the appellant DW/2 Baikunth Nath that he received Rs. 3,356/- as D.A. arrears and Rs. 63,981/- in the form of Pay commission arrears. He has further stated that he had taken a loan of Rs. 80,000/- from one Jainarayan and an affidavit in this regard has also been filed by him as Ex. D/10. Thus, the prosecution has failed to prove that the public servant either by himself or through anyone else had at any time during the period of his office been in possession of pecuniary resources or property disproportionate to his known sources of income. 27. So far as the indictment of the appellants for offence under Section 120-B IPC, suffice is to observe that there is no cogent evidence of the prosecution to draw an inference about the meeting of minds. In order to constitute a criminal conspiracy, there must be an agreement between the parties who are alleged to have conspire for doing an illegal work or for doing by illegal means an act which may not itself be illegal. When there is no cogent evidence against the appellants for demanding and receiving bribe from any contractor, they cannot be castigated for offence of criminal conspiracy. Therefore, the indictment and conviction of the appellants for offence under Section 120-B IPC cannot withstand the test of proof beyond all reasonable doubts. 28. Time and again, the object and importance of prompt lodging of the First Information Report has been emphasized. Delay in lodging the First Information Report, more often than not, results in embellishment and exaggeration, which is a creation of an afterthought. 28. Time and again, the object and importance of prompt lodging of the First Information Report has been emphasized. Delay in lodging the First Information Report, more often than not, results in embellishment and exaggeration, which is a creation of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of coloured version, exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Therefore, it is essential that the delay in lodging the report should be satisfactorily explained. 29. In the present case, the alleged search and recovery of currency notes from the appellants was made on 02.04.2009 whereas, the FIR in this case was lodged on 29.04.2009 i.e. after 27 days of the occurrence. There is inexplicable delay in lodging FIR/complaint without cogent reason. PW/9 Hema Ram, who is presently Addl. S.P. SIU ACB, Jaipur and Mr. Bachhan Singh, Addl. DCP (PCR) Commissionerate, Jaipur were called in Court by the Additional Advocate General on 12.07.2019. PW/9 Hema Ram fairly admitted that after seizure of money, the appellants were set free. Thereafter, the matter was sent to higher authorities for registering the case but the sanction for lodging FIR was granted only on 27.04.2009, thereafter, the FIR was lodged on 29.04.2009. Therefore, the delay was caused by the higher officials in granting sanction for registering the criminal case. Learned Additional Advocate General Mr. Farzand Ali agreed that there is definitely lacuna in the lodging of FIR. Learned Additional Advocate General also agreed that lacuna in the investigation is also apparent because the Investigating officer did not contact the Commandant and did not investigate about the contractor or Thekedar. The Investigating officer also did not record statement of any contractor. 30. In view of foregoing discussion, both these appeals are allowed. The impugned judgment dated 25.02.2016 passed by learned Special Judge (Sessions Judge), Prevention of Corruption Act Cases, Sriganganagar is set aside and the accused-appellants are acquitted of the offences by extending benefit of doubt. Appellants are on bail, therefore, their bail bonds are discharged.