Ram Swaroop Gupta Vs State of C.G.

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Digitally A signed by 2025:CGHC:273 ANNAJEE A RAO ANNAJEE RAO AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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(Judgment reserved on 17.12.2024)

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(judgment delivered on 03.01.2025)

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CRA No. 297 of 2002

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1 - Ram Swaroop Gupta, S/o Late Shri Ram Khilawan Gupta, Aged about 57 years, Up Zila Vistar Sadhan Adhikari, through C.M.O., Raipur ... Appellant

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versus

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1 - State of Chhattisgarh, through Special Police Sthapana, Lokayukta Thana Bhopal, Unit Raipur (C.G). ... Respondent(s)

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For the appellant : Mr. Manoj Paranjpe, Advocate For the State : Mr. Deepak Kumar Singh, Panel Lawyer

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(Hon’ble Shri Justice Sanjay Kumar Jaiswal)

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C A V Judgment

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1. This appeal is directed against the judgment dated 07.03.2002 passed by the learned Special Judge-cum-First Additional Sessions Judge, Raipur (C.G) in Special Criminal Case No 6 of 1996 whereby the accused-appellant has been convicted and sentenced as under :

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Conviction	Sentence
U/s 7 of the Prevention	RI for 1 year and fine of Rs.1000/-,
of Corruption Act, 1988	in default of payment of fine additional SI for 3 months.

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U/s 13(1)(d) read	with	RI for 1 year and fine of Rs.1000/-,
section 13(2)	of	in default of payment of fine,
Prevention of Corru	ption	additional Simple imprisonment for
Act, 1988		3 months each

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2 As per the prosecution case, appellant Ram Swaroop Gupta was working as Sub-District Extension and Resources Officer in the office of Chief Medical Officer, Raipur. On 21.04.1995 complainant’s wife Smt. Kanti Dewangan, who was working as a Female Health Worker wanted to get her transfer on adjustment (mutual basis) to Raipur, for which, she sent an application to CMO. Then CMO in turn sent the application to accused and asked her to contact him. On contacting the accused, he demanded Rs.7000/- as bribe and also received Rs.2,000/- as advance of bribe on 21.04.1995 and asked her to bring Rs.3,000/- on 25.04.1995. Since the complainant did not intend to give bribe and wanted to get the appellant caught red-handed, he gave a written complaint in Lokayukt Office, Raipur, on which, crime was registered on 24.4.1995. The trap was arranged and Investigating Officer P.W.13 Jaiprakash Dubey secured the presence of two Panch witnesses, C.Toppo (P.W.1) & Dr. S.K. Panigrahi (P.W.8) to act as trap witnesses. The FIR was registered on 25.04.1995 vide Ex.P-25. On the same day, the trap was conducted by the I.O (P.W.13). On 02.09.1996, the sanction was granted by the Law Department vide Ex.P-9. After completing investigation, the charge sheet was filed before the Learned Special Judge.

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3. To bring home the guilt of accused, the prosecution examined 13 witnesses and exhibited 27 documents. Statement of the appellant was also recorded u/s 313 of Cr.P.C., in which he denied the guilt and pleaded innocence and false implication. On completion of trial and after evaluating the evidence and documents placed on record, the Trial Court convicted and sentenced the appellant as mentioned in first paragraph of this judgment. Hence the instant appeal.

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4(i) Learned Counsel for the appellant submitted that the appellant was working as Media Manager in health department and his duty was to campaign the instructions of the CMO Office and he had no role to take decisions on transfer

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matters of health department employees. He further submits that the transfer of Kanti Dewangan (P.W.11) was being tried by her husband Chandrakant Dewangan and there is a contradiction as to who gave application for transfer and when it was given.

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4(ii) Learned counsel further submits that there exists contradictions in the court evidence of complainant (P.W6), his written complaint and his police statement regarding the amount demanded for transfer. He submits that the complainant mentioned in 161 statement that accused demanded Rs.7000/-, out of which, Rs.2000/- was given to him on 21.04.1995 and the said allegations are missing in his written complaint and court statement. He referred to para 16 of P.W.10 and would submit that the CMO has clarified that the appellant was on tour on the said date i.e., 21.04.1995 which he verified on 30.04.1995 and this fact was proved by him by Article-2, as such, the bribe payment of Rs.2000/- on 21.04.1995 is fabricated.

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4(iii) His further contention was that the star witness P.W.11 Kanti Dewangan, wife of complainant did not say anything about the demand made by accused in her court evidence and she clearly states that the CMO would be the appropriate authority to handle the transfer matters and not the accused and her statement further unequivocally stood firm by CMO Pramod Singh (P.W.10), therefore, the accused had no role to deal with the transfer matters.

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4(iv) He further contended that the currency notes were not seized from the hand of the appellant and there are contradictions as to whether the money was seized from the cot or under the pillow or from the sofa. He submitted that the evidence of Investigating Officer (P.W.13) shows that he categorically admits that when the trap team entered the appellant’s room, the appellant did not have any notes in his hand and this witness further categorically denied the suggestion that the accused was picking up the notes when they reached there. Even according to the I.O (P.W.13), the serial numbers of some currency notes mentioned in Ex.P-2 are quite different from that of serial numbers mentioned in Ex.P-5, for which, no plausible explanation

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was given by the prosecution for not tallying the serial numbers. Hence, the entire recovery of money from the appellant is doubtful.

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4(v) He further submitted that there exists a contradiction on the point regarding mention of some colour appearing on one of the hands of the appellant when washed.

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4(vi) He further submitted that the appellant has been able to defend the case in the statement u/s 313 of CrPC and the facts pleaded in defence have emerged in prosecution evidence.

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4(vii) Learned counsel for the Appellants accused would ultimately contend that the impugned judgment of conviction and sentence cannot be sustained in law and that the prosecution has failed to prove its case beyond all reasonable doubt by cogent evidence and hence, the appellant is entitled for acquittal. He relied on decisions of the Supreme Court in Neeraj Dutta v. State (Govt. of NCT of Delhi) (2023) 4 SCC 731; Rajesh Gupta v. State through CBI 2022 SCC Online SC 1107; K. Shanthamma v. State of Telangana (2022) 4 SCC 574 Selvaraj v. State of Karnataka (2015) 10 SCC 230 Para 18) and State of Kerala v. C.P. Rao (2011) 6 SCC 450, Para 10 .

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5. Per contra, learned State Counsel supported the impugned judgment and submitted that the conviction and sentence of the appellant is well merited, which needs no interference.

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6. I have heard the learned counsel for the parties and perused the entire material available including the statements of witnesses with due care.

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7.1 The complainant Chandra Prakash Dewangan is examined as P.W.6. He has stated that Kanti Dewangan is his wife and was working as Female Health Worker in Health Department since 1983. In 1995, his wife was posted in Kasdol and he was working in Raipur. His states that an application was given by his wife for her transfer to CMO, Raipur and at that time, Dr.Pramod Singh was posted as CMO. He states that CMO Sir had written some note on that application which was forwarded to the appellant who at that time was posted as Media Officer. He

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states that CMO Sir told him that his work would be done and asked him to meet the appellant, on which, he went into the room of appellant and met him. The accused said that the application will be processed but without money his work will not be done. However, on his repeated requests and with much difficulty the accused agreed to do the work at Rs.5500/- and asked complainant to arrange the money as soon as possible. On which the complainant said that he will try to arrange by borrowing money from here and there.

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7.2 At para 13, the complainant (P.W.6) states that he often used to visit hospital and thus got acquainted with office bearers of health employees union namely O.P. Sharma and Dinesh Tiwari with whom he had friendship. Though he denies to have written the complaint of his wife at the instance of Dinesh Tiwari but he expressed ignorance as to whether he complained against Health Officer and other employees. However, at para 17, he states that he asked his friend to lend him Rs.2000/- , but he do not remember that from whom i.e., O.P. Sharma or Dinesh Tiwari he had taken the amount.

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7.3. The complainant (P.W.6) has further deposed that at about 7.30 p.m., he left the office of Lokayuk along-with team members of trap and reached the house of accused at about 8.45 a.m., Then he states that the officer told him to accompany him to reach Gupta Ji’s (appellant) house, then he along with that officer went to the house of accused and the officer stood in the lane near the house of the accused and this witness went to the house of the accused and knocked the door. He states that he do not remember who opened the door, but he went inside, the accused also came there, there was a sofa near the door, and the accused asked him to sit on Sofa. The accused also sit there on another sofa. The accused asked him whether he brought money, on which, he gave his nod. The complainant took out the money from his pocket and gave it to accused who kept the money under the pillow of the sofa on which he was sitting. The witness asked the accused when the order would be passed, on which the accused told him that proposal had come and as soon as the CMO Sir comes, he will get it signed and give it to him.

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Then the witness came out and gave prearranged trap signal by waving his cap. The trap laying officer Dubey who was sitting on Scooter and another officer who was standing in the lane as also complainant immediately went inside the house of accused and the complainant told them that the accused had kept the money under the pillow on the sofa and when the accused was picking up money then the officer caught his hand.

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7.4. At para 19, this witness states that he mentioned in his written report that Rs.2000/- was given to the accused and if it is not written then he cannot tell the reason. He states that he submitted his wife’s transfer application in March, 1995 and he do not remember the date. He mentioned in his complaint that he had given the application on 08.03.1995. He states that he had given 2-3 applications for transfer, one to CMO and the other two applications in the office, for which, neither he got the acknowledgment nor did they give him any acknowledgment. At para 20, he admits the suggestion that an assurance was given by CMO that she will be transferred in April. He further admits that there was no argument/ dispute of any kind between him and CMO Sir or between his wife and CMO. He states that even after assurance given by CMO Sir, on the same day, he went to meet the accused at the instance of CMO. He states that he met the accused in his office but he do not remember the date and day.

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7.5 At para 23, he denied the suggestion that when the accused went inside the house to bring water, he kept the money under the pillow. At para 24, he states that he gave signal by waving his cap to Satish Dubey, I.O. He denies that he was sitting outside the house. Again he states that he was outside the room, but he was there nearby. He states that he do not remember as to whether or not it was recorded about the evidence given by him that when the accused was picking up money his hands was caught by the Police Officer. He further states that after nabbing the appellant Gupta ji, appellant’s hands were washed first whereas his hands and those of the trap team members were not washed there. At para 25, he (complainant) says that he do not know if his wife has accused CMO Pramod Singh

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of demanding Rs.10,000/- for her transfer. He further states that the Health Director has also recommended for transfer of his wife, but no action is taken.

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8. P.W.11 Kanti Dewangan who is the wife of complainant (P.W.6) states that in the year 1994-1995 she was working as Auxiliary Nurse Midwife (Female Health Worker) in Kasdol and looking to the family problem, she moved an application for transfer to Raipur. Again on 02.03.1995 she had given an application for adjustment. In cross examination, she states that she herself had given both the applications in the office of Pramod Singh Sir (CMO) and no talks were made by her with the accused regarding her transfer. She further states that since she has been working for 17-18 years, she knows that CMO Sir used to deal with transfer matters and at that time, Pramod Singh was CMO. She admits that DK hospital, Raipur is consisting of many departments where many nurses are working and transfers of all these departments are dealt with by CMO. She further herself admits that the work of transfers of all these departments in Health Department is done by the CMO. Perusal of evidence of P.W.11 at a glance would show that that CMO would be the appropriate authority to deal with transfer matters and not the appellant.

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9. P.W.5 Ashok Jain, who was working as UDC in Health Department has stated at para 6 that he did not forward any application for transfer of Mrs. Kanti Devangan to the Chief Medical Officer. He denied the suggestion that the work division order in their department was given by the Chief Medical Officer. He states that he cannot say that the accused used to deal with the transfers of nursing staff. He categorically states that he had given the complaint to the CMO regarding some trouble caused by Union members for transfer and mentioned therein that he was threatened by the employees union to get Gupta caught by some girl by giving money or else he will not be allowed to stay in the transfer branch. 10. P.W.1 C. Toppo, who was witness to seizure has stated that he along-with Lokayukt officers had gone to a colony behind Picadily hotel, Raipur in a Jeep but the accused has not gone in that Jeep. They got down from the Jeep at some

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distance from the house of accused. About 10-15 minutes thereafter, the complainant came out of the house of accused and signaled the Lokayukta people. On receiving the signal, he and Lokayukta officials went to the house of accused. He has seen that the hands of the accused were caught by department people and he was interrogated by them, but he do not know what they interrogated. Thereafter the police searched his house. Then this witness categorically states that Rs.3000/comprising of hundred rupee notes were found lying on the cot.

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11. P.W.12 Inspector Jaiprakash Dubey who was the member of the trap team has stated that on going inside the house, he saw the accused was standing and on being enquired, accused accepted to have taken the bribe notes and told him that he had kept it under the sofa and the accused himself took out the notes from there and gave it to him.

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12. P.W.8 Dr. S.K. Panigrahi is another seizure/panch-witness. He states that accused’s hands were held up by the officers of Lokayukta and the accused was showing some protest. He states that he cannot tell with certainty what protest he was showing. The accused’s hands were washed in a solution, no colour came out on the right hand but on washing the left hand, the solution turned red. That solution was stored in a bottle. Then the proceeding of reading/writing was continued. He states that there was a folding sofa in the room on which currency notes of Rs.100/- denomination were lying and actually it was a folding cot and he do not remember how many currency notes were there and what was done with those notes because he was outside. After the proceedings were over, they came to the office of health department.

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13 . The Investigating Officer Satish Dubey is examined as P.W.13. In cross examination at para 16 he admits that there was no report of 21.04.1995. The complainant was orally enquired on the date of incident i.e., 21.04.1995 and a crime was registered even on verbal information. He categorically admits that the verbal information was not recorded and the FIR was tampered with because the date of incident is 21^st . At para 17 he deposes that on the basis of Ex.P-1 he

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states that the demand of bribe was made on 21.04.1995. He further denies the suggestion that either Rs.7500/- or Rs.5500/- was demanded on this date. He states that the application (Ex.P-1) was given by the complainant on 25.04.1995. He further states that he do not remember that at the instance of Prem Singh Sir, complainant Chandraprakash had given Rs.2000/- to the accused on 21.4.2.1995. At para 18, the I.O. clearly admits that there is no mention of the fact in Ex.P-3 that the house of accused was searched. Similarly there is no mention of action taken in the office. At para 21, he states that the complainant met him in the morning on 25.04.1995 and gave him the notes on the said date. He denies the suggestion that the complainant gave notes to Prem Singh Sir. He states that he took the notes from complainant and gave them to Suresh Singh Upadhyay for applying phenolphthalein powder. He cannot say that whether Upadhyay applied powder on the notes and kept them in the pocket of complainant. At para 22, he states that he himself noted the numbers of currency notes and the serial number of notes were written on the instructions of Panch witnesses, due to which, there is a difference in the numbers of the notes. He further says that he can tell who is the Panch witness only after seeing the Panchnama. There is no mention in Ex.P-5 that the numbers of currency notes were written on the instructions of the Panch witness, for which, no reason exists. He further categorically admits that the serial numbers of some currency notes mentioned in Ex.P-2 are different from that of serial numbers mentioned in Ex.P-5 and no reason exists for not tallying the currency notes. He states that he himself noted the numbers on the instructions of Panch Witness Shri Toppo and he had seized the same notes which were given by the complainant. At para 22, this witness (P.W.13) denies that when the solution did not give colour to the right hand after washing, it was cut and then washed. At para 29, he clearly admits the fact that when the trap team entered the appellant’s room, at that time, the accused did not have any notes in his hand and he further categorically denied the suggestion that the accused was picking up the notes when they reached there. At para 30 he states that he do not know whether only money was lying on the Sofa

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or something else was there. He deposes that notes were lying together on the Sofa, which were clearly visible. He denies that the notes were kept under the pillow and further states that he did not pick up the notes. At para 31 he clearly admits that the complainant did not mention the fact of giving Rs.2000/- to the accused in his report (Ex.P-1) and the complainant did not mention about the giving of applications twice or thrice. It is not written in the proceedings of Panchnama that Toppo’s hands were washed after trapping. He further vividly admits the fact that he neither heard nor saw the conversion between the complainant and accused about the money transaction. He cannot say that the accused was on official tour on the dates mentioned by the complainant. He lastly says that when he entered the room, he found the accused sitting in chair.

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14.1 The Chief Medical Officer Dr. Pramod Singh is examined as P.W.10. At para 3 he states that on 20.03.1995 Smt. Kanti Dewangan submitted an application for adjustment of her post which he forwarded to the establishment section for further action. Before this, on 02.03.1995 also she had submitted an application for adjustment, which was not placed before him. At para 3 he states that a memorandum was sent to the CMO, Raipur regarding approval of transfers. Since he was working as Joint Director at that time and was Incharge, therefore, the above approval was also given by him, which bears his signature. At para 7 he categorically states that the accused used to do the work of Publicity of CMO Office and he did not do any work related to transfer. Even the application of Smt. Kanti Devangan was not sent to the accused for any work.

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14.2. In cross examination at para 11, this witness admits that the accused was a Deputy Media Officer and in such capacity the accused had to go outside on tour for publicity work. Before this, he used to approve the pre-determined programmes after being presented before him. The programme of March, 1995 was also presented before him, which he had approved. He states that the TA/DA claimed by the appellant in this regard was passed vide Ex.D-2. At para 13, he states that no suggestion were taken from accused regarding transfers since he had no role.

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The accused had nothing to do with the transfer of the persons mentioned in the list Ex.P-6A and this action was taken completely under the departmental procedure. At para 14, he categorically states that there is transfer cell in the establishment section and he did not ask Kanti Dewangan to meet the accused after her application was forwarded/marked to a particular person. He further states that any of the transfers order are passed only after approval of the Joint Director and it is compulsory to get the approval before transfers are made. He states that no such order was received till he left for Bhopal and no one other than him could take any action on the proposal he had given to the accused.

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14.3 At para 16 the CMO (PW-10) clearly states that the appellant was on tour on 02.03.1995, 08.03.1995, 18.03.1995, 20.03.1995 & 21.03.1995 and he used to maintain diary and after mentioning tour details therein he used to give it to him, on which, the witness (CMO) used to sign at the end of the month. The diary was marked with Article 2. He states that according to the diary, accused was on tour on 21.04.1995 which he had verified on 30.04.1995. At para 16, he deposes that unless the transfer proposal is approved by the Chief Medical Officer and the Joint Director, no one-else comes to know about it. He states that he received the approved envelope on 24^th and he did not inform to any one that the proposal had been approved. He states that the right to approve or not is vested with Joint Director. The files/note-sheets regarding transfers are made at both the place of Joint Director and CMO. The documents relating to transfers should have been in the office of CMO. He admits the fact that on 24.4.1995, the accused informed about himself being implicated and this document bears the signature of this witness. Similarly the accused had asked him to take action regarding threat given for which which he had written a letter to the Lokayukta. The witness says that he do not know as to whether any departmental enquiry was initiated or not ?

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15. The legal position, which emerges regarding appreciation of evidence in a trap, can be summarized as under:-

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(i) To succeed in such a case, the prosecution is obliged to prove the demand of bribe before and at the time of trap, its acceptance and the recovery of tainted money.

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(ii) The demand can be proved by testimony of the complainant as well as from the complaint made by him and other witnesses if proved in accordance with law and if it is corroborated in material particulars.

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(iii) A presumption as to the demand of bribe can also be drawn if the tainted money i.e. the money tendered as bribe money is recovered from the possession of the accused, which presumption, of course, is rebuttable under Section 20 of the Prevention of Corruption Act, 1988.

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(iv) If the accused gives some defence, that can be scrutinized by the test of preponderance of probability, while the Prosecution must prove its case beyond all reasonable doubt.”

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16. The genesis of a trap lies in the previous demand of bribe made by the accused from the complainant, which becomes the basis of laying a trap by the investigating agency. Then, it is for the Prosecution to again prove the demand at the time when the trap was laid and thereafter, the question of acceptance and recovery of bribe money also is required to be proved beyond all reasonable doubts.

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17. In the instant case, the prosecution case mainly rests on the evidence of PW.6, defacto complainant and the I.O., (PW.13) who conducted the trap. P.W.11 Kanti Dewangan who is the wife of complainant (P.W.6) categorically states that she had submitted two applications in the office of CMO and no talks were made by her with the appellant regarding her transfer. She categorically states that P.W.10 Shri Pramod Singh, CMO used to deal with the transfer matters. Her statement stood firm by the evidence of P.W.10 CMO who categorically states that the appellant used to do the work of Publicity of CMO Office and he was not dealing with any work of transfers. He states that the application of Smt. Kanti Devangan was not sent to the accused for any work. According to him, accused was on tour on 21.04.1995 which he had verified on 30.04.1995. He further states that unless the transfer proposal is approved by the Chief Medical Officer and the Joint Director, no

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one-else comes to know about it. He states that power to approve or not is in the hands of Joint Director. The files/note-sheets regarding transfers are made at both the place of Joint Director and CMO. Therefore, it is crystal clear from evidence of witnesses P.W.11 Kanti Devangan and P.W.10 Pramod Singh that the CMO and Joint Director of Health Department would be the appropriate authority to handle the transfer matters and not the appellant.

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18. Hon’ble Supreme Court, in the case of Matajob Dobey Vs. H.C.Bhari AIR 1956 SC 44 , held that there must be a reasonable connection between the act and the discharge of official duty and the act must bear such relation to the duty that the accused could lay a reasonable claim, but not a pretended and fanciful claim, that he did it in the course of performance of his duty. In the case on hand, the power to transfer the staff is vested with the CMO/Joint Director of Health Department and the accused as a Media Officer has only to campaign the health instructions being received from the Health Department and his duty was not to look after the transfer matters. Hence, the case of the Prosecution is a concocted one, as the Prosecution has failed to prove the connection between the act and the discharge of official duty of the Appellant/ accused.

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19. In order to substantiate the grounds raised by the learned counsel for the Appellant/ accused regarding demand, acceptance of money and recovery of tainted money, it is apposite to refer to the following decisions of various Courts.

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20. The Supreme Court in Subash Parbat Sonvani Vs. State of Gujarat (2002)

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5 SCC 86 held that mere acceptance of money without there being any other evidence would not be sufficient for convicting the accused under section 13(1)(d) (i). The Court further held that for convicting the person under Section 13(1)(d), there must be evidence on record that the accused “obtained” for himself or for any other person, any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or he obtained for any person any valuable thing or pecuniary advantage without any public interest.” The Court

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further interpreting the provisions of section 13(1) held at para 6 as under :

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“6. In Sections 7 and 13(1)(a) and (b) of the Act, the legislature has specifically used the word “accepts” or “obtains”. As against this, there is departure in the language used in subsection (1)(d) of Section 13 and it has omitted the word “accepts” and has emphasised the word “obtains”. Further the ingredient of sub-clause (I) is that by corrupt or illegal means, a public servant obtains any valuable thing or pecuniary advantage; under sub-clause (ii), he obtains such thing by abusing his position as a public servant; and sub-clause (iii) contemplates that while holding office as a public servant, he obtains for any person any valuable thing or pecuniary advantage without any public interest. Therefore, for convicting the person under Section 13(1)(d), there must be evidence on record that the accused “obtained” for himself or for any other person, any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or he obtained for any person any valuable thing or pecuniary advantage without any public interest.”

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(Emphasis supplied)

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21. The Supreme Court in Rajesh Gupta Versus State through CBI 2022 SCC OnLine SC 1107 reiterated the legal position that for an offence u/s 7 of PC Act, the demand of illegal gratification is sine qua non to prove the guilt. Mere recovery of currency notes cannot constitute an offence u/s 7 of PC Act, unless it is proved beyond reasonable doubt that accused voluntarily accepted the money, knowing it to be a bribe. The proof of acceptance of illegal gratification can follow only if there is proof of demand. Further at Paras 16, 18, 19 & 20 the Court held thus:

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“16. In view of the above discussion, except for the testimony of PW3 Madhu Bala (complainant), there is no corroborative evidence of demand, either on 7.03.2000 or 09.03.2000. The law is well settled by the judgments of this Court in Panna Damodar Rathi vs. State of Maharashtra, 1979 4 SCC 526 and Ayyasami vs. State of Tamil nadu 1992 1 SCC 304, whereby it has been clarified that the sole testimony the complainant, who is the interested witness, cannot be relied upon without having corroboration with the independent evidence .

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In view of the foregoing, there is no iota of evidence by which the demand can be proved. Thus, the conclusion of the Trial Court and the High Court to prove the demand is based on surmises and erratic approach ignoring the legal position as enunciated, which cannot be sustained on the facts of the case.

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Reverting to the issue of acceptance of demand, it is not out of place to refer the judgment of Meena (Smt) w/o Balwant Hemke vs. State of Maharashtra 2000 5 SCC 21 wherein this Court held that mere recovery of the currency notes and positive result of the phenolphthalein test is not enough in the peculiar circumstances of the case to establish guilt of the appellant. The charge must be proved beyond reasonable doubt. In absence of proving the recovery from the person or the drawer of the table or acceptance of the currency notes by accused with relevant material on record in furtherance to the proved demand, the guilt cannot be proved . ……………”

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In B. Jayaraj vs. State of Andhra Pradesh, 2014 13 SCC 55 & Girish Babu vs. CBI, 2009 3 SCC 779 are relevant wherein Hon’ble Supreme Court has clearly spelt out that the recovery shall follow the proof of demand. The presumption under Section 20 of the PC Act can be drawn only when the demand is proved and the money is voluntarily accepted, knowing the fact that the said money has been delivered by way of bribe. In absence of proof of demand for illegal gratification and mere possession or recovery of the currency notes is not sufficient to constitute such offence. It is clarified that presumption under Section 20 PC Act can be drawn only after demand and acceptance of illegal gratification is proved beyond reasonable doubt. In our considered opinion, the findings as recorded by the trial Court and High Court, drawing presumption under Section 20 of the PC Act, are completely perverse in law. There is no evidence to prove the demand and the acceptance. The theory of preponderance of probabilities as applied in this case is not sustainable and the finding of the High Court is liable to be set aside.

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(Emphasis Supplied)

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22. Hon’ble Supreme Court in N. Vijaykumar v. State of Tamil Nadu, (2021) 3

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SCC 687 while considering the appeal filed by the employee after reversal of the judgment of acquittal by High Court has held thus :

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“26. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in case of C .M. Girish Babu v. CBI (2009) 3 SCC 779 and in case of B. Jayraj v. State of A.P 2014 13 SCC 55 . In the aforesaid judgments of this Court while considering the case under sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery

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of currency notes is not sufficient to constitute such offence. In the said judgment it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial Court.

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(Emphasis supplied)

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23. Further in case of K. Shanthamma v. State of Telangana (2022) 4 SCC 574 at paras 10 & 11 the Supreme Court held thus :

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“10. We have given careful consideration to the submissions. We have perused the depositions of the prosecution witnesses. The offence u/s 7 of the PC Act relating to public servants taking bribe requires a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public servant and its acceptance by him is sine qua non for establishing the offence under section 7 of the PC Act.

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In P. Satyanarayana Murthy v. State of A.P [P. Satyanarayana Murthy v. State of A.P (2015) 10 SCC 152 : (2016) 1 SCC (Cri) 11], this Court has summarized the well settled law on the subject in para 23 which reads thus : (SCC p. 159)

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“23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof unmistakably the charge therefore, 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 Section 7 or 13 of the Act would not entail his conviction thereunder.

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(Emphasis supplied)

¶95

24. In 2013 14 SCC 153 (State of Punjab Vs. Madan Mohan Lal Verma) , it was held thus:-

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“11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted

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17

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money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person.”

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25. In the case of Mukhtiar Singh Vs. State of Punjab reported in (2017) 8 SCC 136 , the Honourable Supreme Court, while referring to several earlier judgments had held as follows:-

¶100

"13. The indispensability of the proof of demand and illegal gratification in establishing a charge under Sections 7 and 13 of the Act, has by now engaged the attention of this Court on umpteen occasions. In A. Subair vs. State of Kerala, this Court propounded that the prosecution in order to prove the charge under the above provisions has to

¶101

18

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establish by proper proof, the demand and acceptance of the illegal gratification and till that is accomplished, the accused should be considered to be innocent. Carrying this enunciation further, it was exposited in State of Kerala vs. C.P. Rao that mere recovery by itself of the amount said to have been paid by way of illegal gratification would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.

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26. In the light of the above judicial pronouncements, I shall examine the facts and evidence of witnesses of the present case. In the statement recorded u/s 313 CrPC, the accused in defence has stated that neither he demanded the money nor he dealt with transfer matters as he had no power. He has stated that complainant knocked the door and his son Ravi Kumar opened the door. He asked the complainant why did he come ? On which the complainant told that he wants to speak with him. The appellant refused to talk with him. Then the complainant asked to give a glass of water. The accused asked his son to fetch water and had gone to bath room. In the meanwhile, his son fetched the water and found that no-one was there. The son told his father (appellant) that no one was there and some currency notes were kept under the news-paper which was lying on the cot. The appellant came out from bath room and found that currency notes were lying scattered on the cot. He became nervous and sit on the chair. In the meanwhile, 5 to 7 persons came and caught hold of him. The appellant has stated that the complainant Dewangan as also the union leaders O.P. Sharma and Dinesh Tiwari had implicated him. 27. Further on conjoint reading of evidence of Ashok Jain (P.W.5) and complainant (P.W.6), it appears that the fact pleaded by accused in defence has emerged in prosecution evidence by which it can be inferred that on the instigation of office bearers of employees’ union namely O.P. Sharma and Dinesh Tiwari, written report was made by complainant P.W.6 and such probability cannot be sidelined inasmuch as the Complainant (P.W.6) himself admits that he often used

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to visit hospital where his wife was working thereby he got in touch with office bearers of health employees’ union namely O.P. Sharma and Dinesh Tiwari with whom he had friendship. Though he denies to have written the complaint of his wife at the instance of Dinesh Tiwari but he expressed ignorance as to whether he complained against Health Officer and Other employees. However, at para 17, he states that he asked his friend to lend him Rs.2000/- for payment of bribe, but he do not remember that from whom (O.P. Sharma or Dinesh Tiwari) he had taken the amount.

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28. Evidence of I.O. Satish Dubey (P.W.13) shows that he expressed his ignorance about the mention so made by complainant in his written complaint (Ex.P1) dated 25.04.1995 regarding payment of Rs.2000/- to the accused . This witness (P.W.13) categorically states that he do not remember whether the complainant had mentioned about the payment of Rs.2000/- to the accused on 21.4.1995. Whereas the complainant says that he mentioned about the payment of Rs.2000/- on 21.4.1995 and if such allegation is found missing in written report he cannot tell reasons.

¶107

29. The evidence of complainant (P.W.6) shows that when the accused was picking up money, the officer caught his hand whereas the I.O (P.W.13) clearly denies such suggestion. The I.O. categorically admits the suggestion that when the trap team entered the accused’s room, the accused did not have any notes in his hand. At para 30, the I.O., states that he do not know whether only money was lying on the Sofa or something else was there. However, on the contrary, he deposes that notes were lying together on the Sofa, which were clearly visible. This shows that there exists contradictions in the evidence of I.O regarding recovery of money. At para 31, the I.O. clearly admits that the complainant did not mention about the giving of applications twice or thrice. He further admits that it is not written in the proceedings of Panchnama that panch-witness Toppo’s hands were washed after trapping. He further categorically admits that the serial numbers of some currency notes mentioned in Ex.P-2 are different from that of serial numbers

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mentioned in Ex.P-5 and no reasons were assigned for not tallying the currency notes. The evidence of such nature shows lacunae in the trap proceedings. On minute analysis of evidence of P.W. 6 and P.W.13, it shows that there exists contradictions in their statements regarding demand, acceptance of illegal gratification and recovery of currency notes from the appellant, which cannot be relied on to base conviction.

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30. Considering such facts and circumstances situation and the evidence led by the prosecution and further applying the position of law declared by the Supreme Court in above decisions, I am of the considered view that there is no cogent evidence available on record in this case to prove the demand and subsequent acceptance. The complainant (P.W.6) is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. Therefore, the testimony of the complainant (P.W.6) cannot be relied upon without having corroboration with the independent evidence. The mere recovery of the currency notes from the accused and positive result of the phenolphthalein test is not enough in this case to establish guilt of the appellant. The charges must be proved beyond reasonable doubt.

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31. In view of the foregoing discussion, the impugned judgment of conviction and order of sentence against the appellant cannot be sustained and is hereby is set aside. In the result, the appeal is allowed . The appellant is acquitted of the charges.

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32. The appellant is on bail. His bail bonds shall continue for a further period of 6 months as per Section 437-A of Cr.P.C.

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33. Records of the trial Court be sent back along with a copy of this judgment forthwith.

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Rao

Ram Swaroop Gupta v. State of C.G.

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