Dismissed

Pannalal v. State

Rajasthan HC8 Jul 2022CRLA/228/2002

Case brief

AI extract

What is this about?

The Court affirmed the conviction of an appellant under the Prevention of Corruption Act, 1988, holding that the prosecution successfully proved demand and recovery of illegal gratification. The Court found the statutory presumption correctly attracted and note that hostile testimony did not vitiate core evidence including forensic findings. Consequently, the appeal was dismissed, bail bonds forfeited, and the appellant directed to be taken into custody.

What did the court decide?

The appeal is dismissed. Bail bonds and sureties of the appellant are forfeited; he is directed to be taken into custody forthwith and sent to the concerned Jail to undergo the remaining period of the sentence.

Pannalal Vs State — Corruption | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Appeal No. 228/2002

Pannalal

----Appellant

Versus

State

----Respondent

For Appellant(s) : Mr. Kanti Lal Thakur Mr. Mool Singh Panwar For Respondent(s) : Mr. Vikram Sharma, P.P.

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

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Judgment

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Reserved On: 08/07/2022 Pronounced On: 27/07/2022

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This Criminal Appeal under Section 374 Cr.P.C. has been preferred claiming the following reliefs:-

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“ It is therefore prayed that this Hon’ble Court will be pleased to send for the record of the lower court, peruse the same and after perusal, quash the convictions/sentences passed against the appellant, acquit him or pass any other orders that this Hon’ble Court deems fit and proper.”

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This Criminal Appeal has been preferred against the judgment of the lower Court, dated 27.02.2002, passed by the learned Special Judge, Sessions Court (Prevention of Corruption Act Cases), Jodhpur convicting the appellant herein for the offences under Sections 7, 13 (1) (d) and 13 (2) Prevention of Corruption Act, 1988 and sentencing him to 3 years R.I. along

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with a fine of Rs. 2000/- in default of the payment of the same he was to further undergo a sentence of 3 months S.I.

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Brief facts of the case as placed before this Court are that on 27.01.1998, a written report was submitted by the complainant, Hanumana @ Hadman Ram, P.W. 11, before the D.S.P. A.C.B. Nagaur alleging that Pannalal, Junior Engineer (J.E.N.) Chitawa was demanding illegal gratification of Rs. 10,000/- for installation of 25 KV transformer at his agricultural well, and was adamant not to accept a bribe of less than Rs. 8,000/- And that, on 27.01.1998, the verification of demand of illegal gratification was stated to be made by sending the complainant, P.W. 11, and constable Roop Singh (P.W. 4) along with a tape-recorder on which date, the accused is stated to have accepted Rs. 3000/- from the complainant. And on 04.02.1998 the trap proceedings were held and the accused was allegedly caught red handed with amount of illegal gratification of Rs. 5000/- and was arrested by the concerned police authority and on the basis of such recovery, an F.I.R. was registered against the accused, bearing F.I.R. No. 12/1998 was registered at A.C.B. Jaipur (Chowki Nagaur) for the offences under Section 7, 13 (1) (d) and 13 (2) of Prevention of Corruption Act, 1988 and he was charge-sheeted for the said offences, and charges were framed against him for the abovementioned offences.

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Learned counsel for the appellant makes the following contentions:-

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4.1 That there is no cogent evidence regarding the demand and acceptance of gratification by the accused-appellant herein. It is the version of the prosecution that the pursuant to the written

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report, at Ex. P/2, submitted by the complainant, P.W. 11, Hanuman @ Hadman Ram, the verification of demand was made by sending the complainant and Constable Roop Singh, P.W. 4. And that, the complainant subsequently turned hostile and discarded the story of the prosecution. Further, the testimony of Roop Singh, in his examination in chief, reveals that he was not present in the room when the alleged demand was made. And that, the learned Court below has also discarded the testimony deposed by P.W. 4 to the extent that the accused accepted the bribe of Rs. 3000/- from the complainant on 27.01.1998.

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4.2 That the tape-recorder which was allegedly used to record the demand made by the accused, was not placed into evidence before the learned Court below, further fortifying the point that no such conversation, as alleged, took place between the complainant and the accused on 27.01.1998. 4.3 Furthemore, the independent motbir witnesses, P.W. 2 Pukhraj and P.W. 3 Gangaram, they too turned hostile and did not support the version of the prosecution. And that, except the testimony of the official witnesses, there is no other evidence on record to point towards the culpability of the accused.

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4.4 That the due procedure for the recovery and seizure of articles was not followed by the investigation agency, discernible from the testimonies given by P.W. 5 Constable Gordhan Singh, and P.W.6 Vijaydan, both of whom were members of the trap party, which reveal that the site report ( ‘naksha mauka’) after the trap proceedings were conducted, the Site Report so generated did not bear either of their signatures. And therefore, such a conviction of the accused based solely on the testimonies of

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official witnesses, which has not been corroborated by any material evidences, deserves to be set aside.

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4.5 That it is the version of the prosecution that the written report, at Ex. P/2, which was written by P.W. 9, Narayan Ram, was not proved in evidence. And that, P.W. 11, complainant Hanumana @ Hadman Ram deposed in his testimony given in his examination in chief stated that he did not sign or submit any written report, neither did the concerned A.C.B. authorities give him any tape recorder to record the conversation between himself and the J.E.N. nor did the accused make any demand for RS. 3000/- from the complainant. And that he did not get P.W. 9 Narayan Ram to write any such report on his behalf. This is further fortified by the testimony of P.W. 9 Narayan Ram, who agreed with the statements made by the complainant, P.W. 9, in his examination in chief.

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4.6 That the S.I. and in-charge, A.C.B., P.W. 13, investigating Officer Om Prakash Joshi has during his examination in chief stated that the written report, at Ex. P/2, of which part E to F he read to the complainant and which the complainant accepted to be correct, and that he placed his fingerprint/thumbprint along side that of the complainant. However, during his cross-examination, P.W. 13 states that he did not witness the complainant place his fingerprint/thumbprint on the report in question. Furthermore, that he did not get the complainant’s fingerprint / thumbprint on the running notes, because he did not think it necessary. And that therefore, the prosecution has failed to prove the written report, and the running notes, but the learned Court below has erred in

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considering them to be sufficiently proven and incorrectly convicted the accused on the basis of the same.

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4.7 That there was no work pending with the accused, and that there was therefore no motive for him to demand any illegal gratification from the complainant. And that the same is evident from the application, dated 27.01.1998, placed at Ex. P/7 submitted by the complainant for increasing the electricity load and installation of new transformer, it shows that the said application was presented before the Assistant Engineer, RSEB, Kuchaman City on 27.01.1998 directed the J.En. Chitawa i.e. the accused herein, to ‘report, if justified pl. prepare estimate & put up’.

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Learned counsel for the appellants also contends that the prosecution sanction granted in the present case was defective, as the testimony of P.W. 10, Shanti Prasad given during his crossexamination reveals that he made his signature only on the draft prosecution sanction, and that too on the basis of a factual report forwarded to him by the A.C.B. Whereas on perusing the statement of P.W. 13, the Investigating Officer Om Prakash Joshi, during his cross examination, it is revealed that he did not forward any factual report to any authority, for the purpose of seeking a prosecution sanction. And that, P.W. 10 granted the prosecution sanction without any application of mind, and merely signed the draft prosecution sanction, at Ex.P/17, wherein the name of the authority, designation and date of issuing, etc. is written in pen while, the rest of the sanction is computer typed.

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Learned counsel for the appellant thus submits, that in light of the above made submissions it is clear that the appellant was

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falsely implicated. And that looking to the fact that the F.I.R. was lodged in the year 1998, since which a period of about 24 years has passed and that the appellant is facing the agony of a length trial, and is a hypertension patient who in an accident whilst performing his duty at his employ, lost his hand in the year 2003 and was dismissed from service in 2007, is currently unemployed and without any source of income, and that the version of the prosecution is highly doubtful, and therefore he should be granted the benefit of the doubt and acquitted from all the charges against him, herein.

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Learned counsel for the appellants placed reliance on the following judgments;

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7.1 N. Vijayakumar Vs. State of Tamil Nadu (2021) 3 SCC 687

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“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 the case of C.M. Girish Babu v. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779 and in the case of B. Jayaraj v. State of Andhra Pradesh (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 of currency notes is not sufficient to constitute such offence. In the said judgments 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. The relevant paragraphs 7, 8 and 9 of the judgment in the case of B. Jayaraj (supra) read 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 [3 SCC 779: (2009) 2 SCC (Cri.) 1].

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8. In the present case, the complainant did not support the prosecution case insofar as demand by the Accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the Accused by the complainant, to prove that the same was pursuant to any demand made by the Accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext. P-11) before LW 9, and there is no other evidence to prove that the Accused had made any demand, the evidence of PW 1 and the contents of Ext. P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the Accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the Accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the Accused. In fact such possession is admitted by the Accused himself. Mere possession and recovery of the currency notes from the Accused without proof of demand will not bring home the offence Under Section 7. The above also will be conclusive insofar as the offence Under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established. 9. Insofar as the presumption permissible to be drawn Under Section 20 of the Act is concerned, such presumption can only be in respect of the offence Under Section 7 and not the offences Under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that

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presumption can be drawn Under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption Under Section 20 can be drawn are wholly absent. The above said view taken by this Court, fully supports the case of the Appellant. In view of the contradictions noticed by us above in the depositions of key witnesses examined on behalf of the prosecution, we are of the view that the demand for and acceptance of bribe amount and cell phone by the Appellant, is not proved beyond reasonable doubt. Having regard to such evidence on record the acquittal recorded by the trial court is a "possible view" as such the judgment of the High Court is fit to be set aside. Before recording conviction under the provisions of Prevention of Corruption Act, courts have to take utmost care in scanning the evidence. Once conviction is recorded under provisions of Prevention of Corruption Act, it casts a social stigma on the person in the society apart from serious consequences on the service rendered. At the same time it is also to be noted that whether the view taken by the trial court is a possible view or not, there cannot be any definite proposition and each case has to be judged on its own merits, having regard to evidence on record.”

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7.2 B. Jayaraj Vs. State of A.P. (2014) 5 SCC (Cri.) 543

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“7. In so far 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 and C.M. Girish Babu v. C.B.I. (2009) 3 SCC 779. 8.

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8. In the present case, the complainant did not support the prosecution case in so far as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the

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accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Exbt. P-11) before LW-9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW-1 and the contents of Exhibit P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence Under Section 7. The above also will be conclusive in so far as the offence Under Section 13(1)(d)(i)(ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.

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9. In so far as the presumption permissible to be drawn Under Section 20 of the Act is concerned, such presumption can only be in respect of the offence Under Section 7 and not the offences Under Section 13(1)(d)(i)(ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn Under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption Under Section 20 can be drawn are wholly absent.”

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7.3 State of Karnataka Vs. Ameer Jan (2007) 11 SCC 273

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“The order granting sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority.

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Yet again in Mohd. Iqbal Ahmed v. State of Andhra Pradesh 1979CriLJ633 , this Court opined that the sanctioning authority

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cannot rely on the statutory presumption contained in Section 4 of the Prevention of Corruption Act, 1947 stating:

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...In the first place there is no question of the presumption being available to the Sanctioning Authority because at that stage the occasion for drawing a presumption never arises since there is no case in the Court. Secondly, the presumption does not arise automatically but only on proof of certain circumstances, that is to say, where it is proved by evidence in the Court that the money said to have been paid to the accused was actually recovered from his possession. It is only then that the Court may presume the amount received would be deemed to be an illegal gratification. So far as the question of sanction is concerned this arises before the proceedings come to the Court and the question of drawing the presumption, therefore, does not arise at this stage.…

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In R.S. Nayak v. A.R. Antulay 1984CriLJ613 following Mohd. Iqbal Ahmed (supra), this Court held:

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“...The Legislature advisedly conferred power on the authority competent to remove the public servant from the office to grant sanction for the obvious reason that that authority alone would be able, when facts and evidence are placed before him to judge whether a serious offence is committed or the prosecution is either frivolous or speculative. That authority alone would be competent to judge whether on the facts alleged, there has been an abuse or misuse of office held by the public servant. That authority would be in a position to know what was the power conferred on the office which the public servant holds, how that power could be abused for corrupt motive and whether prima facie it has been so done. That competent authority alone would know the nature and functions discharged by the public servant holding the office and whether the same has been abused or misused. It is the vertical hierarchy between the authority competent to remove the public servant from that office and the nature of the office held by the public servant against whom sanction is sought which would indicate a hierarchy and which would therefore, permit inference of knowledge about the functions and duties of the office and its misuse or abuse by the public servant. That is why the Legislature clearly provided that that authority alone would be competent to grant sanction which is entitled to remove the public servant against whom sanction is sought from the office.”

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7.4 Shivananda Bankolli Vs. State 2020 Cri. L.J. 3009

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(Karnataka High Court)

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“On a careful consideration of the contentions advanced by the learned counsel for the appellant/accused and the learned Spl. P.P.

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for the respondent and on a perusal of the material on record, it is seen that the allegation is that on 22.12.2003, the appellant/accused said to a public servant working as Deputy Commissioner of Excise, Mysore, had demanded Rs. 1,50,000/from one Muneer Ahamad/complainant, as an illegal gratification for showing official favour, that is to issue transport permit for transporting 1000 Metric Tonnes of Molasses. It was alleged that an amount of Rs. 85,000/- was already paid by the complainant and the accused was demanding remaining amount of Rs. 65,000/-. The complainant not being interested to give the bribe money demanded by the accused, is said to have lodged a complaint before the Inspector General Police, Karnataka Lokayukta at Bangalore as per Ex. P6. Thereafter matter was proceeded for investigation.

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But however, as pointed out by the learned counsel for the appellant, the Trial Court has wholly relied on the evidence of the PW-1 who is a stock witness in order to convict the appellant. The said PW-1's office being situated very next to the office of the respondent police, he has been used in the case as a prime witness by the prosecution. The said witness PW-1 has been made use of by the respondent-police as a trap witness also in three other cases excluding the present one. This is a major flaw in the case of the prosecution which has been ignored by the Trial Court and hence it has grossly erred in accepting the evidence of PW-1 in its entirety, when his evidence is also not corroborated by the complainant's evidence. The Trial Court ought to have rejected the evidence of PW-1 taking into consideration the fact that he is admittedly a regular witness for the respondent police.

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Further, the complainant PW-2 himself has denied the fact of he having lodged any complaint against the appellant-accused. Further, he has also denied that the appellant had made any demand for illegal gratification or as regards handing over any money to the accused. PW-4/A.S. Mansoor, brother of the complainant has in turn totally turned hostile to the case of the prosecution. He had deposed that he was not at all aware of lodging of the complaint by his brother PW-2 against the accused and that he did not even go to the office of the Lokayukta, Bangalore, and he was not even aware of the trap made against the accused. Thus, when both PW-2 complainant and his brother PW4 who had accompanied him to file the complaint had totally

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denied about the accused emanding and accepting bribe in order to issue permit to PW-2 to transport molasses, the Trial Court has erred in convicting the accused.

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Further, the pant of the accused/appellant which was allegedly seized and sent for chemical examination having not been produced before court, is also a flaw in the case of the prosecution. Further, it is seen that PW-1/shadow witness or PW-5/Investigating Officer are not witnesses to the demand of bribe made by the accused. Hence, their evidence to the allegation of recovery of money could not have been accepted by the Trial Court. Further, the settled legal principle that corroboration of evidence of the complainant and the shadow witness is a must, has not been complied with. Since there is no corroboration, the order of conviction ought to be set aside. As contended by the learned counsel, mere recovery of money from the accused is not sufficient to prove the demand and acceptance of bribe amount.

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The contention as regards demand of illegal gratification being a sine qua non for constituting an offence under the PC Act is answered in a judgment of the Apex Court in the case of V. SEJAPPA vs. STATE BY POLICE INSPECTOR LOKAYUKTA, CHITRADURGA (2016) 12 SCC 150, the relevant portion of which reads as under:

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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, 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

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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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Keeping in view the above judgment, it is seen that in the case on hand as well, demand and acceptance of illegal gratification by the accused has not been proved by the prosecution beyond all reasonable doubt. Moreover, just recovery of the money also is not sufficient to fasten the guilt on the accused.

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In another judgment of the Apex Court in the case of B. JAYARAJ vs. STATE OF ANDHRA PRADESH (2014) 13 SCC 55, as regards the contention that mere possession and recovery of currency notes without proof of demand would not prove the offence under Section 7 of the PC Act, it is held thus:

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"7. In so far 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 Vs. State of A.P.[1] and C.M. Girish Babu Vs. C.B.I.[2] 8. In the present case, the complainant did not support the prosecution case in so far as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Exbt. P-11) before LW-9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW-1 and the contents of Exhibit P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand

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allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive in so far as the offence under Section 13(1) (d)(i)(ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established." Relating the above decisions to the present case on hand, it is seen that in view of the fact that the complainant himself has disowned what he had stated in his initial complaint and there being no proof from the other witnesses to evidence the fact that the accused had demanded illegal gratification in order to issue permit in favour of the complainant, the Trial Court has erred in convicting the accused.

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Further, in a decision of the Apex Court in the case of MUKHTIAR SINGH (SINCE DECEASED) THROUGH HIS L.R. vs. STATE OF PUNJAB (S.L.P. (CRIMINAL) No. 207 OF 2016), it is held that the evidence of a shadow witnesses in isolation cannot constitute demand as enjoined in law. The relevant portion of the said judgment reads as under:

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"25. It would thus be patent from the materials on record that the evidence with regard to the demand of illegal gratification either of Rs. 3,000/- which had been paid or of Rs. 2,000/- as made on the day of trap operation is wholly inadequate to comply with the pre-requisites to constitute the ingredients of the offence with which the original accused had been charged. Not only the date or time of first demand/payment is not forthcoming and the allegation to that effect is rather omnibus, vague and sweeping, even the person in whose presence Rs. 3,000/- at the first instance is alleged to have been paid i.e. Santosh Singh Lamberdar, has neither been produced in the investigation nor at the trial. In other words, the bald allegation

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of the complainant with regard to the demand and payment of Rs. 3,000/- as well as the demand of Rs. 2,000/has remained uncorroborated. Further to reiterate, his statement to this effect lacks in material facts and particulars and per se cannot form the foundation of a decisive conclusion that such demand in fact had been made by the original accused. Viewed in this perspective, the statement of complainant and the Inspector Satpal, the shadow witness in isolation that the original accused had enquired as to whether money had been brought or not, can by no means constitute demand as enjoined in law as an ingredient of the offence levelled against the original accused. Such a stray query ipso facto in absence of any other cogent and persuasive evidence on record cannot amount to a demand to be a constituent of the offence under Section 7 or 13 of the Act.

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I find that in the case on hand as well, the date or time of the first demand/payment is not forthcoming. Further, the conviction is based on the evidence of the shadow witness PW-1 along with the I.O./PW-5, which cannot constitute a demand as enjoined in law. 13. In view of the above reasons, I find that the prosecution has not been able to put forth positive, acceptable, cogent, consistent, convincing and satisfactory evidence, to establish the basic ingredients required to make out an offence under Sections 7, 13(1) (d) read with 13(2) of the PC Act against the accused. Thus, when the offences alleged have not been proved by the prosecution beyond all reasonable doubt, benefit of doubt shall accrue in favour of the accused/appellant. Hence, I find that the impugned judgment requires to be interfered with, if not, certainly it would lead to a miscarriage of justice.

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7.5 G. Gnaneshwar Vs State 2020 Cri. L.J. 3383 (Telangana High Court)

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“ It is also relevant to note that the Hon'ble Supreme Court in Bodh Raj v. State of Jammu and Kashmir AIR 2002 SC 3164 while dealing with circumstantial evidence held as under:

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"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;

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(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

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(3) the circumstances should be of a conclusive nature and tendency;

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(4) they should exclude every possible hypothesis except the one to be proved; and

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(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

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In view of the above said principle, it is relevant to note that minor contradictions did not endanger to the prosecution case. Therefore, the minor contradictions can be ignored, provided that both the foundation and the super structure of the prosecution case can withstand the critical analysis of the judicial scrutiny.

¶105

The Hon'ble Supreme Court also held that the circumstances from which conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of guilt of the accused. There must be a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of accused and it must be such as to show that within all human probability the act must have been done by the accused.

¶106

As already discussed above, the prosecution failed to prove the very demand itself, either by direct or circumstantial evidence and, therefore, the finding of the trial Court drawing presumption under Section 20 of the Act is unsustainable.

¶107

It is also a settled principle of law by the Apex Court in Suraj Mal (1979) 4 SCC 725, where there are two views possible, the view which is beneficial to the Accused Officer, shall be given, and benefit of doubt shall always be given to the Accused Officer, more particularly, keeping in view, his fundamental right guaranteed under Article 21 of the Constitution of India. Whereas, the learned Public Prosecutor by relying upon a decision in Neera Yadav v. Central Bureau of Investigation (2017) 8 SCC 757 would contend that where there are two views are possible, the view which is beneficial to the prosecution shall be given keeping in view the nature of offence committed by the Accused Officer and the corruption became an evil in the society.

¶108

The learned counsel for the appellant has relied upon a decision in C.B.I. v. Ashok Kumar Aggarwal 2014 Crl. L.J. 930 in support of his contention. In the said decision, it was held by the Hon'ble Apex Court that in every individual case, the court has to find out

¶109

(17 of 35)

¶110

[CRLA-228/2002]

¶111

whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. It is so necessary for the reason that there is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. Grant of sanction is not a mere formality. Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought. It was further held that it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty.”

¶112

7.6 Durgadas Gulab Chand Nag Vs, State of Madhya Pradesh (Chattisgarh High Court) 2020 Cri. L.J. 1884

¶113

“Looking to the entire evidence available on record, time gap between the making of application by the complainant on 09.09.1986 for temporary electric connection and filing of complaint on 10.09.1986 before Lok Ayukt, Raipur, the appellant's defence appears to be probable and therefore, the impugned judgment of the trial Court convicting the appellant for the offences under the aforementioned Sections is not sustainable.

¶114

In Krishan Chander v. State of Delhi (2016)3 SCC 108 : (AIR 2016 SC 298), the Hon'ble Supreme Court has observed that "Whenever a prosecution witness turns hostile, his testimony cannot be discarded altogether. However, in instant case, from the material on record, it is amply clear that the complainant Jai Bhagwan turned hostile on two important aspects, namely, demand and acceptance of bribe by the appellant which is sine qua non for constituting the alleged offence under Sections 7 and 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act."

¶115

It is well-settled position of law that the demand for the bribe money is sine qua non to convict the accused for the offences punishable under Sections 7 and 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act. The same legal principle has been held by the Hon'ble Supreme Court in matters of B. Jayaraj v. State of A.P. (2014) 13 SCC 55 : (2014 AIR SCW 2080)

¶116

(18 of 35)

¶117

[CRLA-228/2002]

¶118

and P. Satyanarayana Murthy v. State of A.P. (2015) 10 SCC 152 : (AIR 2015 SC 3549).”

¶119

7.7 Rama Kishan Bishnoi Vs. State of Rajasthan 2018 (1)

¶120

RLW (Raj.)

¶121

“After a thorough appreciation and evaluation of the evidence available on record, the following conclusions can be crystallized beyond all manner of doubt:

¶122

(1) That the prosecution did not lead any evidence whatsoever to prove that the accused appellant demanded bribe from the complainant. The verification proceedings conducted during the alleged demand did not see the light of the day because the police officer Pratap Singh who conducted these proceedings was not examined in evidence. Further, recording of the so-called conversation was not proved and brought on record.

¶123

(2) That the accused gave a thorough explanation for handling the notes given to him by the complainant right at the time of trap laying proceedings. Since the charge against the accused is for the offences under Section 13(1)(d) of the P.C. Act, the presumption under Section 20 of the P.C. Act would not come to the aid of the prosecution by mere fact of the accused handling the tainted currency notes.

¶124

(3) That the explanation given by the accused at the time of trap proceedings finds place in the running note and was duly accepted by the panch witness PW 1 Vijay Kumar and the trap laying officer PW 5 Niyaj Mohd.

¶125

The Hon'ble Supreme Court in the case of Khaleel Ahmed (supra) has clearly propounded that the demand of illegal gratification is a sin qua non for bringing home the charges under Sections 7 and 13(1)(d) of the P.C. Act. In absence of proof of demand of illegal gratification, a public servant cannot be held guilty of these charges. A prompt and satisfactory explanation given by public servant for handling the currency notes right at the time of trap is a significant circumstance which goes in favour of his claim of innocence.

¶126

As noted above, the appellant gave a prompt explanation right at the time of trap proceedings that no work of the complainant was pending with him and that the currency notes were given to him for checking their genuineness. The fact that the genuineness of the notes was discussed between the accused and the

¶127

(19 of 35)

¶128

[CRLA-228/2002]

¶129

complainant is also indicated from the conversation transcript which was proved by the prosecution as Ex. P/8. Significantly enough, on going through transcription, it is manifest that the accused did not even utter even a single word to indicate that he had ever demanded any gratification from the complainant. Even the complainant is not heard making any utterance that he was passing on the currency notes as illegal gratification pursuant to any demand made by the accused. As a consequence of the above discussion, I am of the firm opinion that the trial Court committed grave error in facts as well as in law while convicting and sentencing the appellant for the offences under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988. It is my firm opinion that the prosecution failed to prove the guilt of the appellant for the above offences beyond all manner of doubt and the explanation furnished by the appellant for handling the tainted currency notes is fit to be accepted.

¶130

Resultantly, the instant appeal deserves to be and is hereby allowed.”

¶131

On the other hand, learned Public Prosecutor opposes the submissions made on behalf of the appellant.

¶132

Learned Public Prosecutor submits that the learned Court below has rightly passed the impugned judgment of conviction after looking into the overall facts and circumstances of the case, and the evidences placed on record before it.

¶133

Learned Public Prosecutor also submits that from a bare perusal of the record, and looking to the testimony of multiple witnesses, the factum of demand of illegal gratification and

¶134

(20 of 35)

¶135

[CRLA-228/2002]

¶136

recovery of the same from the accused, as detailed hereinabove have been proven against him.

¶137

Learned Public Prosecutor further submits, that the motive for the demand of illegal gratification is said to be established, since the accused herein sought the bribe from the complainant for the purpose of establishment of an electricity connection.

¶138

At the outset, this Court thinks it necessary and fit to keep into consideration the observations made by the Hon’ble Supreme Court, with regard to the gravity and seriousness of offences under the Prevention of Corruption Act, 1988 and the catastrophic effect that such offences, if left unchecked, have on a democratic society, in State of M.P. & Ors. Vs. Ram Singh (2000) 5 SCC

¶139

88 .

¶140

Relevant portion of the said judgment is reproduced as under:-

¶141

“Corruption in a civilised society is a disease like cancer, which if not detected in time is sure to malignancies the polity of country leading to disastrous consequences. It is termed as plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as Royal thievery. The socio-political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence shaking of the socio-economic political system in an otherwise healthy, wealthy, effective and vibrating society.”

¶142

Before delving into the case at hand, the relevant Sections of the Prevention of Corruption Act, 1988 (as it stood then)

¶143

(21 of 35)

¶144

[CRLA-228/2002]

¶145

applicable in the present case, are reproduced below for the sake

¶146

of brevity:-

¶147

“ 7. Public servant taking gratification other than legal

¶148

remuneration in respect of an official Act

¶149

Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than 1[three years] but which may extend to 2[seven years] and shall also be liable to fine.

¶150

Explanation.—

¶151

(a) "Expecting to be a public servant." If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will when serve them, be may be guilty of cheating, but he is not guilty of the offence defined in this section.

¶152

(b) "Gratification." The word “gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.

¶153

(c) "Legal remuneration." The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.

¶154

(d) "A motive or reward for doing." A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.

¶155

(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section”

¶156

(22 of 35)

¶157

[CRLA-228/2002]

¶158

13. Criminal, misconduct by a public servant

¶159

(1) A public servant is said to commit the offence of criminal

¶160

misconduct, —

¶161

(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person for himself or for any other person any gratification other than legal remuneration as active or reward such as is mentioned in section 7; or

¶162

(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceedings or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or

¶163

(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or

¶164

(d) if he,—

¶165

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

¶166

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

¶167

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public, interest; or

¶168

(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.

¶169

Explanation.—For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.

¶170

(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than 1[four years] but which may extend to 2[ten years] and shall also be liable to fine."

¶171

(23 of 35)

¶172

[CRLA-228/2002]

¶173

20. Presumption where public servant accepts gratification other than legal remuneration

¶174

(1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) or subsection (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved , that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.

¶175

(2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.

¶176

(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn."

¶177

This Court observes that, for the offences under Sections 7 and 13 sub-section (1) (d) read with Section 13 sub-section (2) of the Prevention of Corruption Act, 1988 to be made out against the accused, it is necessary that; the twin ingredients of a demand of illegal gratification / bribe of remuneration; or any valuable thing,

¶178

(24 of 35)

¶179

[CRLA-228/2002]

¶180

either without consideration or a consideration which is known to be inadequate by the accused; or for a pecuniary advantage, for himself or another, made by the accused or by another on his behalf, coupled with a recovery of the said illegal gratification from the accused, or from someone who has accepted the same on his behalf; or if he has dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant, must be proven by the prosecution as per the facts and circumstances of each case.

¶181

14.1 It is a settled position of law that any allegation under the aforementioned sections against an accused, if sans a demand for any kind of illegal gratification, (hereinafter referred to as ‘Demand’) or a recovery of the same (hereinafter referred to as ‘Recovery’), as discussed above, would result in a failure of the prosecution to prove its case, beyond all reasonable doubt. 15. However, in case a Demand and a Recovery have been proven before the competent Court by placing the evidence on record, which may include, but not be limited to; audio and/or video recording of trap proceedings, transcript of telephonic conversation between complainant and accused, chemical testing of the currency notes and the clothes / person of the accused, or his conduit, by phenolphthalein powder or anthracene powder, testimonies of complainant and/or investigating officer/shadow witness and/or trap/panch witness and/or other witnesses, and whether any of the witnesses have turned hostile, the accused may rebut the same, to the satisfaction of the competent Court and averting to the facts of the case, by providing a justification / explanation to such demand.

¶182

(25 of 35)

¶183

[CRLA-228/2002]

¶184

This Court further observes, as is clear from the legislative intention crystallised in the provision of law under Section 20 of the Act of 1988, that in case a demand for illegal gratification has been proved, then ‘it shall be presumed, unless the contrary is proved’ i.e. it is rebuttable at the instance of the accused if he is able to justify / explain the purpose for the said demand so made, and substantiate the same with cogent and clear evidence, to the satisfaction of the concerned Court.

¶185

The same has been reinforced, time and again, by the Hon’ble Apex Court, as is evident from the judgment rendered in B. Noha Vs. State of Kerala and Ors. (2006) 12 SCC 277 , wherein, while referencing the ratio decidendi laid down in the earlier decision of State of A.P. v. Kommaraju Gopala Krishna Murthy (2000) 9 SCC 752 the Hon’ble Apex Court observed the following:-

¶186

“… that when amount is found to have been passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification.”

¶187

17.1 Therefore, when it appears that an amount, which may appear to be a Demand made by an accused, has been passed to the accused, then a presumption under Section 20 of the Act of 1988 is made against the accused, and the burden of proof of rebutting the same then lies on the shoulders of the accused. 17.2 Furthermore, in Guruviah & Ors. Vs. The State (2019) 8

¶188

SCC 396 wherein the Hon’ble Apex Court referenced the ratio decidendi laid down earlier in T. Shankar Prasad v. State of A.P. (2004) 3 SCC 753 and also took into consideration, that although a justification / explanation was given by the accused, it

¶189

(26 of 35)

¶190

[CRLA-228/2002]

¶191

was not offered immediately after the recovery of money but at a belated stage, which called into question the authenticity of the same.

¶192

Relevant portion of T. Shankar (supra) is reproduced below:-

¶193

“ The involvement of both of the them a well-planned and cleverly managed device to systematically collect money stood sufficiently established on the evidence let in by the prosecution. Further, A-2 did not offer his explanation immediately after the recovery of money. A similar plea of receiving money as advance tax was rejected and affirmed by this Court in A. Abdul Kaffar v. State of Kerala.”

¶194

This Court is also conscious of the following judgments rendered by the Hon’ble Apex Court:-

¶195

18.1 State of Gujarat Vs. Bhalchandra Laxmishankar Dave (2021) 2 SCC 735 wherein the Hon’ble Apex Court, while dealing with a case wherein the High Court had set aside the order of conviction passed by the Court below and acquitted the accused therein, made the following observations:-

¶196

“We have gone through the detailed judgment and order of conviction passed by the Learned Trial Court and also the evidence on record laid down by the prosecution as well as the defence. We have perused the impugned judgment and order of acquittal passed by the High Court to ascertain whether the High Court has conformed to the principles while exercising in the criminal appeal against the judgment and order of conviction. We find that the High Court has not strictly proceeded in the manner in which High Court ought to have while dealing with the appeal against the order of conviction. On perusal of the impugned judgment and order of acquittal passed by the High Court, we find that, as such, there is no re-appreciation of the entire evidence on record in detail while acquitting the Respondent - Accused. The High Court has only

¶197

(27 of 35)

¶198

[CRLA-228/2002]

¶199

made general observations on the depositions of the witnesses examined.

¶200

The High Court ought to have appreciated that it was dealing with the first appeal against the order of conviction passed by the Learned trial Court. Being First Appellate Court, the High Court was required to re-appreciate the entire evidence on record and also the reasoning given by the Learned trial Court while convicting the Accused. Being the First Appellate Court the High Court ought to have reappreciated the entire evidence on record without any limitation, which might be there while dealing with an appeal against the order of acquittal passed by the Learned Trial Court. Therefore, we are of the firm opinion that the impugned judgment and order passed by the High Court acquitting the Respondent - Accused without adverting to the reasons given by the Learned trial Court while convicting the Accused and without reappreciating the entire evidence on record in detail cannot be sustained and the same deserves to be quashed and set aside.”

¶201

18.2 State of U.P. Vs. Ram Asrey 1990 Supp (1) SCC 12

¶202

wherein the Hon’ble Apex Court observed as under:-

¶203

“ The appellate Court has given the following reasons for

¶204

allowing the appeal of the respondent, they being:

¶205

1) There is no corroboration of the testimony of the complainant, Ambar Prasad regarding the demand of bribe by the respondent on 27.10.79.

¶206

2) The evidence adduced by the prosecution that even on 5.11.79, the respondent demanded the bribe from Ambar Prasad in the presence of other persons without taking any precaution is not convincing.

¶207

3) There is no acceptable reason as to why Ambar Prasad who had promised to give the bribe money on 8.11.79 came even on

¶208

5.11.79 with the vigilance party.

¶209

4) Though Ambar Prasad agreed to pay Rs. 15/-, he paid only Rs. 10/-.

¶210

5) The application said to have been presented by Ambar Prasad is not found.

¶211

(28 of 35)

¶212

[CRLA-228/2002]

¶213

6) No evidence whatsoever was produced to show that Ambar Prasad required a backward class certificate for getting the scholarship in the month of November.

¶214

The sum and substance of the above reasonings go to show that there is no acceptable and clinging evidence proving that there was a demand of bribe and that the respondent accepted the amount in question as a motive or reward for doing an official act or showing a favour to Ambar Prasad in expertise of his official function. On going through the impugned judgment of the High Court, we are of the view that the facts and circumstances of this case do not warrant interference.

¶215

In the result, the appeal is dismissed”

¶216

18.3 Ayyasami Vs. State of Tamil Nadu (1992) 1 SCC 304 wherein the Hon’ble Apex Court made the following observations:-

¶217

“The High Court found that the witnesses who were associated in the conduct of the raid for recovery of tainted money from the appellant could not be termed as independent who could be associated with such raids. The High Court further expressed doubt about veracity of the witness who claimed that money was actually handed over in his presence. The High Court, however, drew an adverse inference against the appellant from the circumstance that the, bill which was delayed for unreasonable period had suddenly been passed by the appellant On an overall assessment the High Court entertained some suspicion about the credibility of the prosecution witnesses but at the same time did not find the suspicion to be strong enough to raise doubt about the guilt of the appellant. We agree with the learned Counsel for the appellant that in the face of the finding that the witnesses who formed part of the raiding party were not independent and the evidence regarding handing over money to the appellant being unbelievable, the conviction of the appellant cannot be sustained. The guilt of the appellant has not been proved beyond reasonable doubt and as such the benefit must go to him. ”

¶218

18.4 Meena Vs. The State of Maharashtra (2000) 5 SCC 21

¶219

wherein the Hon’ble Apex Court made the following observations:-

¶220

(29 of 35)

¶221

[CRLA-228/2002]

¶222

“ Law has always favoured the presence and importance of a shadow witness in the trap party, not only to facilitate such witness to see but also overhear what happens and how it happens also.

¶223

The other person, who was present at the place of occurrence though cited initially as witness, was not examined by the prosecution but later was got examined as DW-1 and evidence of this person completely belies the prosecution story. The corroboration essential in a case like this for what actually transpired at the time of the alleged occurrence and acceptance of bribe is very much wanting in this case. Even the other panch witness, PW-5, categorically admitted that even as the Inspector of Police, PW-6, arrived, the appellant gave the same version that PW-1 tried to force into her hands the currency note which she turned down by pushing it away, and his evidence also does not lend credibility to the case of the prosecution.

¶224

It is an obligation of judicial conscience to correct errors, where the same are manifest. The judgments of the courts below suffer from serious infirmities and manifest errors on account of unwarranted inferences liberally drawn by the courts below against the appellant, overlooking the fundamental principle of presumption of innocence of an accused till the charge leveled and his guilt is established beyond all reasonable doubt. The courts below have failed to consider the adverse impact on the prosecution case from the evidence of PW-2 and the withholding of the lady constable and Jagdish Bokade, two material witnesses.

¶225

The materials on record in this case are not sufficient to bring home the guilt of the appellant. Consequently, the appeal is allowed. The conviction and sentence of the appellant is set aside and the fine, if any, paid shall be refunded to the appellant. ”

¶226

18.5 Seema Silk and Sarees and Ors. Vs. Directorate of

¶227

Enforcement and Ors. (2008) 5 SCC 580 wherein the Hon’ble Apex Court, with regard to presumption made against the accused, made the following observations:-

¶228

(30 of 35)

¶229

[CRLA-228/2002]

¶230

“The presumption raised against the trader is a rebuttable one. Reverse burden as also statutory presumptions can be raised in seevral statutes as, for example, the Negotiable Instrumetns Act, Prevention of Corruption Act, TADA, etc. Presumption is raised only when certain foundational facts are established by the prosecution. The accused in such an event would be entitled to show that he has not violated the provisions of the Act. ”

¶231

This Court also takes into consideration the following passed by the Hon’ble Coordinate Benches of this Court in;

¶232

19.1 Hari Rudra Bhavan Vs. The State of Rajasthan R.L.W. 1982 Raj 676 decided on 12.03.1982 wherein a Coordinate Bench of this Court, after analyzing the testimonies of witnesses, observed as under:-

¶233

“ The prosecution could not succeed in proving beyond reasonable doubt that the appellant demanded or accepted illegal gratification from Mangat Singh for payment of interest on his Jagir bonds. In the absence of any trust-worthy evidence from the side of the prosecution relating to demand and acceptance of bribe I am unable to up-hold the convictions and sentences of the appellant under Sec. 161, I.P.C. and Sec. 5(2) read with Sec. 5 (1) (d) of the Prevention of Corruption Act. ”

¶234

19.2 Ulfat Rai Arya Vs. State of Rajasthan 2007 CriLJ 1846 decided by a Coordinate Bench of this Court on 07.12.2006, wherein the following observations were made:-

¶235

“A plain reading of the above provision makes it clear that when the accused accepted the gratification, the presumption immediately comes into play that he accepted it as a motive or reward such as is mentioned in Section 161, IPC. Hon'ble the Apex Court in the case of T. Shankar Prasad's case, (2004 Cri LJ 884) (supra) held that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or for bearing to do any official act etc. if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 4 of the Act is that during trial it

¶236

(31 of 35)

¶237

[CRLA-228/2002]

¶238

should be proved that the accused has accepted or agreed to accept any gratification. In M. Narsinga Rao's case (supra) it was held that where the receipt of gratification was proved, the Court was under a legal obligation to presume that such gratification was accepted as a reward for doing the public duty.

¶239

In Gulam Mahmood A. Malek's case 1980CriLJ1096 (supra) it was held that while appreciating the evidence the background of the case should not be lost sight of it was also laid down that past conduct of the complainant should not be ignored. In Suraj Mai's case (supra) it has been observed that in a case of bribery, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. In Kesaram's case (supra) it has been held that when accused at the earliest disclosed the fact of receiving Rs. 100/- against the money due in the brother of the complainant and the defence version has been supported by the prosecution witnesses, the appellant has succeeded in probising the defence. In Duraisami's case (supra), it was held that when the explanation given by the accused is found to be true and genuine then case set up by the defence has to be accepted. ”

¶240

At the cost of repetition, this Court deems it proper to summarise the observations made by the Hon’ble Apex Court in the aforementioned precedent laws in the following manner:-

¶241

20.1 For offences under the Sections 7 and 13 (1) (d) read with Section 13 (2) of the Act of 1988, it is fundamental that a Demand and Recovery of the same is proven against the accused. 20.2 The presumption under Section 20 of the Act of 1988, operates against the accused, and places the burden of proof upon the accused, unless he rebuts the same to the satisfaction of the competent Court, and whether the rebuttal was made at the appropriate stage.

¶242

20.3 Owing to the fact that in old cases, wherein the technology of audio / voice recording, transcripts of conversations etc.

¶243

(32 of 35)

¶244

[CRLA-228/2002]

¶245

proving the existence of Demand rests solely in the realm of witness testimony and other material evidences placed on record before the concerned Court.

¶246

20.4 And that, an appellate Court may interfere with an order of conviction, under the Act of 1988, only after a re-appreciation of of the entire evidence on record and thereafter, if the appellate Court finds the reasons as laid out by the Court below, in convicting the accused, under the Act of 1988, to be bad or unsustainable in the eye of law, then it may interfere and accordingly, reverse the conviction into an acquittal.

¶247

Now adverting to the facts and circumstances of the present case, this Court makes the following observations:-

¶248

21.1 The hands of the accused Pannalal turned a pinkish hue upon being tested, thus proving that he came into contact with the tainted currency used in the trap proceedings, as revealed from the forensic report, and thus proving the factum of recovery from him. And on the basis of the same, the presumption against the accused-appellant, under Section 20 of the Prevention of Corruption Act was made.

¶249

21.2 The contention made on behalf of the accused-appellant was that he shook hands with the complainant, and that as the reason his hands tested positive for having come into contact with the phenolphthalein powder smeared currency notes. However, this was rightly disbelieved by the learned Court below, because upon being tested, the pair of trousers worn by the accused, which were recovered during the trap proceedings and tested, were positive; thus proving the version of the prosecution that the tainted

¶250

(33 of 35)

¶251

[CRLA-228/2002]

¶252

currency notes were stored in the back pocket of the trousers of the accused by him.

¶253

21.3 The complainant, P.W. 11 Hanumana @ Hadman Ram and the motbir witnesses, P.W. 2 Pukhraj and P.W. 3 Gangaram, although subsequently turned hostile, initially supported the case of the prosecution. P.W. 13 Investigating Officer Om Prakash Joshi’s testimony reveals that the written report, at Ex. P/2, lodged by the complainant, was read out to the complainant who subsequently signed the same. And the motbir witnesses also signed the documents of the trap proceedings. Moreover, P.W. 2 admitted that he was not coerced or pressured to sign the said documents, and P.W. 3 also stated that he signed the said documents of his own free will and volition.

¶254

21.4 Furthermore, it was by observed by the Hon’ble Apex Court in the recent case of Malti Sahu Vs. Rahul & Anr. Criminal Appeal No. 471 2022 , “ As per the settled position of law, even the evidence of a hostile witness can be considered to the extent, it supports the case of the prosecution .”

¶255

21.5 Furthermore, the testimonies of P.W. 4 Roop Singh, P.W. 5 Gordhan Singh, P.W. 6 Vijay Dan and P.W. 12 Rajendra Prasad Diwakar fortify the case of the prosecution. P.W. 6 also submitted that he saw the illegal gratification handed over to the accused by the complainant.

¶256

21.5 The testimony of P.W. 11 complainant, who was susbequently declared hostile, in his cross denied the trap proceedings altogether, but had begun the cross-examination by saying he shook hands with the accused-appellant. The subsequently testimony of P.W. 11 is thus riddled with

¶257

(34 of 35)

¶258

[CRLA-228/2002]

¶259

inconsistencies. And all the averments made by him in his crossexamination were rightly found to be untrue by the learned Court below. Furthermore, the contention of P.W. 11 that his statements were not recorded before a Magistrate, but the same was found to be incorrect as his statements were made before the Judicial Magistrate, First Class at Kuchaman City.

¶260

21.6 The contention of the appellant that he was falsely implicated is also without merit, and he was not able to accord any possible reasons for the same.

¶261

This Court further observes that the case laws cited on behalf of the appellant do not render any assistance to his case. 23. This Court therefore finds that the learned Court below has categorically dealt with the evidences placed on record, and after a thorough scrutiny and appreciation of the same, found that presumption, under Section 20 of the Prevention of Corruption, against the appellant stands, and that he was unable to rebut the same. And the factum of recovery stood proved against him, and therefore rightly found him guilty for the offences under the Sections Section 7, 13 (1) (d) and 13 (2) of Prevention of Corruption Act, 1988.

¶262

This Court, in light of the above made observations and the aforementioned precedent laws laid down by the Hon’ble Apex Court, finds that the judgment of conviction, dated 27.02.2002, passed by the learned Court below deserves to be upheld.

¶263

This Court, therefore, finds that the impugned judgment dated 27.02.2002 passed by the learned Court below, does not suffer from any legal infirmity, and therefore, the same is upheld and affirmed.

¶264

(35 of 35)

¶265

[CRLA-228/2002]

¶266

Resultantly, the present appeal is dismissed. The appellant is on bail, in pursuance of the order dated 05.03.2002 passed by this Hon’ble Court in S.B. Criminal Misc. Bail Application No.147/2002. His bail bonds and sureties are forfeited; he is directed to be taken into custody forthwith and sent to the concerned Jail to undergo the remaining period of the sentence. All pending applications are disposed of. Record of the learned court below be sent back

¶267

forthwith.

¶268

(DR.PUSHPENDRA SINGH BHATI), J.

¶269

178-Skant/-

Pannalal v. State

Case brief

What is this about?

What did the court decide?

Pannalal v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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