Laxmidas Manikpuri and Others vs State of Chhattisgarh and Others

Manindra Mohan Shrivastava, J.—This appeal is directed against the judgment of conviction and order of sentence dated 15th June, 1994 passed by learned 1st Additional Sessions Judge & Special Judge, Bilaspur, in Special Criminal Case No. 1/88, whereby and whereunder the deceased-appellant Shantidas was held guilty of commission of offence under Sections 161 of IPC and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 of the IPC and sentenced to undergo R.I. for 1 year and fine of Rs. 1000/- and in default of payment of fine, additional R.I. for 3 months. Case of the prosecution is that the deceased-appellant; on the date of incident, was posted as Patwari of Village-Bhaison. It is the case of the prosecution that the complainant-Bodhwa approached the appellant for mutation and correction of revenue records on the basis of registered sale deed (Ex. P-4), by which, land was purchased in favour of his sons Shriram, Balaram, Balmiki and Jagdish, who had purchased land from one Hira Singh vide registry (Ex. P-4). It is the case of the prosecution that the appellant demanded bribe of Rs. 450/-, which the complainant was unable to pay and he proposed to pay Rs. 210/-, which was not accepted by the appellant. Further case of the prosecution is that the complainant again contacted the appellant few days before 19-3-1986, on which date the appellant insisted for bribe. As the complainant was not willing to give any bribe, a complaint (Ex. P-1) was lodged in the office of the Dy. Superintendent of Police, Vigilance Bilaspur. On receipt of complaint, preparation for trap was initiated. Two panch witnesses were called, who are stated to have verified the complaint. Thereafter, the demonstration of sodium carbonate solution with phynolpthelein powder was given to the complainant in the presence of panch witnesses. Complainant produced four notes of Rs. 100/- and one of Rs. 50/-. Their numbers were noted and phynolpthelein powder was smeared and then it was kept in the pocket of the complainant. Record of pre-trap proceedings was prepared vide pre-trap Panchnama (Ex.-P-2). Thereafter, the trap party alongwith the complainant proceeded to village Bhainso. According to prosecution story, complainant went inside the office/Gram Sachivalaya and handed over the tainted money to the appellant and then came out to give signal, whereafter trap party along with panch witnesses arrived at the spot and the appellant was searched. Some currency notes, not being tainted money were recovered from the pocket of the appellant. The appellant was thereafter inquired about the tainted money and when search was carried out, currency notes were found wrapped in an application for mutation kept inside the sale deed documents. All these documents were found kept inside the mutation register kept in the office. Thereafter, hands of the appellant, complainant, witnesses were washed. Currency notes and the application were also dipped in the solution of sodium carbonate. The trap party prepared separate bottles containing wash as described above. Vide Ex. P-7, currency notes, mutation register, were shown to have been seized from the appellant in the presence of panch witnesses--N.G. Lokhande (P.W. 1) and R.C. Panda (not examined). Vide Ex. P-8, currency notes of Rs. 120/- other than tainted money were also seized from the appellant. Trap Panchnama in Ex. P-3 was prepared. Map of the spot was prepared in Ex. P-6 by Dankeshwar Singh (P.W. 4) and dehati nalishi in Ex. P-9 was recorded followed by FIR (Ex. P-10). The samples drawn during trap were sent to FSL, Sagar (Ex. P-11) and report of FSL was received (Ex. P-12). Sanction for prosecution was obtained vide order dated 12-3-1987 (Ex. P-14). On the basis of material contained in the charge sheet learned trial Court framed charges on 14-10-1988 for alleged commission of offences u/s 161 of the IPC and Section 5(1)(d) read with Section 5(2) of the Act of 1947. The appellant abjured guilt and demanded trial. In order to prove its case, the prosecution examined as many as 7 witnesses. The appellant was examined u/s 313 of the Cr. P. C. in respect of incriminating circumstances and evidence appearing against him, which were denied by him. The appellant came with the defence that the allegation of demand of bribe is false as the mutation and entries were already made in favour of purchaser on 5-3-1986. He stated that on his complaint, Sukhdas, Kotwar of village Jhilmili and Mandas, Kotwar of village-Bhainso were suspended and the complainant-Bodhawa approached him on their behalf to take back the complaint, which was not acceded to, and therefore, at the instance of those two Kotwars, complainant lodged false report. He also stated that he had not given the stamp papers and the tainted money, but, they were seized from the spot and he was compelled to sign the seizure memo. In support of his defence, the appellant examined Anandram as D.W. 1.

Relying upon the case of the prosecution and disbelieving the defence of the appellant, learned trial Court held the appellant guilty of alleged commission of offence and convicted and sentenced him as described above, against which instant appeal has been filed.

Assailing the correctness and validity of impugned judgment of conviction and order of sentence, leaned counsel for the appellant argued that the prosecution has failed to prove beyond reasonable doubt the demand, acceptance and recovery. It is contended that the story of demand by the appellant is liable to be disbelieved because much before the date on which the complaint was lodged, the necessary correction of revenue records had already been done and entries to that effect were also made in the mutation register (Ex. P-15) by the appellant on 5-3-1986. It is also contended that even according to the complainant (P.W. 3), he is illiterate and can neither read nor write and he deposed before the Court that he does not know as to what is written in Ex. P-1 and did not disclose before the Court as to who prepared/typed the complaint. Therefore, present is a case where the complainant was used by those two Kotwars against whom complaint was made by the appellant and they were suspended. He also stated that evidence has come on record to show that the complainant is next door neighour of Mandas, Kotwar of village-Bhaison, who was suspended on the complaint of the appellant. Next submission is that the conduct of the complainant is unusual as he never informed anybody either regarding demand or regarding lodging of complaint, not even to his own sons in whose favour the mutation was to be made and who were the actual purchaser of the land vide registered sale deed (Ex. P-4). It is also contended that even according to the prosecution witnesses, at the time when the complainant met the appellant and trap was arranged, two persons namely Anandram and Udayram were present. During investigation, their statements were also recorded, but, prosecution did not examine both of them, whereas the appellant examined Anandram as defence witness, who has not supported the case of prosecution. Learned counsel for the appellant also highlighted that the story of demand in the facts and circumstances of the case, which makes probable false implication, is liable to be disbelieved in the absence of independent corroboration because Rameshwar who is stated to be present at the time of demand has not been examined and those who were present at the time when the complainant met the appellant have not supported the case of the prosecution. Out of two independent panch witnesses, only one has been examined, whereas other has been given up. N.G. Lokhande (P.W. 1) does not say that he either witnessed transaction or board any conversation between the appellant and the complainant. Therefor on the absence of any independent corroboration, the story of demand and acceptance are highly doubtful. It is further contended that the tainted notes were not recovered from the possession of the appellant, but, they were wrapped in application dated 12-6-1985 (Ex. F-5), which itself was kept within the folds of registered sale deed. The sale deed was found kept inside the mutation register (Ex. P-15). Therefore, the possibility of false implication cannot be ruled out that the tainted currency notes were secretly passed on to the appellant without his knowledge that the revenue documents contain those notes. Learned counsel for the appellant lastey submitted that the evidence of panch witness--N.G. Lokhande (P.W. 1) explains how the appellant came in contact of the traces of phynolpthelein powder, possibly on account of handling the sale deed, within the folds of which tainted money was wrapped in application dated 12-6-1985. Therefore, the conviction is unsustainable in law.

On the other hand, learned counsel for the State supported the judgment of conviction and order of sentence passed by the Court below. It was argued that the complainant (P.W. 3) has emphatically stated in his evidence that when he approached the appellant in connection with correction of revenue records and mutation on the basis of sale deed, the appellant demanded Rs. 450/-. He has proved the complaint (Ex. P-1) submitted by him in Vigilance Office. The proceedings of pre-trap Panchnama have been proved by the Investigating Officer-M.K. Heeradhar (P.W. 6), which is fully corroborated by the evidence of panch witness--N.G. Lokhande (P.W. 1). It is also argued by learned counsel for the State that the truthful version of trap is proved by the reliable and cogent evidence of independent panch witness--N.G. Lokhande (P.W. 1), and Investigating Officer--M.K. Heeradhar (P.W. 6). Learned counsel for the State submitted that complainant has clearly stated that the tainted money was given by him to the appellant and there is clinching evidence available on record to prove that the currency notes were recovered from inside the mutation register which is kept by the appellant with him in his office. Therefore, the currency notes were recovered from the possession of the appellant only. He also contented that the acceptance and recovery of tainted notes is proved by a very strong corroborative evidence of positive FSL phynolpthelein test, which has shown that traces of phynolpthelein were found in the hand wash of the appellant. This proves that the appellant had handled the currency notes and the appellant has failed to offer any explanation as to how he handled the currency notes. Therefore, the demand, acceptance and recovery all are proved by reliable and trustworthy evidence of the prosecution and, therefore, the conviction does not warrant any interference.

I have considered the rival submissions made by learned counsel for the parties and perused the records.

In C.K. Damodaran Nair Vs. Govt of India, , the Supreme Court had an occasion to consider the meaning and import of the word "obtained" used in Section 5(1)(d) of the Prevention of Corruption Act, 1947 [now Section 13(1)(d) of the Act, 1988], and it was held: (SCC p.483, para 12):

The position will, however, be different so far as an offence u/s 5(1)(d) read with Section 5(2) of the Act is concerned for such an offence prosecution has to prove that the accused ''obtained'' the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption u/s 4(1) of the Act as it is available only in respect of offences under Sections 5(1)(a) and (b)--and not under Sections 5(1)(c), (d) or (e) of the Act. ''Obtain'' means to secure or gain (something) as the result of request or effort (Short Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence u/s 5(1)(d) of the Act unlike an offence u/s 161 IPC, which, as noticed above, can be, established by proof of either ''acceptance'' or ''obtainment''.

Relying upon the aforesaid decision, in another decision in the case of A. Subair Vs. State of Kerala, , in para 15 at page 591, Supreme Court held:

15...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 demand or request of a 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.

Therefore, in order to come to the conclusion as to whether a case of conviction is made out it is required to be seen as to whether the prosecution has proved beyond reasonable doubt, the demand and acceptance of bribe by the accused.

In the case of 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 Indian Penal Code 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 Govt. servant was examined by the Supreme Court in its subsequent decision in the case of M.O. Shamsudhin Vs. State of Kerala, wherein, it was held as under:

Now confining ourselves to the case of bribery it is generally accepted that the person offering a bribe to a public officer is in the nature of an accomplice in the offence of accepting illegal gratification but the nature of corroboration required in such a case should not be subjected to the same rigorous tests which are generally applied to a case of an approver. Though bribe-givers are generally treated to be in the nature of accomplices but among them there are various types and gradations. In cases under the Prevention of Corruption Act the complainant is the person who gives the bribe in a technical and legal sense because in every trap case wherever the complaint is filed there must be a person who has to give money to the accused which in fact is the bribe money which is demanded and without such giving the trap cannot succeed. When there is such a demand by the public servant from a person who is unwilling, and if to do public good approaches the authorities and lodges a complaint, then in order that the trap succeeds he has to give the money. There could be another type of bribe-giver who is always willing to give money in order to get his work done and having got the work done he may send a complaint. Hence he is a particeps criminis in respect of the crime committed and thus is an accomplice. Thus there are grades and grades of accomplices and therefore a distinction could as well be drawn between cases where a person offers a bribe to achieve his own purpose and where one is forced to offer bribe under a threat of loss or harm that is to say under coercion. A person who falls in this category and who becomes a party for laying a trap stands on a different footing because he is only a victim of threat or coercion to which he was subjected to. Where such witnesses fall under the category of ''accomplices'' by reason of their being bribe-givers, in the first instance, the court has to consider the degree of complicity and then look for corroboration if necessary as a rule of prudence. The extent and nature of corroboration that may be needed in a case may vary having regard to the facts and circumstances.

What therefore, emerges from the principles enunciated by the Supreme Court is that the complainant''s evidence has to be scrutinized carefully and the Court has to consider the degree of complicity and then look for corroboration, if necessary, as a rule of prudence. The extent and nature of corroboration that may be needed in a case, may vary, having regard to the facts and circumstances.

Evidence on record led by the prosecution, as also by the defence, therefore, is required to be scrutinized in order to find out as to whether the prosecution has been able to prove beyond reasonable doubt the demand, acceptance and recovery.

The complaint (Ex. P-1) is a typed document which bears the thumb impression of the complainant. Complainant--Bodhwa (P.W. 3) has stated in para-11 of his cross-examination that he is illiterate. He has further deposed that he has no information as to what has been written in complaint (Ex. P-1), nor he is in a position to state what are its contents. He further deposes that he cannot say as to who typed the application (Ex. P-1). This statement of the complainant raises doubt with regard to genuineness of complaint because even it if is accepted that complainant was illiterate villager, he is expected to at least disclose as to whom he approached for getting the complaint prepared and where it was typed written and by whom. This shows that the complainant did not disclose truth in his evidence and hided material fact with regard to preparation of typed written complaint (Ex. P-1).

In the complaint, it is written that 15 days before the date of complaint i.e. on and around 4-3-1986, the complainant approached the appellant in connection with mutation, whereupon, the appellant demanded Rs. 450/-. But the complainant offered to give Rs. 201/-, which was not accepted and thereafter, he again met, 2-3 days before the date of complaint, when the appellant insisted for Rs. 450/- for doing the work. But, in his evidence, complainant--Bodhwa (P.W. 3) says that he contacted the appellant only once on which date, he offered to give Rs. 210/- which was not accepted by the appellant, whereafter, the appellant told him to come back after 3-4 days with Rs. 450/-. In para-2 of his evidence, he deposes that after one or two days, he went to Lokayukt office at Bilaspur with Rs. 450/- and lodged complaint (Ex. P-1). He does not say that after first meeting when bribe of Rs. 450/- was demanded, he again approached the appellant 3-4 days before the date of complaint and the complaint insisted on the demand. While in the complaint, it has been written that after going to the appellant, the registered stamp papers relating to registration of sale deed were kept by the appellant, it has not been deposed before the Court that those stamp papers were kept by the appellant.

There is yet another glaring aspect of the case which renders the story of demand doubtful. The mutation register contains entry already made in favour of sons, records already corrected in the name of four purchaser/sons of the complainant-Bodhwa (P.W. 3) as early as on 5-3-1986. Even according to complainant (P.W. 3), he met the appellant 15 days before the date of complaint i.e. on 4-3-1986. The relevant revenue records were corrected by making necessary entries with regard to transfer of title under registered sale deed on 5-3-1986. If, demand was made for doing official work, question arises why would the appellant complete the work without any bribe given to him. Neither from complaint (Ex. P-1) nor from evidence of complainant-Bodhwa (P.W. 3), it has been proved that on the date i.e. on and around 4-3-1986, a deal was struck between the complainant and the appellant under which the appellant proceeded to correct the records on the assurance of payment of bribe on a future date. Both in the complaint as well as in the evidence before the Court, it is stated that though demand was made, complainant gave a counter offer of Rs. 210/- which was not accepted by the appellant. Therefore, for this reason also, demand becomes doubtful. Complainant-Bodhwa (P.W. 3) himself has deposed in para-13 of his evidence that at the time when demand of Rs. 450/- was made, Rameshar was also present. Thus, Rameshar was an important witness to provide independent corroboration of demand. The prosecution, however, has not examined the said Rameshar. Moreover, the conduct of the complainant, who is an illiterate villager, also appears to be rather unusual. He has stated that he did not disclose the story of demand to anyone in the village. What is most surprising is that he does not say that he disclosed this fact even to his sons, who are the purchaser under the registered sale deed (Ex. P-4) and in whose favour revenue records were to be mutated. This raises serious doubt on the conduct of the complainant.

The version of complainant--Bodhwa (P.W. 1) does not at all inspire confidence because he has stated that he had not given any statement to the police, but, later on, changes his version that his statement was recorded. There is material omission with regard to the manner in which bribe was given to the appellant and also what was stated by the appellant upon receipt of the money. This shows that in the light of what has been deposed by the complainant (P.W. 3), the omissions assume importance and render the evidence of complainant doubtful. In his evidence, complainant--Bodhwa (P.W. 3) stated that he went to the appellant and gave tainted money which was taken by him and thereafter complainant was told to come after four days to collect stamp papers. Except this, there is no other conversation deposed by the complainant (P.W. 3). However, this conversation that he may come after four days to collect stamp papers itself suffers from omission as it was not stated in his case diary statement. Thus, even according to the complainant, at the time when he reached the appellant, appellant did not raise any demand, as according to him, he straightway handed over bribe to the complainant.

There were two panch witnesses who participated in the trap proceedings, one being N.G. Lokhande (P.W. 1) and the other being R.C. Panda. The prosecution has not examined R.C. Panda The sole panch witness--N.G. Lokhande (P.W. 1) deposed in para-20 of his testimony that at the time of giving of currency notes by the complainant to the appellant, he was not present and he has not seen where appellant kept the notes after receiving from Bodhwa. There is no evidence that he heard conversation between the complainant and the appellant. Therefore, there is no independent corroboration of demand at the time of give and take of money.

Panch witness--N.G. Lokhande (P.W. 1) as well as Investigating Officer--M.K. Heeradhar (P.W. 6) both have deposed presence of other persons. While N.G. Lokhande (P.W. 1) has deposed in para-23 of his testimony that two persons were present, Investigating Officer M.K. Heeradhar (P.W. 6) has deposed in para-4 of his deposition that complainant went inside of Sachivalaya alongwith one Udayram and when upon receiving signal, he alongwith members of trap party reached the spot, one Anandram was also sitting near the appellant. It is relevant to refer to the evidence of Dankeshwar (P.W. 4), who has prepared the map (Ex. P-6). In para-2 of his deposition, Dankeshwar Singh says that he prepared the map after verifying from witnesses. In para-4 of his cross-examination, he states that map Ex. P-6 was prepared as stated by witnesses-Bodhwa and Anandram. According to map (Ex. P-6) at spots-2 & 6, Anandram Patel and Udayram are shown to be present. The appellant is shown at spot-1. It is clear that according to the prosecution case, these two persons namely-- Anandram and Udayram were very much present at the time when trap team arrived and appellant was searched and tainted money recovered. In para-10 of his deposition, M.K. Heeradhar says that he had taken the case diary statements of Udayram as well as Anandram. However, none of them were examined by the prosecution. If according to both Investigating Officer as well as panch witness, Anandram and Udayram were present at the crucial time when the complainant met with the appellant for giving bribe money, non-examination of these two persons as prosecution witness, raise doubt with regard to truth of the prosecution story. It is the appellant who has examined Anandram as the sole defence witness, who has not at all supported the story of any demand. Udayram has not been examined. There is one more important circumstance of the case which renders it unsafe to accept the story of demand on the basis of complaint and evidence of complainant without cogent corroboration. Complainant-Bodhwa (P.W. 3) has admitted in para-12 of his cross examination that he maintains cordial relations with Kotwar-Mandas and his wife, but claims ignorance regarding any suspension of Mandas on the report of the appellant. Specific suggestion has been given to him that he had approached the appellant to recommend in favour of Mandas. Dankeshwar Singh (P.W. 4) has stated in part a-5 of his deposition in the cross-examination that on the complaint of the appellant, Mandas was suspended and he has also admitted that the appellant had lodged complaint against Kotwar of village Jhilmili. He has clearly deposed that complainant--Bodhwa and Mandas are next door neighbour. It has to be noted that complainant has not disclosed and rather suppressed who prepared the complaint (Ex. P-1).

In view of the above discussion, applying the ratio of law laid down by the Supreme Court in the decisions referred to above, this Court finds the story of demand highly doubtful and it would be unsafe to convict the appellant on such shaky evidence with regard to demand.

With aforesaid background of doubtful story of demand, close scrutiny of the evidence on record makes acceptance and recovery both highly doubtful. Firstly-even according to the evidence of complainant-Bodhwa (P.W. 3), he met with the appellant in his office and handed over currency notes of Rs. 450/-. According to him, the only conversation which took place was that the appellant advised him to collect stamp papers after four days. This conversation is also not free from doubt as this suffers from omission in view of evidence in para 19 of the complainant. Secondly, out of two persons, who are said to be present namely-Udayram and Anandram, whose diary statement were also recorded, Udayram has not been examined. Anandram has been examined as defence witness and he has not at all supported that story of the prosecution, on the other hand, his evidence is that the complainant left stamp papers while the appellant had gone inside his house to have a cup of tea. According to him, there was neither any conversation much less payment of bribe by the complainant to the appellant. Moreover, independent panch witness N.G. Lokhande (P.W. 1), has neither seen the transaction nor heard the conversation. As Udayram has not been examined and in the light of what has been stated by Anandram, the sole defence witness; it has become highly doubtful whether the appellant accepted currency notes or the currency notes were hided within the folds of application dated 12-6-1985, which, in turn, was kept inside the folds of the stamp papers/registered sale deed. N.G. Lokhande (P.W. 1) has deposed in para-6 that when he asked the appellant whether he has taken money from Bodhwa, the appellant stated that he has not taken money, but only the registry papers. The story of acceptance, therefore, cannot be believed.

In the present case, there is no recovery of tainted money from the possession of the appellant. According to N.G. Lokhande (P.W. 1) when trap party arrived and the appellant was searched, tainted money was not found in his pocket or in his possession but only Rs. 120/- other than tainted money were found. He deposes in para-8 of his evidence that the register was picked up and from it, registry papers were taken-out, inside which, the application and tainted money was found. In para-10, he has further stated that the currency notes were found wrapped in the application. Investigating Officer-M.K. Heeradhar (P.W. 6) deposes in para 4 of his testimony that when the appellant was searched, tainted money was not found but only Rs. 120/- other than tainted money was found there. Anandram, whose presence is provided by overwhelming evidence laid by both by prosecution as well as defence, shows that the complainant left registry papers inside the register and left the place while the appellant had gone inside his room to have a cup of tea. In these circumstances, reasonable doubt is created as to whether complainant at all handed over currency notes to the appellant or the currency notes were planted and hided within the folds of registered sale deed papers and handed over to the appellant which were taken by the appellant without knowing that the currency notes were kept inside the same. Much emphasis has been laid by learned counsel for the State that positive test showing traces of phynolpthelein in the hand wash of the appellant is a strong incriminating evidence of acceptance of bribe by the appellant. In this regard, it has to be noted that the prosecution evidence itself provided possibility of traces of phynolphthelein coming in contact with the hands of the appellant. The tainted money was found wrapped in the application dated 12-6-1985, which, in turn, was kept inside the registered sale deed papers. According to the evidence of N.G. Lokhande (P.W. 1), panch witness, the explanation offered by the appellant was that he had only taken the registry papers and not money. Therefore, possibility of traces of phynolpthelein coming into the hands of the appellant while handling the registry papers by the appellant cannot be ruled out.

Even otherwise, it is to well settled legal position that where demand itself has become doubtful, recovery cannot be made a basis to sustain the conviction.

In the case of T. Subramanian Vs. State of Tamil Nadu, 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 to be resorted in order to convict the accused. In the case of 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 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.

In the case of A. Subair (supra), it has been held that:

The legal position is not 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 of 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 C.M. Girish Babu Vs. CBI, Cochin, High Court of Kerala, 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 demand of bribe or to show that the accused voluntarily accepted the money.

The result of the aforesaid discussions is that the prosecution has failed to prove the story of demand, acceptance and recovery beyond reasonable doubt. Therefore, the conviction of the deceased-appellant cannot be sustained in law and the same is therefore liable to be set aside.

The appeal is accordingly allowed. Impugned judgment of conviction and order of sentence passed by the Court below is set aside and the conviction of the deceased-appellant is held illegal. As the appellant died during the pendency of the appeal, no further orders are required to be passed.