Ramratan Yadav Vs State of Chhattisgarh

1. This appeal arises out of the judgment of conviction, and order of sentence dated 17.06.2003 passed by the learned Special Judge / 1^st Additional Sessions Judge, Raipur, CG, in Special Case No.20 of 1998, whereby the appellant has been convicted and sentenced as under, with default stipulation:

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Conviction	Sentence
U/s 7 of the PC Act	RI for 02 years, and to pay fine of Rs.1,000/-
U/s 13(1)(d) and 13(2)of the PC Act	RI for 04 years, and to pay fine of Rs.2,000/-

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2. Brief facts of the case are that the appellant, was working as Junior Telecom Officer (JTO) and was posted at the Telecom Office, Newra, District Raipur. The complainant-Dinesh Kumar Pandey, PW14 was allotted telephone number 44304, which was installed in his shop. He made an application on 21.10.1997 for shifting of the said telephone connection from his shop to his residential house, and paid an amount of Rs.600/- to the office under the demand note issued against him. When the said telephone connection could not be shifted as per his requirement for a considerable period, he contacted the appellant, and then the appellant demanded bribe of Rs.500/- from the complainant, then the complainant made a compliant on 19.11.1997 to the Anti-Corruption Bureau (ACB), Raipur. The Officers of the ACB gave a tape recorder and a blank cassette to the complainant, to record the conversation between the complainant and the appellant with respect to the illegal demand. After getting the conversation recorded in the tape recorder, complainant again came to the office of the ACB on the next day i.e. on 20.11.1997, and handed over the said tape recorder, and cassette to the officers of the ACB. After verification of his written compliant on 19.11.1997 and the handing over of tape recorder and cassette on 20.11.1997, a trap party was constituted. Panch witnesses were called upon, who also verified the complaint, and prepared the transcription of the conversation recorded in the tape recorder. The complainant submitted Rs.500/- in the form of five currency notes of Rs.100/- denomination. After applying the phenolphthalein powder on the currency notes, they were kept in the

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pocket of the complainant, after giving him proper instructions not to touch the same before handing them over to the appellant. The hands of other members of the trap party were also washed in the solution of sodium carbonate, and thereafter, they proceeded towards the office of the appellant. After handing over the amount of bribe to the appellant, the complainant made a gesture, and then members of trap party entered into the office room of the appellant, held him up red handed. The hands of the appellant were washed, and the solution turned into pink colour. Recovery panchnama and other panchnamas were prepared. The pink coloured solution was also seized by the officers of ACB and it was sent to the FSL Sagar for its chemical examination. The relevant documents have been seized and after completion of usual investigation, and after obtaining the sanction for prosecution of the appellant from the concerned department, charge-sheet was filed before the learned trial court for the offences punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (PC ACT).

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3. Learned Trail court has framed charge against the appellant for the offence punishable under Sections 7, 13(1)(d) and 13(2) of the PC ACT, the appellant denied the charge and claimed trial.

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4. In order to bring home the charge against the appellant, prosecution has examined as many as 15 witnesses, statement of the appellant under Section 313 CRPC has also been recorded, in which he denied the circumstances appearing against him, pleaded innocence and has

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submitted that without there being any order from the SDO (Telephone), he cannot order for shifting of any telephone connection. Till 20.11.1997 he has not received any order from the SDO(T). He neither demanded any bribe from the complainant, nor accepted the same from him. Since there was altercation with the complainant, he made false allegation against him. One defense witness B.K.Didhi, another JTO has also been examined.

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5. After appreciation of oral, as well as documentary evidence produced by the parties, learned trail court has held that prosecution has established the offences against the appellant punishable under sections 7, 13 (1) (d) and 13 (2) of the PC Act, and sentenced the appellant as mentioned in the earlier part of this judgment. Hence this appeal by the appellant.

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6. Learned counsel for the appellant would submit that prosecution has failed to prove its case beyond any reasonable doubt. The impugned judgment of conviction, and sentence are based in absence of reliable and clinching evidence. In the present case, the demand and acceptance have not been proved by the prosecution. Mere recovery alone is not sufficient to hold guilty of the appellant for the offence in question. There are material omissions, and contradictions in the evidence of the complainant PW14, and the other witnesses of trap party. There is no evidence with regard to the fact that the voice recorded in the tape recorder is the voice of the appellant, so that the

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demand could be established by the said tape recorder. The complainant himself stated in his evidence that he has not visited office of the appellant with the tape recorder, yet the voice of the appellant is said to have been recorded in the tape recorder. He would further submit that there are material discrepancies in the evidence of established Panch witnesses PW10 Anil Kumar Shrivastav and PW 13 Anand Prakash Toppo. The transcript has been prepared on the instructions of the complainant, and no one has identified the voice of the appellant or the voice recorded in the tape recorder. He would further submit that the transcription Ex.P19 produced by the prosecution cannot be relied upon because the same is not admissible in evidence for want of sufficient proof, and the original tape recorder and the cassette in which conversation was recorded were not produced before the court to prove its genuineness. There is no voice sample or test report of frequency of the voice of the complainant and appellant, so as to hold that there was conversation between them.

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7. In support of his submission, learned counsel for the appellant relied upon the following judgments passed by the Hon’ble Supreme Court in the matters of :

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Ramsingh & others Vs Col, 1985 suppl SCC 611

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Rajesh Gupta Vs. State through CBI, (2022) SCC online SC1107

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Mohan Singh Vs. State of Bihar, (2011) 9 SCC 143

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P.Satyanarayana Murthy Vs State of A.P, (2015) 10 SCC 152

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B Jayaraj Vs.State of AP, (2014) 13 SCC 55

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State of Kerala Vs. C.P.Rao, (2011) 6 SCC 450

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Neeraj Dubey Vs State of NCT of Delhi , (2023) 4 SCC 731

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8. Per contra, learned counsel appearing for the state opposes the submissions made by learned counsel for the appellant and submitted that from the evidence adduced by the prosecution, demand as well as acceptance, and recovery have duly been proved by the prosecution. There is sufficient evidence on record to prove that appellant has demanded Rs.500/- from the complainant for shifting of his telephone connection. He would further submit that for minor omissions or contradictions the evidence of the prosecution witnesses are fully reliable. Recovery of tainted currency notes have also been proved by the prosecution, and the appellant was found in possession of the said tainted currency notes which were tallied by the pre-trap panchnama prepared by the ACB, which gives presumption against the appellant that Rs.500/- was accepted in lieu of illegal demand as bribe. The complainant has duly identified the office of the appellant, and even if the voice sample of the appellant has not been collected, it does not affect the prosecution case. All the process of search and seizure have been duly followed by the members of the trap party, and therefore, after considering the facts and circumstances of the case, and the evidence

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available on record, the learned trial court has rightly convicted the appellant and sentenced him which needs no interference by this court.

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9. Heard learned counsel for the parties and perused the record of the trial court.

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10. It is an admitted fact in the case that at the time of alleged incidence, appellant was working as Jr.Telecom Officer (JTO), and was posted at the Telecom office, Newra, District-Raipur.

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11. Before proceeding to discuss and consider the evidence available on record, it would be necessary to discuss the necessary ingredients to constitute the offence under the PC Act 1988, they are, a)Demand, b) Acceptance, and c)Recovery.

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12. The initial burden is upon the prosecution to prove the demand of bribe made by the accused appellant. Hon’ble Supreme court has consistently held that failure of prosecution to prove the demand for illegal gratification would be vital and mere recovery of the amount from the accused would not intend his conviction.

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13. In the matter of Mukhtiar Singh (since deceased) through his Legal Representative Vs State of Punjab, (2017) 8 SCC 136 , Hon’ble Supreme Court in para 14 held as under:

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“In P. Satyanarayana Murthy (supra), this Court took note of its verdict in B. Jayaraj vs. State of A.P.6 underlining that mere possession and recovery of currency notes from an accused without proof of demand

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would not establish an offence under Section 7 as well as Section 13(1) (d)(i) and (ii) of the Act. It was recounted as well that 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 proved. Not only the proof of demand thus was held to be an indispensable essentiality and an inflexible statutory mandate for an offence under Sections 7 and 13 of the Act, it was held as well qua Section 20 of the Act, that any presumption thereunder would arise only on such proof of demand. This Court thus in P. Satyanarayana Murthy (supra) on a survey of its earlier decisions on the pre-requisites of Sections 7 and 13 and the proof thereof summed up its conclusions as hereunder:

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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 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 6 (2014) 13 SCC 55 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 and 13 of the Act would not entail his conviction thereunder.” (emphasis supplied)

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14. In the matter of B Jayaraj (supra), it has been held by the Hon’ble Supreme Court in Para 7 as under:

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“ 7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. [(2010) 15 SCC 1 : (2013) 2 SCC (Cri) 89] and C.M. Girish Babu v. CBI [(2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1] .”

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15. While considering the judgment of B Jayaraj (supra), Hon’ble Supreme Court in the matter of Sejappa Vs. State of Kerala, (2016) 12 SCC150 held as under:

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10. In order to constitute an offence under Section 7 of the Prevention of Corruption Act, “proof of demand” is a sine qua non. This has been affirmed in several judgments including a recent judgment of this Court in B. Jayaraj v. State of A.P. [B. Jayaraj v. State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] , wherein this Court held as under : (SCC p. 58, para 7)

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“7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration

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reference may be made to the decision in C.M. Sharma v. State of A.P. [C.M. Sharma v. State of A.P., (2010) 15 SCC 1 : (2013) 2 SCC (Cri) 89] and C.M. Girish Babu v. CBI [C.M. Girish Babu v. CBI, (2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1] .”

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The same view was reiterated 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]

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21. While dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it illegal gratification and that the prosecution has a further duty to prove that what was paid was an illegal gratification, reference can be made to the following observation in Mukut Bihari v. State of Rajasthan [Mukut Bihari v. State of Rajasthan, (2012) 11 SCC 642 : (2013) 1 SCC (Cri) 1089 : (2013) 1 SCC (L&S) 136] , wherein it was held as under : (SCC pp. 645-46, para 11)

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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 money is not sufficient to convict the accused, when the 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 bribe. Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence,

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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 as to 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 and in a proper case the court may look for independent corroboration before convicting the accused person.”

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16. Further, in the matter of Neeraj Dutta Vs State (NCT of Delhi), 2023 (4) SCC 731, it has been held as below:

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88. What emerges from the aforesaid discussion is summarised as under:

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88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act.

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88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can

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be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.

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88.3. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence. 88.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:

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(i) if there is an offer to pay by the bribe-giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.

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(ii) On the other hand, if the public servant makes a demand and the bribe-giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the Act.

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(iii) In both cases of (i) and (ii) above, the offer by the bribegiver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Sections 13(1)(d)(i) and (ii), respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the

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bribe-giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe-giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d)(i) and (ii) of the Act.

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88.5. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.

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88.6. (f) In the event the complainant turns “hostile”, or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.

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88.7. (g) Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or

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a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Sections 13(1)(d)(i) and (ii) of the Act.

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88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in subpara 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature.

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89. In view of the aforesaid discussion and conclusions, we find that there is no conflict in the three-Judge Bench decisions of this Court in B. Jayaraj [B. Jayaraj v. State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] and P. Satyanarayana Murthy [P. Satyanarayana Murthy v. State of A.P., (2015) 10 SCC 152 : (2016) 1 SCC (Cri) 11] with the threeJudge Bench decision in M. Narsinga Rao [M. Narsinga Rao v. State of A.P., (2001) 1 SCC 691 : 2001 SCC (Cri) 258] , with regard to the nature and quality of proof necessary to sustain a conviction for the offences under Sections 7 or 13(1)(d)(i) and (ii) of the Act, when the direct evidence of the complainant or “primary evidence” of the complainant is unavailable owing to his death or any other reason. The position of law when a complainant or prosecution witness turns “hostile” is also discussed and the observations made above would accordingly apply in light of Section 154 of the Evidence Act. In view of the aforesaid discussion, we hold that there is no conflict between the judgments in the aforesaid three cases.

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17. In view of the aforesaid law laid down by the Hon’ble Supreme Court, this court is examining the evidence laid down by the prosecution w.r.t. the alleged demand of bribe made by the appellant from the complainant.

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18. PW14 Dinesh Kumar Pandey is the complainant who stated in his evidence that the telephone number 44304 was allotted to his shop and he wanted to get it shifted to his residence, for which he made an application to the Telecom office, Newra. He deposited Rs.600/- under the demand note issued to him for the said shifting of telephone connection. After depositing the amount, he contacted the appellant and requested him to shift the said telephone connection to his residential house, but the appellant shunned from shifting the said telephone connection, and demanded Rs.500/- from the complainant for the said shifting of telephone connection. Then PW14 made a compliant Ex.P28 to the ACB. The officers of ACB gave tape recorder to get the conversation between him and the appellant recorded. He came to the office of the appellant for recording the conversation and again came to the ACB for handing over the said tape recorder, and the cassette to the ACB officers. Transcript Ex.P19 was prepared and he made his another compliant Ex.P18. At the time when he made the second complaint (Ex.P18), two other officers were present as Panch witnesses. They verified his second compliant and seized the tape recorder along with cassette vide Ex.P20. They gave Rs.500/- in the form of five currency notes of Rs.100/- denomination, and thereafter, started proceeding for trap. Phynopthalene powder was applied on the currency notes and completed various formalities for trap. The trap party proceeded towards Tilda-Newra from Raipur at about 1.30 to 2.00PM along with 6-7 other officers. Complainant entered into the office of the appellant and handed

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over the said tainted currency notes to him, and the appellant kept the same in his pocket of his shirt. Complainant came out from the office of appellant and made gesture to the ACB officers then other proceedings of trap were drawn including washing of hands of the appellant. The tainted currency notes were seized from the pocket of the shirt of the appellant.

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19. In cross-examination, complainant stated that he did not know about the procedure of shifting of telephone connection. The complainant first time approached the appellant at about 9.30 to 10.00AM. He could not tell the date on which the appellant demanded the said bribe. He also could not tell the date on which he deposited the said demand note amount. He also could not tell as to on which date he had gone to the office of the appellant along with the tape recorder. At the time when he left Raipur along with the tape recorder, it was the night time. He had not gone to the house of the appellant and had no conversation with son of the appellant. He directly had gone to the office of the appellant at about 10.00AM. At that time he had not said that he will pay the amount after selling the paddy. After getting the conversation recorded in the tape recorder, complainant reached to the office of ACB at about 10.00 AM and after 10 to 15 minutes, trap proceeding was started.

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20. From the evidence of this witness, it transpires that on 19.11.1997 when he made compliant to the ACB, they gave him a tape recorder to get the conversation recorded. When he left Raipur it was already night

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time and in the next morning at about 10.00AM he reached to the office of appellant, he specifically stated in his evidence that he had not gone to the house of appellant for recording the conversation, and directly gone to his office. After getting the conversation recorded, he again reached to the office of ACB at about 10.00AM. The first complaint was made on 19.11.1997, and after getting the conversation recorded in the tape recorder, second compliant was made on 20.11.1997 i.e. the next day, and he could reach to the office of appellant only on 20.11.1997 as he himself stated that on 19.11.1997 when he left Raipur along with the tape recorder, it was already night time. It would not be possible that at the time he could record the conversation with the appellant and would also reach Raipur from Newra at 10.00 am.

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21. From the transcription Ex.P19, which has been made on 20.11.1997, it transpires that there is voice of a child in the said tape recorder, since the complainant had not gone to the house of the appellant and had gone to the office of the appellant, how there would be voice of any child in the said tape recorder. Further, the time of recording the conversation which was shown as 8.30 am on 20.11.1997, it was not the office time and cannot be expected that the appellant was present at the office at 8.30 am in the morning.

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22. PW 13 Anand Toppo is the shadow witness, who stated in his evidence that voice of the tape recorder was not clear, and he was not knowing the voice of the appellant or the complainant. Thereafter, the

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person who prepared the transcription disclosed the conversation recorded in the tape recorder and the cassette, which have been seized vide seizure memo Ex.P20. He admitted in his cross-examination that he was being informed that the conversation available in the tape recorder is the conversation between the appellant and the complainant.

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23. PW10 is another shadow witness who too has stated that he was being informed that the conversation available in the tape recorder is of the appellant and the complainant.

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24. There is another aspect of the matter w.r.t to the alleged demand that the conversation recorded in the tape recorder w.r.t the demand made by the appellant is not proved by the prosecution, that it is the voice of the appellant by examining its frequency test. There is no evidence that appellant or the complainant were put to their voice frequency test or any report was called to establish that it was the conversation between the appellant and the complainant. From the evidence of PW10 and 13, it appears that the voice recorded in the tape recorder was not clear and there is disturbance.

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25. In the matter of Ramsingh Vs another (supra), Hon’ble Supreme Court in paras 32 & 33 held as under:

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32. Thus, so far as this Court is concerned the conditions for admissibility of a tape-recorded statement may be stated as follows:

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“(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In

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other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.

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(2) The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence — direct or circumstantial.

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(3) Every possibility of tampering with or erasure of a part of a tape-recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.

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(4) The statement must be relevant according to the rules of Evidence Act.

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(5) The recorded cassette must be carefully sealed and kept in safe or official custody.

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(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.”

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33. The view taken by this Court on the question of admissibility of taperecorded evidence finds full support from both English and American authorities. In R.v. Maqsud Ali [(1965) 2 All ER 464] Marshall, J., observed thus:

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“We can see no difference in principle between a tape-recording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this Court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and

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the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape-recording is admissible in evidence. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged.”

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26. In case of Mohan Singh Vs State of Bihar (supra) , Hon’ble supreme court has held in para 31 of its judgment as under:

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“31. Relying on such identification by voice this Court held in Kripal Singh (supra) that it cannot come to the conclusion that the identification of the assailant by Rakkha Singh was so improbable that this Court would be justified in disagreeing with the opinion of the Court which saw the witness and formed its opinion as to its credibility and also of the High Court which considered the evidence against the appellant and accepted the testimony (see para 4, page 714 of the report). The same principles will apply here.”

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27. Further, in the matter of Rajesh (supra) Hon’ble Supreme Court has held in para 12 & 13 of its judgment as under:

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“12. The argument of the counsel for the appellant has substance that transcript cannot be produced in the form of a statement of the complainant under Section 161CrPC because it was a conversation with the accused and cannot be her own version. At the same time, from the evidence brought on record, the said statement in the shape of transcript was of 116-2001, whereas the alleged incidence occurred 15 months prior thereto

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i.e. on 9-3-2000. The accused applied to the trial court to supply the transcript of the conversation, if any, prepared in the office of CBI, but at the time of hearing of the said application, the Public Prosecutor made a statement before the court on 1-4-2002 and said that no transcript was prepared from the audio cassette Ext. P-2, hence could not be supplied to the accused by the court, and his application for supply of transcript was disposed of on the basis of the statement made at the Bar by the Public Prosecutor. Had the transcript, if any, been with the prosecution on 11-62001, there was no reason for the said statement having been made before the court. Thus, the said transcript, on the basis of which the clue is taken by the appellant while hearing the inaudible cassette Ext. P-2 in the court, was highly doubtful which, in our view, cannot be relied upon. It is not out of place to observe that conversation of complainant and appellant in the office of CBI was recorded on the aid and advise of Mr Awasthi and entire set-up for recording was arranged by him, but he was not produced as a witness by prosecution to prove the same.

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13. On the issue of evidentiary value and credibility of the recording in the cases of trap, the law is well-settled in Ram Singh v. Ram Singh [Ram Singh v. Ram Singh, 1985 Supp SCC 611] , wherein this Court held that tape-recorded statement is admissible in evidence if the voice of the speaker is identified by the maker of the record and other persons recognising his voice. In case, the maker is unable to identify the voice, strict proof would be required to determine whether or not, the said voice is of alleged speaker. The accuracy of the tape-recorded statement must be proved by the maker of the record by satisfactory evidence, direct or circumstantial. The possibility of tampering with, or erasure of any part of the tape-recorded statement must be totally excluded. The voice of the particular speaker must be clearly audible and must not be lost or distorted

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by other sounds or disturbances, otherwise, the transcript as prepared, is inadmissible in evidence.”

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28. From the evidence of complainant-PW14 Dinesh Kumar, it clearly reveals that he alone was there at the time of alleged demand of bribe. With respect to the demand, there is sole testimony of the complainant is available in the case, of course, subject to its proof and its authenticity.

¶140

29. In the matter of Panna Lal Vs State of Maharashtra, (1979) 4 SCC 526 in paras 8 & 9, Hon’ble Supreme court has held that the evidence of the complainant should be corroborated with other evidence because he offers bribe and therefore he can not be placed on any better footing than that of accomplished, and corroboration has to be insisted upon. It has been held in paras 8 & 9 that:

¶141

“ 8. There could be no doubt that the evidence of the complainant should be corroborated in material particulars. After introduction of Section 165-A of the Penal Code, 1860 making the person who offers bribe guilty of abetment of bribery, the complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon. It has to be borne in mind that the marked notes were recovered from the possession of the second accused and not the appellant. It is the case of the prosecution that the marked notes were paid to the second accused for the purpose of being handed over to the appellant. The evidence of the complainant regarding the conversation between him and the accused has been set out earlier. As the entire case of the prosecution depends upon the acceptance of

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the evidence relating to the conversation between the complainant and the appellant during which the appellant demanded the money and directed payment to the second accused which was accepted by the complainant, we will have to see whether this part of the evidence of complainant has been corroborated. The prosecution relies on the testimony of PW 3, the panch witness, as corroborating the evidence of the complainant on this aspect. It may be reiterated that according to the complainant when he asked the appellant to relieve him from the case and to see that he was given a lesser sentence, the appellant asked him if he had brought the money and the complainant told him that he had and the appellant asked the complainant to pay the money to Dalvi, the second accused, and asked the second accused to receive the money from the complainant. On this aspect the evidence of PW 3 is as follows:

¶145

“They saw the appellant coming out of the court hall and the complainant informed them that he was the Police Prosecutor. Then there was a talk between the complainant and the appellant in the verandah. The witness was at a distance of 3 to 4 feet from them and was in a position to overhear the conversation. According to the witness he heard the appellant asking the complainant ‘Have you come’, the complainant then said ‘Yes’. The witness further heard the appellant saying that he would see that heavy punishment is not inflicted and the case as it is, was difficult. The complainant had then asked the appellant whether his work will be achieved. The appellant assured him in the affirmative. The appellant told the complainant to give what was to be given to the second accused.”

¶146

9. It will be seen that the version of the complainant that the appellant asked the complainant whether he had brought the money and that the

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complainant told him that he had and that the appellant asked him to pay the money to the second accused is not spoken to by the panch witness PW 3. According to panch witness on the complainant asking the appellant whether his work will be achieved, the appellant assured him in the affirmative and the appellant told the complainant what was to be given to the second accused. It is significant that PW 3 does not mention about the appellant asking the complainant whether he had brought the money and on the complainant replying in the affirmative asking the complainant to pay the money to the second accused. Omission by PW 3 to refer to any mention of money by the appellant would show that there is no corroboration of testimony of the complainant regarding the demand for the money by the appellant. On this crucial aspect, therefore, it has to be found that the version of the complainant is not corroborated and, therefore, the evidence of the complainant on this aspect cannot be relied on.”

¶150

30. In the matter of P.Satyanarayana Murty (supra), Hon’ble Supreme Court has held in para 23 as below:

¶151

“ 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 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 Section 7 or 13 of the Act would not entail his conviction thereunder.”

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31. Applying the aforesaid principles of law laid down by Hon’ble Supreme Court, and also evidence of complainant PW14, this court is of the opinion that prosecution is not able to establish the demand made by the appellant beyond any reasonable doubt, and by holding cogent and clinching evidence. The evidence of the complainant is not corroborated with other evidence, or even the transcription Ex.P19, as there are material discrepancies in time and place of its recording. Further, there is no voice frequency test to establish that it was the evidence of the appellant in the said conversation recorded by the complainant. Further, PW11 Jitendra Kumar Dama, who prepared the transcription Ex.P19, has clearly stated that he came to know about the conversation between the appellant and complainant only on the instance of the complainant. He never heard the voice of the appellant before preparing the transcription. He is not the voice expert and thus except for the corroborated evidence of the complainant, there is no other evidence w.r.t. demand of bribe made by the appellant.

¶155

32. With respect to acceptance and recovery of the tainted currency notes from the appellant are concerned, PW10 has stated in his crossexamination that he could not tell as to what was the colour of hand wash of the appellant, whether it was dark pink or light pink. In his presence the tainted currency notes were not taken out from the pocket of the appellant, and when he reached on the spot, the tainted notes were already taken out.

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¶158

33. PW13, who is another shadow witness, though stated in his examination-in- chief that when they reached to the office of the appellant and after handing over the said tainted currency notes, they entered into the office of the appellant, he took out the tainted currency notes from the pocket of appellant’s shirt and kept on the table. However, in his crossexamination, he stated that he has no idea as to when they entered into office of the appellant, the appellant was coming out of his office, and then officers of ACB caught hold of him, and took him inside of his office room. At that time, he was at the distance of 15 to 20 feet away from the officers of ACB. There is discrepancy and inconsistency in the seizure of tainted currency notes, as the complainant PW14 stated that the said currency notes were seized from the shirt pocket of the appellant.

¶159

34. PW13 has stated that the notes were took out by the appellant from his shirt pocket and kept them on the table from where the notes have been seized, whereas PW10 has stated that when he reached inside the room the tainted currency notes were already taken out by the trap party.

¶160

35. Another aspect of the matter is that the shifting of telephone connection would not be possible without the order of SDO, Telephone. PW4 Sr.Telephone Supervisor Duryodhan Prasad Soni has stated in his cross-examination that after issuance of demand note and deposit of the amount shown in the demand note, proceeding of Newra Office would be over, and thereafter, it was sent to the office of the SDO, Telephone Raipur, for approval, and the final order for shifting of telephone is to be

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passed by the SDO, Telephone Raipur. Similar is the evidence of PW5 Bhuneshwar Sr.DOA.

¶164

36. Another aspect of the matter is that PW13 has stated that at the time of trap proceeding, other employees of the office of the appellant also came there but they have not been made witnesses of the trap proceedings and seizure of the tainted currency notes from the appellant. When the independent witnesses were available and they have not been made witness to the incident of trap proceeding and seizure of tainted currency notes, it would create a doubt over the correctness of the trap proceedings.

¶165

37. PW1 is Constable Pushpraj Singh, who has applied Phenolphthalein powder on the currency notes and participated in the pre-trap proceedings. PW2 Narayan Prasad is a constable, who had taken the sample packets of said powder, and sodium carbonate to send them to the FSL Sagar and obtained acknowledgment.

¶166

38. PW3 DB Verma is the Divisional Engineer, Telecom department has proved the posting of the appellant at Block office, Newra , Raipur on the date of incident.

¶167

39. PW4 Dhuryodhan Prasad Soni is the Sr.Telephone Supervisor, who proved the seizure memo Ex.P4 and P5, by which certain official communication has been seized.

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¶170

40. PW5 Bhuneshwar Verma has also proved the seizure memo Ex.P6 to P11, by which seeking official communication with respect to telephone connection.

¶171

41. PW6 Puranlal, Constable has taken Dehati Nalishi Ex.P12 to the Special Police establishment, Bhopal where the numbered FIR Ex.P13 was registered.

¶172

42. PW7 Shyam Sunder Rao is a constable, who proved the trap party. He admitted in his cross-examination that except the preparation of sodium carbonate solution, he did nothing.

¶173

43. PW8 Rasanand Barik is Patwari, who prepared the spot map Ex.P15.

¶174

44. PW9 Deen Dayal Arya is also the SDO Telephone Raipur who stated in his evidence that technical feasibility and declaration letter are required for any telephone shifting but they are not annexed in the case of the complainant. Before 20.11.1997 there was no order of shifting of the telephone connection.

¶175

45. PW12 Shyam, Telecom District Manager has proved the sanction for prosecution of the appellant Ex.P27. In his cross-examination, he stated that the telephone shifting order has to be passed by the SDO and JTO can only shift the telephone after orders of the SDO Telephones.

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¶178

46. PW15 Victor Tirkey is the Investigating Officer, and proved the investigation which he conducted after receiving the complaint made by the complainant PW14.

¶179

47. From the aforesaid evidence available on record, the whole story of the prosecution from statement of the complainant and Panch witnesses, it is quite vivid that there is lack of clinching evidence with respect to the demand as well as acceptance and recovery of the tainted currency notes seized from the appellant. The first pole to establish the offence, i.e. demand could not be proved by the prosecution, and even if it is found that recovery has been proved from the appellant, it cannot be held that the appellant had demanded the bribe from the complainant for shifting of telephone connection of the complainant.

¶180

48. The evidence adduced by the prosecution in the considered opinion of this court, the demand is not established beyond reasonable doubt, and therefore, the conviction and sentence imposed upon the appellant by the learned trial court is not sustainable and the appellant is entitled to get benefit of doubt.

¶181

49. Consequently, by giving the benefit of doubt the instant appeal is allowed.

¶182

50. The impugned judgment of conviction and order of sentence passed by the learned trial court is set aside. Appellant is acquitted from the alleged offence levelled against him.

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51. Appellant is reported to be on bail. His bail bonds shall continue for further period of six months as provided under Section 437-A of the CrPC.

¶186

52. Record of the trial court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.

¶187

Sd/- (Ravindra Kumar Agrawal) JUDGE

¶188

padma

Ramratan Yadav v. State of Chhattisgarh

Case brief

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Ramratan Yadav v. State of Chhattisgarh

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