Asha Verma and Others vs State of M.P. (Now State of Chhattisgarh)

Manindra Mohan Shrivastava, J.—This appeal is directed against judgment of conviction and order of sentence dated 6-9-1996 passed by the 1st Additional Sessions Judge, Bilaspur in Special Case No. 5/1992, by which, the Court below after holding the appellant guilty for commission of offence punishable u/s 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the Act") sentenced to undergo rigorous imprisonment for one year for each of the offences found proved, to run concurrently. It is not in dispute that on the date of the incident, the deceased appellant-Madan Kishore was posted and working on the post of Clerk in Tehsil Office at Bilha. The story of the prosecution is that while the deceased-appellant-Madan Kishore was posted and working on the post of Clerk in the Tehsil Office at Bilha, a case involving complainant-Anand Ram was pending in the Court of Tehsildar and the complainant was interested in bringing the said litigation to an end. On 3-2-1990, when complainant-Anand Ram attended revenue proceedings in the Tehsil Office at Bilha, he requested the accused to manage the dismissal of the case, upon which, the accused demanded illegal gratification of Rs. 200/- for getting the case dismissed. Further case of the prosecution is that finally, the deal was struck at Rs. 100/- and on 20-2-1990 i.e. the next date of hearing, the complainant was asked to come with Rs. 100/-. As the complainant-Anand Ram was not inclined to satisfy the demand of bribe, he submitted a written complaint Ex. P-1 on 19-2-1990 in the Vigilance Office at Bilaspur before the U.S.P. (Vigilance). On such written complaint being lodged, C B. Singh, P.W. 1 and another government witness were summoned and introduced to the complainant. After arriving at prima facie satisfaction with regard to genuineness of the complainant-Anand Ram, the concerned D.S.P. (Vigilance) proceeded to make arrangement for trap proceedings. A pre-trap demonstration was arranged in the Vigilance Office wherein solution of Sodium Carbonate was prepared in a glass. On dip of water paper, colour did not change. Thereafter, another peace of paper containing Phenolphthalein Powder was again dipped in the solution of Sodium Carbonate, which turned the solution pink in colour. A Panchnama of pre-trap proceedings were prepared vide Ex. P-2. After giving such demonstration, the complainant was asked to present currency note of Rs. 100/- which was placed, on which, Phenolphthalein Powder was smeared and kept in the pocket of the complainant. The complainant was also informed and guided as to how the trap would be arranged and the role which he is required to play in the trap proceedings. The number noted in the currency note of Rs. 100/- was also recorded in the pre-trap proceedings, vide Panchnama Ex. P-2.

After preparing panchnama of arranging trap proceedings in Ex. P-2, the trap team proceeded towards Tehsil Office at Bilha where the complainant was asked to come with bribe of Rs. 100/- by the accused. The vehicle in which, members of the trap team proceeded along with the complainant, stopped near Bilha Railway Station and the complainant was asked to proceed to the spot i.e. Tehsil Office at Bilha for giving bribe and the members of the trap team gathered around the Tehsil Office at different places in order to witness the incident. The accused and the complainant were found in a hotel and the complainant-Anand Ram gave currency note of Rs. 100/- to the accused. Thereafter, receiving trap signal, members of the trap team immediately arrived at the spot and caught hold of the accused and currency note of Rs. 100/- was recovered and was seized vide Ex. P-3 along with some more currency notes and the clothes of the accused appellant. Vide Ex. P-4, records of proceedings of case pending before the Executive Magistrate, Bilha were seized from the possession of the accused appellant and were given on supurdnama of Tehsildar, Bilha vide Ex. P-4 (B) for being produced during the course of trial as and when required. Vide Ex. P-5, other records relating to disputes where complainant was a party and were pending in the Tehsil Office at Bilha relating to mutation proceedings, were also seized. Vide Ex. P-6, some other relevant documents including notes and order passed in Civil proceedings were seized. Panchnama of the trap proceedings carried out by the trap team was prepared vide Ex. P-7.

Hands of the accused were washed in the Sodium Carbonate solution, which turned pink. Upon pocket part of the shirt of the accused being washed, the same also turned in light pink colour. Thereafter, solution of hand wash of the accused was kept in a bottle and sealed and clothes were also sealed. The samples were thereafter sent for examination to the Forensic Science Laboratory. After completing the trap proceedings and the investigation and after obtaining sanction for prosecution vide Ex. P-8 against the accused-appellant, charge sheet was filed. The report Ex. P-15 received from the office of Director, Forensic Science Laboratory, Sagar, reported positive test of the bottles containing, hand wash and cloth wash of the accused, contained in the sealed bottles sent to Forensic Science Laboratory.

The learned trial Court framed charges for the alleged commission of offence punishable u/s 7, 13(1)(d) read with Section 13(2) of the Act. The accused appellant abjured his guilt. In order to prove its case, the prosecution examined as many as 9 witnesses. In his examination u/s 313 of the Cr.P.C., upon being confronted with the incriminating evidence appearing against the appellant, the appellant denied having demanded or accepted bribe and said that he has been falsely implicated.

By the impugned judgment of conviction and order of sentence, the learned appellate Court relying upon the case of the prosecution and holding the same to be proved from the evidence of C.B. Singh, P.W. 1, Durga Prasad Parashar, P.W. 2, held the appellant guilty for the alleged commission of offence punishable u/s 7, 13(1) (d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentenced him to undergo R.I. for one year for each of the offences and the sentence were ordered to run concurrently.

In order to hold the appellant guilty for commission of offence, the learned trial Court has mainly relied upon the evidence of C.B. Singh, P.W. 1, Ram Bahadur Singh, P.W. 4, R.J. Toppo, P.W. 9 and the complainant-Anand Ram, P.W. 6 and also Forensic Science Laboratory report showing presence of phenolphthalein powder in the hand wash and cloth wash of the accused appellant as corroborative evidence.

Learned counsel for the appellant vehemently argued that the prosecution has failed to prove by clinching evidence that any demand was made by the appellant. He submitted that the prosecution has failed to prove beyond reasonable doubt that any bribe was accepted by the appellant, and therefore, presence of phenolphthalein power and more recovery of currency note from the possession of the appellant, cannot be made basis for his conviction. It has also been argued that none of the prosecution witnesses, particularly the independent witnesses, who were brought by the trap team for the specific purpose to watch the incident of bribe giving and also as to what transpired between the complainant and the accused appellant, have deposed that any demand was made by the appellant or the bribe offer was accepted by him. It was next contended by learned counsel for the appellant that there was no motive for the appellant to demand bribe as he was not the Clerk-in-charge of the proceedings and it was not within his authority-to pass any order or to get the case dismissed.

Leaned, counsel for the appellant next submitted that there was another Clerk, who was Incharge and looking after the concerned proceedings, which the complainant was interested in getting dismissed. It was only on 16-1-1990 that in the absence of the concerned Clerk, the appellant looked after his work. Further contention of learned counsel for the appellant is that the dates on which, demand is said to have been made, the complainant was not even present in the office as evident from the order sheets of the proceedings, and therefore, the complainant''s version that demand was made by the appellant is wholly concocted and afterthought. Further submission of learned counsel for the appellant is that the entire case of the prosecution suffers from serious and inherent contradiction in so far as the demand, acceptance and recovery is concerned. He submits that the prosecution witnesses including independent witnesses brought along with the trap team have not supported the case of the prosecution on material aspects and their statement is not only contradictory but also contradicts the story of the trap team, as deposed by other witnesses. Learned counsel for the appellant further argues that different places of giving bribe have been deposed which renders the entire case of the prosecution highly doubtful.

Learned counsel for the appellant argued that in the absence of there being due corroboration on material aspects and without corroboration of testimony of the complainant which himself is accomplice and keenly interested to implicate the appellant, the conviction of the appellant is illegal and unsustainable in the eye of law. Learned counsel for the appellant lastly submitted that no presumption that the amount was accepted as bribe could be drawn by taking recourse to the provisions contained in Section 20 of the Prevention of Corruption Act, 1988, in the absence of there being proof of demand and acceptance by the appellant. In support of his submissions, learned counsel for the appellant has relied upon the judgment in the case of Dr. A.Y. Prasad v. Stated 2002 (4) Cri. 527, Sunil Kumar Sharma Vs. State (CBI), , Arjun Bajirao Kale Vs. State of Maharashtra , K. Giri Vs. State of Andhra Pradesh, State Vs. K.M. Gangadhar, State of Karnataka v. A.V. Sathish 2007 (4) Cri. 24 (Kar.), Hari Dev Sharma Vs. State (Delhi Administration), , Ganapathi Sanya Naik Vs. State of Karnataka, , State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede, , A. Subair Vs. State of Kerala, C.M. Girish Babu Vs. CBI, Cochin, High Court of Kerala, V. Venkata Subbarao Vs. State, represented by Inspector of Police, A.P., and State Inspector of Police Vs. Surya Sankaram Karri, 8.

On the other hand, learned State counsel supported the judgment of conviction and order of sentence by submitting that the prosecution has led clinching and reliable evidence in order to prove demand, acceptance and recovery. Learned State counsel further submitted that from the trustworthy evidence of Anand Ram, P.W. 6 i.e. the complainant, it has been proved that the appellant demanded illegal gratification for getting the case dismissed which led to filing of complaint by Anand Ram; P.W. 6 in the Vigilance Office at Bilaspur, which has been duly proved. It has also been argued that the proceedings of trap have been duly proved not only by the complainant, P.W. 6 but also by other independent witnesses, P.W. 1, C. B, Singh, Ram Bahadur Singh, P.W. 4 as also from the evidence of R.J. Toppo, P.W. 9. Learned counsel for the State further argued that the case of the prosecution is fully corroborated from the Phenolphthalein Powder test, in respect of hand wash and cloth wash of the accused appellant which have been found positive. Learned counsel for the State submits that as the demand has been proved and acceptance and recovery of currency notes from the possession of the appellant, is also proved, conviction of the appellant could not be assailed on certain minor and trivial contradictions and omissions, as on all material aspects with regard to demand, acceptance, and recovery, the evidence of the prosecution has remained unshaken and trustworthy. Learned State counsel places reliance upon the judgment of the Supreme Court in the case of The State rep. by CBI, Hyderabad Vs. G. Prem Raj,

Durga Prasad Parashar, P.W. 2 has proved grant of sanction for prosecution of the appellant accused vide order dated 23-1-1992, Ex. P-8 by S.C. Gupta, the Additional Secretary, Law and Legislative Affairs, Govt. of M.P., Bhopal. The accused appellant has also not disputed grant of sanction for his prosecution.

In order to prove its case of demand of illegal gratification, acceptance and recovery of currency note, the prosecution has mainly relied upon the testimony of C.B. Singh, P.W. 1, Ram Bahadur Singh, P.W. 4, Anand Ram, P.W. 6 and R.J. Toppo, P.W. 9. The learned Special Court has also held the demand, acceptance and recovery proved mainly relying upon the testimony of aforesaid prosecution witnesses. Out of these, Anand Ram, P.W. 6 is the complainant and the star witness of the prosecution to prove demand of illegal gratification by the appellant. It would therefore be necessary to scrutinize the evidence of Anand Ram, P.W. 6 as also other witnesses to find out whether the prosecution has succeeded in proving demand of illegal gratification beyond reasonable doubt in order to bring home the Charges and prove the guilt of the appellant.

In Panalal Damodar Rathi Vs. State of Maharashtra, the Supreme Court observed as under:

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 IPC 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.

The status of person offering bribe and the caution required while assessing his evidence implicating a government servant was examined by the Supreme Court in, a subsequent decision of M.O. Shamsudhin Vs. State of Kerala, wherein it was held:

In trap cases, if any of the witnesses are accomplices who are particeps criminis in respect of the actual crime Charged, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices in that sense but are only partisan or interested witnesses who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested which may vary from case to case and the corroboration in the case of such interested witnesses can be in a general way and not as one required in material particulars as in the case of an approver......In such cases at the most he can be treated as an interested witness and whether corroboration is necessary or not will be within the discretion of the Court depending upon the facts and circumstances of each case. However, as a rule of prudence, the Court has to scrutinise the evidence of such interested witnesses carefully.

The settled legal position which emerges is that the complainant''s evidence has to be scrutinized carefully and if his evidence is found trustworthy, reliable and also finds corroboration on material aspects, the same can be acted upon.

The complainant Anand Ram, P.W. 6 in his cross-examination in chief, has deposed that a case relating to his agricultural land, was pending in the Court of Tahsildar, Bilha and in respect of the same land, civil case was pending at Bilaspur and he had submitted papers of the civil case before the Tehsildar, Bilha and requested for closing the case. He has also deposed that Tehsildar, Bilha was not present and the appellant used to give him dates. He has further deposed that when he asked the appellant to give him date as Tehsildar is not there, the appellant said that he is litigating and his work will not be done free of cost. At this, the appellant said that if he gives Rs. 200/-, he would get the case dismissed. When he expressed his inability to give Rs. 200/- but offered only Rs. 100/-, the appellant agreed and said that he would get the case dismissed. Upon being asked, when he should give the money he was told that whenever he arranges money, he may bring the same. Anand Ram, the complainant also deposed that after return to his village, he told about the said incident to Sarpanch, Tulsi Ram, and Tulsi Ram advised him to lodge a report whereafter he and Tulsi Ram came to Bilaspur and went to the Vigilance Office, Bilaspur and from there he went to the office of D.S.P. (Vigilance) and made an oral complaint. Upon being asked by the D.S.P. (Vigilance) to make the complaint in writing, the complainant requested Tulsi Ram to prepare the application and Tulsi Ram prepared application, on which, he put his signature and submitted before the D.S.P. (Vigilance). The aforesaid application has been proved and exhibited as Ex. P-1, on which, Anand Ram has admitted his signatures. The aforesaid document Ex. P-1 which complainant Anand Ram States to have submitted on 19-2-1990 before the D.S.P. (Vigilance) reads that in respect of the land in dispute R.K. Gupta S/o. Gajadhar had instituted civil proceedings and has also instituted mutation proceedings in the Court of Tahsildar, Bilha. The document further reads that he had submitted the order of civil case in the Court of Tahsildar yet he has been asked to appear on the date of hearing. The said document importantly further reads that on 3-2-1990 which was the date of hearing, when the complainant went there, the appellant, who is clerk in the office of Tahsildar, stated that in order to get dismissed or case withheld, he will have to spent Rs. 200/-, upon which, he has stated he is a poor man and he can give only Rs. 100/-, on which, the appellant agreed and stated that the next date of hearing is on 20-2-1990, on which date, he may come with the money and his work would be done.

In his examination-in-chief, the complainant-Anand Ram states that the appellant demanded illegal gratification of Rs. 200/- for getting the case dismissed, but in the application Ex. P-1, it is stated that the money was demanded for getting the case withheld. The complainant has not stated as to on which date, he met the accused appellant. Though, in his complaint Ex. P-1, it is written that he went to the office of Tehsildar, Bilha on 3-2-1990, in his examination-in-chief, he has nowhere stated. The complaint Ex. P-1 cannot be treated as substantive evidence and is only a former statement of the complainant which can only be used to corroborate the evidence of the complainant given in the Court or to contradict his evidence as held in the case of Suresh Kumar Shrivastava Vs. State of Madhya Pradesh, . In his cross-examination, the complainant-Anand Ram has deposed that two cases in respect of the same land were going on in the-Court of Tehsildar and he did not ask to get all the cases closed and when he asked the appellant to give early dates of hearing, the accused appellant said that it would not be done free of cost. He has further stated that the conversation with the accused was concerning mutation proceedings. He emphatically deposed that 3-2-1990 was the date of hearing in the mutation case. The concerned records were shown to the complainant on which, date of hearing is shown 16-1-1990. Ex. P-9 is the order sheets of the mutation proceedings and the date of hearing is 16-1-1990 whereas next date given is 20-2-1990. In the order sheet dated 16-1-1990, it has been recorded that'' the presiding officer is busy in other government work and therefore the case is adjourned. Though, the applicant-Balram Prasad is recorded to be present and his signatures have also been appended on the margin of the order sheets, it neither records the presence of the complainant-Anand Ram nor his signatures are there to show that he was present on that date. Thus, the aforesaid contradiction in the testimony of Anand Ram, P.W. 6, which is very material and not any minor contradiction, renders doubtful the story of demand made by the appellant. It has to be noted that in the complaint Ex. P.1, the date on which the complaint made against the appellant, is stated to be 3-2-1990 and was asked to come on 20-2-1990. In the cross-examination, the complainant says that the demand related to mutation proceedings. No date of hearing was fixed in the mutation case on 3-2-1990, but it was on 16-1-1990. On that date, also, the order sheets do not record the presence of the complainant. Secondly, while in the examination in chief, the complainant states that the appellant demanded money for getting the case dismissed, in the complaint, Ex. P-1, it is written that the complainant will have to pay Rs. 200/- for getting the case withheld/stayed. Thirdly, while in the examination-in-chief, he states that the accused appellant asked him to come with the money as and when arranged, in the complaint Ex. P-1, he has asked to come on 20-2-1990.

The prosecution has also brought in evidence the order sheets of the other proceedings i.e. proceedings u/s 145/146 of the Cr.P.C. That case was listed before the Tahsildar on 3-2-1990 and the next date given in the case was 3-3-1990 as Presiding Officer was not present. In that case also, presence of the applicant-Balram Prasad has been recorded and he has also signed on the margin of the order sheets. Neither the presence of the complainant has been recorded nor signatures are appended. Thus, the very presence of the complainant either in the proceedings dated 16-1-1990 in mutation case or his presence in proceedings u/s 145/146 of the Cr.P.C. on 3-2-1990 is itself doubtful. The evidence with regard to purpose for which the money was demanded is also contradictory. The aforesaid material contradictions in the testimony of the complainant Anand Ram, P.W. 6 make the story of demand by the appellant doubtful.

B.L. Patel, P.W. 3, who was working as Clerk in the office of Tehsildar at Bilha, has deposed that Revenue Case No. 20/A-6/88-89 was in his charge. On 16-1-1990, he was not in the office and had gone to Bilaspur for government work, and therefore, on that date, adjournment was given by the appellant. He has deposed that on dates of hearing before and after 16-1-1990, the records were in his charge and appellant was not holding the concerned case and he has written the order sheets only on 16-1-1990. He has further deposed that on 9-1-1990 and on 16-1-1990, the order sheet does not record the presence of the complainant-Anand Ram. From the aforesaid uncontroverted testimony of Anand Ram, it is proved that the appellant was not In charge of the mutation proceedings bearing Registration No. 20/A-6/1988-89, in connection with which the appellant is alleged to have demanded illegal gratification. B.L. Patel, P.W. 3 was In charge of that case and it was only on 16-1-1990 that because of his absence, date of hearing was given by the appellant. Even on that date, neither the presence of the complainant has been recorded nor he has put his signatures in the order sheets. Though, in his cross-examination, the complainant has deposed that 3-2-1990 was the date of hearing of mutation case whereas there was no such date in the mutation proceedings. Records of proceedings of two cases particularly on 16-1-1990 (mutation case) and 3-2-1990 (Section 145/146 of Cr.P.C. proceedings), neither record the presence of the complainant nor in the margin of the order sheets bears his signatures. Thus, very presence of the complainant in the office of Tahsildar on 16-1-1990 and on 3-2-1990, becomes highly doubtful.

From the evidence of the prosecution itself, it is proved that appellant was In charge of mutation proceedings only on 16-1-1990 and before and thereafter, B.L. Patel, P.W. 3, Clerk, who was looking after the said case, thus, on 3-2-1990, the appellant was not In charge of the mutation case. Therefore, version of the appellant on 3-2-1990 that the appellant demanded money to bring that case to an end is highly improbable and smacks of concocted story.

In his examination u/s 313 of Cr.P.C., the appellant has stated that he has been falsely implicated by the complainant-Anand Ram. Tulsi Ram, P.W. 8 has deposed that the complainant-Anand Ram told him that his cases are going in the office of Tahsildar, Bilha and appellant is harassing and he wants to implicate him and he requested Tulsi Ram to prepare one application. In the cross-examination, he has very clearly deposed, that Anand Ram stated that he wanted to falsely implicate the appellant. Thus, from the testimony of Tulsiram. it is revealed that the complainant-Anand Ram did not told him that the appellant demanded illegal gratification but all that has been said that the appellant was harassing him, and therefore, he wants to falsely implicate the appellant and as desired by him, the complaint Ex. P-1 was written by Tulsiram. Tulsiram, P.W. 8 has further deposed that he had not gone along with Anand Ram for lodging report.

From the aforesaid evidence of the prosecution, the false implication of the appellant cannot be ruled out but from the evidence of Tulsi Ram, P.W. 8, it becomes most probable. The entire story of the demand as narrated in the complaint Ex. P-1, therefore, appears to be a concocted story and that is why there is material contradictions in the testimony of Anand Ram, P.W. 6 on all relevant aspects with regard to date on which demand was made, the date on which, mutation case was listed, the date on which he met the appellant, the purpose for which demand was made, the date on which, the appellant required him to come with money. Thus, the prosecution evidence itself renders entire story of demanding bribe highly doubtful particularly when there is clear evidence of Tulsi Ram, P.W. 8 that the complainant-Anand Ram was determined to falsely implicate the appellant.

In the aforesaid analysis and scrutiny of evidence and circumstances of the case, entire story of demand of bribe by the appellant is highly doubtful and it is to be held that the prosecution has failed to prove demand of bribe by the appellant beyond all reasonable doubt.

In the present case, there is serious contradiction with regard to very acceptance of bribe by the appellant. C.B. Singh, P W.1 has been brought by the prosecution as a trap witness. He deposed that in the morning of 20-2-1990 at about 9 to 9.15 A.M., he had proceeded to Bilha along with the trap team and at the spot and near the Tehsil Office at Bilha, jeep was stopped and Anand Ram, P.W. 6 was asked to proceed first. He went to Hotel which is besides the Tehsil Office and sat there and others kept standing around the office. After 10-15 minutes, the complainant Anand Ram, P.W. 6 went inside and thereafter he came back and gave signal, after which, he and police team went inside the office where the accused appellant was found and currency note was recovered and number was tallied. Sodium Carbonate solution was prepared by the police team and the hands of the appellant being washed, it is coloured pink. He has also deposed that shirt of the appellant was also dipped in the sodium carbonate solution and that also turned pink. In his cross-examination, he has deposed that money was recovered from the room, in which, the appellant was sitting. He has specifically denied suggestion regarding trap being arranged in pan shop. He has neither seen as to how the money came in the pocket of the appellant nor has deposed that any payment was made or that appellant voluntarily accepted the money and kept in his pocket. Ram Bahadur Singh, P.W. 4, who is the Head Constable and had accompanied the trap team, has deposed that the complainant-Anand Ram went inside the office and he kept standing in the verandah and Shri Toppo also came there. After 15 minutes, the appellant and the complainant came out and went towards Pan Shop where they were talking and after some time the complainant took out money from his pocket and gave to the appellant and he had kept the same in his left pocket of the shirt. Thereafter, Shri R.D. Diwan and Shri Shukla surrounded the appellant and he and Shri Toppo reached there and upon being asked by Shri Toppo, he recovered currency note from the pocket of shirt of the appellant. In his cross-examination, he has stated that he did not hear the conversation between the complainant and the appellant. In his cross-examination, he has further stated that he had not seen Rs. 100/- being recovered from the appellant and he does not know where the appellant was sitting in his office. He has further stated that he had not gone inside the office as also he did not know whether Tahsildar is sitting in the office or not. Thus, version of the two witnesses one being the witness of the trap, C.B. Singh, P.W. 1, Ram Bahadur Singh, Head Constable, P.W. 4, along with the trap team, is contradictory to each other not only with regard to place where money was given by the complainant Anand Ram, P.W. 6 to the accused appellant. According to the trap witness, C.B. Singh, P.W. 1, the complainant Anand Ram went inside the office and came out after 15 minutes and gave signal whereafter he along with trap team including policemen went inside and money was recovered from the accused and when he was sitting inside the office whereas according to Ram Bahadur Singh, P.W. 4, money was given to the accused in the Pan Shop. Though, in examination-in-chief, Ram Bahadur Singh, P.W. 4 has stated that upon being asked by Shri Toppo, currency note of Rs. 100/- was recovered from the pocket of the appellant. In his cross-examination, he has stated that currency note of Rs. 100/- was not recovered in his presence.

Anand Ram, P.W. 6 has stated that he had gone to the office then came along with the accused appellant and both of them went to the Hotel wherefrom accused proceeded to Pan Shop and sat there. He has further deposed in examination-in-chief that appellant asked him, as to how he has come, he said that he brought Rs. 100/- and then handed over to the appellant who kept the same in his pocket, and thereafter, officers arrived there and surrounded the appellant and the accused took out the money from his pocket. Thus, the story of acceptance as stated by the complainant-Anand Ram, P.W. 6 is not supported by the independent trap witness C.B. Singh, P.W. 1. There is serious contradiction in the testimony of the complainant, Anand Ram, P.W. 6 and the independent trap witness C.B. Singh, P.W. 1 with regard to place where money was given by the complainant to the accused appellant. The prosecution story of acceptance of money by the appellant is therefore not corroborated by the independent witness C.B. Singh, P.W. 1. The said independent witness was brought by the prosecution, for the specific purpose of witnessing the whole incident. According to his testimony, the complainant-Anand Ram had gone inside the office and came out after 15 minutes and gave signal whereafter trap team inside and money was recovered. Thus, the evidence of acceptance is also not corroborated by the independent trap witness.

In the light of the clear evidence of an intention on the part of the complainant to falsely implicate the accused appellant, as has come out in the testimony of Tulsi Ram, P.W. 8, failure of the prosecution to prove demand as well as acceptance beyond reasonable doubt, mere recovery from the appellant is not sufficient to hold the appellant guilty of commission of offence u/s 7, 13 (1)(d) read with Section 13(2) of the Act.

In the case of V. Venkata Subbarao Vs. State, represented by Inspector of Police, A.P., , it has been held that in order to prove the Charges u/s 7, 13(1)(d) of the Prevention of Corruption Act, it is obligatory on the part of the prosecution to prove that the accused made any demand of bribe and the statutory presumption u/s 20 of the Prevention of Corruption Act that the accused has accepted the money towards bribe cannot be accepted unless and until it is proved that there was some motive or reward for which the demand of bribe was made and the demand of bribe is proved. In the case of T. Subramanian v. State of T.N. (2006) 1 SCC 401, it has been held that mere proof of receipt of money by the accused in absence of proof of demand and acceptance of money as illegal gratification would not be sufficient to establish the guilt of the accused. In the case of Sita Ram Vs. The State of Rajasthan, , the Supreme Court held that when story of demand of bribe by the accused appellant from the complainant was not proved and even story of demand of money by the complainant was not established beyond reasonable doubt, the rule of presumption that the money was accepted as bribe could not be resorted in order to convict the accused. In Suraj Mal Vs. State (Delhi Administration), , it has been held that in case of bribery, mere recovery of money divorced from the circumstances under which it is paid, it would not be sufficient to convict the accused when the substantive evidence in the case, is not reliable. In Jagdish Chandra Makhija Vs. State of Madhya Pradesh, , it has been held that in a trap case when initial part of the story of demand and offer is found to be untrustworthy, testimony of the complainant cannot be accepted.

From the evidence of the prosecution itself, as deposed by B.L. Patel, P.W. 3, it is proved that the appellant was not holding the charge of concerned case, in connection with which he is alleged to have demanded bribe. It was only on that date i.e. on 16-1-1990 as B.L. Patel, P.W. 3, who was the Incharge Clerk was not available, that concerned file was dealt with by the appellant. Therefore, the allegation of the complainant that on 3-2-1990, the appellant demanded bribe for bringing that case to an end, creates serious doubt and possibility of false implication in view of the testimony of Tulsi Ram, P.W. 8 cannot be ruled out.

Learned State counsel placed reliance in the case of State Rep. by C.B.I., Hyderabad (supra). In that case, after going through the evidence available on record, the Supreme Court found the story of the prosecution regarding demand of bribe proved in the circumstances, that accused therein was in a position to extend the benefit of award of contract to the bribe giver. It was in that background, proof of demand and also the evidence of acceptance that the positive test of Sodium Carbonate Solution and presence of Phenolphthalein Powder were considered to be strong incriminating circumstances to prove the guilt of the accused. The facts of. the present case is clearly distinguishable as in the present case, the prosecution has failed to prove demand and there is clear evidence of false implication and further that the accused appellant was not in a position to extend the benefit or advantage as except on 16-1-1990, he was not In charge of the concerned case, in connection with which, bribe was alleged to be demanded much less on 3-2-1990, in view of the evidence of B.L. Patel, P.W. 3.

In the case of A. Subair Vs. State of Kerala, , it has been held that:

The legal position is no more res Integra that primary requisite of an offence u/s 13(1)(d) of the Act is proof of a demand or request of valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence u/s 13(1)(d) cannot be held to be established.

Mere recovery of currency notes (Rs. 20/- and Rs. 5/-) denomination, in the facts of the present case, by itself cannot be held to be proper or sufficient proof of the demand and acceptance of bribe. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence.

View taken in the case of Suraj Mal (supra), was reiterated in the case of Anand Kumar Vs. State of M.P., , holding that mere recovery of tainted 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. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in-the absence of reliable evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. In the final analysis, the judgment of conviction and order of sentence passed by the Court below is not sustainable in the eye of law and is liable to be set aside and it is hereby set aside. Appeal is allowed. As the appellant died during the pendency of the appeal, no further orders are required to be passed.